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the methodical insertion of the riot control agent into different parts of the building over a 48-hour period. The plan also contained a contingency provision to be used if the Davidians fired on the FBI agents who were implementing the plan. In that event, the FBI proposed to insert the riot control agent into all portions of the residence simultaneously. As a result of these deliberations, the Attorney General approved the implementation of the plan for April 19, 1993.

At approximately 6 a.m. on April 19, the FBI's chief negotiator, Byron Sage, telephoned the Davidians and informed them that the FBI was inserting the riot control agent into the residence. Sage also began broadcasting a prepared statement over loudspeakers that the FBI was "placing tear gas in the building" and that all residents should leave. As the announcement was being made, FBI agents using unarmed military vehicles with booms mounted on them began to insert the riot control agent into the compound by ramming holes into the sides of the structure and then using devices mounted on the booms to spray the riot control agent into the holes in the walls. Almost immediately the Davidians began to fire on the vehicles being used by the FBI. At 6:07 a.m., the commander of the Hostage Rescue Team ordered that the contingency provision of the operations plan be implemented and that the riot control agent be inserted in all portions of the residence at once. During 6 hours of insertion of the riot control agent no residents exited the compound.

At approximately 12:07 p.m., a fire was observed in one portion of the residence. Within 2 minutes, two other fires developed. Within a period of 8 minutes, the three fires had engulfed the entire structure, ultimately destroying it completely.

During the fire, sounds of gunfire from within the structure were heard. Some of these sounds were live rounds exploding in the flames inside the compound. However, other sounds were methodical and evenly-spaced, indicating the deliberate firing of weapons. Nine persons escaped from the structure during the course of the fire but more than 70 other residents remained inside. All of these persons died. Of this number, autopsies indicated that 19 died from gunshots at close range. Most of the other residents who remained inside the structure died as a result of smoke inhalation from the fire or from burns from the fire.

B. FINDINGS OF THE SUBCOMMITTEES

As a result of its investigation, the subcommittees make the following findings:

THE BRANCH DAVIDIANS

1. But for the criminal conduct and aberrational behavior of David Koresh and other Branch Davidians, the tragedies that occurred in Waco would not have occurred. The ultimate responsibility for the deaths of the Davidians and the four Federal law enforcement agents lies with Koresh.

2. While not dispositive, the evidence presented to the subcommittees indicates that some of the Davidians intentionally set

3. The Davidians could have escaped the residence for a significant period of time after the start of the fire. Most of the Davidians either did not attempt to escape from the residence or were prevented from escaping by other Davidians.

4. The gunshot wounds which were the cause of death of 19 of the Davidians on April 19 were either self-inflicted, inflicted by other Davidians, or the result of the remote possibility of accidental discharge from rounds exploding in the fire.

THE DEPARTMENT OF THE TREASURY

1. Treasury Secretary Lloyd Bentsen and Deputy Secretary Roger Altman acted highly irresponsibly and were derelict in their duties in failing to even meet with the Director of the ATF in the month or so they were in office prior to the February 28 raid on the Davidians residence, in failing to request any briefing on ATF operations during this time, and in wholly failing to involve themselves with the activities of the ATF.

2. Senior Treasury Department officials routinely failed in their duty to monitor the actions of ATF officials, and as a result were uninvolved in the planning of the February 28 raid. This failure eliminated a layer of scrutiny of the plan during which flaws in it might have been uncovered and corrected.

3. After the raid failed, Assistant Treasury Secretary Ronald Noble attempted to lay the blame entirely on the ATF despite the fact that Treasury Department officials, including Noble, failed to properly supervise ATF activities leading to the raid. Moreover, Treasury Department officials, having approved the raid, failed to clearly and concisely communicate the conditions under which it was to be aborted.

THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS

1. The ATF's investigation of the Branch Davidians was grossly incompetent. It lacked the minimum professionalism expected of a major Federal law enforcement agency.

