At approximately 7:00PM, Agent Pali and Texas National Guard personnel attend a briefing of the search warrant support team at the Best Western Hotel. Agent Pali recalls that some of the ATP personnel present include ASAC Sarabyn, SAC Chojnacki, Agent Lewis, Agent Robert Alley, SAC Peter Mastin, SAC Ted Royster, and Agent Davy Aguilera. The briefing consists of the specific assignments of the search warrant support team. At approximately 9:45AM, the raid team encounters gunfire and begins to receive casualties. The Texas National Guard helicopters are not authorized to act as a medivac unit for the transport of wounded, due to liability constraints. On Tuesday, 04/27/93, Colonel Philip W. Spence, National Guard Bureau, writes a summary of a focal group review of the Waco incident, which is addressed to the Director, Counterdrug Task Force. Attached to the summary is the focal group report, dated April 28, 1993. The summary and report reveal only one major issue. The issue deals with the pre-raid threat assessment of the Branch Davidians provided by ATP to the Texas National Guard as a "docile" environment. A second issue, which is not included in the written report of the focal group but has been vocalized by Colonel Spence, deals with the -pected methamphetamine laboratory at the Branch Davidian compound. onel Spence contends that the drug issue is not included in the focal group report due to potential media interest and any resulting Freedom of Information Act inquiries. On Thursday, 04/29/93, LTC Pettit signs a memorandum addressed to the Chief, National Guard Bureau, The Pentagon, Washington, D.C. The memorandum serves as an after-action report, which provides an '...explanation and clarification of the support provided by the Military Forces of Texas to the Bureau of Alcohol, Tobacco and Firearms and the Federal Bureau of Investigation prior to, during, and after OPERATION TROJAN HORSE_ and a subsequent Hostage Rescue Mission in the vicinity of Waco, Texas. Throughout the after-action memorandum, LTC Pettit never questions the veracity of the ATF drug case within the Howell investigation. Conversely, LTC Pettit writes, "The initial Texas National Guard objective was to provide quiet, honest, and professional counterdrug support in assisting ATF in an ongoing firearms and drug case in Central Texas. SUBJECT DIRECTOR WACO ADMINISTRATIVE REVIEW DEBRA N. DIENER al SENIOR COUNSEL (LAW ENFORCEMENT) Statutory and Regulatory Criteria and Requirements for Requesting Military and National Overview You initially requested research on the statutory and regulatory criteria by which a law enforcement agency could request National Guard assistance. I have expanded the research to cover the requirements for requesting military and National Guard assistance since there are different statutes and procedures for each. I. Military Assistance: Title 10: Counterdrug and Non- A. Statutory Authority and Types of Assistance Congress has expressed over recent years a clear intention that the military provide support assistance to local, State and Federal law enforcement agencies ("LEA") in their efforts. The kinds of routine law enforcement assistance which can be provided are outlined in 10 U.S.C. §371 et.seg. These provisions, and the implementing regulations, 32 CFR §213.1 et.sea. apply to all requests by an LEA for assistance. The Department of Defense ("DoD") may provide equipment, training and expert advice in support of a LEA's law enforcement efforts. The equipment and personnel which can be provided under Sections 372 and 373 apply for a variety of law enforcement requests. This DoD support must be provided on a reimbursable basis to the requesting LEA but reimbursement may be waived if the support is: 1) provided in the normal course of military training or operations; or 2) results in a benefit to the DoD unit which is providing the support which is substantially equivalent to the kind of benefit which that unit would obtain from military operations or training. See 10 U.S.C. § 377. If II. National Guard: Title 32: Counterdrug and Non- A. Statutory Authority and Types of Assistance National Guard personnel can serve in State active duty status (Title 32) or in Federal active duty status (Title 10; S., Gulf War). Their annual training and weekend drills are done in their Title 32 status, but the annual training is paid for by Federal funds. There is a real distinction between what State National Guard personnel can do in their State active duty status and their Federal active duty status. An LEA may request assistance from a State National Guard for assistance in support of its counterdrug or non-counterdrug efforts. As with DoD, a State National Guard may loan an LEA equipment (tents, tanks, cots, desks, etc.) on a reimbursable basis because the equipment belongs to the Federal government. However, if an LEA approaches a State National Guard requesting other kinds of assistance (§.q., training, personnel, operational support such as aerial reconnaissance) the nature of the law enforcement request becomes important. If it is for a non-counterdrug purpose, then the State National Guard may provide the requested support if: 1) the State Constitution authorizes the Guard's involvement in the type of requested assistance; and 2) the Governor is willing to expend State funds for that purpose. I have been told that it is more likely that a State or local law enforcement agency, rather than a Federal law enforcement agency, would seek the kinds of assistance from a State National Guard which the Guard would provide in its State active duty status. I was told that it is more often the case that a Federal law enforcement agency will approach a State National Guard through a group such as Operation Alliance, seeking assistance based on the Guard's unique capabilities and thus tapping into the Federal source of funding. MB: However, there is nothing in the materials which I have found indicating whether such non-counterdrug support is provided to a Federal law enforcement agency if it is done on a reimbursable or nonreimbursable basis. I have contacted an attorney for the National Guard and will forward the answer after I speak with him. B. Counterdrug Support State National Guard efforts in support of counterdrug activities fall within a separate category of consideration as specified under 32 U.S.C. §112 and may be provided using Federal |