Congressional Record: May 26, 1995 (Senate) - Pages S7585 - S7595
From the Congressional Record Online via GPO Access - DOCID::cr26my95-48
S.735: Comprehensive Terrorism Prevention Act of 1995
[Congressional Record: May 26, 1995 (Senate)]
[Page S7585-S7595]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr26my95-48]
COMPREHENSIVE TERRORISM PREVENTION ACT
The PRESIDENT pro tempore. The clerk will report the pending
business.
The legislative clerk read as follows:
A bill (S. 735) to prevent and punish acts of terrorism,
and for other purposes.
The Senate resumed consideration of the bill.
Pending:
Hatch amendment No. 1199, in the nature of a substitute.
Mr. SPECTER addressed the Chair.
The PRESIDENT pro tempore. The distinguished Senator from
Pennsylvania.
Mr. SPECTER. I thank the distinguished President pro tempore.
Mr. President, I have sought recognition this morning to comment on
the pending legislation, which is obviously a bill of tremendous
importance in light of the recent bombing of the Federal building in
Oklahoma City on April 19 and before that the bombing of the World
Trade Center some 2 years ago.
Terrorism has been an enormous problem internationally for decades,
and now terrorism has struck on the shores and in the heartland of the
United States. In considering legislation to deal with this very
critical problem, Mr. President, we should ever be mindful that an
appropriate balance has to be struck between public safety and the
constitutional rights of the citizens under the Bill of Rights which
has served our country so well since its adoption in 1791.
The pending legislation has appended to it the habeas corpus reform
bill which has been introduced by the distinguished chairman of the
committee, Senator Hatch, and myself under the caption of the Specter-
Hatch bill, S. 623, and it is legislation which is long overdue to make
the death penalty a meaningful deterrent.
Last year, with the passage of the crime bill, Federal legislation
was enacted which provides for the death penalty for those responsible
for the bombing of the Federal building in Oklahoma City. The addition
to this legislation of habeas corpus reform is important because some
cases have been pending for as long as 20 years. Such delays really
makes a virtual nullity of the death penalty because, in order to be an
effective deterrent, the punishment must be swift and the punishment
must be certain. In most of the [[Page S7586]] cases where these long
delays have eventuated, the prosecutions characteristically arise in
the State courts and go through with the judgment of sentence of death
ultimately affirmed by the highest State court and then habeas corpus
proceedings in the Federal court.
The conduct in Oklahoma City, the bombing of the building and the
murder of the innocent children, women, and men, is prosecutable under
both Federal and State laws, and there is a slightly different habeas
corpus procedure with respect to cases that originate under Federal
jurisdiction. The Specter-Hatch language addresses both types of cases,
and I think it is very, very important to have it contained in this
bill.
There are other measures in the pending legislation, Mr. President,
which I think require our very calm and deliberate consideration, such
as the provision which provides for secret proceedings to deport alien
terrorists. While deportation proceedings are characteristically
described as a civil proceeding, under the due process clause of law
has been held to apply, and the due process clause of the 14th
amendment characteristically incorporates most of the specific
provisions of the Bill of Rights including the right of confrontation.
I have grave reservations that any kind of a secret proceeding can
pass constitutional muster. It is my thought that we may be able to
solve the problem by deporting people suspected of being terrorists or
known terrorists because they are in this country illegally. We all
know that there are many aliens in the United States illegally, but
there are not sufficient resources to deport all of them. It would be
entirely possible for us to seek to deport aliens who are here
illegally where there was cause to believe that they are terrorists but
to deport them not through secret proceedings because they are
terrorists but because they are in the United States illegally.
Toward that end, I think we can abbreviate the procedures for
deportation, including limiting appellate review. I think it is
entirely possible to have, constitutionally, a definite period of
preventive detention, and if there are defenses such as asylum, they
can be litigated in relatively short order so that deportation of
illegal aliens may be achieved without a conflict with the
constitutional right of confrontation.
Similarly, Mr. President, I am concerned--and I have expressed this
before in the hearings held in the terrorism subcommittee of the
Judiciary Committee, which I chair--about the provisions which would
enable the Attorney General of the United States to classify an
organization as engaged in terrorist activities and then deprive that
organization of rights which are characteristically protected under the
first amendment's freedom of association. While the bill provides for
de novo review by the court, here again there are provisions for secret
proceedings which I believe may run afoul of the U.S. Constitution.
With respect to any wiretapping provisions which may be added to the
bill, I think they will require our very, very close scrutiny to be
sure we are preserving the constitutionally protected rights of those
who are subject to the wiretapping.
Mr. President, I will also take this opportunity to make some
comments on the incidents at Ruby Ridge, ID, and Waco. With the Senate
being fully occupied for the last several days on the budget, I did not
have an opportunity to do so before, but it fits right in at this
juncture, and I shall be relatively brief in summarizing some of the
preliminary findings which I have come to.
As the Congressional Record will show--and my distinguished
colleague, the chairman of the Judiciary Committee, is in the Chamber--
it has been my view that we ought to hold hearings on Waco and Ruby
Ridge promptly. And by that I mean on or before August 4. I am well
aware of the consideration of not impeding the Federal Bureau of
Investigation's inquiries into Oklahoma City. But as I said some time
ago, in conversations with the Director of the FBI, he thought that a
period by mid-August, 8 to 10 weeks from the time of our conversation
as I reported it on the Senate floor, would allow ample time for the
FBI to complete its Oklahoma City investigation without having any
problems created by a Senate inquiry of the full Judiciary Committee.
But in the absence of that full inquiry and in the absence of the
setting of a date, I had said that I was going to make a preliminary
inquiry myself. I did have occasion to report very briefly on these
matters last week, but I want to comment a little more extensively this
morning on my preliminary findings.
With respect to the incident at Ruby Ridge, ID, which came to a head
back on August 21, 1992, I have had occasion to talk to a number of the
people who have knowledge of that matter, including FBI Director Louis
Freeh; FBI Deputy Director Larry Potts; the Director of the Bureau of
Alcohol, Tobacco and Firearms, John Magaw; Jerry Spence, the attorney
for Mr. Weaver; Mr. Weaver, whom I talked to when I was in Des Moines
earlier this month in the presence of his attorney, Michael Mooma, Esq.
I have also talked to Randy Day, Esq., the Boundary County attorney in
Idaho who was considering possible State prosecutions arising out of
that incident. During the course of my conversations with Mr. Weaver,
his daughters Sarah, Rachel, and Alicia, ages 19, 13, and 3, were also
present.
One of the critical aspects of the matter involving Mr. Weaver
concerns the issue as to how the entire incident arose. In my meeting
with Mr. Weaver, he described the incident as starting out when an
undercover agent associated, as Mr. Weaver thought, with the Bureau of
Alcohol, Tobacco and Firearms, came to purchase sawed-off shotguns from
Mr. Weaver. As Mr. Weaver himself recounted the incident, he did
provide two sawed-off shotguns to the ATF undercover agent.
In my later conversations with the Director of the Alcohol, Tobacco
and Firearms unit, John Magaw, he said that, during the course of the
trial, there was an acquittal of Mr. Weaver on grounds of entrapment.
Mr. Magaw described it as borderline entrapment, but it raises a
fundamental question as to the appropriate course of conduct of the
Bureau of Alcohol, Tobacco and Firearms on initiating such a matter
through an undercover agent, a confidential informant, where the
incident has all the preliminary earmarks of entrapment. And that, in
fact, was the conclusion of the court, and that is the concession made
by the director of the Alcohol, Tobacco and Firearms unit.
Mr. President, a more critical aspect of what happened at Ruby Ridge,
ID, of the tragedy which occurred there--including the killing of a
deputy U.S. marshal, the killing of Mr. Weaver's son, Sam Weaver, the
killing of Mr. Weaver's wife, Vicky--is the issue of the change in the
FBI's rules of engagement from the standard shooting policy. On that
issue, there is a direct conflict between representations made by Mr.
Eugene F. Glenn, who is now the special agent in charge at the Salt
Lake City office of the FBI and Deputy Director Larry Potts of the FBI.
In my conversation with Mr. Potts on May 17 of this year, Mr. Potts
advised me that there were never any changes in the rules of engagement
and that he, Mr. Potts, had no authorization to change the deadly force
policy.
We do know, in the course of the incidents there, that Mrs. Weaver
was killed by the bullet of an FBI sharpshooter. The contention has
been made by officials of the Federal Bureau of Investigation that that
was a matter which was necessary to defend other agents who were
involved in the effort to take Mr. Weaver into custody.
There is a very significant question as to the circumstances of that
shooting with respect to a Bureau representation that Mrs. Weaver was
shot through a door, which raises the inference and suggestion that the
shooter might not have been able to see Mrs. Weaver, contrasted with
the representation of others that the door had a glass pane so that, in
fact, the shooter may have been able to see Mrs. Weaver. That is not
ascertainable based upon what I know of the facts, because there is a
possibility of glare, there is a possibility of some obstruction of
vision even with a pane of glass, but that is certainly something which
requires inquiry.
