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the request of DeGuerin, Zimmermann and Koresh, himself. But at no time were they allowed to participate in the negotiations.

e. Did the FBI take any of this advice?

It goes against standard negotiation policy to allow outsiders to participate in serious and dangerous "hostage" negotiations. Consistent with the advice of FBI experts, the negotiators in Waco did not allow outsiders to participate in negotiations out of fear that something they said might inflame David Koresh. Arnold and Tabor were no exception, they were ignored.

From the very beginning, negotiators failed to take seriously the point of view of the Davidians.440 According to the Justice Department Report, "There were certain areas of activity in which the FBI did not seek outside help. The FBI did not request assistance . . . with negotiations, since the FBI's best negotiators were assigned to Waco throughout the 51-day standoff." 441 It appears that the FBI paid no attention to those experts who believed Koresh could have been reasoned with within the proper religious and biblical context.

Koresh and Davidians talked frequently in religious terms. In their book, Tabor and Gallagher quote the following passage from the negotiation tapes to point out frustration with the FBI's lack of familiarity with theology:

HENRY. Let's not talk in those terms, please.

KORESH. No. Then you don't understand my doctrine.
You don't want to hear the word of my God.

HENRY. I have listened to you and listened to you, and I believe in what you say, as do a lot of other people, but the, but the bottom line is everybody now considers you David who is going to either run away from the giant or is going to come out and try to slay the giant. For God's sake, you know, give me an answer, David. I need to have an answer. Are you going to come out?

KORESH. Right now, listen.

HENRY. Right now you're coming.

KORESH. "He that dasheth in pieces is come up before thy face: keep the munition." What's the munition? "Watch the way."

HENRY. One of the things, one of the things is I don't understand the scriptures like you, I just don't.

KORESH. Okay, if you would just listen, then I would show you. It says here-it says here, "The Chariots shall be with flaming torches." That's what you've got out there [referring to the tanks].442

FBI negotiators maintain that they never discounted Branch Davidian beliefs. However, in one conversation with Koresh, Byron

440 Id. at 362. Cavanaugh testified before the subcommittees, "I fully respected their religious beliefs. I think all the other negotiators did, also. I do not mean to be sarcastic, but my feeling was they can worship a golden chicken if they want to, but they cannot have submachineguns and handgrenades and shoot Federal agents. I played the role as policeman. I did not try to fool the Davidians that I was something else. I think that is one reason that Koresh certainly trusted me from the beginning." Id.

442 James Tabor and Eugene Gallagher, Why Waco? 110 (1995).

Sage responds to another long dissertation by Koresh. Sage says, "That's garbage." Later in that same conversation, Sage says, “No one in the FBI has ever scoffed at your beliefs." 443

In their book about Waco, Tabor and Gallagher are critical of the negotiations. They write, "Koresh's interpretations went completely over the heads of the FBI negotiators, who were understandably put off by this approach." 444 Despite the fact that the overwhelming majority of David Koresh's communications involved intense and lengthy dissertations on Biblical text, the FBI refused to allow a religious expert to engage David Koresh or to consult in negotia

tions.

Much of the criticism of negotiations centered on the fact that the FBI never engaged Koresh or the Davidians in a discussion of theology. Noesner said "there are two consistent themes that you will hear from every mental health expert that knows anything about crisis intervention, crisis negotiation, and that is that you neither embrace someone's belief system nor do you discount it." 445 Some are convinced that a prerequisite to successful negotiations with the Davidians is a firm grasp of the religious doctrine on which they base their beliefs.446 In hearings before the subcommittees, Arnold testified that the FBI negotiators were ill prepared for productive discourse with the Davidians, "[The negotiators] were not able to perceive the meaning of the religious language the Davidians were using. They were not able to understand the actions the Davidians took. Had they had knowledge of the religious faith of the Davidians, this story could have ended in a much better and happier way." "447 Others simply suggested that negotiators should search out experts to grasp better the subjects of the negotiations. As Representative Henry Hyde, chairman of the Committee on the Judiciary, said, "There is an unwillingness to understand or believe that there are people in the world who are persons of belief and they believe strange things by our standards. [H]ad the understanding been these weren't hostages, these were willing members of a religious group, and to get in there and to dissipate them would take persuasion, argumentation from their frame of reference, not tear gas and tanks." 448 With at least a good background on the subject of religion, particularly the religious dogma professed by the Davidians, the negotiators could have better manipulated the conversations.

