Davidians' guns sounded like cannons. The ATF guns sounded like popguns."

In the face of David Koresh's murderous ambush, during which thousands and thousands of rounds were fired over 40 or 45 minutes," "ATF agents were brave, they were loyal and disciplined. They risked their own lives to save one another and to reduce the chance that innocent Davidians would be killed.”

After the ambush erupted, ATF Special Agent Cavanaugh called the Compound and urgently attempted to establish a cease fire. As Cavanaugh testified, "It was very difficult. And I'm sorry to get a little sad about it. But I had a radio mike in one ear, with an agent pleading for his life. And I had this guy on the phone who thought he was God. And if I couldn't negotiate it, how was I going to get this guy out? And how many agents was I going to send to get him? How many people would die? So I put all my energy into negotiating it, because if I didn't, this guy in my ear, my friend, was going to die."”

Special Agent Cavanaugh also managed to have all the wounded agents moved behind a giant school bus that was parked in the driveway. Then he got an ambulance into the Compound and evacuated all the wounded agents. Finally, he got the bodies of agents off the Compound roof. As Cavanaugh explained, "[A]ll the men who were wounded there, and also women--we had six women there too. And one got the medal of valor. But all the men who were wounded, we saved. The only agents who died were those who were killed immediately. 78

B. Who Shot First

"Hearings Part 2 at 294 (testimony of Special Agent Jim Cavanaugh).

"Id. at 363 (testimony of Special Agent Jim Cavanaugh).

76Hearings Part I at 820 (testimony of Under Secretary Ronald K. Noble).

"Hearings Part 2 at 302 (testimony of Special Agent Jim Cavanaugh).

18Id. at 363-364.

The Majority reaches the astounding conclusion that there are still open questions about who shot first and whether shots were fired from the helicopters. There are no legitimate questions on these issues. The hearing record and all of the other reviews of the raid firmly establish that the Branch Davidians fired first and that no shots were fired from the helicopters.

the

All of the eye witness testimony is consistent Branch Davidians fired first. There is no evidence to the contrary. Every surviving ATF agent has stated either to the Subcommittees or the Treasury review team that they did not fire their weapons before hearing gun shots. The National Guard helicopter pilots stated that their aircraft were hit as the ATF agents were exiting the cattle trucks, and journalists who witnessed the fire fight have stated that they believed the Branch Davidians fired first. noted in the Majority report, the Texas Rangers captain who investigated the incident soon after it occurred testified before the Subcommittees, "the evidence was to me overwhelming in the trial that the Davidians fired first.""

60

As

To counter this "overwhelming" evidence, the Majority cites only the testimony of a lawyer for some of the Branch Davidians who, of course, was nowhere near the Compound when the shots were fired. Moreover, the lawyer flatly states his opinion and offers no evidence to support it."1 There is no such evidence and there is no open question. The Branch Davidians laid in wait, ambushed and killed or wounded Federal law enforcement officers.

82

Similarly, there is no evidence that shots were fired from the helicopters. Both the ATF agents and the National Guard personnel who were on board the helicopters stated that they did not fire their weapons. A video tape filmed on board one of the helicopters shows no shots being fired. Once again, the only thing the Majority cites to contradict this eyewitness testimony is the speculation of the Branch

"Id. at 150 (testimony of Capt. David Byrnes, Texas Ranger).

Majority Report at 27.

"Hearings Part 2 at 24 (testimony of Dick DeGuerin).

82Id. at 197 (testimony of Capt. David Byrnes); 821-822 (testimony of Special Agent Chojnacki); Treasury Documents TO05723, T005730, TO05731.

Davidians' lawyer." Once again, he offers no support for his opinion. Even he conceded that a likely explanation for bullet holes in the roof of the Compound was the presence of ATF agents on the roof during the raid.“ The Majority does not explain why it considers this question still to be "open. The evidence is conclusive; no shots were fired from the helicopters.

The Majority states that these hearings "were necessary to the long term credibility and viability of the federal law enforcement agencies." By failing to reach the only conclusions supported by the evidence and continuing to feed the conspiracy theorists by finding that the question of who fired first remains open, the Majority has done a great disservice to the men and women of ATF who died or were wounded in the line of duty. The Majority's motives for so doing are to be questioned.