Focusing in specifically on the conflict or at least apparent
conflict between Mr. Potts and Mr. Glenn--as I have said, Deputy
Director Potts told me that there were never any changes
[[Page S7587]] in the rules of engagement and that he had no
authorization to change the deadly force policy of the FBI.
In a letter from Special Agent Glenn to Michael A. Shaheen, the
Director of the Office of Professional Responsibility at the Department
of Justice, seeking an investigation into what occurred, Mr. Glenn
refers specifically to adjustments to the Bureau's standard shooting
policy at Ruby Ridge, and he attributes those to Deputy Director Potts.
This statement appears at page 6 of the letter from Mr. Glenn to Mr.
Shaheen:
On August 22, 1992, then Assistant Director Potts advised
during a telephonic conversation with SAC
That means special agent in charge Glenn.
that he had approved the rules of engagement, and he
articulated his reasons for his adjustments to the Bureau's
standard shooting policy. During the ten days of the Ruby
Ridge stand-off, there were several occasions when SAC Glenn
and AD Potts telephonically communicated with one another,
and during these conversations they mutually agreed that the
rules of engagement should continue to exist. On Wednesday,
August 26, 1992, AD Potts approved the FBI returning to the
standard shooting policy. This is reflected in the SIOC Log,
page 13, item 7.
Then it follows to have the specification as to what occurred there.
When Mr. Glenn requested this special investigation, he draws this
conclusion at page 1 of the letter:
* * * investigative deficiencies reveal a purpose to create
scapegoats and false impressions, rather than uncovering or
reinforcing the reality of what happened at Ruby Ridge.
Mr. President, I ask unanimous consent that the full text of this
letter from Mr. Glenn to Mr. Shaheen be printed at the conclusion of my
statement.
The PRESIDING OFFICER (Mr. Brown). Without objection, it is so
ordered.
(See exhibit 1.)
Mr. SPECTER. Mr. President, I shall abbreviate these comments because
we are in the middle of the consideration of the broader terrorism
bill, but these comments are directly relevant to this bill. I know,
however, that others are waiting to speak. While I will have more to
say about this at a later time, I will condense these comments at this
time.
Relating to the incident at Ruby Ridge, there are questions which
have already been raised by many as to why Mr. Potts was made the
Deputy Director of the FBI while this matter was pending and certainly
before there was a congressional inquiry by the U.S. Senate or the
House of Representatives. Those are among my reasons for thinking that
a congressional inquiry into Ruby Ridge should have been held a long
time ago, but at least ought to be held as promptly as possible.
Mr. President, turning for a few moments to the incident at Waco, TX,
which reached its conclusion on April 19, 1993, let me say at the
outset as emphatically as I can that whatever happened at Waco, TX,
whatever happened at Ruby Ridge, ID, there is absolutely no
justification for what happened at the Oklahoma City bombing on April
19 of this year.
But I do believe that it is more than coincidence that the incident
at Waco occurred on April 19 and the incident at Oklahoma City occurred
on the same day 2 years later. I believe it is vital in our democracy
that accountability be present at the highest levels of our Government.
It has always been my view that there should be a Senate inquiry on
Waco, and I expressed that view back in the middle of the summer of
1993 shortly after the Waco incident occurred. My comments were
corroborated on the floor of the Senate by the then-chairman, Senator
Biden, who confirmed that I had been pressing for an inquiry into Waco
at that time.
We live in the greatest democracy in the history of the world, but we
have to remember, especially those of us in Washington, DC, and within
the beltway, that we govern by the consent of the governed and that the
right of the Government to govern depends upon the Government's
recognizing the rights of individual citizens.
There is no mere coincidence between the existence of the Bill of
Rights and the stability of the American Government. The items in the
Bill of Rights have to be very, very carefully safeguarded in every
respect. It is a fundamental constitutional duty of the Congress to
have oversight. That oversight has not been held with respect either to
Waco or to Ruby Ridge, and I believe that these matters are directly
related to the pending legislation which we are considering.
In just a few minutes, I think the briefest way to set some of the
questions on the record which require answering by our congressional
hearing would be to refer to the report and recommendations filed by
Prof. Alan Stone of Harvard with other recommendations submitted to the
then-Deputy Attorney General of the United States, Philip Heymann.
Professor Stone was one of a group of panelists who was requested by
the FBI to prepare a forward-looking report suggesting possible changes
in Federal law enforcement in light of what happened at Waco. These are
a few of the comments from Professor Stone.
At page 1 of his report, he says:
. . . Neither the official investigation nor the Dennis
evaluation has provided a clear and probing account of the
FBI tactics during the stand-off and their possible
relationship to the tragic outcome at Waco.
Then going on a few sentences later:
I have concluded that the FBI command failed to give
adequate consideration to their own behavioral science and
negotiation experts. They also failed to make use of the
agency's own prior successful experience in similar
circumstances. They embarked on a misguided and punishing law
enforcement strategy that contributed to the tragic ending at
Waco.
As a physician, I have concluded that there are serious
unanswered questions about the basis for the decision to
deploy toxic CS gas in a closed space where there were 25
children, many of them toddlers and infants.
Skipping ahead to page 24, Professor Stone goes on to say:
One might think that the highest priority after a tragedy
like Waco would be for everyone involved to consider what
went wrong and what would they now do differently. I must
confess that it has been a frustrating and disappointing
experience to discover that the Justice Department's
investigation has produced so little in this regard.
Moving ahead now to page 30 briefly:
The FBI needs a better knowledge base about the medical
consequences of CS gas.
It is my opinion that the AG--
The Attorney General.
--was not properly informed of the risks to infants and small
children posed by CS gas.
Continuing a few sentences later:
The FBI, the Justice Department, and all of law enforcement
that uses CS gas ought to have as clear an understanding of
its medical consequences as possible.
Then on his final page, page 31, under a caption ``Final Word,''
there is this statement:
There is a view within the FBI and in the official reports
that suggests the tragedy was unavoidable. This report is a
dissenting opinion from that view.
Then a final sentence:
It is my considered opinion that the failings of the FBI at
Waco involved no intentional misconduct.
Mr. President, in order to save time, I ask unanimous consent that
the full text of this report by Professor Stone be printed at the end
of my statement this morning.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. SPECTER. Mr. President, on the citations which I refer to and in
the full text of what Professor Stone has raised, which will be
apparent to those who will see it in the Congressional Record, there
are many unanswered questions as to what happened at Waco, just as
there are many unanswered questions as to what happened at Ruby Ridge.
It is my hope that we will have a Senate inquiry just as promptly as
possible.
I think it is vital that there be accountability at the highest
levels of Government and that the public will be assured that the
Congress will fully carry out its responsibilities for oversight under
our constitutional responsibility.
Yesterday, we had scheduled a hearing involving the militia movement
in the subcommittee of Judiciary which I chair. That hearing,
regrettably, had to be postponed because we were voting continuously
all day long. But yesterday afternoon, I put into the Record the
prepared statements of some witnesses that came from the militia
movement. In brief conversation I had with those individuals, they
expressed their concern about what the Government had done and their
gratification [[Page S7588]] that at least the subcommittee was making
an inquiry into what had gone on. If we discharge our duties, Mr.
President, we can provide a safety valve to let the citizens of America
know that their constitutional rights are being respected and that
there will be congressional oversight no matter where the blame may lie
at the highest level of the Federal Government, if there is any blame.
I do not prejudge what went on at Ruby Ridge or at Waco, but I am
absolutely convinced that there are many, very, very serious questions
as to the governmental action at Ruby Ridge and Waco, and I am
convinced that the safety valve and venting possible through a Senate
full inquiry is very vital as we consider these problems of terrorism
and move ahead to provide better protection to the American people from
domestic terrorism and at the same time guarantee that the
constitutional rights are preserved.
I thank the Chair.
Exhibit 1
U.S. Department of Justice,
Federal Bureau of Investigation,
Salt Lake City, UT, May 3, 1995.
Michael E. Shaheen,
Office of Professional Responsibility,
U.S. Department of Justice,
Washington, DC.
Dear Mr. Shaheen: The purpose of this letter is to request
the Office of Professional Responsibility (OPR) conduct an
investigation into the conduct of FBI Associate Special Agent
in Charge (A-SAC) Charles Mathews, III and possibly others
during the period A-SAC Mathews served on special assignment
in Washington, D.C. from October through December, 1994,
preparing the Administrative Summary Report regarding the
conduct of FBI personnel involved in the Ruby Ridge matter.
