a meth lab, they know to isolate the area and Thus, contrary to the Majority's finding, ATF agents were instructed that DEA personnel with the proper training and certification had the responsibility of dismantling any clandestine lab. 120 Finally, the majority report twice makes the point that ATF's search warrant and supporting affidavit did not contain any information about suspected illegal drug activity. The Assistant United States Attorney involved in the drafting of the affidavit for the warrant stated to investigators during the Treasury Department Review that while the meth lab material was not mentioned in the affidavit, it was common knowledge in his office that a lot of people in the compound were associated with drugs and that he knew about the possible existence of the meth lab.121 Not including the meth lab information in the affidavit and warrant is consistent with the fact that the primary focus of the investigation and warrants was firearms and explosives violations. From the beginning, this was a firearms and explosives case with a possible meth lab. never represented it as anything other than that. B. The Military Involvement was Appropriate #122 ATF The The Majority Report states that, "The Treasury Department Report dedicated only three and one-half of 220 pages of explaining the military involvement. . . primary focus of the Department of the Treasury's Waco Administrative Review was the actions of the Treasury Department's personnel involved in the investigation of David Koresh. Nevertheless, the National Guard and active duty military personnel, who assisted in this operation, were painstakingly personally interviewed by agents of the Waco Administrative Review. The amount of attention given to their role was appropriate. 119Hearings Part 1 at 454 (testimony of Special Agent William Buford). 120Majority Report at 44 n.294 & 46 n.326. 121 Treasury Document T000967. 122Majority Report at 30. 123 Also, the Majority Report represents that by December 1992 (three months before the raid), ATF agents were requesting Close Quarters Combat/Close Quarters Battle (CQB) training by U.S. Army Special Forces soldiers for ATF agents. The Treasury Review interviewed all of the ATF personnel, all of the Operational Alliance personnel, all of the Joint Task Force 6 personnel and all of the Special Forces personnel who had any connection with the preparation or execution of this operation. The Treasury Review also reviewed and catalogued all of the documentation that was available from these sources. There was no indication whatsoever that ATF requested CQB or similar training from Special Forces personnel. Apparently the Majority Report reached the same conclusion, stating that "no written documentation" is available on this extraordinary request by ATF for CQB training. 124 Additionally, the Majority Report states, "However, there again is no written documentation of ATF's request for this highly controversial training. "125 The Treasury Department is unaware of any witness that has asserted that ATF requested this training. Because there is absolutely no documentation to substantiate this allegation, the Majority Report's criticism is unwarranted. Additionally, the Majority Report states, that, "After the requests for additional evidence of methamphetamine production, the military assistance was drastically restricted. 126 There does not appear to be any factual basis for the above sentence. The Treasury Review determined that Major Lindley had a concern for the scope of the extent to which the Special Forces personnel could assist in law enforcement without violating the Posse Comitatus Act. However, this was not predicated by an involvement with a suspected drug lab. Interviews with the ATF supervisors and Special Forces personnel indicated that ATF simply identified areas in which they hoped that active duty or National Guard personnel could assist them. When the Special Forces unit commander, Major Petree, consulted his legal advisor, Major Lindley, on this request, they 123 Majority Report at 35. 124 Id. at 36. 125 Id. at 38. 126 Id. at 40. conformed their assistance to that which would clearly avoid any Posse Comitatus restrictions. 127 Based upon the foregoing and the hearing record in its entirety, it must be concluded that ATF properly received military support and reimbursement is unnecessary. There is no basis for the Majority Report's recommendation that the General Accounting Office conduct an audit of the military support provided to ATF or of the activities of Operation Alliance. VII. Other Issues A. Personnel Actions The Majority Report also finds that Treasury and ATF did not sufficiently explain why the raid commanders, Agents Chojnacki and Sarabyn, were reinstated after being fired because of their actions at the time of the raid. 128 On the contrary, Under Secretary Noble and Director Magaw were very forthcoming about the reasons for this decision. After the Treasury Department Report was issued, Secretary Bentsen announced