3. Federal law enforcement agencies should verify the credibility and the timeliness of the information on which it relies in obtaining warrants to arrest or search the property of an American citizen. The affidavits on which the arrest and search warrants of Koresh were ordered contained information provided to the ATF by informants with obvious bias toward Koresh and the Davidians and information that was stale in that it was based on experiences years before the investigation. The ATF should obtain fresh and unbiased information when relying on that information to arrest or search the premises of the subjects of investigations. 4. The ATF should revise its National Response Plan to ensure that its best qualified agents are placed in command and control positions in all operations. Doing so will help to avoid situations like that which occurred at Waco where lesser qualified agents were placed in positions for which they were, at best, only partially qualified while other, more experienced agents were available whose involvement might have prevented the failure of the raid. 5. Senior officials at ATF headquarters should assert greater command and control over significant operations. The ATF's most senior officials should be directly involved in the planning and oversight of every significant operation. 6. The ATF should be constrained from independently investigating drug-related crimes. Given that the ATF based part of its investigation of the Branch Davidians on unfounded allegations that the Davidians were manufacturing illegal drugs, and as a result improperly obtained military support at no cost, the subcommittees recommend that Congress restrict the jurisdiction of the ATF to investigate cases involving illegal drugs unless such investigations are conducted jointly with the Drug Enforcement Administration as the lead agency. 7. Congress should consider applying the Posse Comitatus Act to the National Guard with respect to situations where a Federal law enforcement entity serves as the lead agency. The fact that National Guard troops were legally allowed to be involved directly in Federal law enforcement actions against the Davidians, while active duty forces were not, is inconsistent with the spirit of the Posse Comitatus Act. 8. The Department of Defense should streamline the approval process for military support so that Posse Comitatus Act conflicts and drug nexus controversies are avoided in the future. The process should make clear to law enforcement agencies requesting Defense Department support the grounds upon which support will be given. Such requests should be assigned to a single office to ensure that support will be provided only in legitimate circumstances and in a manner consistent with the Posse Comitatus Act. 9. The General Accounting Office should audit the military assistance provided to the ATF and to the FBI in connection with their law enforcement activities toward the Branch Davidians. Given that the subcommittees have been unable to obtain detailed information concerning the value of the military support provided to the ATF and the FBI, the subcommittees recommend that the General Accounting Office conduct an audit of these agencies to ascertain the value of the military support provided to them and to ensure that 10. The General Accounting Office should investigate the activities of Operation Alliance in light of the Waco incident. The subcommittees conclude that Operation Alliance personnel knew or should have known that ATF did not have a sufficient drug nexus to warrant the military support provided on a nonreimbursable basis. Furthermore, given that the provision of assistance under such dubious circumstances appears to not have been an anomaly and the expansion of Operation Alliance's jurisdiction since Waco, the subcommittees recommend that the General Accounting Office conduct an investigation of Operation Alliance. 11. Federal law enforcement agencies should redesign their negotiation policies and training to avoid the influence of physical and emotional fatigue on the course of future negotiations. In anticipation of future negotiations involving unusually emotional subjects or those which may involve prolonged periods of time during which negotiators may become physically or emotionally fatigued, Federal law enforcement agencies should implement procedures to ensure that these factors do not influence the recommendations of negotiators to senior commanders. 12. Federal law enforcement agencies should take steps to foster greater understanding of the target under investigation. The subcommittees believe that had the Government officials involved at Waco taken steps to understand better the philosophy of the Davidians, they might have been able to negotiate more effectively with them, perhaps accomplishing a peaceful end to the standoff. The subcommittees believe that had the ATF and FBI been better informed about the religious philosophy of the Davidians and the Davidians' likely response to the Government's actions against them, these agencies could have made better choices in planning to deal with the Branch Davidians. 13. Federal law enforcement agencies should implement changes in operational procedures and training to provide better leadership in future negotiations. The subcommittees believe that placing greater emphasis on leadership in critical situations will not only protect the targets of Government action, but also will help to protect the safety of the law enforcement officers. 14. Federal law enforcement agencies should revise policies and training to increase the willingness of their agents to consider the advice of outside experts. The subcommittees note that the expertise of recognized negotiation experts, particularly those experienced with religiously-motivated groups, might have proved invaluable in assisting FBI negotiations with the Branch Davidians. Accordingly, the subcommittees recommend that Federal law enforcement agencies revise their policies and training so that their agents are open to the advice such experts might provide. 15. Federal law enforcement agencies should revise policies and training to encourage the acceptance of outside law enforcement assistance, where possible. The unwillingness of the FBI to accept support from State, local, or other Federal law enforcement agencies in connection with the standoff increased the pressure on the Attorney General to end the standoff precipitously. To avoid this type of pressure in the future, Federal law enforcement agencies should be open to the assistance that State and local law enforce 16. The FBI should expand the size of the Hostage Rescue Team. The FBI should increase the size of the Hostage Rescue Team so that there are sufficient numbers of team members to participate in an operation and to relieve those involved when necessary. The FBI should also develop plans to utilize FBI and local law enforcement SWAT teams when extenuating circumstances exist. 