As a key participant in the events of Ruby Ridge, I believe
I was not adequately or fully interviewed, yet the
investigative report was relied upon in proposing discipline
against me and other FBI Agents. As is explained below, this
and other investigative deficiencies reveal a purpose to
create scapegoats and false impressions, rather than
uncovering or reinforcing the reality of what happened at
Ruby Ridge.
A-SAC Mathews was provided with the 1994 Ruby Ridge report
of Department of Justice (DOJ) Attorney Barbara Berman, along
with sixteen issues raised by the DOJ during their review of
the Berman Report. These issues concern alleged misconduct by
FBI employees. His assignment as preparer of the
Administrative Summary Report was: evaluate existing
documentation contained in the Berman report for evidence of
misconduct, review additional documentation within the FBI
that was not a part of the Berman report, and conduct or have
conducted appropriate investigation to either substantiate or
refute each allegation.
investigative procedural requirements
As is clearly documented in subsequent portions of this
letter, A-SAC Mathews conducted his administrative review
with little regard to FBI policy and procedure, and as such
his Administrative Summary Report is critically flawed.
For example, A-SAC Mathews did not follow the FBI Manual Of
Administrative Operations and Procedures (MAOP) as it
pertains to interviews of employees under criminal or
administrative inquiry. Section 13-4 of the MAOP is
particularly relevant as follows:
``13-4 Interviews of Employees Involved
``(1) Interviews of employees involved in allegations of
criminality or serious misconduct should be conducted at the
earliest logical time and in a forthright manner. There
should be no evasiveness on the part of the Bureau official
conducting the interview.
``(2) The employee should be fully and specifically advised
of the allegations which have been made against him/her in
order that he/she may have an opportunity to fully answer and
respond to them. . . .
``(3) Such interviews must be complete and thorough with
all pertinent information obtained and recorded so that all
phases of the allegations may be resolved. . . .
``(4) The inquiry shall not be complete until the specific
allegations that may justify disciplinary action are made
known to the employee who may be disciplined and the employee
is afforded reasonable time to answer the specific
allegations. The employee's answers, explanations, defenses,
etc., should be recorded in the form of a signed, sworn
statement which should specifically include the allegations
made against the employee in an introductory paragraph. The
statement is to be prepared following an in-depth interview
of the employee by the division head or designated
supervisory representative. The employee is not merely to be
asked to give a written response to the allegations, but
is to be interviewed in an interrogatory fashion, and a
signed, sworn statement prepared from the results by the
interviewing official. . . .''
mathews actions
I have enclosed and request your review of the following:
(1) the form ``Warning and Assurance to Employee Required to
Provide Information'' (FD-645) which states, ``This inquiry
pertains to Allegations of misconduct relating to the Rules
of Engagement established for the Ruby Ridge critical
incident and whether the FBI fully and adequately
participated in the investigation/prosecution of Weaver/
Harris,'' and (2) the compelled signed statement of Eugene F.
Glenn dated December 8, 1994, provided by A-SAC Mathews and
Supervisory Special Agent (SSA) Jerry R. Donahoe, in which
paragraph two reads, ``I have been informed that this inquiry
pertains to allegations of misconduct relating to the Rules
of Engagement (ROE) established for the Ruby Ridge critical
incident and whether the FBI fully and adequately
participated in the investigation/prosecution of Weaver/
Harris.''
It should be noted that my ten-page signed statement dated
December 8, 1994, details liaison issues concerning the FBI,
Salt Lake City and the United States Attorney's (USA's)
Office, Boise, Idaho, for a period of time prior to the Ruby
Ridge incident and extending through the Harris/Weaver trial.
No questions were asked regarding ``rules of engagement.''
Specifically, I was not asked why I had allegedly approved
the rules of engagement or more basically who had approved
the rules of engagement. I was never informed that I faced
possible disciplinary action for my alleged approval of the
rules of engagement. And although contrary to the printed
purpose of the inquiry as set forth on the FD-645, supra, A-
SAC Mathews stated during the beginning of this interview,
``The rules of engagement are considered unconstitutional;
therefore, there is no need to further discuss them.'' This
is clearly in conflict with the MAOP citation 13-4(2)&(4)
above.
department of justice report
I direct your attention to an excerpt from an article that
appeared in ``Legal Times,'' on March 6, 1995, captioned,
``DOJ Report May halt FBI Official's Rise.'' This article is
based on a review of the DOJ Ruby Ridge report prepared by
Barbara Berman. Apparently this report was leaked to the
media during late February, 1995. The ``Legal Times'' article
states:
``In the Reno inquiry, Potts had told investigators that he
never approved the final rules of engagement, the guidelines
governing a particular operation. Reno has refused to release
the 542-page report, saying that she would wait until the
local district attorney in Boundary County, Idaho, completes
an investigation into whether agents should be charged with
murder.
``But according to testimony contained in the report, which
was obtained by Legal Times, Potts did approve the shoot-on-
sight rule.
``The task force found that FBI operatives on the ground in
Idaho faxed an operational plan, including the proposed rules
of engagement, to headquarters for approval by Potts and his
then deputy, Danny Coulson. But according to Freeh, Coulson
had questions about other facets of the operation discussed
and did not notice, let alone read, the rules of engagement.
Potts, who had been working on the matter for 36 straight
hours, was not on duty at the time and, hence, did not see
the written rules.
``But Eugene Glenn, the on-site commander of the FBI
operation, says in a January 1994 declaration that he
believes he had already obtained Potts' approval by telephone
before the shooting.
``The Reno task force also seemed to give credence to
Glenn's account. `(I)t is inconceivable to us that FBI
Headquarters remained ignorant of the exact wording of the
Rules of Engagement during the entire period,' the report
says.
``But FBI officials dispute Glenn's account and criticize
the Justice Department's report as flawed.
```When you piece together the evidence as best as possible
after the fact, we reached our best judgment, and that's
reflected in the discipline that the director announced or
proposed,' says FBI General Counsel Howard Shapiro, who was
directly involved in the FBI's inquiry.
``Freeh and Potts both declined comment.
```I can't speak for the director personally,' Shapiro
says, `but a lot turned on the fact that Potts had not
approved the final form of the rules of engagement, which are
admittedly problematic. Had we found otherwise, it surely
would have been grounds for further sanction,' the general
counsel adds.
``Shapiro declined to elaborate, saying that the FBI's
conclusions about what happened are based on information that
Reno has said the bureau must not release pending the outcome
of the local investigation.''
I have never been interviewed/interrogated regarding the
rules of engagement. I was not made aware of the charge that
I had approved the rules of engagement. Additionally, HRT
Commander Dick Rogers, SAC Bill Gore, and SAC Robin
Montgomery were not interviewed/interrogated regarding the
rules of engagement during A-SAC Mathews' preparation of the
Administrative Summary Report.
fbihq approval of rules of engagement
I had been interviewed previously on two occasions: during
September, 1992 as part of the Shooting Incident Report, and
again on January 12, 1994, as part of the Berman DOJ inquiry.
It is specifically detailed in the Shooting Incident Report
that the rules of engagement were approved at FBI
Headquarters. I call your attention to the following pages:
Administrative Section, Cover Page #, Paragraph 1; Report
Synopsis, Page 2, Lines 3 through 7; the body of the report,
Page 3, Paragraph 2; Dick Rogers signed statement, Page 2,
Paragraph 2 through Page 3, Paragraph 2; and signed statement
of Eugene F. Glenn, Page 5, Paragraph 2 through
[[Page S7589]] Page 6, Paragraph 1; and also to then
Assistant Director Potts' signed statement where he
articulates as part of this report that he approved the rules
of engagement. The DOJ inquiry covered a broad period of time
and touched only briefly on rules of engagement. Questioning
concerning who approved the rules of engagement was not
addressed in detail by interviewing officials during the
preparation of my signed statement. Questions concerning who
approved the rules of engagement did not appear to be a
critical issue to be developed at the time of the Berman
report.
It should be noted that on September 30, 1992, the date of
the Shooting Report, there was no discussion regarding who
approved the rules of engagement. The report simply states
that
the rules of engagement were approved at FBI Headquarters.
It is also noted that the Shooting Review Committee
Report, dated November 9, 1992, once again concurred that
FBI Headquarters approved the rules of engagement.
According to the ``Legal Times'' article dated March 6,
1995, the DOJ findings were, ``(I)t is inconceivable to us
that FBI Headquarters remained ignorant of the exact
wording of the Rules of Engagement during the entire
period.''
There was no indication that the rules of engagement
presented to field command at Ruby Ridge on Saturday, August
22, 1992, differed in any way from the rules of engagement
Larry Potts advised he approved during his signed, sworn
statement taken during the creation of the Shooting Review
Report. It was only after the interviewing began that
pertained to the DOJ inquiry headed up by Barbara Berman
(over one year after the incident) that statements began to
waiver with regard to responsibility for approval of the
rules of engagement.
