lines, and therefore, encroach on the President's power to either deny or command and control such interstate use. Thus, the National Guard bureau believes they require congressional ratification. 170

Currently, none of the memoranda of agreement (or compacts) involving the use of National Guard personnel across State lines for law enforcement purposes have been ratified by Congress. Although the Southern Governors' Association recently amended its Southern Regional Emergency Management Assistance Compact at the advice of the National Guard bureau, to preclude the use of force across State lines and seek congressional approval of the compact, most of the interstate National Guard assistance to law enforcement agencies is occurring under the guise of memoranda of agreement, not congressionally approved compacts. Moreover, this issue expands beyond direct involvement in law enforcement actions, such as Waco, to the use of the National Guard for interstate assistance in disaster 171 and emergency relief. In fact, the issue has arisen with respect to the proposed use of non-Georgia National Guard units to assist the Georgia National Guard during the 1996 Summer Olympics, in Atlanta, GA.

b. Memoranda of agreement may attempt to supersede State law without legal authority

During the ATF investigation of the Branch Davidians, National Guard assistance to ATF came not only from the Texas National Guard, but from the Alabama National Guard. 172 At the behest of the ATF, the Adjutant General of the Texas National Guard requested and received support from the Alabama National Guard to take aerial photographs. Those aerial photographs were taken on January 14, 1993. This assistance was authorized by a "memorandum of agreement" between the Adjutant Generals of the Texas and Alabama National Guards which simply provided for the use of the Alabama National Guard at the request of the Texas Adjutant General. However, a review of the State laws of both Texas and Alabama raises legal concerns with the legal authority for conducting this interstate National Guard operation.

Texas law requires that, "[a] military force from another state, territory, or district, except a force that is part of the United States Armed Forces, may not enter the State without the permission of the governor." 173 Yet, National Guard personnel who were involved in post-raid National Guard investigations of the Waco incident have stated that Governors Richards did not approve the use of the Alabama National Guard. Military documents indicate that Governor Richards was unaware of the extent of even the Texas National Guard's involvement until after the failed raid occurred.

An examination of Alabama law indicates that the Alabama National Guard had no authority to conduct military operations out

170 National Guard Draft Legal Memoranda, supra note 167.

171 The subcommittees have been informed during meetings and followup discussion with National Guard Bureau personnel that the Bureau opposed the loan of Puerto Rico National Guard personnel to the Virgin Islands to suppress looting during Hurricane Marilyn based on these constitutionality concerns.

172 After Action Report of Texas National Guard Counterdrug Support in Waco, TX, as (April 29, 1993). [See Documents produced to the subcommittees 2344, at Appendix [hereinafter Defense Documents]. The Appendix is published separately.]

side Alabama because the Governor's authority over the Alabama National Guard appears only to extend to the State's boundaries. 174 Thus, it appears that the Alabama National Guard entered and conducted military operations in Texas without the proper authority to do so.

If the Alabama Governor's command and control authority ended at the Alabama State line and Governor Richards did not approve the Alabama National Guard's entrance into the State of Texas, then several questions are raised: Which Governor had command and control of the Alabama National Guard unit? Who (Texas, Alabama or the Federal Government) would have been liable for claims of injury and property damage had any occurred? If the Alabama unit is considered to be operating outside its scope of employment, would its personnel lose Federal Torts Claims Act's protection against personal liability? And, would the National Guard personnel risk losing their military health care and other military benefits in the event of an accident?

Memoranda of agreement currently used fail to address the intricacies which State laws present and they do not appear to have legal authority to supersede State constitutions and statutes. Because State laws differ, these questions must be addressed on a case by case basis if States are going to engage in the interstate use of National Guard personnel.

B. THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS' REQUEST FOR MILITARY ASSISTANCE AND THE MILITARY ASSISTANCE ACTUALLY PROVIDED

The pre-raid military assistance in Waco was provided through active duty and National Guard counterdrug units based on an alleged drug nexus. Much of the post-raid military assistance to the FBI and ATF also came from counterdrug units and funds. Central to understanding how the military became involved in the Waco matter is an understanding of how ATF's initial request for military assistance, based on alleged drug involvement, progressed.

1. OVERVIEW

a. The process for requesting military assistance along the southwest border

Military support to counterdrug operations along the Southwest border of the United States is designed "to assist law enforcement agencies in their mission to detect, deter, disrupt, and dismantle illegal drug trafficking organizations." 175 Thus, military support acts as a "force multiplier," allowing law enforcement agencies to focus on "interdiction seizure actions." 176

When a drug law enforcement agency 177 requests counterdrug military assistance along the southwest border, that request is received and reviewed by Operation Alliance, which acts as the clear

174 Ala. Code, §31-2-7.

175 JTF-6 Operational Support Planning Guide, Treasury Documents T08786.

176 Id. at T08790.

177 A drug law enforcement agency is a law enforcement agency that has jurisdiction over drug laws. ATF was authorized to investigate narcotics traffickers who use firearms and explosives

inghouse. 178 The request is then coordinated with support_organizations such as JTF-6 179, the North American Aerospace Defense Command (NORAD), 180 the Regional Logistics Support Office 181 and the pertinent National Guard. Operational support is provided as a joint effort by JTF-6, NORAD and the National Guard. 182 Nonoperational support which would include, but is not limited to, equipment, institutional training, and use of facilities would be provided by the Regional Logistics Support Office. 183

