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view of the proposed assistance, not Special Operations Command legal advisors at Fort Bragg.274
Soldiers are taught that they should always go through their chain of command to address a problem. Only under significant circumstances are soldiers encouraged to go outside their chain of command for assistance. The Special Forces soldiers assigned to assist ATF, apparently had been properly trained to go outside their chain of command, which at the time was at JTF-6, by contacting their legal advisor at Special Operations Command, (USAFC) if they had concerns about a mission.
The Special Forces soldiers assigned the ATF mission did just that. Maj. Ballard, the Special Operations Representative at Operation Alliance, contacted Mr. Crain at Special Operations Command. Crain then informed Lt. Col. Lindley of their concerns.
It was Lt. Col. Lindley, the legal advisor of the Special Operation Command, who raised the legal concerns with JTF-6. Lt. Col. Lindley received a hostile response from Lt. Col. Rayburn, the JTF-6 legal advisor who accused him of attempting to "undermine" and "undercut" JTF-6's mission.275 Lt. Col. Lindley was also told that he could consider Lt. Col. Rayburn's words a personal attack.276 Subsequent to Lt. Col. Lindley's telephone conversation with Lt. Col. Rayburn, these concerns were raised with the Commanding Generals of both Special Operations Command and JTF6 and eventually reached the Office of the Secretary of Defense. When the legal concerns were reviewed at that level, the Special Forces training mission was modified to comply with the law.277 e. The working group established by the Secretary of Defense
The final piece of evidence that serious problems exist in the process by which the military provides support to civilian law enforcement agencies is the Secretary of Defense's creation of a working group to review the process in the wake of the subcommittees' announcement of Waco hearings which would also explore the military's role in the incident.
On May 17, 1995, Secretary of Defense William J. Perry directed the Under Secretary of Defense for Policy to establish a working group "to conduct a comprehensive review of the current system by which Defense Department evaluates and responds to requests for assistance initiated by outside agencies." 278 Perry acknowledged in his memorandum that, "several recent events suggest that the
274 All law enforcement agency requests for military assistance along the southwest border must be routed through Operation Alliance. Once the request is received, it is reviewed by Operation Alliance. If Operation Alliance accepts the request, it is then sent to JTF-6 for processing. JTF-6 Operations Section will develop a draft operations order with the law enforcement agency. Once the planning is complete, the draft order is returned to Operation Alliance for its approval. A final approval of the operations order is then determined at a joint meeting of the heads of supporting field drug law enforcement agencies, the Special Forces Rapid Support Unit tasked by JTF-6 and the tactical coordinator for Operational Alliance. Letter from Operational Alliance Special Agent Eddie Pali, ATF Coordinator for Operation Alliance (January 26, 1990). Treasury Documents T006663-006664.
275 Memorandum for record from Lt. Col. Philip Lindley. Defense Documents D-1168 at D1170.
277 Handwritten memo on the letterhead of The Judge Advocate General's Corps, U.S. Army. Defense Documents D-1155 at D-1156.
278 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
process by which Defense Department evaluates and approves outside requests for assistance may be less than adequate" and that "there are indications that Defense Department's ability to respond smoothly is encumbered by conflicting directives, multiple entry points and diverse funding authorities." 279
C. THE ALLEGED DRUG NEXUS
As explained earlier, in order to receive military assistance at Waco from the military counterdrug units, ATF was required to have a drug nexus. The existence of a drug nexus also would have allowed ATF to receive that military assistance without being required to reimburse the military for the cost of the training. ATF's allegation that a drug nexus existed at the Davidians' residence raised two concerns: (1) whether ATF used this alleged drug nexus as a subterfuge in order to obtain free military assistance from specially trained Special Forces counterdrug units; and (2) assuming ATF actually believed a drug nexus existed, whether ATF ensured that its agents were aware of the extreme health and safety hazards that a methamphetamine lab presents, and were properly trained and equipped to address those hazards.
1. METHAMPHETAMINE LABORATORIES
ATF alleged to the military that it had evidence of an “active methamphetamine lab" on the premises of the Davidians' residence. Unlike general narcotics seizures, clandestine labs, by their very nature, "present a unique series of hazards and risks to law enforcement personnel." 280 Therefore, an allegation of an active methamphetamine lab should alarm any law enforcement official, because of the extreme safety and health dangers involved.