In the absence of approved and recognized investigative
methods and techniques, A-SAC Mathews managed to take a
quantum leap from the factual basis documented in three
previous reports to a position of placing the blame for
approval of the rules of engagement on SAC Eugene F. Glenn.
It should be noted that this remarkable conclusionary quantum
leap by A-SAC Mathews was accomplished without the benefit of
any additional pertinent interviews of the logical parties
who were aware of the rules of engagement approval process.
With regard to then Assistant Director Potts, his signed
statement taken on September 24, 1992, (a part of the
Shooting Review Report), advised that he jointly prepared the
rules of engagement with HRT Commander Dick Rogers while
Rogers was flying from Washington, D.C. to Northern Idaho to
carry out his assigned task as HRT Commander on-scene during
Ruby Ridge. On Saturday morning, August 22, 1992, HRT
Commander Rogers presented SACs Glenn and Gore with the OPS
Plan that included the rules of engagement; he advised how
these rules had been prepared during the flight from
Washington, D.C. to Northern Idaho and that then Assistant
Director Potts was involved in the preparation of these rules
of engagement and that Potts had approved them. On August 22,
1992, then Assistant Director Potts advised during a
telephonic conversation with SAC Glenn that he had approved
the rules of engagement, and he articulated his reasons for
these adjustments to the Bureau's standard shooting policy.
During the ten days of the Ruby Ridge stand-off there were
several occasions when SAC Glenn and AD Potts telephonically
communicated with one another, and during these conversations
they mutually agreed that the rules of engagement should
continue to exist. On Wednesday, August 26, 1992, AD Potts
approved the
FBI returning to the standard shooting policy. This is
reflected in the SIOC Log, page 31, item 7, as follows:
``7) AD Potts and SAC Glenn agreed effective 1:00 p.m.
EDT, 8/26/92, that the rules of engagement have changed
and that they are now that we should fire only in
accordance with current FBI shooting policy. . . .''
fbihq oversight of crisis situations
During the January 6, 1995, press conference given by
Director Freeh concerning discipline of FBI Agents involved
in Ruby Ridge, the Director stated that Deputy Assistant
Director (DAD) Coulson had not read the rules of engagement.
If this, in fact, were true, I do not understand how such a
dereliction could be accepted from an individual whose sole
purpose for being in SIOC during this crisis was to be in
command of FBI operations at Ruby Ridge. It is a long-
standing FBI procedure that any time SIOC is in operation,
all investigative plans, operations plans, and tactical
initiatives are approved by the individual in charge of SIOC.
This point can be testified to by any SAC present or former
who has ever served during a crisis with SIOC in operation.
Additionally, it can be testified to by any local, state, or
county law enforcement officer who has worked jointly with
the FBI during a crisis incident with SIOC in operation. I
have had several local and state officers come forward who
will testify that they witnessed this above-described
procedure during the Singer-Swapp crisis in Utah in 1988.
Additionally, officials of the U.S. Marshal's Service (USMS)
were present at Ruby Ridge in 1992 and witnessed the
procedure when the operations plan, which on page two
contained the rules of engagement, was sent via facsimile to
FBI Headquarters on Saturday, August 22, 1992, at 12:15 PM
PST, and to the USMS Headquarters simultaneously. At 12:30
PM, PST, the USMS Headquarters responded they had no
objections to the operations plan. Bureau approval was not
obtained for the operations plan until the negotiation annex
was faxed back to FBI Headquarters. At that time DAD Coulson
advised he approved the operations plan.
DAD Coulson relieved AD Potts on Saturday, August 22, 1992.
It is reasonable to assume that AD Potts fully briefed DAD
Coulson regarding the activities surrounding the Ruby Ridge
matter, including rules of engagement, prior to turning over
command responsibilities to him. I call your attention to the
SIOC Log, page 8, time 18:04, which reads as follows: ``DAD
Coulson sent a facsimile to SAC Glenn re questions regarding
the Operations Plan submitted by SAC Salt Lake. 1. No mention
is made of Sniper Observer deployment as of 5:30 p.m. EST--
(2:30 PST)
2. What intelligence has been gathered from the crisis
point? 3. There is no mention of a Negotiation Strategy to
secure release of individuals at the crisis point. 4.
There is no mention of any attempt to negotiate at all. 5.
SAC Salt Lake is requested to consider negotiation
strategy and advise FBIHQ. FBIHQ is not prepared to
approve the plan as submitted at this time.''
fbihq actions on operations plan
When DAD Coulson received the operations plan on Saturday,
August 22, 1992, he telephonically advised SAC Glenn he could
not approve the operations plan because it contained nothing
about negotiation strategy. DAD Coulson and SAC Glenn had a
lengthy telephone conversation concerning the points 1
through 5 set forth in the previous paragraph. Item 1 which
deals with sniper observer deployment was discussed at
length. It should be noted there were over 200 members of
HRT, FBI SWAT team members, and other tactical and
investigative units who were all held in camp and were not
deployed, including sniper observers, until after DAD Coulson
had received the crisis negotiation annex to the operations
plan and at that time the field command was free to move
sniper observer teams into forward positions. The sniper log
verifies that snipers were in position at 5:07 PM, Pacific
Daylight Time (8:07 PM, Eastern Daylight Time), which is
after DAD Coulson had approved the operations plan containing
the rules of engagement. There is no logic to the assumption
that FBI leadership responsible for field command at Ruby
Ridge would fax the operations plan containing the rules of
engagement to FBI Headquarters and USMS Headquarters
(receiving approval from the latter) and then deploy FBI
resources prior to receiving approval from SIOC, FBI
Headquarters. Is it logical to conclude that the two FBI SACs
and the FBI HRT Commander on the scene would have mutually
concurred to deploy FBI resources absent prior SIOC approval?
The question must asked how did DAD Coulson avoid reviewing
the rules of engagement which are located on page 2 of the
Operation Plan inasmuch as he obviously had reviewed the
Operations Plan to come up with the questions as set forth in
the SIOC Log, supra.
Page 8 of the SIOC Log at 18;30 reads as follows: ``SAC
Glenn advised DAD Coulson that Portland SWAT team had contact
with who they believe was subject approximately \1/4\ mile
`up canyon' from home. He used profanity and told them to get
off property. SAC was reminded of rules of engagement and to
treat subject as threat if confronted outside home. SAC is
working on negotiation plan.''
It is noted that DAD Coulson's reminder to SAC Glenn
regarding how to handle Weaver if confronted outside his home
is in keeping with the rules of engagement that appeared in
the Operations Plan and is not in keeping with the standard
Bureau shooting policy.
Additionally, there exist two witnesses--one an individual
who had a high-level position in SIOC during the operation
who advised it was common knowledge that FBI Headquarters
approved the rules of engagement; and the second witness is a
Bureau Supervisor who served in SIOC on Saturday with DAD
Coulson and overheard him discussing the rules of engagement
with Bureau Supervisor Tony Betz.
conflicts on rules of engagement approval
I am aware that there exist conflicting statements
regarding approval of the rules of engagement. Had A-SAC
Mathews conducted his administrative review with the ethical
standards and integrity normally associated with any FBI
Agent, each of the individuals involved (Potts, Coulson,
Rogers, Glenn, Gore, and Montgomery) would have been
interrogated to resolve any conflicts that appear in their
statements regarding rules of engagement. Had interrogation
not resolved these conflicts, polygraph examinations should
have been mandated as the next logical step. This type of in-
depth investigation should have been mandated by A-SAC
Mathews prior to any conclusions being drawn concerning who
approved the rules of engagement.
deficiencies on u.s. attorney liaison conclusions
Instead of being interrogated concerning charges placed
against me, I was afforded a telephonic ``soft'' fact-finding
chronology-type review interview concerning liaison with the
USA's Office in Boise, Idaho. I was never confronted with the
allegations made by former U.S. Attorney Maurice Ellsworth
and/or others. Individuals I suggested to A-SAC Mathews that
should be contacted to provide additional insight regarding
liaison problems that existed with the USA's Office in Boise
under Ellsworth's leadership were [[Page S7590]] not
contacted, and the current U.S. Attorney in Boise and former
Acting U.S. Attorney for the District of Idaho were never
contacted to verify the current excellent liaison that exists
between the FBI and USA's Office in Boise. It should be noted
that U.S. Attorney for the District of Idaho Betty Richardson
and former Acting U.S. Attorney Pat Malloy of that office
wrote unsolicited letters to both Attorney General Janet Reno
and FBI Director Louis J. Freeh describing the current high
quality of liaison that exists between the FBI and the USA's
Office in Idaho. It is important to note that according to
the DOJ report leaked to the media concerning the Ruby Ridge
matter.
the criticism leveled in the DOJ investigation focused on
liaison discrepancies by Headquarters Units of the FBI and
their interaction with the USA's Office in Boise, Idaho.
