coming," 76 Sarabyn maintained at the hearings before the subcommittees that while he understood the words Rodriguez had spoken, he did not feel that Koresh actually believed that law enforcement personnel were on their way to the residence. As Sarabyn testified: I did not feel he knew that we were coming at that time. When I talked with Robert, like I testified before, I took notes while we were talking over the thing and I have read all of Robert's statements. Robert did-did a great job, but I think everything that you heard as far as testimony was not passed on to me. In fact, Robert told the shooting review team, or commanders, he didn't go into detail or should have said more. When I went through the questions I asked him, you know, he had said specifically Koresh said, you know, ATF and the Guard are coming, but when I asked, trying to determine what he was doing from those questions, he wasn't doing anything, he was shaking, reading the Bible. He was preaching. I determined that, you know, in my opinion, his actions spoke louder that his words, so I didn't feel that anything was happening then.77 At another point in the hearings, Chojnacki testified: When I received the information from Mr. Sarabyn. "78 us." Chojnacki was then questioned directly as to whether he believed at the time that Koresh did, in fact, know that the ATF was going to the Branch Davidian residence. He stated, "Not at that time, I didn't, no sir.” 79 Later, during the hearings, however, Rodriguez questioned the truthfulness of the testimony given by Chojnacki and Sarabyn before the subcommittees. Mr. Rodriguez testified, [T]hose two men know-know what I told them and they knew exactly what I meant. And instead of coming up and admitting to the American people right after the raid that they had made a mistake. they lied to the public and in doing so they just about destroyed a very great agen cy, 80 Several other agents also testified that Sarabyn had informed them that the Davidians knew the ATF was coming. Agent Roger Ballesteros, who was present at the staging area when Sarabyn arrived testified: I was in an auditorium along with a large party .. and Mr. Sarabyn rushed into the room and made it clear to us that we needed to hurry up because, in fact, Mr. Rodriguez had come out and identified the fact that Koresh had been tipped off and that they knew we were coming.81 c. What the ATF commanders knew It is difficult to reconcile Sarabyn's testimony that while he heard agent Rodriguez' words, he believed that Koresh's actions spoke louder than his words and that, as a result, he believed that the Davidians did not really think the ATF agents were on their way. In light of the testimony of Rodriguez and the other agents before the subcommittees, the subcommittees conclude that Sarabyn understood that the Davidians were tipped off and would have been lying in wait for the ATF agents to arrive. The fact that Sarabyn felt it necessary to tell other agents of what Rodriguez had told him, regardless of how he understood it, indicates that he found the information to be important. Unfortunately, when Sarabyn told Chojnacki this information, Chojnacki did not believe it to be important enough to call off the raid. And, inexplicably, Sarabyn apparently did not believe it important enough to urge Chojnacki to delay the raid. Compounding these failures was the fact that the ATF line agents who heard Sarabyn's comments apparently were not confident enough to question their superiors' judgment in going forward with the raid, even given their concerns about the information relayed by Rodriguez. B. WHO BEARS THE RESPONSIBILITY FOR THE FAILURE OF THE RAID? The Treasury Department Report attempts to lay the blame for the failure of the raid squarely on the shoulders of Chojnacki and Sarabyn. Much has been made of what has come to be known as the loss of the "element of surprise," with administration officials asserting that Chojnacki and Sarabyn went forward in the face of a direction to the contrary if the element of surprise were lost. In their report, Treasury Department officials assert that Stephen Higgins, then Deputy Director of the ATF, had instructed "those directing the raid . . . to cancel the operation if they learned that its secrecy had been compromised. "82 This statement was purportedly made by Higgins to Ronald Noble, then Assistant Secretary-Designate of the Treasury for Law Enforcement, and John P. Simpson, the Acting Assistant Secretary of the Treasury for Enforcement. Noble and Simpson had expressed concerns about the raid when they first learned of it on the afternoon of the Friday before the raid was to take place and Simpson had initially ordered that the raid not go forward. According to the Treasury Department Report, Higgins made this statement to Noble and Simpson in response to their concerns about the raid and in order to con 81 Id. vince Simpson to reverse his earlier decision.83 At the hearings before the subcommittee, Under Secretary of the Treasury Noble testified: It's been our-it's been our contention in the Department of the Treasury's report that only Mr. Hartnett and Mr. Chojnacki and Mr. Sarabyn deny, because Mr. Simpson—I mean Mr. Higgins made it absolutely clear that this raid was not supposed to proceed if the advantage of surprise was lost and Mr. Aguilera testified about that being clear on February 12th as well.84 Representative Bill McCollum, cochairman of the joint subcommittees, read into the record at the hearing a similar statement that Mr. Noble had made during an appearance on the television news program "60 Minutes" in May 1995.85 But ATF onsite commanders and senior ATF officials disputed the position asserted by the administration in the Treasury Department Report, by Noble in his television interview, and by Noble during his testimony to the subcommittees. As Dan Hartnett, Deputy Director of the ATF for Enforcement in February 1993, testified: Mr. HARTNETT. I saw Ron Noble testify on a national program several months ago or a month ago where he said both Treasury and ATF ordered the commanders at Waco not to proceed, or to abort the raid if they lost the element of surprise. And what I'm saying to this committee is that I have never heard the term, "element of surprise," until after the raid, when we started using it ourself and the media started using it. But I have to also add that in the briefings, the briefings that I had and Mr. Higgins had, the secrecy of the raid was discussed and was an element of the raid plan that was given to me and to Mr. Higgins. It was just that nobody ever called and said abort the raid if you lose the element of surprise. That just never happened. But secrecy was a part of the plan-secrecy and safety. I mean it was discussed over and over again.86 Later, under further questioning on this point by Representative Bill Zeliff, cochairman of the joint subcommittees, he stated that the administration had tried to cover up the failure of its senior Treasury Department officials to properly direct the actions of ATF officials: 83 Id. Mr. ZELIFF. In fact, the element of surprise was never in that plan. Is that correct? 