a. Dangers associated with methamphetamine labs
Hazards which law enforcement agents may expect to encounter in clandestine lab operations include exposure to toxic chemicals, explosive and reactive chemicals, flammable agents, irritant and corrosive agents, boobytraps, and physical injury from close quarter contact with illegal lab operators.281
Illegal methamphetamine labs use highly volatile chemicals during the production process. Notwithstanding the boobytraps law enforcement agents frequently encounter at methamphetamine labs, the firing of a single bullet, sparks from turning off and/or on light switches, flashlights, or even a flash from a typical photography flashbulb can easily trigger an instantaneous explosion. Toxic vapors produced during chemical reactions can permeate a building's structure and buildings with poor ventilation and temperature controls (like the Davidians' residence) "add to the potential for fire, explosion, and human exposure.' "282 One chemical used in clandes
280 The Joint Task Force of the Drug Enforcement Administration, the U.S. Environmental Protection Agency, and the U.S. Coast Guard, Guidelines for the Cleanup of Clandestine Drug Laboratories 8. See also, Bureau of Justice Assistance, Developing a Strategy for a Multiagency Response to Clandestine Drug Laboratories 4 (September 1995).
281 Id. at 8.
tine drug labs is so deadly that an amount small enough to fit on the head of a pin, could kill a room full of people.283
Other health concerns are no less serious. In the absence of proper safety precautions and cleanup procedures, law enforcement agents may "experience both acute and chronic adverse health effects as a result of exposure to solvents, reagents, precursors, byproducts, and drug products improperly used or generated during the manufacture of illegal drugs." 284 Toxic materials produced at these labs can injure the lungs or the skin, damage the liver, kidneys, even the central nervous system.285 Some toxins have been linked to malformation of embryos, other genetic damage, cancers, and reproductive failure. 286
In determining appropriate safety and health precautions, the subcommittees relied on standards set forth by the Drug Enforcement Administration (DEA). DEA has primary jurisdiction over investigations of clandestine drug labs. As the lead Federal agency, it has established procedures that DEA agents must follow during the investigation and seizure of drug labs. 287 Moreover, this approach by DEA has been a model for State and local agencies in developing their own clandestine drug lab programs.288
b. Certification/training requirements for deconstruction of methamphetamine labs
Law enforcement personnel engaged in the investigation and seizures of clandestine drug labs should have specialized training in the investigation of such labs, in appropriate health and safety procedures, and in the use of the protective equipment.289
The DEA requires all of its personnel to complete a course on clandestine methamphetamine labs and be certified prior to ever participating in a methamphetamine lab raid.290 Simply stated, no DEA agent may participate in "take downs" of methamphetamine labs without proper certification. Annual recertification also is required. In addition, DEA provides seminars on clandestine methamphetamine labs throughout the Nation to other local, State, and Federal law enforcement personnel.
DEA agents are also required to receive a "baseline medical screening, including an occupational/medical history, a complete physical examination, a blood chemistry screen, pulmonary function and spirometry testing, and a stress-treadmill test prior to assignment." 291 Agents have regular followup medical evaluations and, because of the risks associated with long-term exposure, regularly are rotated out of the Clandestine Lab Program.
The initial entry team also must have and be trained in the use of "appropriate monitoring instrumentation, such as air-sampling pumps, explosimeters, oxygen meters, organic-vapor analyzers. .
283 Drug Enforcement Administration briefing to the subcommittees (June 8, 1995) and subsequent telephonic interviews with DEA chemists.
284 Id. at iii.
285 Bureau of Justice Assistance, supra note 280, at 5.
287 The Joint Task Force of the Drug Enforcement Administration, the U.S. Environmental Protection Agency, and the U.S. Coast Guard, supra note 280, at 4.
290 Id. at 5.
that are used to determine the lower explosive limit and the concentration of organic vapors in the laboratory atmosphere." 292 All of the monitoring devices must be "designed to suppress sparks" that may ignite and cause fires or explosions.293
c. The special precautions required when law enforcement actions involve a methamphetamine lab
After an investigation has gathered sufficient probable cause to establish that a drug lab is operating on a premises, DEA agents obtain a search warrant. Agents may request in the warrant the authority to destroy any hazardous bulk chemicals and equipment.294 A forensic chemist is consulted prior to and during the seizure.295 Once the warrant is obtained, the case agents begin a six step process for conducting the seizure: planning, entry, assessments, processing, exit, and followup.296 Because ATF entered the Branch Davidian residence, only the first two steps will be discussed in detail.
In the planning stage, the case agents must first assess of the hazards likely to be encountered and determine who needs to be notified before the raid (i.e., police, fire department, hospitals, hazardous waste contractors.) 297 This includes a determination of what chemicals the agents might encounter. Once the assessment is complete, certified teams, including a forensic chemist and site safety agent trained and equipped with the requisite safety equipment, are assigned.