Yet, the Mathews report turned the responsibility for
deficiencies in liaison with the USA's Office in Boise,
Idaho, to the Salt Lake City Field Division without
conducting logical investigative steps and without
advising those to be charged with these derelictions of
the specific allegations they would be facing.
deficiencies in mathews report
I have not yet been given access to the Mathews
Administrative Summary Report; however, I am aware of other
areas that were covered within the scope of this inquiry
where A-SAC Mathews: (1) failed to develop/gather all
evidence regarding liaison between the FBI, Salt Lake City
and the USA's Office in Boise; (2) demonstrated unethical
conduct by selectively choosing FBI Field Agents for
discipline and omitting others involved jointly with those
selected for discipline; (3) selectively choosing ASAC Thomas
Miller and SAC Michael Kahoe for discipline regarding the
Shooting Review Report for ``inaccurately and incompletely
analyzing the report'' while omitting discipline of others
who had to have reviewed the report (then Chief Inspector of
the Inspection Division, then Assistant Director of the
Inspection Division, then Deputy Assistant Director Danny
Coulson, CID; then Assistant Director Larry Potts, CID), all
of whom had to have read, analyzed, and approved this
Shooting Report prior to it being sent to then Deputy
Director Doug Gow; (4) and finally, other FBI Agents were
interviewed by A-SAC Mathews and were subsequently censured,
yet were not advised they were the subjects of an
administrative inquiry nor were they given the standard
waiver form to sign (FD-645).
A-SAC Mathews, a close associate of then DAD Danny Coulson,
served as Coulson's ASAC in the Portland Office of the FBI
when Coulson was SAC from August 24, 1988, to December 29,
1991. The only logical conclusion that can be drawn to
explain the deception and lack of completeness in this
investigation is that A-SAC Mathews' relationship with
Coulson caused him to avoid the development of the necessary
facts, and caused him to cover up facts germane to the
central issues. It is beyond conceivability that any FBI
Agent with 25 years of experience could have inadvertently
presented such an incomplete, inaccurate document as the
Administrative Summary Report prepared by A-SAC Mathews. Had
A-SAC Mathews demonstrated the ethical standards normally
associated with someone in the FBI of his position, he would
have recused himself from this assignment because of an
obvious conflict of interest.
status of proposed disciplinary action
More than 115 days have passed since I was publicly
castigated by Director Freeh during his infamous January 6,
1995, national press conference. To date I have not been
given copies of the Administrative Summary Report prepared by
A-SAC Mathews, the Department of Justice Report concerning
Ruby Ridge prepared in 1994 by Barbara Berman (leaked to the
media in February, 1995), the FBI report concerning the Ruby
Ridge matter prepared by then Inspector Robert E. Walsh in
1994 (which report parallels the Berman report but presents
findings that differ), and other internal documents I have
gone on record requesting under the provisions of FOIPA.
Since January 6, 1995, the FBI in concert with the DOJ has
moved forward to have affirmed the correctness of the
discipline handed out to then Assistant Director Potts, and
on May 2, 1995, finalized his promotion to Deputy Director of
the FBI.
This action was taken while my appeal sits unaddressed in
the office of Deputy Attorney General Jamie Gorelick. The
DOJ, aware that there are unresolved issues concerning
responsibility for authorization of the rules of engagement
at Ruby Ridge, chose to ignore the opportunity to hear from
SAC Glenn and instead took a course of action which further
exasperates an already flawed Administrative Review Process.
conclusion
I request that a thorough OPR inquiry be initiated. There
are numerous administrative guidelines and procedures that
have been violated, and it is conceivable that federal
statutes have been violated. The lack of professionalism
demonstrated in the handling of the Administrative Summary
Report in connection with the Ruby Ridge matter casts a dark
cloud over the integrity of the FBI and the DOJ.
I would welcome the opportunity to be interrogated
regarding this matter, and would likewise welcome the
opportunity to submit to a polygraph examination afforded to
me by a professional, nationally-recognized operator with a
total independent bearing in this matter.
This letter has not been referred directly to OPR,
Inspection Division, FBI Headquarters, since it would create
a conflict of interest for Assistant Director Gore, who was
present and intricately involved in discussions involving the
Operations Plan (including rules of engagement) utilized
during the Ruby Ridge crisis in Idaho.
Respectfully yours,
Eugene F. Glenn,
Special Agent in Charge,
Salt Lake City Division.
Exhibit 2
Report and Recommendations Concerning the Handling of Incidents Such as
the Branch Davidian Standoff in Waco, TX
(Submitted to Deputy Attorney General Philip Heymann, by Panelist Alan
A. Stone, M.D., Touroff-Glueck Professor of Psychiatry and Law, Faculty
of Law and Faculty of Medicine, Harvard University, November 10, 1993)
i. preamble
The Justice Department's official investigation published
on October 8th together with other information made available
to the panelists present convincing evidence that David
Koresh ordered his followers to set the fire in which they
perished. However, neither the official investigation nor the
Dennis evaluation has provided a clear and probing account of
the FBI tactics during the stand-off and their possible
relationship to the tragic outcome at Waco. This report
therefore contains an account based on my own further review
and interpretation of the facts.
I have concluded that the FBI command failed to give
adequate consideration to their own behavioral science and
negotiation experts. They also failed to make use of the
Agency's own prior successful experience in similar
circumstances. They embarked on a misguided and punishing law
enforcement strategy that contributed to the tragic ending at
Waco.
As a physician, I have concluded that there are serious
unanswered questions about the basis for the decision to
deploy toxic C.S. gas in a closed space where there were 25
children, many of them toddlers and infants.
This report makes several recommendations, first among them
is that further inquiry will be necessary to resolve the many
unanswered questions. Even with that major caveat, I believe
the Deputy Attorney General's suggestions for forward looking
changes are excellent and endorse them. This report makes
further specific recommendations for change building on his
proposal.
ii. introduction
A: Explanation for the delay in the submission of this report
This past summer, the Justice and Treasury Departments
appointed a group of panelists, each of whom was to prepare a
forward-looking report
suggesting possible changes in federal law enforcement in
light of Waco. For reasons set forth below, I decided that
before submitting a report based on my particular
professional expertise, it was necessary to have a
complete understanding of the factual investigation by the
Justice Department. Having now had the opportunity to read
and study that report and the Dennis Evaluation, I
concluded that I did not yet have the kind of clear and
probing view of events that is a necessary prerequisite
for making suggestions for constructive change. Deputy
Attorney General (DAG) Philip Heymann therefore made it
possible for me to pursue every further question I had
with those directly responsible for the Justice
Department's factual investigation and with the FBI agents
whose participation at Waco was relevant to my inquiry.
Their cooperation allowed me to obtain the information
necessary for this report.
The Justice Department has sifted through a mountain of
information, some of which, in accordance with Federal
Statute, can not be publicly revealed. This evidence
overwhelmingly proves that David Koresh and the Branch
Davidians set the fire and killed themselves in the
conflagration at Waco, which fulfilled their apocalyptic
prophecy. This report does not question that conclusion;
instead, my concern as a member of the Behavioral Science
Panel is whether the FBI strategy pursued at Waco in some way
contributed to the tragedy which resulted in the death of
twenty-five innocent children along with the adults. The
Justice Department Investigation and the Dennis Evaluation
seem to agree with the FBI commander on the ground, who is
convinced that nothing the FBI did or could have done would
have changed the outcome. That is not my impression.
I therefore decided it was necessary to include in this
report my own account of the events I considered critical. I
have attempted to confirm every factual assertion of this
account with the FBI or the Justice Department. Although, in
my discussions with the Justice Department, I encountered a
certain skepticism
about what I shall report here, I was quite reassured by
interviews with the FBI's behavioral scientists and
negotiators, who confirmed some of my impressions and
encouraged my efforts. Because they share my belief that
mistakes were made, they expressed their determination to
have the truth come out, regardless of the consequences. I
hope that this report will bolster the FBI and its new
Director's efforts to conduct their forthcoming review of
Waco, which has not yet begun. I also [[Page S7591]] hope
that my report and suggestions for change will in some
measure enable the FBI to work more effectively with the
Justice Department, the Attorney General, and other law
enforcement agencies.
B. Mandate to the panel as I understood it
The mandate to the panelists was ``to assist in addressing
issues that Federal Law Enforcement confronts in barricade/
hostage situations such as the stand-off that occurred near
Waco, Texas. . . .'' Specifically, my sub-group (Ammerman,
Cancro, Stone, Sullivan) was directed to explore: ``Dealing
with persons whose motivations and thought processes are
unconventional. How should law enforcement agencies deal with
persons or groups which thought processes or motivations
depart substantially from ordinary familiar behavior in
barricade situations such as Waco? How should the motivations
of the persons affect the law enforcement response? What
assistance can be provided by experts in such fields as
psychology, psychiatry, sociology, and theology?''\1\
\1\Memorandum of June 25, 1993.
