utes. At Waco, CS tear gas was released throughout different areas of the building while openings were created in the windows and walls. The CS gas was inserted for a total of 5 minutes over a 6hour period. A total of twenty CS canisters were deployed on April 19. Additionally, several commentators discuss the fact that the wind velocity reached 35 knots during the tear gas delivery. Therefore, given the amount of tear gas used, the presence of high winds, building ventilation and the delivery of gas to different areas of the compound, it is highly unlikely that anything close to the fifty percent lethality rate was reached.

There are no documented cases in which the use of CS gas caused death. Reports that Amnesty International linked use of the gas to deaths of Palestinians in the occupied territories, is an extremely biased reading of the report. Released in June 1988, the report discussed the use of two kinds of tear gas, CS and CN. CN gas has proven to be lethal in closed quarters. The overwhelming majority of evidence on ill-effects of CS was anecdotal. Medical care had not been sought or documented. Moreover, because of religious prohibitions autopsies had not been performed. Therefore, there is no reliable scientific data which would lead to the conclusion that CS alone was implicated in any of the deaths. As Physicians for Human Rights found when visiting the occupied territories "we could not confirm the reports of deaths from tear gas inhalations." The Himsworth Report, issued by the British Government, found that there is no evidence of any special sensitivity of the elderly, children or pregnant women. Additionally, the Himsworth Commission chronicled the effect of CS gas exposure on one infant and found that the child recovered rapidly after removal from the area affected by CS tear gas. This report was supported by a report which appeared in a Medical journal. The author not only set forth a treatment protocol for children exposed to CS tear gas but noted that full recovery was highly likely.

Moreover, the majority report contends that the presence of CS gas may have acted as an accelerant during the fire. That is unlikely. While CS is combustible (it will burn if ignited, much like paper), it is not a chemical accelerant or a flammable agent. Additionally, the method of delivery or the compounds in which the CS particulate was contained (methylene chloride and carbon dioxide) will not burn and will actually inhibit fire ignition.

The original CS. insertion plan required that the tear gas be inserted by CEV's over a course of 2 to 3 days. The theory was that the gas insertion over several days and in different parts of the compound would gradually render the entire compound uninhabitable. However, within 5 minutes of the initiation of the original plan, the insertion of tear gas was dramatically escalated.

The original gas insertion plan provided that in the event that the CEV's or others were fired upon during the insertion of gas, that the insertion would be escalated. The plan vested authority with the SAC Jamar to make the escalation decision. Therefore, when reports of shooting coming from the compound were confirmed and it became clear that the CEV's were being fired upon by the Davidians, Jamar decided to escalate insertion of the tear

We agree with the majority report that it should have been obvious to all concerned that the insertion of CS tear gas would have prompted Koresh to order the vehicles fired upon and that this would have resulted in the acceleration of tear gas insertion. However, the majority fails to recognize that if the vehicles were fired upon, the parties at risk would be the FBI. Following the conclusion of the insertion of tear gas, the building would be uninhabitable and the occupants would have evacuated. Therefore, it seems that this underscores the FBI's determination to compel the occupants to leave without any loss of life inside the compound, despite potential harm to themselves.

XIII. WHITE HOUSE OFFICIALS WERE INFORMED BUT NOT INVOLVED IN THE DECISION TO USE TEAR GAS

White House officials were informed but not consulted about the use of tear gas.

On April 18, Webb Hubbell, Justice Department White House Liaison, and Attorney General Reno informed the President about the plan to gradually insert tear gas into the compound over a 2- to 3-day period in an effort to render the compound uninhabitable and compel the occupants to leave. During that conversation, Reno told the President that April 19 was not envisioned as "D-Day" and that the use of the tear gas would not be the beginning of an assault on the compound.