17. The Government should further study and analyze the effects of CS riot control agent on children, persons with respiratory problems, pregnant women, and the elderly. The subcommittees note that only limited scientific literature exists concerning the effects of CS riot control agent, especially with regard to the effects of long-term exposure in a closed area. Until such time as more is known about the actual effects of exposure to this agent, the subcommittees recommend that CS not be used when children, persons with respiratory problems, pregnant women, and the elderly are present. Federal law enforcement agencies should develop guidelines for the use of riot control agents in light of this further study and analysis. I. INTRODUCTION A. THE NEED FOR THE WACO INQUIRY On February 28, 1993, four special agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) were tragically killed near Waco, TX, in a shootout with a religious sect known as the Branch Davidians. The group's leader, Vernon Howell, also known as David Koresh, was wounded in the violent confrontation, and several of its members were killed. Then on April 19, 1993, after a 51day standoff with the Federal Bureau of Investigation (FBI), the episode came to a fiery conclusion when more than 70 Davidians, including 22 children, died inside the group's residence. From any perspective, Waco ranks among the most significant events in U.S. law enforcement history. For ATF, it was the largest and most deadly raid ever conducted. For the FBI, it was an unprecedented failure to achieve a critical objective-the rescue of dozens of innocent women and children. The television coverage and news accounts generated by the media at the scene near Waco presented a troubling picture to Americans. On the one hand, it seemed clear enough that a Jonestown-like religious cult led by an irrational leader had brought disaster on itself. On the other hand, images of the tanks and other military vehicles gave the impression that the FBI was using excessive force together with military weapons and tactics against U.S. citizens, contrary to our civilian law enforcement tradition. In the aftermath of the April 19th fire, Government officials, Members of Congress, and assorted observers called for a thorough review of the matter. Outside the corridors of power, a mixture of fact, rumor, and suspicion produced a wide variety of lasting impressions and conspiracy theories. Both the Justice and Treasury Departments issued detailed written reports many months later. The Treasury_Department Report criticized ATF personnel, but it exonerated all Department officials. The Justice Department Report found no fault with any actions of the FBI or any Justice Department official. Several congressional committees conducted hearings in the weeks following the disaster. Unfortunately, little information was available from administration officials at the time. Representative Jack Brooks, chairman of the House Judiciary Committee, promised additional hearings to resolve remaining questions, but none were held. Several developments in 1994 contributed to the pervasive view that serious questions about Waco remained unanswered. The criminal trial of the surviving Branch Davidians resulted in acquittals on murder charges. The self-defense arguments raised at trial and their obvious effect on the jury encouraged the public's outcry and desire for accountability. Journalists, investigators, and attor neys involved in the case decried the absence of candor and independence in the administration's reports and demanded a more comprehensive and detailed inquiry. In addition, widely distributed videotapes entitled "Waco: The Big Lie" and "Waco: The Big Lie Continues" had a significant impact on public opinion. Also, many policymakers read an article published in First Things, written by Dean Kelly of the National Council of Churches,1 which stirred up considerable speculation about the ATF's conduct and the FBI's use of CS chemical agent. In short, by the start of the 104th Congress, the need for a sufficient and thorough congressional examination of the Waco tragedy was indisputable. At the outset of the 104th Congress, both the Committee on the Judiciary and the Committee on Government Reform and Oversight indicated in their formal oversight plans, filed in February 1995, the intention to conduct hearings on the Waco matter. Representative Bill McCollum, chairman of the Subcommittee on Crime of the Committee on the Judiciary and Representative Bill Zeliff, chairman of the Subcommittee on National Security, International Affairs, and Criminal Justice of the Committee on Government Reform and Oversight stated on several occasions that such hearings were a necessary response to the widespread dissatisfaction with the Federal Government's followup to what happened at the Branch Davidian_residence. The deplorable bombing in Oklahoma City 2 months later revealed the extent to which Waco continued to served as a source of controversy for some Americans. With the concurrence of the Speaker of the House and the chairmen of the Committees on the Judiciary and Government Reform and Oversight, the subcommittee chairmen began to organize comprehensive joint hearings on the Waco matter. As the July timetable was set for the hearings, both chairmen hoped a comprehensive investigation, primarily involving testimony from a wide variety of witnesses presented in public hearings, would lay to rest questions which persisted, assess responsibility for any misconduct, and ultimately restore full confidence in Federal law enforcement. B. OPPOSITION TO THE INQUIRY Opposition to the Waco hearings was to be expected. The Departments of Justice and Treasury believed that their respective reports were forthright and complete and that additional scrutiny would only result in more negative publicity. Clinton administration officials were concerned that the hearings would cause further political damage. What was not expected was the extent to which the administration tried to control potential damage from the hearings. The White House staff assembled a damage control team and retained the services of John Podesta, a public relations specialist and former White House official who had worked for Handgun Control, Inc.2 Treasury Secretary Rubin contacted at least one member of the joint subcommittees, Representative Bill Brewster of Oklahoma, and requested that he not ask any questions that might embarrass 1Dean M. Kelley, Waco: A Massacre and Its Aftermath, First Things, May 1995, at 22. 2 Ann Devroy, Clinton Team Focuses Damage Control on Waco, Wash. Post, July 19, 1995, at |