---------------------------------------------------------------------------
These seemed to be two premises in this request by the
Deputy Attorney General (DAG). The first premise was that
Waco had been a tragic event, so it was important for the
agencies and the people involved to examine the evidence,
evaluate their actions, and initiate change based on those
conclusions. Second, although there were questions about the
psychiatric status of David Koresh, the
DAG's use of the term, ``unconventional,'' indicated that we
were also broadly to consider groups with ``belief
systems'' that might cause them to think and behave
differently than ordinary criminals and therefore to be
more difficult for law enforcement to deal with and
understand. As I understood it, the Branch Davidians'
religious beliefs were considered unconventional,'' which
was not intended to be a pejorative term, but rather a
descriptive one. The panelists were also told that there
was concern among federal law enforcement officials that
more such ``unconventional'' groups might, in the near
future, pose problems for which law enforcement's standard
operating procedures might not be suitable.
Given this important responsibility and the fact that we
were asked to make recommendations ``[c]oncerning the
handling of incidents such as the Branch Davidian Standoff in
Waco, Texas'' (emphasis added), I felt unprepared to go
forward without a thorough grasp of the events and decisions
that led to the tragedy. However, the Justice Department was
still in the preliminary stage of their own fact-gathering
investigation at our panel briefings in early July. Hoping to
convey the particular issues of concern to me, I prepared a
preliminary report based on the initial briefings. Since the
factual information I wanted and needed was still being
gathered by the Justice Department, I did not attend the
subsequent special briefings arranged for the panel at
Quantico, Virginia. Because of my reticence to furnish a
report based on incomplete information, the DAG and I
resolved that I would submit my report subsequent to the
completion of the Justice Department's factual inquiry. I
have now had the opportunity to review the following
documents:
1. Report of the Department of the Treasury on the Bureau
of Alcohol, Tobacco, and Firearms. Investigation of Vernon
Wayne Howell Also Known As David Koresh, September, 1993;
2. Report to the Deputy Attorney General on the Events at
Waco, Texas,
February 28 to April 19, 1993 (Redacted Version), October 8,
1993;
3. Edward S.G. Dennis, Jr., Evaluation of the Handling of
the Branch Davidian Stand-off in Waco, Texas, February 28 to
April 19, 1993 (Redacted version), October 8, 1993;
4. Deputy Attorney General Philip B. Heymann, Lessons of
Waco: Proposed Changes in Federal Law Enforcement October 8,
1993;
5. Recommendations of Experts for Improvements in Federal
Law Enforcement After Waco.
As previously mentioned, the Justice Department and the FBI
have answered my further questions, supplied me with
documents, and helped me explore issues of greatest relevance
to my inquiry.
iii. account of the events at waco
The FBI replaced the BATF at the Branch Davidian compound
on the evening of February 28 and the morning of March 1.
There had been casualties on both sides during the BATF's
attempted dynamic entry. David Koresh, the leader of the
Branch Davidians, had been shot through the hip, and the
situation was in flux. It would become, as we have been told,
the longest stand-off in law enforcement history. The FBI,
with agents in place who were trained for rapid intervention,
was locked into a prolonged siege. The perimeter was
difficult to control, the conditions were extreme, and the
stress was intense. Furthermore, the FBI's people had
inherited a disaster that was not of their own making.
``Under the circumstances, the FBI exhibited extraordinary
restraint and handled this crisis with great
professionalism'' the Dennis Evaluation concludes. While this
may be true from the perspective of experts in law
enforcement, it does not contribute to establishing a clear
explanation of what happened at Waco from a psychiatric and
behavioral science perspective. The commander on the ground
believes that the FBI's actions had no impact on David
Koresh. He and others who share his opinion will likely
disagree with the account that follows, which is the
product of my own current understanding of the events.
Phase I
During the first phase of the FBI's engagement at Waco, a
period of a few days, the agents on the ground proceeded with
a strategy of conciliatory negotiation, which had the
approval and understanding of the entire chain of command.
They also took measures to ensure their own safety and to
secure the perimeter. In the view of the negotiating team,
considerable progress was made--for example, some adults and
children came out of the compound; but David Koresh and the
Branch Davidians made many promises to the negotiators they
did not keep. Pushed by the tactical leader, the commander on
the ground began to allow tactical pressures to be placed on
the compound in addition to negotiation; e.g., turning off
the electricity, so that those in the compound would be as
cold as the agents outside during the twenty-degree night.
Phase II
As documented in the published reports and memoranda, this
tactical pressure began at the operational level over the
objections of the FBI's own experts in negotiation and
behavioral science, who specifically advised against it.
These experts warned the FBI command about the potentially
fatal consequences of such measures in dealing with an
``unconventional'' group. Their advice is documented in
memoranda. Nonetheless tactical pressure was added. Without a
clear command decision, what evolved was a carrot-and-stick,
``mixed-message'' strategy. This happened without outside
consultation and without taking into account that the FBI was
dealing with an ``unconventional'' group.
Although this carrot-and-stick approach is presented in the
factual investigation as though it were standard operating
procedure for law enforcement and accepted by the entire
chain of command, it was instead, apparently, the result of
poor coordination and management in the field. Negotiators
and tactical units were at times operating independently in
an uncoordinated and counterproductive fashion.
Phase III
During the third phase of the stand-off, the FBI took a
more aggressive approach to negotiation and, when that
failed, gave up on the process of negotiation, except as a
means of maintaining communication with the compound. By
March 21, the FBI was concentrating on tactical pressure
alone: first, by using all-out psycho-physiological warfare
intended to stress and intimidate the Branch Davidians; and
second, by ``tightening the noose'' with a circle of armored
vehicles. The FBI considered these efforts a success because
no shots were fired at them by the Branch Davidians.
This changing strategy at the compound from (1)
conciliatory negotiating to (2) negotiation and tactical
pressure and then to (3) tactical pressure alone, evolved
over the objections of the FBI's own experts and without
clear understanding up the chain of command. When the fourth
and ultimate strategy, the insertion of C.S. gas, was
presented to Attorney General Reno, the FBI had abandoned any
serious effort to reach a negotiated solution and was well
along in its strategy of all-out tactical pressure, thereby
leaving little choice as to how to end the Waco stand-off. It
is unclear from the reports whether the FBI ever explained to
the AG that the agency had rejected the advice of their own
experts in behavioral science and negotiation, or whether the
AG was told that FBI negotiators believed they could get more
people out of the compound by negotiation. By the time the AG
made her decision, the noose was closed and, as one agent
told me, the FBI believed they had ``three options--gas, gas,
and gas.''
This account of the FBI's approach at Waco may not be
correct in every detail. It is certainly oversimplified, but
it has been confirmed in its general outline by FBI
behavioral scientists and negotiators who were participants
at Waco. This account with their assistance brings into focus
for me the critical issues about law enforcement response to
persons and a group whose beliefs, motivations, and behavior
are unconventional.
iv. analysis
A. The FBI's behavioral science capacity
1. FBI Expertise in Dealing With Persons Whose Motivations and Thought
Processes Are Unconventional
The evidence now available to me indicates that, contrary
to my previous understanding and that of the other panelists,
the FBI's Investigative Support Unit and trained negotiators
possessed the psychological/behavioral science expertise they
needed to deal with David Koresh and an unconventional group
like the Branch Davidians. The FBI has excellent in-house
behavioral science capacity and also consulted with reputable
experts outside the agency. Panelists may have been misled,
as I was, by FBI officials at the original briefings who
conveyed the impression that they considered David Koresh a
typical criminal mentality and dealt with him as such. They
also conveyed the impression that they believed his followers
were dupes and he had ``conned'' them. Based on reports and
interviews, the FBI's behavioral science experts who were
actually on the scene at Waco had an excellent understanding
of Koresh's psychology and appreciated the group's intense
religious convictions. [[Page S7592]]
My preliminary report of August 3 emphasized at some length
those aspects of David Koresh's clinical history and
psychopathology that contradicted the simplistic and
misleading impression given at the first briefings. Much more
information has been made available about his mental
condition, his behavioral abnormalities, his sexual
activities, and his responses under stress. All of this
evidence is incompatible with the notion that Koresh can be
understood and should have been dealt with as a conventional
criminal type with an antisocial personality disorder.
However, the evidence available does not lead directly to
some other clear and obvious psychiatric diagnosis used by
contemporary psychiatry. Nonetheless, based on the FBI's in-
house behavioral science memoranda and other
information from outside consultants, I believe the FBI
behavioral science experts had worked out a good
psychological understanding of Koresh's psychopathology.
They knew it would be a mistake to deal with him as though
he were a con-man pretending to religious beliefs so that
he could exploit his followers.
