military requested additional evidence. If General Pickler was uncertain when precursor chemicals were present at the Branch Davidian residence, why did he approve the ATF training by an elite Special Forces military unit assigned to do counterdrug missions? Third, did General Pickler simply rely on the absence of a defined drug nexus standard in approving the training mission? Fourth, after he requested additional information before approving the military training, why did General Pickler and other military officials say it is not the position of the military to question the veracity of a drug law enforcement declaration that a drug nexus exists? Especially, since JTF-6's own planning guide States that in conjunction with Operation Alliance, the National Guard and Regional Logistics Office "reviews and validates all requests for support."

"343

3. EVIDENCE REFUTING ATF'S CLAIM OF A DRUG NEXUS

a. ATF failed to address the issue of an active methamphetamine laboratory into raid planning

Undermining ATF's claim that a methamphetamine lab existed at the Branch Davidian residence, is the fact that briefing papers which went up to ATF headquarters, status reports and other requests failed to mention the existence of a methamphetamine lab at the planned raid site or suspected illegal narcotics production. A review of the January 5, 1993, briefing paper sent to ATF's Washington, DC, headquarters reveals that no mention of the subject of drugs or military involvement even though senior ATF officials at headquarters were signing off on requests for military assistance under the guise of a counternarcotics operation.344 Treasury documents indicate that this briefing paper was forwarded to the Assistant Secretary of the Treasury for Enforcement after review by the ATF Director and his staff.345 The forwarding of this type of briefing paper was the normal procedure the ATF Director used to notify Treasury of major ongoing cases.346

In addition to the January 5 briefing paper, monthly status reports were prepared by Aguilera, reviewed by Dunagan, the Assistant Resident Agent in Charge of the Austin, TX, office and approved by Chojnacki, the Special Agent in Charge of the Austin, TX, office who then forwarded the reports to the Special Agent in Charge of the Houston Office. Although these reports being provided over a 9-month period and almost daily during the weeks leading up to the raid, they never mention the case as a counternarcotics investigation or any military involvement.

As late as February 5, 1993, Chojnacki requested the use of flashbangs and failed to mention the possible existence of an "active methamphetamine lab," even though ATF policy states that drug laboratories or other explosive environments may be so hazardous as to preclude the use of flashbangs.347 In fact, the only consistent mention of any drug activity by Branch Davidians in any of the ATF Waco documents on Waco is in requests for military as

343 JTF-6 Operational Support Planning Guide, p. 16-T08786, 08803.

344 Treasury Documents T004634-T004642.

345 Treasury Documents T004621-T004624.

346 Id.

sistance which required drug activity to justify military intervention and assistance.

b. ATF agents were not properly trained and certified

The second piece of evidence refuting ATF's claim that a drug nexus actually existed is the fact that ATF agents involved in the raid on the Branch Davidian residence were not trained and/or certified in methamphetamine operations. Furthermore, the lack of necessary safety precautions taken in the planning, training and operation indicate that these agents were ill-equipped and unprepared for the "suspected" presence of an active methamphetamine lab. These failures are in direct conflict with ATF's own guidelines on clandestine lab operations.

c. The DEA's offer of assistance

ATF's claim that a drug nexus actually existed is called into question by ATF's response to DEA's offers of assistance. The Drug Enforcement Administration is the lead Federal agency in enforcing narcotics and controlled substance laws and regulation. While Operation Alliance was assisting ATF with its investigation of the Davidians, DEA had a Senior Special Agent, Mr. William Roshon, acting as a Coordinator for DEA at Operation Alliance. On January 22, 1993, Deputy Tactical Coordinator William Roshon offered DEA assistance in the form of onsight laboratory technicians to ATF Special Agent Pali. Pali placed DEA Agent Roshon in touch with the SAC/Houston Office,348

Post-raid interviews of Pali by the ATF Waco Review Team revealed that ATF refused twice DEA's offer of onsight lab technicians, but did have two DEA officials from the Austin DEA office present at the Command Post the day of the raid.349 Two DEA agents from the Waco office were on standby for the raid.350