2. OTHERS WHO CONTRIBUTED INFORMATION

It is clear that all of the attention focused on Waco and the standoff at Mount Carmel encouraged many people to contribute their ideas to the negotiations. The method for processing this in

443 Negotiation transcripts, March 17, 1993. 444 Id.

445 Hearings, Part 2 at 325.

446 Nancy T. Ammerman, Waco, Federal Law Enforcement and Scholars of Religion, in Armageddon in Waco: Critical Perspectives on the Branch Davidian Conflict, 282-283 (Stuart Wright ed., 1996). Ammerman writes, "Did [the FBI] not know that apocalyptic beliefs should be taken seriously, that they were playing the role of the enemies of Christ? Did they not know that any course of action that did not seem to come from the Bible would be unacceptable to these students of Scripture? I have yet to encounter a single sociologist or religious studies scholar who has the slightest doubt that the strategies adopted by the FBI were destined for tragic failure." Id.

447 Hearings, Part 2 at 144-145.

formation is central to discerning whether any valuable advice or data was omitted or, inadvertently or intentionally, ignored. In this case, as in others, the actions taken by the FBI depended largely upon the information used, and to whom it was made available when key decisions were being made.

a. How much information was coming in?

It is clear that a great deal of unsolicited information was being sent to Waco. In addition to people honestly offering assistance, a variety of people came to Waco to express a variety of sentiments to officials onsite. 449 This was in addition to the experts retained by the FBI. As the Justice Department report suggests, "The FBI also received unsolicited advice and offers of assistance from many individuals; not surprisingly, this input was rarely useful." The report continues, "A smaller number of offers came from individuals lacking a firm grip on reality, such as people claiming to be God or Jesus offering to 'order' Koresh to leave the compound."

Negotiator Byron Sage recounted in a Justice Department interview that "an incredible number of people called the negotiators offering help.450 [I] tried to field these offers early on, but then [I] farmed it out to the behavioral science people to weed out the good stuff." 451 Others indicate that information was indiscriminately delivered to negotiators.452 According to Dr. Stone, "all kinds of experts. . . allegedly were consulted . . . and took it upon themselves to offer unsolicited advice." Stone continues, "the prevailing pattern in the information flow during the crisis was for each separate expert to offer the FBI an opinion." The problem, it seems, was too much information.453

b. The method set up to communicate with people calling to help

Many people called who were deemed "lacking a firm grip on reality." When asked about such contacts with agents and officials in Waco, Chief Negotiator Gary Noesner said he knew nothing about them. Offers for help, however, were referred to the consulting experts. The experts analyzed the information provided or the assistance offered and passed it along to the negotiators in the form of

449 Justice Department Report at 156. The report discusses the among and type of information coming into Waco. "The FBI also received unsolicited advice and offers of assistance from many individuals; not surprisingly, this input was rarely useful." For example, on March 16, 1993 a well-known rock band contacted the FBI and offered to perform outside the Mount Carmel Residence, and to play a song that U.S. helicopters broadcast at enemy troops to demoralize them during the Vietnam war. On the other hand, the FBI received an unsolicited letter from the Harvard Negotiation Project containing thoughtful and specific suggestions to assist the negotiators in formulating a framework for further negotiations with Koresh. A smaller number of offers came from individuals lacking a firm grip on reality, such as people claiming to be God or Jesus offering to "order" Koresh to leave the compound. One person was arrested on his way to the compound brandishing a samurai sword, which he said "God had told him to deliver to Koresh." Id.

450 All incidents investigated by the Department of Justice contain interviews of those involved in the incident. This interview was conducted in conjunction with the investigation of the incident at Waco.

451 U.S. Department of Justice, record of interview of Byron Sage by Susan DeBusk (August 26, 1993).

452 Stone Report at 43.

453 Hearings, Part 2 at 145. Tabor registers his sympathy for the FBI in the fact that they were on information overload. He also suggest some procedural way of compiling information

memoranda.454 Rarely did these people talk to negotiators, themselves, and never were they allowed to speak to the Davidians.

Sage maintains that the theologian on whom he depended the most was Glenn Hillburn, the chairman of the Baylor School of Religion. In addition to his role as religious advisor to Sage, Hillburn "provided... his feeling as to the credibility and bona fides of people who called in offering their help." 455 In one instance, an offer of assistance was made by the Harvard Negotiation Project.456 The letter sent to Waco was written by Roger Fisher, director of the Harvard Negotiation Project, and was based on an analysis of the situation that was underway at the project and utilized the principles of negotiation that the project taught every day. The proposal made in the letter to Jamar included putting together "a small team. . . as familiar as possible with Koresh and the situation inside the residence" that would "find a potential 'third party' and work urgently on putting together a package that would be attractive to Koresh." The letter suggested that the Government allow "the third party to come to Waco and make the offer, which will inherently expire if not accepted before the third party leaves Waco in two or three days." 457 The advice that the Harvard Negotiation Project offered was disregarded. Although the letter is mentioned in the Justice Department report, there is little evidence that the negotiators took any of that advice.

