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VII. THE ATTORNEY GENERAL'S DECISION TO END THE STANDOFF
A. OVERVIEW OF THE PLAN TO END THE STANDOFF
On April 12, 1993, the FBI presented Attorney General Janet Reno with a plan to end the standoff with the Branch Davidians. On April 17, 1993, the Attorney General gave her approval for the plan to be implemented on April 19. The stated mission of the plan was to "secure the surrender/arrest of all adult occupants of the residence while providing the maximum possible security for the children within the compound." A key component of the plan was the decision to use CS, a chemical riot control agent, which would be sprayed into the Branch Davidian residence in an attempt to induce the Davidians to leave. The plan was implemented on April 19, but the Davidians did not leave their residence as government officials suggested. Instead, 6 hours after the beginning of the operations, a fire erupted inside the structure, ultimately consuming it and the more than 70 persons inside.
B. THE OPERATION PLAN FOR APRIL 19, 1993
1. OVERVIEW OF THE WRITTEN OPERATION PLAN TO END THE
As early as March 22, 1993 the FBI began formulating an operation plan to end the standoff with the Davidians.494 On April 12, 1993, the FBI presented its plan to the Attorney General for her approval.495 According to the Justice Department Report, "Over the next several days the Attorney General and Senior Justice Department and FBI officials discussed, debated and dissected every aspect of the plan." 496
The operations plan provided that its mission was to "secure the surrender/arrest of all adult occupants of the residence while providing the maximum possible security for the children within the compound." The key component of the plan was the delivery of a chemical riot control agent, known as CS, into the Branch Davidian residence in order to induce the Davidians to leave. While the CS agent was being inserted, FBI officials planned to use a loud speaker system and the telephone to advise the Davidians that tear gas was being inserted into the residence to force them to leave, but that an attack was not underway. The plan also provided for a de
494 U.S. Department of Justice, Report to the Attorney General on the Events at Waco, Texas, 79 (1993) (hereinafter Justice Department Report]. Larry Potts, Assistant Director of the FBI in 1993, testified before the subcommittees that "[I]n terms of the formation of the gas plan, I think that Mr. Jamar first contacted me around March 27th or sometime near the very end of March, to indicate that such a plan was being submitted [to senior FBI officials]." Hearings, Part 2 at 480.
495 Justice Department Report at 263.
mand that all subjects leave the building and surrender to authorities. 497
The plan provided for the operation to last up to 48 hours or until all subjects had exited the residence and surrendered. The plan provided for the first insertion of CS agent to be made into the front/left portion of the residence. After a period of time, which was to be dependent on the Davidians' response to the initial delivery of the CS agent and any subsequent negotiations that were possible, an additional tear gas delivery was to be made into the back/right portion of the residence. After a third delivery of CS, into an area not specified in the plan, all subsequent deliveries of CS agent were to be made into the upper and lower windows of the residence.498
During the first three insertions, the CS agent was to be delivered into the residence by two combat engineering vehicles (CEV's), an armored vehicle similar to the Bradley Fighting Vehicle (Bradley), but which is unarmed. The CEV's at Waco were mounted with boom-like arms which were capable of penetrating the walls of the structure. Mounted on the arms of the CEV's were mechanical devices designed to spray a stream of CS agent into the holes made by the booms. After the third insertions of CS agent, the operations plan called for agents located in unarmed Bradley Fighting Vehicles to maneuver close enough to the residence so that they could fire Ferret round projectiles through the windows of the structure. These small nonexplosive grenade-like projectiles contained CS agent which would rise into the air when the projectile broke open upon impact. The use of Ferret rounds was to be in addition to continuing insertions of CS by agents in the CEV's.
The plan also provided for specific assignments for the different HRT and SWAT teams involved in the operation. It specified the maneuvers to be made by the two CEV's, the nine Bradley Fighting Vehicles, and the M-88 tank retrieval vehicle, and provided for miscellaneous administrative and logistical issues such as types of uniforms to be used and the appropriate manner for handling pris
Additionally, the plan provided to the Attorney General on April 12, 1993, included details concerning where the FBI's snipers were to be positioned and the positioning and capabilities of SWAT team members. The plan contained a "medical annex" providing for a means to treat "the potentially large number of casualties which could exceed the current medical capabilities of any single agency present" as well as procedures to be followed to arrest persons who had been exposed to CS. The annex also provided for locations where the injured were to be treated, provided a list of local and secondary hospitals (including address, latitude/longitude location, and estimated air travel time). And the medical annex provided instructions to the agents on the procedure to handle a mass surrender by the Davidians.