To receive assistance through Operation Alliance and from these organizations, the civilian law enforcement investigation must involve criminal violations of U.S. drug laws; i.e., have a "drug nexus." Having initiated 232 Operation Alliance investigations through fiscal year 1989, 184 ATF was no stranger to Operation Alliance's counterdrug mission and its drug nexus prerequisite. In fact, documents dated as far back as March 15, 1990, designated ATF Special Agent Sarabyn, and ATF Special Agent Pali, the ATF coordinator for Operation Alliance during the Branch Davidian investigation, as ATF coordinators for military assistance. 185

b. Chronology of ATF's request

The chronology of ATF's request for military assistance provides insight into how early ATF wanted military assistance, how the military and ATF became concerned with the drug nexus issue, and how the military's concerns changed the scope of military assistance provided.

As early as November 1992, ATF agents were discussing the need for military support with Lt. Col. Lon Walker, the Defense Department representative to ATF.186 In his "summary of events" 187 November entry, Lt. Col. Walker specifically states that, at that time, he was not told of any drug connection. 188

By December 1992 (almost 3 months before the raid), ATF agents were requesting Close Quarters Combat/Close Quarters Battle 189

178 Operation Alliance is the clearinghouse for all civilian law enforcement requests for military support along the southwest border. Operation Alliance reviews all requests and coordinates the requests of Federal, State and local agencies, and determines the appropriate military agency to provide the support. JTF-6 Operational Support Planning Guide, Treasury Documents T08786, 08790.

179 See note 160 and accompanying text.

180 NORAD incorporated the counterdrug mission into its command structure in 1989.

181 The Regional Logistics Support Organizations are under the direct supervision of the Office of the Defense Department Coordinator for Drug Enforcement Policy and are the primary point of contact for Drug Law Enforcement Agency requests for equipment i.e., nonoperational support.

182 JTF-6 and NORAD employ active duty military personnel. The State National Guard personnel are in a title 32 status.

183 JTF-6 Operational Support Planning Guide, Treasury Documents T08786, 08789.

184 Hearings before the Subcommittee on the Treasury, Postal Service, and General Government Appropriations of the House Committee on Appropriations, 101st Cong., 2d Sess. 688, 695 (1991) (statement of Stephen E. Higgins, Director, Department of Treasury, Bureau of Alcohol, Tobacco

and Firearms).

185 Memorandum from Special Agent Eddie Pali, Tactical Operations Coordinator to the ATF SAC's in Dallas, Houston, and Los Angeles (March 15, 1990). Treasury Documents T006661. 186 Lt. Col. Lon Walker's summary of events. Treasury Documents T007884.

187 Id.

188 Id.

189 Close Quarters Battle involves "combative techniques which include advanced marksmanship, use of special purpose weapons, munitions, demolitions and selective target engagement conducted by small, specially trained units against static or halted man-made targets to defeat a hostile force with a minimum of collateral damage." Headquarters, U.S. Army Special Forces Command, Policy Letter on Close Quarters Combat (CQC) Training (24 November 1993). The terms CQC and CQB have been used interchangeably for a number of years. CQC is the military doctrinally correct term. However, in this Report the subcommittees will continue to use CQB

(CQB) training by U.S. Army Special Forces soldiers for ATF agents.190 A basic CQB course takes a minimum of 2 months and advanced CQB training takes a minimum of 6 months. Moreover, CQB is the type of specialized training a terrorist or hostage rescue team such as the FBI Hostage Rescue Team would use. CQB is also a perishable skill requiring frequent/continuous training that ATF, as an agency, is not designed to maintain or utilize. Somewhat surprisingly, neither the documents from the Treasury investigation, nor the Treasury Report, itself, never refer to this request. However, one military document furnished to the subcommittees as part of their document request specifically states that no written documentation is available on this extraordinary request by ATF for CQB training. 191 This is the case despite ongoing discussions in 1992 and early 1993 within the senior ranks of the U.S. Army Special Operations Command regarding the prudence of making SOT 192 /CQB training available to civilian law enforcement and foreign military personnel. 193 These discussions are significant because they again foreshadow the potential use in civilian law enforcement of highly specialized military training, designed and intended for military operations.

On December 4, 1992, several ATF Special Agents, including the SAC's of the Dallas and Houston ATF offices, met at Houston's ATF field office for the first time to discuss the Waco investigation. 194 In attendance were SAC Phillip J. Chojnacki; SAC Ted Royster; Assistant Special Agent in Charge James Cavanaugh; Resident Agent in Charge Earl K. Dunagan; Special Agents Aguilera, Lewis, Petrilli, Buford, K. Lattimer, Williams, Carter, and John Henry. 195 Also present at that meeting was Lt. Col. Lon Walker, the Defense Department representative to ATF. Lt. Col. Walker's notes of the meeting reveal that he explained to those present "that the military probably could provide a great deal of

since that was the term used throughout the post-Waco investigations and the congressional hearings.