Critics maintain that the White House pressured Reno to end the standoff by any means necessary. They contend that this directive led to the lack of clear decisionmaking and a less than objective examination of the potential hazards concerning the use of CS gas. The majority report implies that had expediency not been a factor, Reno would have continued to wait for the Davidians to surrender. This contention is pure speculation that is not supported by the facts. As noted earlier, Attorney General Reno held eight meetings to discuss various aspects of the tear gas plan with tear gas experts. If speed had been her concern, she would not have consulted with various experts and waited a week between the first proposal of the plan and its implementation.

XIV. THE BRANCH DAVIDIANS STARTED THE FIRE AND CHOSE TO REMAIN WITHIN THE COMPOUND WHILE IT BURNED

On April 19, approximately 20 minutes after the last tear gas insertion, the Davidian compound erupted in flames. The first indication of fire was seen and noted at 12:07 p.m. By 12:11 p.m., the entire compound was substantially involved.

There is no doubt that the Branch Davidians started the fire. We disagree with the conclusion of the majority report which states that the evidence concerning the origin of the fire is not dispositive. The majority report ignores evidence contained in the arson report which proved three separate ignition points within the compound and conclusively found that chemical accelerants were placed throughout the compound. Additionally, there was eyewitness testimony as well as film footage which chronicled the rapid spreading of the blaze. Moreover, the clothes of surviving Davidians who es

materials. Finally, and most poignantly, several surviving Davidians admitted that those within the compound had started the blaze. These statements are supported by recorded statements in which voices are heard asking about the location and timing of fuel pouring and lighting activities. Additionally, it should be noted that an examination of the vehicles involved inserting tear gas was conducted. These vehicles did not have flamethrowing equipment and were not of the type that could have been equipped with flamethrowing equipment. All evidence clearly indicates that the fire which destroyed the Branch Davidian compound on April 19 was ignited by individuals inside the compound.

It should be noted that the fire department was called after the blaze began. However, they did not attempt to put out the fire because during the blaze gun shots were heard coming from and within the compound. The safety of any firefighter who approached the compound could not be assured. Therefore, the FBI determined that the local firefighters should not be allowed to approach the compound. However, it should be noted that after the fire began nine survivors exited the compound.

There has been some speculation that the tear gas used may have contributed to the fire. The CS tear gas did not act as an accelerant for the fire. CS is a powdery particulate. When used in a tear gas canister or other tear gas delivery system, CS particulate is suspended in methylchloride and carbon dioxide. Neither CS particulate, methylchloride or carbon dioxide are flammable. They actually inhibit the outbreak of fire. We agree with the majority's conclusion that the use of CS tear gas prior was not a direct, proximate cause or contributing factor to the rapid ignition and expansion of the blaze. The audiotape and forensic evidence clearly indicate that the rapid ignition and spread of the blaze was due to the use of chemical accelerants (including gasoline, kerosene and camp fuel oil) distributed throughout the compound by individuals within the compound. Additionally, the materials used in the construction. of the building itself (largely plywood) in conjunction with storage of materials such as hay and propane gas containers and high winds combined to significantly contribute to the rapid combustion of the building.

XV. RECOMMENDATIONS

Finally, the report makes 17 recommendations that are largely duplicative of recommendations made by the extensive internal reviews undertaken by the Department of Treasury and the Department of Justice. Those recommendations and our responses are as follows:

1. Congress should conduct further oversight of the Bureau of Alcohol, Tobacco and Firearms and jurisdiction should be transferred to the Department of Justice. While additional oversight is always proper, it should be noted that the proposal to transfer jurisdiction of ATF first surfaced in the Carter administration and has been rejected several times. Rejections have been based on concerns about placing total enforcement of the firearms laws in one agency. A separation of investigative and prosecutorial functions in separate agencies maintains an important check and balance system.

2. If false statements were made in the affidavit filed in support of the search and arrest warrants, criminal charges should be pursued. There is absolutely no evidence to suggest that the agent in question made false statements. This recommendation is an example of a willingness to disbelieve Federal law enforcement personnel which is manifest throughout this report.