Finally, the plan provided for the possibility that the Davidians might not surrender. The final contingency provision in the plan
497 Federal Bureau of Investigation, Briefing for the Attorney General, at 25. [See Documents produced to the subcommittees by the Department of Justice 003370-003480, at Appendix [hereinafter Justice Documents]. The Appendix is published separately.]
stated that "if all subjects failed to surrender after 48 hours of tear gas, then a CEV with a modified blade will commence a systematic opening up/disassembly of the structure until all subjects are located."
2. ACCELERATION PROVISIONS OF THE OPERATIONS PLAN
While the operations plan called for the Government's actions to end the standoff to unfold over a period of 2 days, the plan also contained contingency provisions that allowed for a departure from the concept of a methodical insertion of CS. One of these provisions was implemented on April 19 and resulted in a rapid acceleration of the insertion of CS agent.
The first of the two contingency provisions in the plan provided that if the Davidians were observed in the tower during the operations, after having been informed not to be there, agents were permitted to insert CS gas into the tower by firing Ferret round projectiles into the tower. More importantly, however, the second contingency provision in the plan provided:
If during any tear gas delivery operations, subjects open fire with a weapon, then the FBI rules of engagement will apply and appropriate deadly force will be used. Additionally, tear gas will immediately be inserted into all windows of the compound utilizing the four Bradley Vehicles as well as the CEV's. 499
C. THE WAY THE PLAN ACTUALLY UNFOLDED
At approximately 5:55 a.m., Dick Rogers, commander of the FBI's Hostage Rescue Team, ordered the two CEV's, which were to insert the CS riot control agent, deployed to the compound. At 5:56 a.m., the FBI's chief day-to-day negotiator, Byron Sage, telephoned the residence and asked to speak with Davidian Steve Schneider. It took approximately 3 minutes for someone to come to the phone.500 At 5:59 a.m., Sage informed the person answering the telephone that "We are in the process of putting tear gas into the building. This is not an assault. We will not enter the building." The person on the other end of the telephone responded "You are going to spray tear gas into the building?" whereupon Sage replied, "In the building no, we are not entering the building." 501 While the Justice Department Report is ambiguous on the person to whom Sage was speaking, Sage testified at the hearings before the subcommittees that the person he talked with was Schneider.502 At the conclusion of this conversation, someone threw the telephone outside of the building.503
From 6 a.m. to approximately noon on April 19, 1993, FBI agents implemented the operations plan and injected a large quantity of CS riot control agent into the Branch Davidian residence in four distinct phases. The agents moved close to the Davidian residence
500 Justice Department Report at 285. 501 Justice Department Report at 286. 502 Hearings, Part 3 at 269.
in CEV's equipped with devices 504 which could shoot a horizontal stream of CS agent in short bursts or continuously for up to 15 seconds.505 The device uses carbon dioxide as a disbursant to propel a stream of CS agent, suspended in methylene chloride, horizontally into the air. Once the CS stream is fired, the carbon dioxide quickly evaporates and the methylene chloride gas disperses the CS evenly through a room, until the methylene chloride itself evaporates. The CS agent, which is a fine powder, then slowly falls to the floor, where it remains. The capacity of each delivery system on the CEV's was 30 grams of CS agent.
The insertion of CS agent into the Branch Davidian residence was performed in four phases. The first two phases employed two CEV's. On one CEV was mounted two CS delivery systems, while four systems were mounted on the second CEV. The CEV's were operated in tandem, each inserting the entire contents of the six CS agent delivery systems during the first two phases of the operation, at 6 a.m. and again at approximately 8 a.m. In each of the first two phases, a total of 180 grams of CS was delivered. The third and fourth phases, also 2 hours apart, involved only one CEV, as the second CEV had experienced mechanical difficulties and no longer operated. Four cylinders of CS were delivered in each of these two phases, for a total 120 grams of CS inserted into the residence. Thus, over the entire 6 hours of the operation, a total of 600 grams of CS agent was inserted into the Branch Davidian residence.
During the standoff with the Davidians, FBI agents used unarmed Bradley Fighting Vehicles as a means of transportation while guarding the perimeter of the residence. The FBI's overall operational plan for April 19 provided for the Bradleys to be used in a contingency plan to be implemented in the event the Davidians began to fire on the CEV's. If that occurred, agents in Bradleys who had maneuvered close to the building and were standing ready were to insert additional quantities of CS agent into all parts of the building. Agents in the Bradleys were to fire Ferret round projectiles into the residence. Ferret rounds 506 resemble large plastic bullets, and are fired from hand-held grenade launchers. Each projectile carries 3.7 grams of CS agent, mixed in a suspension of methylene chloride.