190 After discussions between the Special Operations Command and Special Forces Command had taken place regarding U.S. Army Special Forces Command (Airborne) participation in conducting CQB/SOT for drug law enforcement agencies, the Commander of the U.S. Army Special Operations Command (USASOC) informed the Commander of JTF-6 by military message, dated 4 January 93 (within a very close proximity to ATF's request for CQB), that the USASOC would provide CQB Special Operations Training CQB/SOT training to law enforcement agencies. “It is anticipated that CQB/SOT training support requests may be filled by the U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS) or other units that include CQB/SOT as part of their METL." The memorandum goes on to state that USASOC and USASFC(A) have only agreed to provide CQB/SOT instruction to the U.S. Border Patrol Tactical Unit (BORTAC).

191 "SOF Assistance to Federal Law Enforcement in Waco, Texas." Defense Documents D1116A.

192 SOT stands for Special Operations Training. Although SOT is not an official military term for Special Operations Training; i.e., it is an acronym for a course taught at the U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), it will be used here to identify Special Operations Training because that is how it is used by the military documents referred to by the subcommittee investigators. See Headquarters, USASFC (A) Policy Letter on Close Quarters Combat Training (24 Nov. 1993) (unnumbered) for discussion on proper usage of SOT. 193 See memorandum of 3rd Special Forces Group, Headquarter's Memorandum on Special Operations Training and Close Quarters Battl (21 Sept. 1992) (unnumbered); See also memorandum of U.S. Army Special Forces Command (Airborne) on USASFC policy for conducting counterdrug operations in the continental United States (23 Feb. 1993) (unnumbered) and Headquarters U.S. Army Special Forces Command (Airborne) Policy Letter on Close Quarters Combat Training (24 Nov. 1993) (unnumbered).

194 Lt. Col. Lon Walker's summary of events. Treasury Documents T007884.

195 Memorandum from Colleen Callahan and Robert Tevens to Geoff Moulton and Lew Merletti, "Chronology and Witnesses Re: Military Support of ATF" (July 14, 1993). Treasury

support and [that he] suggested things like aerial overflight thermal photography." 196 Lt. Col. Walker's notes also state that he explained "that without a drug connection the military support would be on a reimbursable basis." 197 This reference to reimbursement is significant because it reveals that military aid was, as of that date, understood to require reimbursement by ATF unless a drug nexus could be identified and articulated with sufficient specification to warrant military aid on a nonreimbursable basis. Lt. Col. Walker's December 4th entry is followed by a handwritten note that states "Aguilera said there was no known drug nexus.

On December 11, 1992, Special Agent Jose G. Viegra, the Resident in Charge (RAC) of the Austin, TX, ATF Office, met with representatives for the Texas Governor's Office about the role of the military in any potential ATF action involving the Davidians. 199 Representatives of the Texas Governor's Office present at the meeting were William R. Enney, Texas State Interagency Coordinator and his assistant, Lt. Susan M. Justice, Assistant Interagency Coordinator of the National Guard Counterdrug Support Program. 200 This meeting was requested by ATF to discuss specifically what types of military assistance were available to the ATF for its raid on the Branch Davidian residence 201 in Waco, TX. During the meeting, Special Agent Viegra was told that military assistance through Operation Alliance would not be available unless there was a "drug nexus." That meeting constituted the second time in 8 days that ATF agents inquiring about military assistance were told of a drug nexus prerequisite. At the December 11, 1992, meeting, Enney asked the ATF agents to determine whether a drug nexus did in fact exist.

Three days after their meeting with ATF, the Texas counterdrug representatives received a facsimile of a letter dated December 14, 1992, on "Houston SAC letterhead" from the RAC of the Austin ATF office, Earl K. Dunagan, requesting military assistance from the Texas Counterdrug Program.202 The military assistance requested from the Texas National Guard was for aerial reconnaissance photography, interpretation and evaluation of the photos, and transportation of ATF agents aboard the aircraft during the reconnaissance.203 Although the request did not mention suspected drug violations (drug nexus), as would be required to secure nonreimbursable assistance or military assistance from a counterdrug unit, Lt. Col. Pettit, the Texas Counterdrug Task Force Commander, initialed his approval on the request.204

196 Lt. Col. Lon Walker's summary of events. Treasury Documents T007884.

197 Id.

198 Id.

199 Memorandum from Colleen Callahan and Robert Tevens to Geoff Moulton and Lew Merletti, "Chronology and Witnesses Re: Military Support of ATF" (July 14, 1993). Treasury Documents T004589.

200 Id. Mr. Enney was designated by Texas Governor Richards as the Texas State representative for Defense Department coordination of the Texas National Guard Counterdrug Support Program.

201 The Branch Davidian residence was termed a "compound" by ATF, during the investigation, and the media and other commentators subsequently adopted this militaristic term for a fortified or highly secure structure.

202 Memorandum from Colleen Callahan and Robert Tevens to Geoff Moulton and Lew Merletti, "Chronology_and_Witnesses Re: Military Support of ATF" (July 14, 1993). Treasury Documents T004589, T004590.

203 Id.