The second stage is the initial entry to apprehend and remove the operators and to secure the lab. Typically in methamphetamine lab operations, law enforcement agents will attempt to arrest the suspects away from the premises to avoid many of the aforementioned dangers. This is usually accomplished through surveillance and investigative techniques which provide law enforcement agents with sufficient information to determine the lab's exact location, what chemicals are being used, the stage of the production process and when the suspects will leave the premises.
If the lab operators cannot be apprehended away from the premises, then the initial entry takes place. "DEA protocol calls for the initial entry team to employ ballistic protection equipment and fire retardant clothing." 298 Other safety procedures include avoiding the use of shotguns or diversionary devices such as flashbangs, smoke, or tear gas canisters which can ignite fumes.299 Additionally, agents should avoid turning light electrical switches on or off, use only explosion-proof flashlights, and use electronic strobes, not
292 The Joint Task Force of the Drug Enforcement Administration, the U.S. Environmental Protection Agency, and the U.S. Coast Guard, supra note 280, at 8.
294 ATF did not mention a drug lab or possession of illegal drugs as suspected crimes in its search warrant.
295 The Joint Task Force of the Drug Enforcement Administration, the U.S. Environmental Protection Agency, and the U.S. Coast Guard, supra note 280, at 5.
297 "In seizing a clandestine drug laboratory, the law enforcement agency may encounter materials that technically qualify as hazardous wastes and therefore are 'subject to regulation.' If those wastes exceed certain minimal quantities, the law enforcement agency becomes a hazardous waste generator and is required to adhere to waste disposal regulations promulgated under RCRA, and to regulations governing the transportation of hazardous materials promulgated by the Department of Transportation." Id. at iv.
298 Id. at 8.
flashbulbs.300 Once the premises are secure and everyone is evacuated, the assessment step begins.
d. Did ATF address the extreme safety and health concerns a methamphetamine lab presents in its raid on the Branch Davidian residence?
In 1990, Stephen E. Higgins,301 the Director of the Bureau of Alcohol, Tobacco and Firearms, testified before the Subcommittee on the Treasury, Postal Service, and General Government Appropriations of the Committee on Appropriations. In written responses to questions from subcommittee members, Higgins acknowledged:
[W]e [at the ATF] are aware of the considerable hazards presented by the careless storage of chemicals and the sensitivity of the explosive mixtures at these [clandestine methamphetamine] laboratories. In an effort to ensure a safe and thorough investigation, ATF has proposed specific, specialized training for select ATF personnel to readily identify narcotics laboratories and to recognize certain hazardous materials associated with the laboratories.302
Given that Higgins was still the ATF Director during the period when David Koresh was being investigated, when the Waco raid took place and during the post-raid investigation, it is reasonable to conclude ATF was aware of the safety and health hazards presented by methamphetamine labs. Furthermore, since the case had the "highest interest of BATF Washington and had been approved at that level," 303 ATF headquarters was aware of the alleged presence of a methamphetamine lab.
Even so, in response to the subcommittees' inquiries, ATF has acknowledged that no "ATF agent who was present on February 28, 1993, . . . had received specific, specialized training in investigating methamphetamine laboratories." 304 In reviewing videotapes of the Fort Hood training, subcommittee investigators also found no discussion of the potential safety and health hazards that the suspected active methamphetamine lab would present. In other words, ATF agents participating in the raid had little or no notice of the dangers they might have forced in the active methamphetamine labs.
From numerous briefings and a review of videotape shot on the day of the raid, it appears that ATF agents did possess ballistic protection equipment and fire retardant clothing. ATF agents also possessed regular flashlights and regular cameras (i.e. flash photography), shotguns and flashbangs,305 each of which could trigger
301 Mr. Higgins was Director of the ATF both during the investigation and at the time of the February 28, 1993, raid on the Branch Davidian residence.
302 Hearings before the Subcommittee on Treasury, Postal Service, and General Government Appropriations of the House Committee on Appropriations, 101st Cong., 2d Sess. 688, 695 (1991). 303 Operations Order, February 17, 1993, Defense Documents D-587.
304 Undated Department of Treasury response to subcommittees' request for information. 305 ATF policy on the use of "flashbang" diversionary devices states, "Drug laboratories or other explosive environments may be so hazardous as to preclude the use of [flashbang] devices." and "If [a flashbang] lands on a combustible material a fire is not only possible but likely, (laundry, newspaper, clothing, etc.)." [Page 66 of the ATF training manual on the use of diversionary devices] no mention of the alleged presence of a methamphetamine lab is mentioned in ATF's request to the Chief of Special Operations Division for the use of flashbangs during the raid. [Request to use flashbangs, dated February 5, 1993, Treasury Documents 008213-14].