Page images

legal advisors at the U.S. Special Forces Command Headquarters, who were outside the normal approval process, but who had learned of ATF's request for assistance from Special Forces soldiers at Operation Alliance, strongly voiced objections to the Special Forces training mission of ATF as proposed by JTF-6. As a result of these concerns reaching extremely senior levels of command within the Department of Defense, the training missions were scaled back significantly and potential violations of the law were avoided.

a. Involvement of Special Forces Command legal advisors

As referred to earlier, a Rapid Support Unit (RSU) from Third Company, Third Division, Special Forces Group was deployed on a regular rotation to JTF-6 for counterdrug missions. When the original ATF request was assigned to this RSU team, Maj. Ballard, the Special Operations Representative at JTF-6, telephoned Special Operation Command at Fort Bragg and expressed his concern with the ATF training mission to Mr. Crain, a civilian employee at Special Operations Command.245

Upon hearing the details of the original request, Mr. Crain also became concerned and immediately notified Lt. Col. Lindley.246 Lt. Col. Lindley subsequently spoke with Maj. Petree, the Special Forces Rapid Support Unit Commander, who also expressed similar concerns about the scope of the mission.247

Lt. Col. Lindley testified before the subcommittees that he was principally concerned with three areas of the support requestedthe review and scrub of the ATF operation plan, medical support in close proximately to the scene, and assistance in developing and constructing the rehearsal sites.248 Lt. Col. Lindley's first concern was the review and scrub which is an analysis of a mission that has already been planned. The review and scrub of the operation plan and the review of the discriminating fire plan would have been done by the Special Forces unit assigned to JTF-6, which ultimately provided the military training to ATF.249 Lt. Col. Lindley was of the opinion that the actual planning and rehearsal of the take down was "active" and therefore illegal.250 He also believed that the Special Forces unit was not authorized to offer expert advice on deconstructing a drug lab.251

Lt. Col. Lindley's second concern dealt with the use of military medical personnel. According to ATF's request, these military medical personnel would be onsite and directly involved in potential searches of individuals apprehended and in the collection of evidence, resulting in Posse Comitatus Act implications. This degree of direct involvement would also create liability issues associated with the treatment of the civilians.252 The medical personnel potentially would be treating gunshot wounds of children, and military medical personnel do not have the training or equipment to treat

245 Id. at 368.

246 Id. at 352-353.

247 Id. at 368.

248 Id. at 350.

249 Id. at 351.

250 Memorandum for record of Lt. Col. Philip Lindley (3 February 1993). Defense Documents D-1168 at D-1169.

251 Id. at D-1172.

such trauma wounds (gunshots) in small children. For example, some medical equipment for children such as breathing tubes require special sizes with which these medical teams are not be equipped.253

According to Lt. Col. Lindley, the JTF-6 informed him that the law enforcement action was a raid on a methamphetamine lab.254 Having been involved in law enforcement actions involving methamphetamine labs as a civilian, Lt. Col. Lindley was aware of concerns with the physical characteristics of methamphetamine production and the dangers in the chemicals, as well as ammunition considerations given the explosive nature of methamphetamine labs.255 Contamination of soldiers' clothing by chemicals used in the production of methamphetamines would involve those soldiers in the collection of physical evidence.256 Again, such direct involvement would violate the Posse Comitatus Act.

Upon completing his discussions with the Special Operations personnel, Lt. Col. Lindley directly contacted JTF-6 personnel to express his concerns about the mission. When Lt. Col. Lindley informed JTF-6 personnel that, from his initial analysis of the information presented, the request was impermissible as proposed, he received a hostile response from Lt. Col. Rayburn, the JTF-6 Legal Advisor.257 After his conversation with JTF-6 personnel, Lt. Col. Lindley began a memorandum for record detailing the chronology of events and conversations as they took place.258 JTF-6, not Lt. Col. Lindley, subsequently provided the legal review of the request.

After the requests for additional evidence of methamphetamine production, the military assistance allowed was drastically restricted.


Contrary to assertions by Assistant Secretary Holmes, Brig. Gen. Huffman, and Maj. Gen. Pickler, the approval process did not work as it was supposed to.259 First, although concerns had been raised that JTF-6 had been providing military assistance to noncounterdrug activities, little documentation of ATF's requests for military assistance exists. Second, while some senior military officers and DEA officials had opportunities to voice concerns about ATF's alleged drug nexus, they chose not to exercise those opportunities. Third, because a few military officers identified major legal problems with the training mission and alerted senior military commanders, despite threats by other senior military officers, the mission was altered to avoid violations of the law. Finally, after Waco hearings were scheduled, the Secretary of Defense acknowl

253 Interview of Lt. Col. Philip Lindley by Glenn R. Schmitt, Counsel to the Subcommittee on Crime, and Michele Lang, Special Counsel to the Subcommittee on National Security, International Affairs, and Criminal Justice, in Washington, DC (July 19, 1995).

