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The activation of the ATF National Command Center occurred only because it was required by the National Response Plan, and not because it was to have any meaningful role in the implementation of the raid plan. Had the senior ATF officials written the National Response Plan in such as way as to ensure that command center personnel would be briefed on the significant details of the operation and would have the clear authority to question onscene commanders, the raid might have been called off by command center officials asking about the report made by Rodriguez.

4. The ATF agents executing the raid were not required to knock and announce their intention to serve the arrest and search warrants. Given that the arrest and search warrants were based, in part, on the evidence that the Davidians were in possession of illegal automatic weapons, the subcommittees believe it was reasonable for the ATF to have presumed that the Davidians might fire on them had they announced their intent to serve the warrants in advance. Accordingly, the subcommittees conclude that the ATF was not required to knock and announce their intention to serve either the arrest warrant or the search warrant because to do so would have measurably increased the risk to the ATF agents involved.

5. The evidence suggests that the Davidians fired the first shots on February 28, 1993. The subcommittees believe that the question of who fired the first shot on February 28 cannot decisively be resolved given the limited testimony presented to the subcommittees. It appears more likely, however, that the Davidians fired first as the ATF agents began to enter the residence.

6. The evidence presented to the subcommittees generally supports the conclusion that no shots were fired from the helicopters at the Branch Davidian residence. The subcommittees believe, however, that there is insufficient evidence to determine with certainty as to who fired the shots that made the bullet holes in the roof of the Davidian residence.

7. After the raid failed, Clinton administration officials inaccurately stated that the ATF raid commanders had been given explicit orders to not proceed with the raid if the secrecy of the raid was compromised. After the raid failed, Assistant Treasury Secretary Ronald Noble attempted to lay the blame entirely on the ATF despite the fact that Treasury officials, including Noble, failed to properly supervise ATF activities leading to the raid. Moreover, Treasury officials, having approved the raid, failed to clearly and concisely communicate the conditions under which the ATF was to abort the raid.

8. The subcommittees find no justification for the rehiring of Chojnacki and Sarabyn. Given that the largest portion of blame for the failure of the raid against the Davidians must be borne by Chojnacki and Sarabyn, the subcommittees find no justification for their rehiring by the ATF. The fact that senior Clinton administration officials approved their rehiring indicates a lack of sound judgment on their part. It also further begs the question as to whether there are facts not disclosed to the subcommittees that led adminis

H. RECOMMENDATIONS

Because the largest single cause of the ATF raid disaster was the failure of ATF's senior field commanders to recognize or act upon the undercover agent's information that the Davidians knew the ATF raid was underway, there is no overriding recommendation which, if implemented, would prevent similar tragedies from occurring in the future. The subcommittees believe, however, that had more experienced ATF agents been involved in the planning of this raid the many deficiencies in the raid plan itself would have been avoided. Most importantly, the subcommittees believe that had more experienced commanders been assigned to this operation, the information that the Davidians knew that the raid was impending would not have been ignored but, rather, understood for what it was and acted upon accordingly. There are, however, a number of steps that should be taken to correct other problems associated with the failed raid and which, taken together, might help prevent similar failures in the future.

1. Congress should conduct further oversight of the Bureau of Alcohol, Tobacco and Firearms, the oversight of the agency provided by the Treasury Department, and whether jurisdiction over the agency should be transferred to the Department of Justice. Congress should consider whether the lack of Treasury Department oversight of ATF activities in connection with the investigation of the Davidians, and the failures by ATF leadership during that investigation, indicate that jurisdiction over the ATF should be transferred to the Department of Justice.

2. The ATF should revise its National Response Plan to ensure that its best qualified agents are placed in command and control positions in all operations. As discussed above, the ATF's National Response Plan in effect in 1993 led to the placement of Chojnacki as incident commander and Sarabyn as technical commander for the raid, when more experienced ATF personnel were available. The subcommittees recommend that the National Response Plan be revised to provide that incident commanders for significant operations be selected by ATF headquarters personnel from among the most experienced agents in the ATF, rather than based upon any consideration of the agent who may have administrative responsibility for a given geographic area. Likewise, the subcommittees recommend that other senior positions in significant operations, such as tactical commander, also be selected by ATF headquarters personnel from ATF agents most experienced in these areas, regardless of geographical assignment.

3. Senior officials at ATF headquarters should assert greater command and control over significant operations. Just as the National Response Plan should be revised to allow greater control by ATF headquarters, the subcommittees recommend that ATF's most senior officials be personally involved in the planning and oversight of every significant operation. While the ATF did activate its National Command Center in Washington just prior to the commencement of the ATF raid against the Davidians, command center personnel played no actual role in the planning or the implementation of the

The subcommittees recommend that ATF's most senior officials be directly involved in the planning of all significant operations and personally approve each operation in advance of its implementation. Additionally, the subcommittees recommend that the National Command Center be activated well before the commencement of an operation, that it be staffed with persons experienced in tactical operations and knowledgeable of the operation in question, and that these persons be given the authority to suspend the operation or revise the operation plan as the situation develops.

4. The ATF should be constrained from independently investigating drug-related crimes. Given that the ATF based part of its investigation of the Branch Davidians on unfounded allegations that the Davidians were manufacturing illegal drugs, and as a result improperly obtained military support at no cost, the subcommittees recommend that Congress restrict the jurisdiction of the ATF to investigate cases involving illegal drugs unless such investigations are conducted jointly with the Drug Enforcement Administration as the lead agency.