This is not to suggest that David Koresh did not dominate
and exploit other people. He was able to convince husbands
and wives among his followers that only he should have sex
with the women and propagate children. He convinced parents
on the same religious grounds to permit him to have sex with
their young teen-age daughters. He studied, memorized, and
was preoccupied with Biblical texts and made much better
educated people believe that he had an enlightened
understanding of scripture and that he was the Lamb of God.
His followers took David Koresch's teachings as their faith.
He exacted strict discipline from adults and children alike
while indulging himself.
Whatever else all this adds up to, it and other information
clearly demonstrate as a psychological matter that Koresh had
an absolute need for control and domination of his followers
that amounted to a mania. He also had the ability to control
them. The intensity and depth of his ability and need to
control is attested to by everyone in the FBI who dealt with
him, from negotiators and behavioral scientists to tactical
agents and the commander on the ground.
Unfortunately, those responsible for ultimate decision-
making at Waco did not listen to those who understood the
meaning and psychological significance of David Koresh's
``mania.'' Instead they tried to show him who was the
``boss.''
What went wrong at Waco was not that the FBI lacked
expertise in behavioral science or in the understanding of
unconventional religious groups. Rather the commander on the
ground and others committed to tactical-aggressive,
traditional law enforcement practices disregarded those
experts and tried to asset control and demonstrate to Koresh
that they were in charge. There is nothing
surprising or esoteric in this explanation, nor does it
arise only from the clear wisdom of hindsight. As detailed
below, the FBI's own experts recognized and predicted in
memoranda that there was the risk that the active
aggressive law enforcement mentality of the FBI--the so-
called ``action imperative'' would prevail in the face of
frustration and delay. They warned that, in these
circumstances, there might be tragic consequences from the
FBI's ``action imperative,'' and they were correct.
2. Evaluating the Risks of Mass Suicide
As I have previously stated, there is, to my mind,
unequivocal evidence in the report and briefings that the
Branch Davidians set the compound on fire themselves and
ended their lives on David Koresh's order. However, I am also
now convinced that the FBI's noose-tightening tactics may
well have precipitated Koresh's decision to commit himself
and his followers to this course of mass suicide.
The official reports have shied away from directly
confronting and examining the possible causal relationship
between the FBI's pressure tactics and David Koresh's order
to the Branch Davidians. I believe that this omission is
critical because, if that tactical strategy increased the
likelihood of the conflagration in which twenty-five innocent
children died, then that must be a matter of utmost concern
for the future management of such stand-offs.
Based on the available evidence and my own professional
expertise, I believe that the responsible FBI decision makers
did not adequately or correctly evaluate the risk of mass
suicide. The Dennis Evaluation's executive summary concludes
that ``the risk of suicide was taken into account during the
negotiations and in the development of the gas plan.'' It is
unclear what ``taken into account'' means. The questions that
now need to be explored are: how was the risk of suicide
taken into
account, and how did the FBI assess the impact of their show
of-force pressure tactics on that risk?
Gambling with death
There is a criminology, behavioral science, and psychiatric
literature on the subject of murder followed by suicide,
which indicates that these behaviors and the mental states
that motivate them have very important and complicated links.
Family violence often takes the form of murder followed by
suicide. Multiple killers motivated by paranoid ideas often
provoke law enforcement at the scene to kill them and often
commit suicide. Even more important is what has been called
``the gamble with death.'' Inner-city youths often provoke a
shoot-out, ``gambling'' with death (suicide) by provoking
police into killing them. The FBI's behavioral science unit,
aware of this literature, realized that Koresh and his
followers were in a desperate kill-or-be-killed mode. They
were also well aware of the significance and meaning of the
Branch Davidians' apocalyptic faith. They understood that
David Koresh interpreted law enforcement attacks as related
to the prophesied apocalyptic ending.
In moving to the show of force tactical strategy, the FBI's
critical assumption, was that David Koresh and the Branch
Davidians, like ordinary persons, would respond to pressure
in the form of a closing circle of armed vehicles and
conclude that survival was in their self-interest, and
surrender. This ill-fated assumption runs contrary to all of
the relevant behavioral science and psychiatric literature
and the understanding it offered of Koresh and the Branch
Davidians.
Furthermore, there was direct empirical evidence supporting
the assumption that the Branch Davidians, because of their
own unconventional beliefs, were in the ``gamble with death''
mode. The direct evidence for this was their response to the
ATF's misguided assault. They engaged in a desperate
shootout with federal law enforcement, which resulted in
deaths and casualties on both sides. The AFT claims
gunfire came from forty different locations. If true, this
means that at least forty Branch Davidians were willing to
shoot at federal agents and kill or be killed as martyr-
suicide victims defending their ``faith.'' The idea that
people with those beliefs expecting the apocalypse would
submit to tactical pressure is a conclusion that flies in
the face of their past behavior in the ATF crisis. Past
behavior is generally considered the best predictor of
future behavior.
Willing to kill but not cold-blooded killers
The BATF investigation reports that the so-called ``dynamic
entry'' turned into what is described as being ``ambushed''.
As I tried to get a sense of the state of mind and behavior
of the people in the compound the idea that the Branch
Davidians' actions were considered an ``ambush'' troubled me.
If they were militants determined to ambush and kill as many
AFT agents as possible, it seemed to me that given their
firepower, the devastation would have been even worse. The
agents were in a very vulnerable position from the moment
they arrived. Yet, as ordered, they tried to gain entry into
the compound in the face of the hail of fire. Although there
is disagreement, a senior FBI tactical person and other
experts confirmed my impression of this matter. The ATF
agents brought to the compound in cattle cars could have been
cattle going to slaughter if the Branch Davidians had taken
full advantage of their tactical superiority. They apparently
did not maximize the kill of ATF agents. This comports with
all of the state-of-mind evidence and suggests that the
Branch Davidians were not determined, cold-blooded killers;
rather, they were desperate religious fanatics expecting an
apocalyptic ending, in which they were destined to die
defending their sacred ground and destined to achieve
salvation.
The tactical arm of federal law enforcement may
conventionally think of the other side as a band of criminals
or as a military force or, generically, as the aggressor. But
the Branch Davidians were an unconventional group in an
exalted, disturbed, and desperate state of mind. They were
devoted to David Koresh as the Lamb of God. They were willing
to die defending themselves in an apocalyptic ending and, in
the alternative, to kill themselves and their children.
However, these were neither psychiatrically depressed,
suicidal people nor cold-blooded killers. They were ready to
risk death as a test of their faith. The psychology of such
behavior-together with its religious significance for the
Branch Davidians was mistakenly evaluated if, not simply
ignored, by those responsible for the FBI strategy of
``tightening the noose.'' The overwhelming show of force was
not working in the way the tacticians supposed. It did not
provoke the Branch Davidians to surrender, but it may have
provoked David Koresh to order the mass-suicide. That, at
least, is my considered opinion.
The factual investigation reports in detail the many time
negotiators asked Koresh and others in the compound whether
they planned suicide. Also documented are Koresh's assurances
that they would not kill themselves. Such questions and
answers are certainly important from a psychiatric
perspective in evaluating a patient's suicidal tendency. But
the significance of such communication depends on the
context, the relationship established, and the state of mind
of the person being interviewed. The FBI had no basis for
relying on David Koresh's answers to these questions.
Furthermore, his responses provided no guidance to the more
pertinent question?--`What will you do if we tighten the
noose around the compound in a show of overwhelming power,
and using CS gas, force you to come out?'
The psychology of control
The most salient feature of David Koresh's psychology was
his need for control. Every meaningful glimpse of his
personality and of day-to-day life in the compound
demonstrates his control and domination. The tactic of
tightening-the-noose around the compound was intended to
convey to David Koresh the realization that he was losing
control of his ``territory,'' and that the FBI
[[Page S7593]] was taking control. The FBI apparently assumed
that this tactic and the war of stress would establish that
they were in control but would not convey hostile intent.
They themselves truly believed these tactics were ``not an
assault,'' and because the Davidians failed to respond with
gunfire, the FBI considered their tactics effective and
appropriate. The commander on the ground now acknowledges
that they never really gained control of David Koresh. But,
in fact, my analysis is that they pushed him to the ultimate
act of control--destruction of himself and his group.
The FBI's tactics were ill considered in light of David
Koresh's psychology and the group psychology of the people in
the compound. The FBI was dealing with a religious group,
with shared and reinforced beliefs and a charismatic leader.
If one takes seriously the psychological syndrome of murder/
suicide gamble with death and the group's unconventional
belief system in the Seven Seals and the apocalypse, then you
may conclude, as I have, that the FBI's control tactics
convinced David Koresh that, in this situation, he was
becoming hopeless and helpless--that he was losing control.
In his desperate state of mind, he chose death rather than
submission. When the FBI thought they were at last taking
control, they had in fact totally lost control of the stand-
off.