254 Hearings, Part 1 at 367.

255 Id. at 367-368.

256 Id.

257 Id. at 353.

258 Id.

edged problems with the military assistance process and created a working group to review the process.260

a. Concerns of cheating by JTF-6

Military documents indicate that a problem existed with JTF-6 providing military assistance to law enforcement agencies in the absence of a drug nexus.261 These concerns apparently had reached the highest levels of the Department of Defense.262

When JTF-6 provides military assistance in noncounterdrug related law enforcement actions, it is referred to as "cheating" because it allows the law enforcement agency to obtain military assistance without reimbursing the military. Moreover, military assistance provided under these circumstances is funded with money specifically appropriated for counterdrug activities. 263 Furthermore, cheating allows JTF-6 to provide military assistance to noncounterdrug activities, outside the scope of its authorized purpose.264 Interviews with Defense Department counterdrug personnel revealed that self preservation in part fuels JTF-6 efforts to secure healthy budget allocations.265 Documents provided by the Treasury Department show that in the months following the tragic end of the Branch Davidian siege, JTF-6 and Operation Alliance were actively promoting their services to ATF. This was occurring even as senior military officials expressed concern that ATF misrepresented the required drug nexus in order to obtain military assistance.266

Assistant Secretary Holmes stated that JTF-6 does not verify whether a "drug nexus" exists before providing military assistance because it would potentially place the military in a capacity of conducting surveillance and investigations of American citizens, which

260 Memorandum of Military Support to Civil Authorities by William Perry, Secretary of Defense, to the Secretary of the Army, Chairman of the Joint Chiefs, Under Secretary of Defense (Policy), Under Secretary of Defense (Comptroller), and the General Counsel of the Department of Defense (May 17, 1995).

261"Desires to know the [U.S. Army Special Operations Command] position regarding the attached draft [message]. Intent is to go on record confirming the phonelon arrangements, and to reinforce [Special Operations Forces] Resistance to potential 'cheating' which seems to recur at JTF-6." Comments from a U.S. Special Operations Command facsimile (February 17, 1993). The facsimile cover was attached to the February 3, 1993, message regarding the Special Forces training mission of ATF and had multiple routing destinations. (Unnumbered).

262 Id.

263 National Defense Authorization Act Fiscal Year 1991, § 1004, Pub. L. 101-510 (as amended by National Defense Authorization Act Fiscal Year 1991 §1088, Pub. L. 102-190, and by National Defense Authorization Act Fiscal Year 1993 § 1041, Pub. L. 102-484, FY 93 NDAA.).

264 Hearings, Part 1 at 367.

265 The subcommittees discovered a number of post-Waco promotions of military assistance and ATF requests for military assistance. A sampling of those include: According to a Defense Department memo dated September 9, 1993, ATF requested and received approval for 2 weeks of Special Forces Training for 20 ATF agents less than 5 months after the tragic incident at Waco. Defense Documents D-1167. Another Special Operations Judge Advocate memo addressing this Special Forces training, indicates that ATF again was attempting to obtain military assistance without reimbursing Defense Department: "we cannot waive reimbursement under the fiction that we are 'training the trainer' as is not so subtly suggested by the 3 Aug BATF letter." Defense Documents D-1166. A June 15, 1993 ATF memorandum from Special Agent Pali, the ATF Deputy Senior Tactical Coordinator at Operation Alliance to the Chief of the Special Firearms Division and the Special Agents in Charge of the Dallas, Houston and Los Angeles Field Divisions enclosing an Regional Logistics Support Office document describing the "latest information regarding the types of support and procedures for Drug Law Enforcement Agencies to request excess property, nonoperational support or training from the Department of Defense." Treasury Documents T006665.

266 "[T]he only question I have is related to how we got involved. Was the 'methamphetamine' lab a subterfuge to get our (military) (506) (?) Involvement? Seems to me we need to be sure that what the ground rules are. Reasonable man rule applies." Unsigned handwritten note on a lieutenant general's note paper. Defense Documents D-1363.

is a violation of U.S. law.267 Secretary Holmes' purported concern is not responsive to the issue. Contrary to Mr. Holmes' assertion, the verification of a drug nexus would not require military personnel to conduct surveillance of or otherwise investigate American citizens. Rather, verification could be accomplished simply by establishing a standard which requires sufficient documentation by the law enforcement agency of the existence of drug offenses, as opposed to mere speculation or suspicion. In addition, JTF-6's own planning guide states that it "reviews and validates all requests for support" in conjunction with Operation Alliance, the National Guard, and the Regional Logistics Office.268

b. Special Forces paper and ATF's response

Further evidence suggesting a serious problem in the military's approval of assistance to ATF in this case involves ATF agents' reactions to the Bureau's own claim that a methamphetamine lab existed in the Branch Davidian residence.

