Lt. Col. Pettit told National Guard investigators that he provided. his approval because the request required another person's approval as well.205 However this decision, in itself, raises several unanswered questions. Did Lt. Col. Pettit assume a drug nexus existed or that one was not needed? Did he believe that the request should be approved despite the absence of legally required drug nexus? Or did he believe that ATF would reimburse the National Guard? These questions repeat themselves throughout the approval process, and are raised here to illustrate the difficulties encountered in disentangling a past approval of military aid involving a drug nexus.

Two days after Lt. Col. Pettit's approval, Special Agent Aguilera informed Lt. Col. Walker on December 16, 1992, that he received a facsimile from Marc Breault in Australia suggesting the existence of a methamphetamine lab at the Branch Davidian residence.206 Mr. Breault was a former Branch Davidian who left the group on bad terms, and exhibited strong personal animosity toward Koresh and several of the Davidians.

The following day, December 17, 1992, SAC Phillip Chojnacki held a meeting in his office with Special Agent Ivan Kallister, Special Agent Davey Aguilera, and Lt. Col. Walker regarding the Waco investigation. 207 According to ATF, Lt. Col. Walker told SAC Chojnacki during the meeting that the Defense Department could provide nonreimbursable military support if there is a "suspicion of drug activity." 208 Aguilera was subsequently instructed to "actively pursue information from his informants about a drug nexus.' Additionally, ATF Intelligence Research Specialist Sandy Betterton searched criminal records to determine if Branch Davidians had "some" prior drug offenses.210 It later was determined that only one Branch Davidian had a prior narcotics conviction.211

" 209

January 6, 1993, was the first National Guard overflight of the Branch Davidian residence and their auto body shop, called the "Mag Bag." This overflight was conducted by the Texas National Guard Counterdrug Unit in a UC-26 counterdrug aircraft. Forward Looking Infrared (FLIR) 212 videotape taken during the overflight indicated a "hot spot" inside the residence and three persons outside behind the residence whom ATF designated as "sentries." 213 The Texas National Guard conducted five more reconnaissance/surveillance overflights over the Branch Davidian property from February 3, 1993, to February 25, 1993. These overflights were con

205 Meeting with Army National Guard Brigadier General Sagsveen, in Washington, DC (October 19, 1995).

206 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. This document lists the date as Dec. 17th. Lt. Col. Walker's Waco Summary of Events lists the date as the 16th. Treasury Documents T007884.

207 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.

208 Id. 209 Id. 210 Id.

211 Id.

212 A FLIR, also called a Thermal Imaging System (TIS), is a type of photography which images thermal heat sources.

213 Memorandum from Special Agent Robert Tevens, "Chronology and Witnesses Re: Military Support of ATF" (July 14, 1993). Treasury Documents T004589, T004591.

ducted to "search for armed guards and drug manufacturing facilities." 214

On the same day as the first National Guard overflight, January 6, 1993, Richard Garner, Chief of Special Operations Division of ATF, drafted another request on ATF headquarters letterhead directly to Col. Judith Browning, Director of Plans and Support, of the Office of the Department of Defense Coordinator for Drug Enforcement Policy and Support.215 ATF requested the loan of various office equipment, a refrigerator, cots and sleeping bags to be made available on January 11, 1993. The letter states that the ATF was investigating violations of "firearms and drug laws" and requested the equipment as "part of Defense Department support for counterdrug effort." Col. Browning responded by letter on January 15 approving the support to be provided by the Regional Logistics Support Office 216 in El Paso, TX.217 The same questions asked of Lt. Col. Pettit above must be asked here of Col. Browning. Here, as with Lt. Col. Pettit, key documentation justifying the deployment of nonreimbursable military aid on the basis of a proven or suspected drug nexus is missing. Yet, Col. Browning approved the request and directed further ATF requests to be made directly to the Regional Logistics Support Office in Texas.

Within a week after Col. Browning's response, Garner sent a further request to Maj. Victor Bucowsky, the Officer-in-Charge of the Regional Logistics Support Office requesting an MOUT 218 site for Special Response Team training, driver training and maintenance support for Bradley fighting vehicles, seven Bradley fighting vehicles, and on-call support in the event a siege occurred.219 This was the largest request for assistance in Regional Logistics Support Office's history and eventually had to be supplied by Texas National Guard because the Regional Logistics Support Office was unable to handle a law enforcement request of such magnitude.220

On February 2, 1993, Operation Alliance made a request to the Commanding General of JTF-6 for the use of Special Forces personnel assigned to his organization.221 Lt. Col. Philip W.