3. Federal law enforcement should verify the credibility and timeliness of the information used in obtaining warrants. An assistant U.S. attorney and a Federal Magistrate reviewed the affidavit and found the information sufficiently fresh to issue warrants. Additionally, in finding that probable cause existed, the majority report implicitly agrees with the determination that the information was not stale.

4. The ATF should revise it National Response Plan to ensure that its best qualified agents are placed in command and control positions. The Treasury Department made this finding in its internal review. The ATF has implemented procedures to comply.

5. Senior officials at ATF should assert greater command and control over significant operations. The Treasury Department made this finding it its internal review. The ATF has implemented procedures to comply.

6. The ATF should be constrained from independently investigating drug-related crimes. This recommendation may lack administrative and operational feasibility.

7. Congress should consider applying the Posse Comitatus Act to the National Guard with respect to situations where a Federal law enforcement entity serves as the lead agency. This recommendation may lack administrative and operational feasibility and may unduly hamper the State's ability to use the guard in domestic law enforcement operations (e.g. drug trafficking patrols, civil disturbance).

8. The Department of Defense should streamline the approval process for military support so that drug nexus controversies are avoided in the future. This recommendation may deprive the Department of Defense of the operational flexibility necessary to provide assistance. The inability to pass a "litmus test" should not preclude the provision of otherwise justifiable assistance.

9. The GAO should audit the military assistance provided to the ATF and to the FBI in connection with their law enforcement activities toward the Branch Davidians. It should be noted that Members of Congress can request GAO audits on any topic at anytime. 10. The GAO should investigate the activities of Operation Alliance in light of the Waco incident. It should be noted that Members of Congress can request GAO audits on any topic at anytime.

11. Federal law enforcement agencies should redesign their negotiation policies and training to avoid the influence of physical and emotional fatigue on course of future negotiations. The FBI has doubled the size of the Hostage Rescue Team.

12. Federal law enforcement agencies should take steps to foster greater understanding of the target under investigation. The Department of Justice and the Department of the Treasury currently consult a wide range of outside experts on various topics.

13. Federal law enforcement agencies should implement changes in operation procedures and training to provide better leadership

in future negotiations. Recent successful negotiations with the Viper Militia and the Freemen indicate implementation of successful negotiation policies.

14. Federal law enforcement agencies should revise policies and training to increase the willingness of their agents to consider the advice of outside experts. Recent successful negotiations with the Viper Militia and the Freemen indicate policies evincing a willingness to employ the advice of outside experts.

15. Federal law enforcement agencies should revise policies and training to encourage the acceptance of outside law enforcement assistance, where possible. Federal law enforcement officers currently network within and among officers from Federal, State and local law enforcement entities.

16. The FBI should expand the size of the hostage rescue team. The HRT has been doubled in the 3 years since the events at Waco. 17. The Government should further study and analyze the effects of CS tear gas on children, persons with respiratory problems, pregnant women and the elderly. Numerous studies have concluded that there is no increased toxicity or adverse effect when these populations are exposed to CS tear gas. Currently, data is gathered by exposing new Armed Forces recruits to tear gas. It seems that there would be a problem in conducting tests on human subjects within the population categories suggested by the majority report. Although traditional tests with control and noncontrol groups would not be possible, persons should be monitored and data collected whenever exposure occurs.

XVI. CONCLUSION

The events at Waco were a tragedy. However, the majority investigation, hearings and report add nothing new to the understanding of the tragedy or the prevention of future events similar to Waco.

We live in dangerous times where the threat of domestic terrorism is real. The bombing of the Alfred P. Murrah Federal Building in Oklahoma, more than any other single event, stands as a testament to the possible impact that a few people with illegal weapons and destructive purposes can have on a Nation. Groups or individuals bent on undermining the constitutional democracy of this country are a clear and present danger to the rights, liberties and freedoms that every American enjoys.

In such troubling times, it seems irresponsible for the majority report to engage in speculation and unsupported theories and unproven allegations against Federal law enforcement agencies and officers. The agencies involved should be commended for their extensive and unyielding investigations as well as their quick and decisive efforts to take corrective actions to ensure that there is no