Despite a steady flow of information and advice, the FBI did not make any serious attempt to evaluate and disseminate the suggestions that came to its attention. The Justice Department maintains that it kept "meticulous" 458 track of the offers of assistance. It also concedes that it did not need or accept help in many areas.459 Yet it is difficult to understand why the offers of help from respected, credible religious experts and experts in negotiations were rejected.

D. THE FBI'S FAILURE TO FOLLOW ITS OWN EXPERT'S
RECOMMENDATIONS

1. WHAT THE FBI'S OWN EXPERTS RECOMMENDED

According to Stone, "the FBI investigative support unit and trained negotiators possessed the psychological/behavioral science expertise they needed to deal with David Koresh and an unconventional group like the Davidians." 460 Among the many experts, the talent was extraordinary and the amount of information they had

454 U.S. Department of Justice, record of interview with Byron Sage by Susan DeBusk (August 26, 1993). In this interview, Sage recounted how he got information from those offering assistance. In that interview, Sage says, "Many of the contacts with experts would be through the behavioral science people rather than through the negotiators. The negotiators would get the end result of their input from people like Smerick, Young and Van Zandt."

455 Id.

456 The Harvard Negotiation Project is an enterprise of Harvard Law School that attempts to present alternatives to traditional negotiation techniques.

457 Letter from the Harvard Negotiation Project to Jeffrey Jamar (March 29, 1993). 458 Justice Department Report at 156.

459 Id. at 156 "Throughout the Waco standoff, the FBI meticulously kept track of all unsolicited offers of assistance, and followed up on those that seemed to promise any reasonable chance of producing helpful information. There were certain areas of activity in which the FBI did not seek outside help. For example, the FBI did not request assistance from any outside law enforcement agencies in performing any of its tactical operations; it did not request assistance with negotiations, since the FBI's best negotiators were assigned to Waco throughout the 51-day standoff, and it did not consult with outside experts regarding the decision to play loud music and Tibetan Monk chants over the loudspeakers to irritate those inside the residence." Id.

to use was enormous. It was not difficult for the experts to come

to a consensus.

The clearest consensus among the FBI experts and others was not to provoke the Davidians. The experts feared that any provocation could lead Koresh to initiate the fiery end he predicted. FBI experts agreed with this approach.461 As Stone writes in his separate evaluation, "I believe the FBI behavioral science experts had worked out a good psychological understanding of Koresh's psychopathology. They knew it would be a mistake to deal with him as though he were a con-man pretending to religious beliefs so that he could exploit his followers." 462

Smerick coauthored six memoranda on David Koresh based on Koresh's past behavior and listening to negotiations. In each of the early memoranda, Smerick proposed that the FBI approach the Davidians with caution and avoid provocation. Smerick said that the cautionary memoranda were written expressly because "the FBI commanders were moving too rapidly toward a tactical solution, and were not allowing adequate time for negotiations to "463 In his final memorandum, Smerick proposed "other measures'... because negotiations had met with only limited success." 464 As the Justice Department Report maintains, "those other measures included sporadically terminating and reinstating of utilities; moving equipment and manpower suddenly; downplaying the importance of Koresh in the daily press conferences; controlling television and radio reception inside the compound; and cutting off negotiations with Koresh." 465 Although these suggested measures are exactly the tactics the FBI used in Waco, Smerick suggests that while the "negotiators were building bonds . . . the tactical group was undermining everything." 466 Smerick continued, "[e]very time the negotiators were making progress the tactical people would undo it." 467

During the hearings before the subcommittees, Smerick was questioned about this abrupt change in his advice; and whether senior Justice Department officials pressured him to change his advice to match the course of action preferred by the onscene commanders. Smerick testified that he felt "no overt pressure" 468 to alter his memoranda. But he said that he was aware that the FBI wanted different advice. Smerick told the subcommittees:

461 Edward Dennis summarized the opinions of the experts as follows:

On March 3, 1993 the behavioral experts wrote a joint memo recommending a strategy of trying to work within the Davidians own belief system to talk them out. They recommended acknowledging the conspiracy against the Davidians and their right to defend themselves, and creating an illusion that Koresh could win in court and in the press and would not go to jail. On March 5 behavioral experts wrote a memo advising that the negotiation strategy focus on insuring the safety of the children and facilitating the peaceful surrender of the Davidians. This memo recommended a deescalation of tactical pressure because movement of tactical personnel would validate Koresh's prophesy that his followers must die defending their faith. As an alternative tactic, the memo recommends that efforts be made to drive a wedge between Koresh and his followers by convincing them that a battle is not inevitable.

Dennis Report at 49.

462 Stone Report at 13.

463 Justice Department report at 182.

464 Id.

465 Id.

466 U.S. Department of Justice, record of interview of Peter Smerick (August 24, 1993). 467 Id.

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