84 Hearings, Part 1 at 926-927. 85 During that program Noble stated, "What was absolutely clear in Washington at Treasury and in Washington and ATF was that no raid should proceed once the element of surprise was lost." Investigation Into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part 2): Hearings Before the Subcommittee on Crime of the House Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the House Committee on Government Reform and Oversight, 104th Cong., 1st Sess. 7 (1995) (hereinafter Hearings, Part 2]. Mr. HARTNETT. The terminology. Secrecy was part of the plan, sir. Mr. ZELIFF. One final question so the record may stand clearly on its own. Do you believe that these facts demonstrate an effort to cover up the truth by the Treasury Department Report? Mr. HARTNETT. Yes, yes, I do. Mr. ZELIFF. By Ron Noble, specifically? Mr. HARTNETT. Yes. Sarabyn also testified before the subcommittees that he was never ordered not to go forward if the tactical advantage of surprise had been lost. Mr. CHABOT. Mr. Sarabyn, I'd just like to follow up again with your statement, where you said, "Obviously, some people way up said some things after that which weren't true. It goes right down to the decision to go. And they were part of it." By "way up," you're talking about upper echelon officials, I assume. Is that correct? Mr. SARABYN. What I was making reference to, sir, is the element of surprise. Throughout-at this point, it became a very big issue. The point I was trying to make is I was never given the order not to go if we lost the element of surprise. There has been much conversation after that about the element of surprise and I was trying to say I do not know who up above me, how far, whatever, gave that order to somebody, but I never received that order.87 The Clinton administration's attempts to suggest that maintaining the "element of surprise" had been an overriding feature of the directives of Treasury Department officials to ATF officials is inaccurate. While the issue was discussed, there was no absolute direction given to ATF officials or ATF commanders onsite that if secrecy were compromised that they were to not go forward with the raid. The Clinton administration's attempt to suggest otherwise, appears to be a veiled attempt to distance the administration and its most senior officials from the results of the failed raid. But as Hartnett testified, "Secrecy was part of the plan-secrecy and safety. I mean it was discussed over and over again.' "88 And Secret Service Agent Louis Merletti, the Assistant Project Director of the Waco Administrative Review Team created by the Department of the Treasury to review the Waco incident, testified that there is no difference between "the element of surprise and secrecy." He testified that it was "basic to a dynamic entry" method of conducting a raid.89 Later, however, Hartnett testified: Mr. MICA. Mr. Hartnett, you had said you disagreed with Mr. Merletti . . . about some comments he made about assessing the element of surprise. Do you want to respond now? Mr. HARTNETT. Well, I've always disagreed with that terminology, ever since the Waco review came out. I think 87 Id. at 750. 88 Id. at 755. that it's a created phrase, and I don't mean to mislead the You know, I've testified many, many times that a part Regardless of whether it is called the "element of surprise" or simply "secrecy," it is difficult to understand why senior ATF officials did not require that sufficient checks be in place to ensure that secrecy had been maintained up to the beginning of the raid. And it is almost impossible to understand why ATF commanders did not find Rodriguez' information to be important enough to call off the raid. Given the type of tactical operation selected, maintaining the secrecy of the timing of the raid is so fundamental that the blame for the failure to ensure that it was maintained must be shared not only by the commanders on-site but by senior ATF officials. It is unclear from the testimony and from the Treasury Department Report why ATF Director Higgins and Deputy Director Hartnett did not significantly involve themselves in the planning and oversight of the execution of a raid of this magnitude. This is especially puzzling in light of the amount of weaponry the ATF suspected was possessed by the Davidians. Given the high risk involved in any dynamic entry, and the fact that the open location of the Davidian residence created a greater risk to the ATF agents in using this tactic, it is simply incomprehensible that the most senior ATF officials were not directly involved with the planning of this operation and in overseeing its implementation. In retrospect, maintaining the secrecy of this operation was one of the most important aspects of this plan. To experienced law enforcement officials this fact should have been obvious from the beginning. In fact, it should have been the overriding concern of all involved. It was not something of which senior officials should have had to order agents to be aware. Higgins and Hartnett must share a portion of the blame for the failure of the raid because they failed to become significantly involved in the planning for it. Had they done so, they presumably would have ensured that a procedure was in place through which Rodriguez' information was relayed to them and they would have acted upon it. At the very least, they share some blame for not instilling in the senior raid commanders an understanding of the need to ensure that secrecy was maintained in an operation of this type. But most of the blame for the failure of the raid, and for the loss of life that occurred, however, must be borne by the raid commanders themselves, and in particularly by Sarabyn. Both Sarabyn and Chojnacki understood what Rodriguez had told Sarabyn but, inexplicably, somehow did not find it to be significant enough to warrant calling off the raid. Perhaps they thought that because the Davidians were not arming themselves when Rodriguez left the residence that they would not do so. Perhaps they believed that the |