214 Treasury Department Report at 44 n.18.

215 Treasury Documents T004601, T004602. The proper procedure for requesting military assistance along the Southwest border is to go through Operation Alliance. Letter from Ŏperational Alliance to Special Agent Eddie Pali, ATF Coordinator for Operation Alliance (January 26, 1990). Treasury Documents T006663-006664. Despite ATF not following this process, documents provided by Treasury indicate their agents were aware the procedural requirements. Id. 216 See note 181.

217 Treasury Documents T004603.

218 MOUT stands for Military Operations on Urbanized Training "which would include all military actions that are planned and conducted on a terrain complex where man-made construction impacts on the tactical options available to the commander. These types of operations are characterized by large-scale offensive and defensive operations. The primary objective is to seize and hold ground using all available means. This often results in extensive damage to the area." Memorandum from U.S. Army Special Forces Command regarding Policy Letter on Close Quarters Combat (CQC) Training (November 24, 1993).

219 Treasury Documents T004606 (dated January 22, 1993), T004612. Treasury Document T004610 is a duplicate of the letter except it is dated January 21, 1993 and has handwritten notes along the border. The notes along the border appear to indicate that JTF-6 was responsible for the SRT training and “No, T-32 TX” is written next to the Bradley training (T-32 apparently refers to Title 32).

220 Memorandum of interview from Special Agent Robert Tevens for the Waco Administrative Review (September 14, 1993). Treasury Documents T005397, T005399.

221 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

Lindley,222 the U.S. Army Special Forces Command Staff Judge Advocate, was notified of this request and advised JTF-6,

that Rapid Support Unit (RSU) 223 assistance in actual planning and rehearsal of proposed "takedown" could violate posse comitatus law, expose RSU to liability. [A qluestion also arises as to appropriateness of RSU giving non-METL, 224 i.e., SOT/CQB training to ATF 225

However, there again is no written documentation of ATF's request for this highly controversial training.

Within days, the training mission by Special Forces soldiers was revised to include only coordination on Army ranges and teaching ATF how to develop an operations order.226

c. Pre-raid military assistance requested by ATF and assistance actually received

The military assistance provided to ATF can be separated into four areas: (1) surveillance overflights by counterdrug National Guard units in January and February 1993; (2) training by Special Forces soldiers assigned to JTF-6 for counterdrug missions in late February 1993; (3) direct support by Texas National Guard counterdrug personnel who conducted an aerial diversion the day of the raid on February 28, 1993; and (4) post-raid support to FBI and ATF.

Six surveillance overflights were conducted by counterdrug National Guard units. Aerial photography missions by the Texas National Guard began on January 6, 1993.227 The January 6 missions and subsequent missions on February 3, 18, and 25, 1993, were taken by a Texas National Guard Counterdrug UC-26 aircraft.228 On January 14, 1993, aerial photographs were taken by the Alabama National Guard.229 And, on February 6, 1993, the Texas National Guard provided infrared video (FLIR) and aerial photography in a Counterdrug UC-26 aircraft.230

ATF's request for training of ATF agents by Special Forces soldiers went through several alterations before the actual training took place. Although ATF initially requested Bradley fighting vehicles, SOT/CQB training, onsite medical evacuation assistance and planning assistance, legal restrictions caused the ATF request to be

222 At the time of the Waco incident Philip Lindley served as a Major in the U.S. Army. However, since that time, he has been promoted and testified before the subcommittees with the rank of the Lieutenant Colonel. He will be referred to as Lt. Col. Lindley throughout the Report. 223 A Rapid Support Unit (RSU) is comprised of a Special Forces Company with attached aviation asset. Rapid Support Unit Description Paper. Defense Documents D-1353. The subcommittees are aware of no RSU aviation assets being used at Waco. "RSU missions are characterized by small, short duration, interdiction missions normally limited to border areas." Id. (emphasis added). The paper states under Mission Parameters that "the mission must be related to the Special Operations Mission Essential Task List (wartime tasks) and should be intel-prompted." Id.

224 Mission Essential Task List (METL) includes soldiers' wartime tasks, i.e. what skills a soldier has been trained in and capable of training others in. Special Forces units who were assigned to Operation Alliance were restricted to their METL training law enforcement agents. 225 Defense Department Documents D118.