Once the Davidians began firing on the CEV's Rogers gave the order to implement the contingency plan. The agents in the Bradleys then maneuvered close to the Branch Davidian residence and began to fire the Ferret round projectiles through the windows of
504 The delivery systems mounted on the CEV's were Protecto-jet Model Tear Gas Delivery Systems manufactured by ISPRA, Ltd., an Israeli company. The systems were sold to the FBI by Advanced Materials Laboratories, Inc. of Forrest Hills, NY. The Justice Department Report refers to the systems as Mark V systems. See Justice Department Report at 287. The subcommittees investigation indicates that while the Mark V system does exist, there is no evidence that it was used at Waco. The evidence indicates that only the Protecto-jet Model 5 system was mounted on the CEV's furnished to the FBI by the Defense Department. The references to the Mark V system in the Justice Department Report appear to be in error.
505 The Protecto-jet Model 5 system consists of a cylinder approximately 27 inches long, 48 inches in diameter, weighing approximately 16 lbs., which is connected to a hose with a nozzle. The device uses carbon dioxide to propel a chemical agent, such as CS, mixed in a suspension of methylene chloride, into the air. The range of the device is 15-20 yards in still air. The device can be used to shoot 13-17 1-second bursts or a continuous burst for up to 15 seconds.
506 Ferret Rounds are 37, 38, and 40 millimeter projectiles which can be fired from hand-held grenade launchers. Each projectile carries 3.7 grams of CS riot control agent, mixed in a suspen
the building. During the 6-hour operation, 400 Ferret round projectiles were fired at the Branch Davidian residence, a number of projectiles struck the side of the building and did not enter the building. Estimates of the number of projectiles that actually entered the residence range from 300 to 380. Had all 400 projectiles fired at the residence actually entered the residence, however, the total quantity of CS agent delivered by the Ferret round projectiles would have been 1,480 grams.
D. OVERVIEW OF THE USE OF CS CHEMICAL AGENT
Chlorobenzylidene malononitrile, commonly called CS, is one of a family of approximately 15 chemical compounds used to control civilian populations during periods of disturbance and unrest. These "riot-control agents" cause acute irritation to the eyes, mouth, nose, and upper respiratory tract, that is relatively brief and not usually accompanied by permanent toxic effects. Exposure to riot-control agents renders the victim temporarily incapacitated, but the symptoms typically persist for only a few minutes after cessation of exposure.507
The first riot control agent was developed in the early 1900's. 508 In 1928, two chemists, Corson and Stoughton, developed 2chlorobenzylidene malononitrile, code named CS. However, CS was not developed as riot-control agent until the 1950's, when the British War Office began to search for a chemical that was more potent than either CA or CN.509 By the 1960's, CS had replaced CN as the preferred tear gas among police authorities around the world. Its popularity stemmed from the fact that it was shown to be a more potent irritant than CN, and appeared to cause less long-term injury, particularly to the eye.510 Military forces also saw CS as a potent weapon for particular operations. Large quantities of CS were used by the United States during the Vietnam War. CN is no longer used by the U.S. military operations, but it is still used by some civil authorities, and by individuals for self-defense. Among civilian law enforcement agencies CS is, by far, the most widelyused riot control agent.
507 F.W. Beswick, Chemical Agents Used in Riot-Control and Warfare, 2 Hum. Toxicology 247– 256.
508 The first riot-control agent may have been ethyl bromacetate, which was used by the Paris police in a handgrenade to disable criminal gangs. The German chemical industry that produced many lethal chemical weapons during World War I (e.g., nerve gases) also developed new tear gases. For example, xylyl bromide was packed in 150-mm artillery shells and used during the battle against the Russians at Bolimow in January 1915. This early military use of a tear gas was not judged to be a success, owing to the failure of the chemical to vaporize in the sub-zero temperatures on the battlefield. However, it provided an early indication of the importance of weather conditions to the effectiveness of these agents. By 1918, the French had developed bromobenzylcyanide, known by the military code CA, and the British and Americans had developed chloroacetophenone, known by the military code CN, which became the most effective and widely used tear gas. In the postwar period, the urban crime wave and emergence of gangsters in the 1920's in the United States spurred renewed efforts to develop riot-control agents. By the mid-1920's, small explosive cartridges containing CN were available over the counter for personal protection. CN rapidly became the tear gas of choice for law-enforcement authorities. Howard Hu, Toxicodynamics of Riot-Control Agents (Lacriminators) 271, 273 in Chemical Warfare Agents (Satu M. Somani ed., 1992).
509 J. Cookson and J. Nottingham, A Survey of Chemical and Biological Warfare (1969).