On February 2, 1993, ATF Agent Lewis provided a briefing to Operation Alliance members on the "suspected methamphetamine lab" at the Branch Davidian residence which, according to the ATF summary of events, was known at that date "to have received deliveries of chemical precursors for the manufacture of methamphetamine." After the briefing by Lewis, Gen. Pickler, Commander of JTF-6, stated "that it is not the position of the military to question the veracity of a law enforcement request regarding a drug nexus." 351 DEA Agent Rochon told Waco Review Team interviewers, after the February 2, 1993, briefing, that he had offered the assistance of a DEA Clandestine Certified Laboratory Team and Pali declined the request. However, Agent Rochon did provide Lewis the phone number of the Austin DEA Resident in Charge. Agent Roshon "opined' that precursor chemicals for methamphetamine could also be used in the manufacture of explosives." 352 However, senior DEA chemists told subcommittee investigators when interviewed regarding the use of methamphetamine chemicals to make explosives, "that they had never heard that one be

348 Special Agent Robert Tevens' "Chronology and Witnesses re: Military Support of ATF" (July 14, 1993). Treasury Documents T004589-T004593. 349 Id.

350 Id.

351 Treasury Documents T004589-T004594.

fore" and they were unaware of any chemicals used to produce methamphetamine which could be used to make explosives. Although some methamphetamine chemicals are very volatile in nature, using them to make explosives is another matter entirely. Given that ATF has jurisdictions over explosives and DEA has jurisdiction over illegal narcotics, it seems odd that ATF agents and DEA agent Rochon would attempt to blur this distinction.

Although DEA was never informed officially of the Waco investigation by ATF, two senior DEA officials were well aware of the facts surrounding the ATF investigation of the Davidians. Two senior DEA officials were members of the Operation Alliance board which reviewed law enforcement agency requests. Documents indicate that at least one of these DEA agents did offer DEA methamphetamine lab assistance and ATF declined that offer. However, no documents received by the subcommittees indicate that these DEA agents expressed any concern with ATF's apparent plan to raid an active methamphetamine laboratory.

In addition, when the subcommittees requested copies of the UPS receipts as proof of the delivery of chemicals that are required for the production of methamphetamine or any other evidence of the delivery of these chemicals, the subcommittees were informed that none could be found.

d. The Special Forces paper and the ATF response to it

The fourth piece of evidence undermining ATF's claim that a drug lab existed is ATF's own reaction to the Special Forces paper on the methamphetamine lab. Sergeant Fitts testified that he and another Special Forces medic where directed by Major Petree, their Commander, to research and draft a paper on methamphetamine labs.353 Interviews with Sgt. Fitts revealed that the paper addressed the dangers of methamphetamine labs from both tactical and exposure perspectives.354 Sgt. Fitts and the other medic took 3 or 4 days to complete the project.355

During the February 4-5 Houston meeting, Maj. Petree presented the paper to ATF agents who showed no interest in its contents. Sgt. Fitts testified that ATF agents never expressed any concern about the dangers that would be presented by a methamphetamine lab and that it was his impression that the subject of a methamphetamine lab "dropped off the face of the earth after the paper was presented." 356 In his opinion, it was obvious from the reaction of the ATF agents that no methamphetamine lab existed.357

353 Hearings, Part 1 at 361. Special Forces medics are considered to be highly trained.

354 The subcommittees requested a copy of the paper and were told that it could not be located. In its production of documents to the subcommittees, the Treasury Department failed to supply a copy of the paper although testimony before the subcommittees indicated that the paper was presented to ATF agents at a meeting on February 4-5, 1993 in Houston, TX. 355 Hearings, Part 1 at 361.

356 Hearings, Part 1 at 372; subcommittees' interview of Staff Sgt. Steve Fitts, in Washington, DC (July 11, 1995).

357 Id. Although it was very clear from the interview of Staff Sgt. Fitts and his testimony before the subcommittees, that this paper was drafted to be presented to ATF at a Houston meeting on February 4-5, 1993, Maj. Petree during a pre-hearing review at first said that he could not recall the paper and later whether it was presented to ATF. After Staff Sgt. Fitts answered under oath that he was present when Maj. Petree himself presented ATF the paper, Maj. Petree

D. POST-RAID MILITARY ASSISTANCE TO THE FEDERAL BUREAU OF INVESTIGATION (FEBRUARY 28-APRIL 19)

The standoff between the government and the Branch Davidians began on February 28, 1993, as the cease-fire went into effect following the ATF's failed raid on the Branch Davidian residence. During that time personnel and equipment of the U.S. Armed Forces were present at or near the Branch Davidian residence.