2. While the ATF had probable cause to obtain the arrest warrant for David Koresh and the search warrant for the Branch Davidian residence, the affidavit filed in support of the warrants contained an incredible number of false statements. The ATF agents responsible for preparing the affidavits knew or should have known that many of the statements were false.

3. David Koresh could have been arrested outside the Davidian compound. The ATF chose not to arrest Koresh outside the Davidian residence and instead were determined to use a dynamic entry approach. In making this decision ATF agents exercised extremely poor judgment, made erroneous assumptions, and ignored the foreseeable perils of their course of action.

4. ATF agents misrepresented to Defense Department officials that the Branch Davidians were involved in illegal drug manufacturing. As a result of this deception, the ATF was able to obtain some training from forces which would not have otherwise provided it, and likely obtained other training within a shorter period of time than might otherwise have been available. Because of its deception, the ATF was able to obtain the training without having to

reimburse the Defense Department, as otherwise would have been required had no drug nexus been alleged.

5. The decision to pursue a military style raid was made more than 2 months before surveillance, undercover, and infiltration efforts were begun. The ATF undercover and surveillance operation lacked the minimum professionalism expected of a Federal law enforcement agency. Supervisors failed to properly monitor this operation.

6. The ATF's raid plan for February 28 was significantly flawed. The plan was poorly conceived, utilized a high risk tactical approach when other tactics could have been successfully used, was drafted and commanded by ATF agents who were less qualified than other available agents, and used agents who were not sufficiently trained for the operation. Additionally, ATF commanders did not take precautions to ensure that the plan would not be discovered.

7. The senior ATF raid commanders, Phillip Chojnacki and Chuck Sarabyn, either knew or should have known that the Davidians had become aware of the impending raid and were likely to resist with deadly force. Nevertheless, they recklessly proceeded with the raid, thereby endangering the lives of the ATF agents under their command and the lives of those residing in the compound. This, more than any other factor, led to the deaths of the four ATF agents killed on February 28.

8. Former ATF Director Stephen Higgins and former ATF Deputy Director Daniel Hartnett bear a portion of the responsibility for the failure of the raid. They failed to become significantly involved in the planning for the raid and also failed to instill in the senior raid commanders an understanding of the need to ensure that secrecy was maintained in an operation of this type.

9. There was no justification for the rehiring of the two senior ATF raid commanders after they were fired. The fact that senior Clinton administration officials approved their rehiring indicates a lack of sound judgment on their part.

THE DEPARTMENT OF JUSTICE

1. The decision by Attorney General Janet Reno to approve the FBI's plan to end the standoff on April 19 was premature, wrong, and highly irresponsible. In authorizing the assault to proceed Attorney General Reno was seriously negligent. The Attorney General knew or should have known that the plan to end the standoff would endanger the lives of the Davidians inside the residence, including the children. The Attorney General knew or should have known that there was little risk to the FBI agents, society as a whole, or to the Davidians from continuing this standoff and that the possibility of a peaceful resolution continued to exist.

2. The Attorney General knew or should have known that the reasons cited for ending the standoff on April 19 lacked merit. The negotiations had not reached an impasse. There was no threat of a Davidian breakout. The FBI Hostage Rescue Team did not need to stand down for rest and retraining for at least 2 more weeks after April 19, and if and when it did stand down FBI and local law enforcement SWAT teams could have been brought in to maintain the perimeter. Sanitary and other living conditions inside the

Davidian residence had not deteriorated during the standoff and there was no evidence that they were likely to deteriorate in the near future. And while physical and sexual abuse of minors had occurred, there was no basis to conclude that minors were being subjected to any greater risk of physical or sexual abuse during the standoff than prior to February 28. The final assault put the children at the greatest risk.

3. The CS riot control agent insertion and assault plan was fatally flawed. The Attorney General believed that it was highly likely that the Davidians would open fire, and she knew or should have known that the rapid insertion contingency would be activated, that the Davidians would not react in the manner suggested by the FBI, and that there was a possibility that a violent and perhaps suicidal reaction would occur within the residence. The planning to end the standoff was further flawed in that no provision had been made for alternative action to be taken in the ent the plan was not successful.