The alleged presence of a methamphetamine lab was the basis for which the Special Forces assistance provided to ATF. After Special Forces legal advisors concerns' with the proposed training and ATF's alleged drug nexus, Maj. Petree, the Commander of Special Forces Rapid Support Unit which was assigned to provide ATF support, ordered two of his Special Forces medics to research and write a paper on methamphetamine labs for ATF. These Special Forces medics, who are highly skilled military personnel with far more advanced training than a typical civilian paramedic, spent 3 to 4 days researching and writing a memorandum on methamphetamine labs for ATF 269

There is no doubt that a central purpose of the memorandum on methamphetamine labs was to inform the ATF of the potential dangers and special precautions required when dealing with an active methamphetamine lab. Yet, when Maj. Petree presented the paper to ATF agents during the February 4-5, 1993, Houston meeting, these agents openly chose to ignore this information in front of the soldiers who prepared the document. In fact, the ATF agents' dismissal of such vital information was so obvious that these agents' reactions alone made to clear that the ATF believed that a methamphetamine lab did not exist.270

Maj. Petree indicated that the purpose of the Special Forces paper was for the informational use of Special Forces units who might be involved in future counterdrug activities involving methamphetamine labs. Yet, when the subcommittees requested a copy of the Special Forces paper during a visit by subcommittees' staff to the U.S. Army Special Operations Command in Fort Bragg, NC,

267 Pre-hearing meetings with Assistant Secretary Allen Holmes. See also Hearings, Part 1 at 367 (statement of Maj. Gen. John M. Pickler).

268 JTF-6 Operational Support Planning Guide at 16. Treasury Documents T08786, T08803. 269 Hearings, Part 1 at 361.

270 Id. at 372. Maj. Petree had to have known, or certainly should have known, as a senior military officer assigned to JTF-6, that a drug nexus was absolutely necessary to receive assistance from his unit through JTF-6. Even though Staff Sgt. Fitts, one of the writers of the paper, noticed the ATF agents' disinterest in the vital paper and clearly came to the conclusion that a methamphetamine lab did not exist, Maj. Petree indicated that he did not notice any remark

they were informed that it could not be located.271 Sgt. Fitts had not seen the Army Special Forces paper since the meeting in Houston and had no idea what became of the Special Forces paper after the meeting. If the Army Special Forces paper was written as an information resource, the Army Special Operations Command would be expected to have a copy of this paper on file.

c. Two DEA agents were members of the Operation Alliance board

Military officers were not alone in their inaction. Documents show that two senior DEA agents were assigned to Operation Alliance at the time of ATF's request for military assistance at Waco.272 Yet, none of the documents indicate that either of these DEA agents expressed concerns about the evidence ATF offered in support of its claim of an active methamphetamine lab or how ATF was planning to take down the alleged methamphetamine lab.

These two senior DEA agents were members of the Operation Alliance Board which provides the final approval of military assistance missions to drug law enforcement agencies. It is reasonable to assume that these DEA agents were aware of the safety and health risks a methamphetamine lab would present.

Treasury and Defense Department documents provided to the subcommittees indicate that Operation Alliance at least twice requested additional information on ATF's drug nexus, that a very contentious discussion between legal advisors and senior military officials of Special Operations Command and Operation Alliance had taken place, and that this was the largest raid in law enforcement history. Yet, no evidence was presented to show that these DEA agents expressed any concerns that ATF was not addressing these risks in their operational planning.

d. Approval process did not work

Contrary to the testimony of Assistant Secretary Holmes and Maj. General Pickler, the training mission did not violate laws because the approval process worked, but in spite of it. Only because certain soldiers recognized a legal problem and had the courage to raise the issue in light of opposition from their chain of command at JTF-6, was a "major incident avoided, lives were saved, and the law was not violated." 273

JTF-6 and Operation Alliance have the approval authority for law enforcement requests for military assistance along the southwest border, which means their legal advisors conduct the legal re

271 The presence of the Special Forces paper alone would provide evidence to produce charges that: (1) Special Forces trainers were deficient in their training of ATF in failing to ensure ATF took proper precautions; (2) Special Forces trainers knew from ATF's failure to incorporate proper precautions that no methamphetamine lab existed and thus they inappropriately provided military assistance in a noncounterdrug law enforcement operation. Neither of these potential charges is flattering to JTF-6, and especially to Maj. Petree, who presented the paper to ATF and who commanded the Special Forces units which trained ATF.

272 Senior DEA Representative William C. Rochon and DEA Staff Coordinator Richard G. Thomas were on the Operation Alliance board. However, Special Agent Thomas was on sick leave from approximately October 1992 until his retirement in January 1993, so he has no personal knowledge of Operation Alliance's activities in support of ATF's investigation of the Branch Davidians. Letter from the U.S. Department of Justice to the subcommittees (January 5, 1996) (responding to the subcommittees' October 25, 1995, request for information).

273 Handwritten memorandum on the letterhead of Judge Advocate General's Corp, U.S. Army. Defense Documents D-1155 at D-1157. The memo refers to the soldiers actions as "doing

« PreviousContinue »