1. MILITARY EQUIPMENT AND PERSONNEL PROVIDED

a. Active duty personnel and equipment

During the standoff, a limited number of active duty military personnel were present at the Branch Davidian residence providing services to the FBI in support of the FBI's activities during the standoff. Most of these troops were dressed in uniforms which indicated their, rank, service, and function. A small number of troops present at the site were assigned to Army Special Forces units. Because the military occupational specialties of these troops are classified, they dressed in civilian clothes while at or near the Branch Davidian residence and did not identify themselves as military personnel. Additionally, one of the two senior Army officers present at the April 14 meeting with the Attorney General also visited the Branch Davidian residence in order to personally view the tactical situation. This officer was present at the Branch Davidian residence for part of 1 day.

The type of support provided by the active duty troops consisted primarily of performing repairs and maintenance on sophisticated observation and electronics equipment 358 provided by the Defense Department to the FBI. Active duty, enlisted military personnel set up the equipment and performed necessary maintenance on it. There is no evidence that military personnel actually operated the equipment. Instead, it appears that FBI agents operated this equipment. In one instance, however, civilian employees of the Department of Defense operated one piece of sophisticated electronics equipment.359 In addition, active duty, enlisted military personnel performed repair and maintenance work on the electronics equipment belonging to the FBI. The accounts given by all personnel familiar with this aspect of the operation and who were interviewed by the subcommittees confirm that, with this one exception, only FBI personnel operated the equipment during the standoff.

b. National Guard personnel and equipment

During the standoff, the Texas National Guard provided a number of military vehicles to the FBI. Principal among these were 10 Bradley Fighting Vehicles (Bradleys), 4 M728 Combat Engineering Vehicles (CEV's), 2 M1A1 Abrams tanks, and 1 M88 tank retriever. The weapons systems in those of these vehicles which are normally armed were removed before they were transported to the Branch Davidian residence.360

358 The electronics equipment was used to block the Davidians' television reception.

359 Hearings, Part 3 at 315 (statement of Allen Holmes, Assistant Secretary of Defense for Special Operations and Low Intensity Conflict).

During the standoff the Bradleys were used primarily as armored personnel carriers to transport FBI officials to meetings with the Davidians, to transport FBI agents to their observation posts around the Branch Davidian residence, and by FBI agents to guard the perimeter of the operation. During the insertion of the CS agent on April 19, the Bradleys were used by FBI agents to maneuver close enough to the Branch Davidian residence so that the agents could fire Ferret round projectiles containing CS agent into the windows of the residence.

The CEV's were not used until April 19. Attached to each CEV was a long triangular boom-like arm. Attached to the booms of two of the CEV's were mounted devices that sprayed CS agent mixed with carbon dioxide. On April 19, these CEV's were used to ram holes into the Davidians residence. The operators in each CEV then inserted CS agent into the building using the devices affixed to the boom. Insertions of CS agent occurred in four distinct phases throughout the morning of the 19th. At one point, one of the CEV's became damaged and could no longer spray CS agent. As the day progressed, the FBI began to use the CEV's to "deconstruct" the Branch Davidian residence, using them to ram into the corners and sides of the building, creating large openings in the building. At one point, part of the rear roof collapsed after one CEV made multiple entries into the side of the building.

In addition to these vehicles, a number of support vehicles (e.g., Humvees, used to transport personnel, and flatbed trucks, used to haul the Bradleys and CEV's to Waco) were located at or near the Branch Davidian residence. Additionally, Defense Department provided support equipment (e.g., tents, generators, concertina wire) to the FBI.

An unknown number of Texas National Guard personnel were present during the standoff. Most of these personnel performed maintenance on the military vehicles loaned to the FBI or to provide support services for these troops (i.e., National Guard cooks were present to prepare meals for the mechanics). Other National Guard troops provided remedial training to the FBI's HRT members who were to operate the Bradleys and CEV's. Additionally, on April 19, some National Guard troops assisted FBI agents in refilling the CEV's with the CS riot control agent.

c. Reimbursement

The Economy Act 361 requires the Justice Department to reimburse the Department of Defense for the cost of the equipment and personnel support provided to it. The subcommittees have been informed that this reimbursement has been made.

2. ADVICE/CONSULTATION PROVIDED BY MILITARY OFFICERS

a. Request by Texas Governor

When Texas Gov. Ann Richards learned of the failed ATF raid on February 28, she requested to consult with a knowledgeable military officer about the incident. In response to her request, the commander of the U.S. Army's III Corps at Fort Hood, TX, asked the assistant division commander of the First Cavalry Division of