4. Following the FBI's April 19 assault on the Branch Davidian compound, Attorney General Reno offered her resignation. In light of her ultimate responsibility for the disastrous assault and its resulting deaths the President should have accepted it.

THE FEDERAL BUREAU OF INVESTIGATION

1. The CS riot control agent assault of April 19 should not have taken place. The possibility of a negotiated end to the standoff presented by Koresh should have been pursued even if it had taken several more weeks.

2. After Koresh and the Davidians broke a promise to come out on March 2 FBI tactical commander Jeffrey Jamar viewed all statements of Koresh with extreme skepticism and thought the chances of a negotiated surrender remote. While chief negotiator Byron Sage may have held out hope longer, FBI officials on the ground had effectively ruled out a negotiated end long before April 19 and had closed minds when presented with evidence of a possible negotiated end following completion of Koresh's work on interpreting the Seven Seals of the Bible.

3. The FBI should have sought and accepted more expert advice on the Branch Davidians and their religious views and been more open-minded to the advice of the FBI's own experts.

4. FBI tactical commander Jeffrey Jamar and senior FBI and Justice Department officials advising the Attorney General knew or should have known that none of the reasons given to end negotiations and go forward with the plan to end the standoff on April 19 had merit. To urge these as an excuse to act was wrong and highly irresponsible.

5. CS riot control agent is capable of causing immediate, acute and severe physical distress to exposed individuals, especially young children, pregnant women, the elderly, and those with respiratory conditions. In some cases, severe or extended exposure can lead to incapacitation. Evidence presented to the subcommittees show that use of CS riot control agent in enclosed spaces, such as the bunker, significantly increases the possibility that lethal levels will be reached, and the possibility of harm significantly increases. In view of the risks posed by insertion of CS into enclosed spaces,

particularly the bunker, the FBI failed to demonstrate sufficient concern for the presence of young children, pregnant women, the elderly, and those with respiratory conditions. While it cannot be concluded with certainty, it is unlikely that the CS riot control agent, in the quantities used by the FBI, reached lethal toxic levels. However, the presented evidence does indicate that CS insertion into the enclosed bunker, at a time when women and children were assembled inside that enclosed space, could have been a proximate cause of or directly resulted in some or all of the deaths attributed to asphyxiation in the autopsy reports.

6. There is no evidence that the FBI discharged firearms on April

19.

7. There is no evidence that the FBI intentionally or inadvertently set the fires on April 19.

8. The FBI's refusal to ask for or accept the assistance of other law enforcement agencies during the standoff demonstrated an institutional bias at the FBI against accepting and utilizing such assistance.

THE DEPARTMENT OF DEFENSE

1. The activities of active duty military personnel in training the ATF and in supporting the FBI's activities during the standoff did not violate the Posse Comitatus Act because their actions did not constitute direct participation in the Government's law enforcement activities.

2. The activities of National Guard personnel in training the ATF, in participating in the ATF raid on the Davidian residence, and in supporting the FBI's activities during the standoff did not violate the Posse Comitatus Act because the personnel were not subject to the prohibitions in the act.

3. No foreign military personnel or other foreign persons took part in any of the Government's actions toward the Branch Davidians. Some foreign military personnel were present near the Davidian residence as observers at the invitation of the FBI.

C. RECOMMENDATIONS

In order to prevent the errors in judgment and consequent tragic results that occurred at Waco from occurring in the future, the subcommittees' make the following recommendations:

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. Congress should consider whether the lack of Treasury Department oversight of ATF activities in connection with the investigation of the Davidians, and the failures by ATF leadership during that investigation, indicate that jurisdiction over the ATF should be transferred to the Department of Justice.

2. If the false statement in the affidavits filed in support of the search and arrest warrants were made with knowledge of their falsity, criminal charges should be brought against the persons mak

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