C. Loss of the Element of Surprise

86

The Majority Report attempts to criticize the findings of the Department of the Treasury with respect to the issue of the "element of surprise." For example, the Majority report states that the testimony of the witnesses at the Subcommittee hearings is not entirely consistent with the summary of events in the Treasury Department Report. The Majority Report also appears to take issue with the Treasury Department's finding that "all key participants now agree that Rodriguez communicated, and they [the raid commanders] understood, that Koresh had said that ATF and the National Guard were coming.

187

The criticism is hollow because the Majority Report makes essentially the same findings as the Treasury Department Report--that undercover Agent Rodriguez told Mr. Sarabyn that Koresh had said that ATF and the National Guard were coming, that raid commanders Sarabyn and Chojnacki understood what Rodriguez had told Sarabyn, and that the raid commanders knew that Koresh was aware of the warrant

Majority Report at 28.

"Hearings Part 2 at 27 (testimony of Jack Zimmerman). 85Majority Report at 8.

86Id. at 19.

87Id. at 20.

operation. Both reports conclude that secrecy was an important element of the warrant operation and that the raid commanders failed to adequately assess the significance of the information provided by Agent Rodriguez.

D. Assessing Blame for the Failed Raid

89

88

The Majority also suggests that the Treasury Report attempts to shift blame entirely to ATF for the failure of the raid." The Majority report mischaracterizes the Treasury Report. As Secretary Bentsen said in his transmittal letter to President Clinton, the purpose of the Treasury Review was not intended to cast blame but to provide "a vigorous and thorough" accounting of the events. The Treasury Report did just that; it provided a comprehensive review of the adequacy of ATF's procedures, policies and practices and whether they were followed during ATF's investigation of David Koresh. It also indicated deficiencies in the Department of the Treasury's Office of Enforcement's oversight of its law enforcement activities.90 As Under Secretary Noble testified:

The report found that the raid commanders failed
to appreciate the significance of the information
provided by the undercover agent on the morning of
the raid and the dangers of proceeding when
surprise and the Davidians' conduct were not as
planned. The report also stated that the flawed
decision to go forward was not solely a question
of individual responsibility on the part of the
raid planners. It was also the result of serious
deficiencies in the intelligence-gathering,
processing structure, poor planning and personnel
decisions and a general failure of ATF management
to check the momentum of the operation as the
circumstances demanded. Moreover, it found that
ATF and Treasury bore responsibility for ATF's
late notification on the 26th. Both ATF bore
responsibility and Treasury bore responsibility."

"Compare Majority Report at 22 with Treasury Department Report at 165-175.

Majority Report at 21 and 22.

90Treasury Department Report at 15, 180, and 182.

"Hearings Part 1 at 820 (testimony of Under Secretary Ronald K. Noble).

The majority report also errs in concluding that "Treasury Department officials, having approved the raid, failed to clearly and concisely communicate the conditions under which the raid was to be aborted. "92 In fact the Treasury Report and hearing testimony makes it clear that it was understood that if the operation was compromised it should be cancelled. Both Higgins and Hartnett testified that secrecy of the raid was an element of the raid plan. Further, Mr. Simpson testified that:

Mr. Higgins gave us assurances, one of which was
that there was an informant inside the compound
who would be able to let the team leaders know if
anything had changed, and we understood from that
that if there were any changes that jeopardized
the success of the raid, it would be called off."

In turn Mr. Higgins testified that:

I told Mr. Hartnett to have the--to tell the
people in Waco, Houston, not to go ahead with the
raid--the orders we were operating under was that
if the undercover officer saw anything unusual or
out of the ordinary, don't go ahead with the
raid. 95

Director Higgins never once questioned the clarity of his message from the Treasury Department.

93

In other testimony, Special Agent Phillip Chojnacki, the ATF Incident Commander, confirmed that the "element of surprise" was part of the raid plan, and that the dynamic entry should not have proceeded if the "element of surprise" had been lost.” Special Agent Aguilera also confirmed that

Majority Report at 29.

"Hearings Part 1 at 536, 562-563 (testimony of former Director Stephen Higgins); and 763 (testimony of former Deputy Director for Enforcement Daniel Hartnett).

"Id. at 562 (testimony of John Simpson, former Acting Assistant Secretary).

Id. at 563 (testimony of former Director Stephen Higgins).

"Id. at 417-418, 426-427 (testimony of Special Agent Phillip Chojnacki).