V. MILITARY INVOLVEMENT IN THE GOVERNMENT
OPERATIONS AT WACO

U.S. military involvement is one of the least explored and most misunderstood elements of the events that took place near Waco, TX, in 1993. The Treasury Department Report dedicated only 32 of 220 pages to explaining the military's involvement, and the Department of Defense and National Guard Bureau have only recently taken an interest in addressing some of the military issues that Waco raised.

A. THE EXPANSION OF MILITARY ASSISTANCE TO LAW ENFORCEMENT

Historically in America, there has been a general principle that the military should not be involved in civilian law enforcement. Congress codified this principle by enacting the Posse Comitatus Act 127 in 1878. The subcommittees have found that subsequent congressional actions and legal cases have eroded the Posse Comitatus Act to an alarming degree and blurred its legal restrictions.

In determining whether the military assistance provided at Waco was illegal, the subcommittees reviewed the current status of the Posse Comitatus Act and other laws governing the use of the military in civilian law enforcement, why changes in the laws have occurred and what effects those changes have had on the use of the military in civilian law enforcement. 128 Additionally, the subcommittees have addressed the common practice of Governors using National Guard (NG) personnel across State lines.

1. THE POSSE COMITATUS ACT

a. Overview of the law

The Posse Comitatus Act was enacted in the United Stated in 1878 in response to the improper use of military troops in the South during the post-Civil War Reconstruction period. 129 The Posse Comitatus Act provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be

127 Posse Comitatus means "the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases; as to aid him in keeping the peace, in pursuing and arresting felons, etc." Black's Law Dictionary (1st ed. 1891) (citing 1 William Blackstone, Commentaries 343).

128 Roger Blake Hohnsbeen, Fourth Amendment and the Posse Comitatus Act Restrictions on Military Involvement Civil Law Enforcement, 54 Geo. Wash. L. Rev. 404, 404 (1986).

129 "Until passage of the Posse Comitatus prohibition in 1878, the improper use of troops became a common method of aiding revenue officers in suppressing illegal production of whiskey; assisting local officials in quelling labor disturbances; and insuring the sanctity of the electoral process in the South by posting guards at polling places." Clarence I. Meeks, III, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 70 Mil. L. Rev. 83, 90 (1975).

fined not more than $10,000 or imprisoned not more than
2 years, or both, 130

However, as early as the Magna Carta, prohibitions against the use of the military in civilian affairs were being established. 131 These prohibitions are based on the principle that the military should never be employed against the citizenry of the Nation it supports and is buttressed by the clear separation, in this country, between civilian authority and military support for that authority. The clear separation between civilian and military authority is embodied in the Declaration of Independence 132 and the U.S. Constitution. 133

Nevertheless, no one has ever been prosecuted for violating the Posse Comitatus Act. 134 Due in part to a creeping acceptance of military involvement in law enforcement actions, the Posse Comitatus Act has been invoked very rarely. 135 Until the criminal cases arising from the 1973 Indian uprising at Wounded Knee, 136 civilian law enforcement apparently relied upon military support without fear of recourse. 137

Specifically, at Wounded Knee, the Nebraska National Guard and U.S. Air Force personnel conducted aerial reconnaissance photography of the site, while the South Dakota National Guard maintained military vehicles in the area of the siege. 138 Two regular Army colonels (title 10 personnel) 139 were present at Wounded Knee as Defense Department "observers"; however, these military personnel also provided “advice, urging and counsel. . . to Department of Justice personnel on the subjects of negotiations, logistics and rules of engagement." 140

Four criminal cases resulted from the Wounded Knee incident. Each raised similar challenges to the military's involvement. 141

130 18 U.S.C. §1385 (1988). A post-Waco amendment changed the penalty portion to read, "shall be fined under this title or imprisoned not more than two years, or both." Violent Crime Control and Law Enforcement Act of 1994 § 330016(L), Pub. L. 103-322, 108 Stat. 2147.

131 Congressional Research Service, The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law 3 (1995) (citing Magna Carta, ch. 39 (1215)). 132 The Declaration of Independence (U.S. 1776).

133 U.S. Const., Amend. II, III.

134 Meeks, supra note 129, at 128.

135 Id.

136 In the 1973 Wounded Knee uprising, a dissident Indian group forcibly took control of the Wounded Knee Village on Pine Ridge Reservation, SD. This group entered a U.S. Post Office by force, held hostages and refused to allow Federal investigators into the area. In support of Federal law enforcement agents, military personnel provided an array of assistance, closely resembling the military assistance provided to Federal law enforcement agents during the Waco incident.

137 Peter M. Sanchez, The "Drug War:" The U.S. Military and National Security, 34 A.F. L. Rev. 1, 109 (1991).

138 As at Wounded Knee, aerial reconnaissance photography and maintaining military vehicles were also conducted by military personnel at Waco.

139 These two soldiers at Wounded Knee were on active duty; i.e., full-time duty in the active military service of the United States. See 10 U.S.C. § 101 (d)(1), codified as amended by Pub. L. 102-484.

140 Meeks, supra note 129, at 121. Ironically, approximately 10 active duty Special Forces soldiers were present at Waco as "observers" during various stages of the post-raid siege, including the day of the use of CS riot control agent and the fire. Additionally, at the request of the commander of the FBI Hostage Rescue Team, two senior Army Special Forces officers were present when Attorney General Reno was briefed on the FBI's plan to end the standoff. Prior to the meeting, one of those officers visited the site of the standoff by helicopter accompanied by the HRT commander.

141 United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975); United States v. Banks, 383 F.Supp. 368 (D.S.D. 1974); United States v. Red Feather, 392 F.Supp. 916 (D.S.D. 1975); United States v. McArthur, 419 F.Supp. 186 (D.N.D. 1976), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir. 1976), cert. de

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