226 Id.

227 Texas National Guard After-Action Report (April 29, 1993). Defense Documents D2344 at D2346.

228 Id.

229 Id.

scaled down.231 A Special Forces Rapid Support Unit, assigned to Operation Alliance, trained ATF on 25-27 February 1993, in company-level tactical C2, Medical Evacuation training, IV ABC's, 232 and assistance with Range and MOUT sites.233 According to military documents and military witnesses who appeared before the subcommittees, no non-Mission Essential Task List (wartime tasks) training, SOT/CQB, or direct involvement in actual planning occurred. 234

For the February 28 raid, the Texas National Guard supplied three helicopters and 10 counterdrug personnel. When ATF requested National Guard assistance, their stated mission to the National Guard was to use the helicopters as a command and control platform during the raid, and to transport personnel and evidence after the area was secured.235 Only when the National Guard team arrived at Fort Hood for the pre-raid training, less than 24 hours before the raid, did ATF agents inform the National Guard personnel that the helicopters would be used as an aerial diversion during the raid itself. ATF had even assigned one of the National Guard counterdrug soldiers to hang from a monkey sling outside the helicopter to film the raid.236 The soldier was in that position when the helicopters took incoming fire.237 Although all of the three helicopters sustained damage from weapons fire, none of the National Guard crews or ATF personnel aboard were injured.238 Since such direct involvement is prohibited by National Guard bureau regulations 239 and placed National Guard personnel in imminent danger, it is unclear why the National Guard consented to ATF's "lastminute" changes.

The National Guard's focal group review of the incident did not shed much light on the issue. The summary of its report, dated April 28, 1993, and the report itself "reveal only one major issue. The issue deals with the pre-raid threat assessment of the Davidians provided by ATF to the Texas National Guard as a 'docile' environment. A second issue, which is not included in the written report of the focal group but has been vocalized by Colonel Spence, deals with the suspected methamphetamine laboratory at the Branch Davidian residence. Colonel Spence contends that the drug issue is not included in the focal group report due to the potential media interest and any resulting Freedom of Information Act inquiries."

"240

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

232 Medical techniques for treating battlefield injuries including intravenous injections of fluids, clearing airways, controlling bleeding and treating shock. Sworn statement of Maj. Petree. Defense Documents D-1147.

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

234 Id.

235 Treasury Investigation interviews of National Guard personnel. Treasury Documents T005368.

236 Treasury Investigation interviews of National Guard personnel. Treasury Documents T005376.

237 Id. Interviews indicate that the helicopters were 350 feet from the Branch Davidian residence when they were hit. Treasury Documents T005370.

238 Treasury Investigation interviews of National Guard personnel. Treasury Documents TO05371.

239 NGB-500-2.

240 Memorandum of Interview from Special Agent Tevens for the Waco Administrative Review

d. Without the alleged drug nexus, the ATF most likely would not have received the same military assistance as was provided

Treasury and Defense Department officials have repeatedly maintained that ATF would have received military assistance even without a drug nexus, but that ATF would had to have paid for it. However, this statement is misleading because it fails to answer whether ATF would have received the same training it requested from units other than counterdrug units and for purposes other than counterdrug operations.

What is clear is that the ATF would not have received military assistance from the highly trained Special Forces units in such a short time frame and through the streamlined approval process which it enjoyed. As stated above, the ATF originally requested Close Quarters Combat training, a type of training available only from specialized military units like Special Forces. ATF's request was also the largest law enforcement request for military assistance in many of the counterdrug organizations' histories, such as the Regional Logistics Support Office. ATF further requested that its military training be conducted less than 30 days after its request, while even the streamlined Operation Alliance process normally required 90 days. Requesting through Operation Alliance also allowed ATF to avoid an approval process with a greater potential of independent oversight.

The same conclusion can be reached for the National Guard support. Had there been no drug nexus, there again would have been a different approval process. Without a drug nexus (i.e., noncounterdrug purpose), ATF's request for National Guard assistance would only be permitted if both the Texas State Constitution authorized the National Guard's involvement in the type of assistance ATF requested and the Governor was willing to expend State funds for that purpose.241 National Guard personnel have indicated that the assistance would not have been provided under those circumstances.242 This is supported by the fact that the National Guard bureau regulations prohibit the type of direct involvement ATF received from the National Guard counterdrug personnel, i.e., acting as a diversion during the ATF raid.243 Further, since the Texas National Guard depleted its fiscal year 1993 counterdrug funds during its assistance to ATF at Waco and had to request additional funding during it assistance, it is doubtful that Governor Richards would have approved State funding of so expensive an op

eration.

2. CONCERNS OF MILITARY LEGAL ADVISORS

Assistant Secretary of Defense Allen Holmes and Maj. Gen. John M. Pickler both appeared before the subcommittees. They testified that the approval process worked as it was intended.244 Yet, documents show that this was so only because Special Forces Command

241 Memorandum from Debra Diener, Senior Counsel to Geoffrey Moulton, Director of the Treasury Waco Administrative Review regarding the statutory and regulatory criteria and requirements for requesting military assistance and National Guard assistance (August 12, 1993). Treasury Documents T008304 at T008307.

242 Post hearing briefing by National Guard personnel.

243 Memorandum of Interview of Special Agent Tevens for the Waco Administrative Review (March 16, 1995). Treasury Documents T008300; Treasury Department Report at 95.