that ATF Director Stephen Higgins had decided to immediately retire and that the Secretary had placed five ATF officials on administrative leave, including: Daniel Hartnett, the Associate Director for Law Enforcement; Daniel Conroy, the Deputy Associate Director for Law Enforcement; David Troy, the Chief of the Intelligence Division; Incident Commander Phillip Chojnacki; and Deputy Incident Commander Charles Sarabyn. Mr. Hartnett and Mr. Conroy subsequently retired rather than challenge the report's findings. Mr. Troy accepted a demotion. addition, the two raid commanders, Mr. Sarabyn and Mr. Chojnacki, were fired because they refused to accept giving up their guns, badges, and ability to enforce Federal criminal law. Eventually they appealed their firing to the Merit Systems Protection Board (MSPB) and ultimately agreed to give up their guns, badges, and rank. 129 In 127 See Treasury Department Report at 211-216. 120 Majority Report at 28. 120 Hearings Part 1 at 822 (testimony of Under Secretary Ronald K. Noble); 522 (testimony of Secretary Lloyd M. Bentsen). Director Magaw decided, based upon sound reasoning, to settle the raid commanders' MSPB appeals of their removals. ATF's primary goal in the disciplinary process was to ensure that these two employees would be removed from positions where they would be supervising special agents or involved it the exercise of law enforcement authorities. By settling these appeals, ATF avoided the risk that the MSPB would have mitigated the removal to a lesser penalty, which could have required the agency to return the individuals to positions with law enforcement authority. Mitigation was a real risk, given the nature of the errors in judgment, the institutional failures identified in the Treasury Report, and Mr. Chojnacki's and Mr. Sarabyn's many years of exemplary service to the agency without any prior disciplinary actions.130 The negotiated settlements provided for the removal of both employees from their positions as Federal special agents, demotions in grade, and reassignment to non-agent positions. They are no longer in law enforcement positions; they no longer have arrest authority or the authority to carry a firearm. They do not supervise agents in the exercise of enforcement authorities. They provide valuable service to the agency which draws upon their many years of law enforcement experience. The Majority Report inaccurately states that the Secretary of the Treasury tried to persuade Congressman Brewster not to ask questions that might embarrass the Administration. Rather, as Secretary Rubin explained, Congressman Brewster "simply misunderstood the call. I did ask him to seek the truth, like the rest of us, and not to join any effort to undermine law enforcement. 131 130 Id. at 873-874 (statement of Director John W. Magow). 131Linnet Myers, Waco Witness: Agents Didn't Heed Warning, Chicago Tribune, July 22, 1995 at 8. Response to Majority Report Recommendations Recommendation 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. Response: Contrary to the suggestions of the Majority, Congress and Treasury already exercise comprehensive oversight of ATF. The events at Waco have already been the subject of exhaustive Congressional inquiry, including 8 days of hearings in the House and Senate in 1993, and 10 days of hearings in the House and Senate in 1995. In addition, Treasury has substantially increased its oversight of all its law enforcement bureaus following Waco. Transferring ATF to the Department of Justice does not make sense. Treasury has a major role in Federal law enforcement, particularly the enforcement of revenue laws. Indeed, approximately one third of all Federal law enforcement agents work for Treasury. ATF's mission of revenue collections, regulation, and enforcement related to the alcohol tobacco, firearms, and explosives industries and products, all of which are the subject of various Federal excise taxes, fits neatly within Treasury's traditional responsibilities. Indeed, ATF collects over $13 billion annually in revenue. The merger of ATF with any other agency or department would only create a larger bureaucracy. Such a bureaucracy would not necessarily provide cost savings, nor would it inspire greater public confidence in Federal law enforcement. Specialization can increase productivity, ensuring that fewer agents work more cases. A smaller agency also allows for more personalized and responsive service to the regulated industries. Proposals to move ATF to the Department of Justice for consolidation purposes have been rejected numerous times in the past. The Vice President's National Performance Review considered and rejected the proposal. The Carter Administration first proposed to transfer jurisdiction over firearms laws to the Justice Department. That proposal was rejected in large part because of concerns about placing total enforcement of the firearms laws in one agency. Enforcement of these laws is very sensitive, and a separation of investigative and prosecutorial functions in |