3. The Waco Tactics in Light of the Group Psychology of the FBI
If this had been a military operation, the Waco conclusion
would have been a victory. The enemy was destroyed without a
single loss of life for the FBI. This situation, however, was
not a military operation. The question is; did a ``military''
mentality overtake the FBI? We were told that the FBI
considers a conflict which results in any casualties on
either side a failure. The law enforcement experts on the
panel agreed.
There is little doubt that the FBI inherited a terrible
situation. Federal agents had been killed and wounded, and
there were killed and wounded Branch Davidians in and around
the compound. The FBI knew that they were in a dangerous
situation, and that they confronted a group of religious
fanatics who were willing to kill or be killed. The FBI's
initial decision to mount a stand-off and negotiate was a
remarkable exhibition of restraint under the circumstances.
In retrospect, tactical units will wonder whether an
immediate full-scale dynamic entry by an overwhelming force
would have produced less loss of life.
The FBI stand-off, we were repeatedly told, was the longest
in law enforcement history. The costs in money and manpower
were mounting and, Waco had the media impact of the Iran
Hostage taking as the days mounted. The FBI was under
enormous pressure to do something. Given what I believe the
FBI's group psychology to have been, the desultory strategy
of simultaneous negotiation and tactical pressure was enacted
as a compromise between doing nothing (passivity) and
military assault (the action imperative). The appeal of any
tactical initiative to an entrenched, stressed FBI must have
been overwhelming. It may have better suited their group
psychology than the group psychology of the unconventional
people in the compound they wanted to affect. Given the
escalating pressure to act, the final tightening-the-noose''
and C.S. gas strategy must have seemed to the tacticians a
reasonable compromise between doing nothing and overreacting.
This analysis of the FBI's group psychology is not intended
as a matter of placing blame. If it is accurate, it at least
points to what might be done differently in the future. The
FBI should not be pushed by their group psychology into
misguided ad hoc decision making the next time around.
B. Failure To Use Behavioral Science Capacity
1. Failure of coordination between tactical and negotiating arms of the
FBI
Throughout the official factual investigation, there are
references to the failure of communication between the
tactical and negotiation arms of the FBI. The commander on
the ground thinks that the official investigation and
evaluation exaggerate the extent and significance of that
failure. I disagree. The situation can only be fully
appreciated by a thoroughgoing review of the documents.
Consider the Memo of 3/5/93 from Special Agents Peter Smerick
and Mark Young on the subject, ``Negotiation Strategy and
Considerations.'' The memorandum not only defines the basic
law enforcement priorities at Waco in the identical fashion
as the after-the-fact panel of law enforcement experts, also
anticipates most of the panel's own behavioral science
expertise and retrospective wisdom. Agents Smerick and Young
were not Monday morning quarterbacks as we panelists are;
they were members of the F.B.I. team on the field of play.
The basic premise of their overall strategy was:
1. Insure safety of children [emphasis in original], who
are truly victims in this situation.
2. Facilitate the peaceful surrender of David Koresh and
his followers.
The agents went on to emphasize that the strategy of
negotiations, coupled with ever-increasing tactical presence
was inapplicable. They wrote, ``In this situation, however,
it is believed this strategy, if carried to excess, could
eventually be counter-productive and could result in loss of
life.'' p. 2, Memo of 3/5/93. The agents also were fully
aware that Koresh's followers believed in his teachings and
would ``die for his cause.'' They were fully aware,
therefore, of the religious significance of the Branch
Davidians' conduct and attitudes and were sensitive to all of
the concerns emphasized by the religious experts on the panel
in their
reports. They suggested that the F.B.I. should consider
``offering to pull back, only if they release more
children'' (emphasis in original). The agents further
recommended that, ``since these people fear law
enforcement, offer them the opportunity of surrendering to
a neutral party of their choosing accompanied by
appropriate law enforcement personnel.''
These agents recognized that although some in the F.B.I.
might believe the Davidians were ``bizarre and cult-like,''
the followers of Koresh ``will fight back to the death, to
defend their property [described elsewhere by the agents as
sacred ground, the equivalent of a cathedral to Catholics,
etc.] and their faith'' (emphasis added). Memo of Smerick and
Young 3/7/93.
My reading of these memos indicates that these agents had
placed the safety of the children first, exactly as did AG
Reno. They recognized that it was not a traditional hostage
situation, as the British law enforcement expert on the
panel, C.E. Birt, repeatedly emphasized during our briefings
of July 1 and 2, when he found it necessary to correct the
misrepresentation of the briefer. They warned against the
carrot-and-stick approach, which was employed and has been
criticized by several of the panelists in their reports.
Professor Cancro speaks of it as a ``double bind,'' a term
used by behavioral scientists to describe a mixed message for
which their is no correct response and which, as a result,
creates anxiety and agitation in the recipient of the
message.
The factual investigation does not explain how or why these
expert opinions of behavioral scientists and negotiations
within the FBI were overridden. The Justice Department
emphasized that these same agents whose views I have
described gave quite contradictory views the very next day.
When I asked whether the Justice Department's fact-finders
had questioned these agents as to why they had changed their
views, no adequate answer was given. I therefore pursued that
inquiry with the agent who authored the two reports. He made
it quite clear that
the contradictory suggestions were offered only in response
to an expression of dissatisfaction with the previous
recommendations. Although the commander on the ground and
the official investigation disagree with my view, I have
concluded that decision-making at Waco failed to give due
regard to the FBI experts who had the proper understanding
of how to deal with an unconventional group like the
Branch Davidians.
2. Was tactical strategy appropriate with so many children in the
compound?
The pressure strategy as we now know it consisted of
shutting off the compound's electricity, putting search
lights on the compound all night, playing constant loud noise
(including Tibetan prayer chants, the screaming sounds of
rabbits being slaughtered, etc.), tightening the perimeter
into a smaller and smaller circle in an overwhelming show of
advancing armored force, and using CS gas. The constant
stress overload is intended to lead to sleep-deprivation and
psychological disorientation. In predisposed individuals the
combination of physiological disruption and psychological
stress can also lead to mood disturbances, transient
hallucinations and paranoid ideation. If the constant noise
exceeds 105 decibels, it can produce nerve deafness in
children as well as in adults. Presumably, the tactical
intent was to cause disruption and emotional chaos within the
compound. The FBI hoped to break Koresh's hold over his
followers. However, it may have solidified this
unconventional group's unity in their common misery, a
phenomenon familiar to victimology and group psychology.
When asked, the Justice Department was unaware whether the
FBI had even questioned whether these intentional stresses
would be particularly harmful to the many infants and
children in the compound. Apparently, no one asked whether
such deleterious measures were appropriate, either as a
matter of law enforcement ethics or as a matter of morality,
when innocent children were
involved. This is not to suggest that the FBI decisionmakers
were cold-blooded tacticians who took no account of the
children; in fact, there are repeated examples showing the
concern of the agents, including the commander on the
ground. Nevertheless, my opinion is that regardless of
their apparent concern the FBI agents did not adequately
consider the effects of these tactical actions on the
children.
3. The plan to insert CS gas
During U.S. military training, trainees are required to
wear a gas mask when entering a tent containing CS gas. They
then remove the mask and, after a few seconds in that
atmosphere, are allowed to leave. I can testify from personal
experience to the power of C.S. gas to quickly inflame eyes,
nose, and throat; to produce choking, chest pain, gagging,
and nausea in healthy adult males. It is difficult to believe
that the U.S. Government would deliberately plan to expose
twenty-five children, most of them infants and toddlers, to
C.S. gas for forty-eight hours. Although it is not discussed
in the published reports, I have been told that the FBI
believed that the Branch Davidians had gas masks and that
this was one of the reasons for the plan of prolonged
exposure. I [[Page S7594]] have also been told that there was
some protection available to the children, i.e., covering
places where the seal is incomplete with cold wet towels can
adapt gas masks for children and perhaps for toddlers though
not for infants. The official reports are silent about these
issues and do not reveal what the FBI told the AG about this
matter, and whether she knew there might be unprotected
children and infants in the compound.
The written information about the effects of C.S. gas which
was presented to the AG has been shared with the panelists.
We do not know whether she had time to read it. Based on my
own medical knowledge and review of the scientific
literature, the information supplied to the AG seems to
minimize the potential
harmful consequences for infants and children.
Scientific literature on C.S. gas is, however, surprisingly
limited. In the sixties, the British Home Office,
commissioned the Himsworth Report, after complaints about the
use of C.S. gas by British troops in Londonderry, Ireland.
The report is said by its critics to understate the medical
consequences. The published animal research on which the
report is based acknowledged that at very high exposure,
which the authors deemed unlikely, lethal effects were
produced. The researchers assumed (as did the Himsworth
report) that C.S. gas would be used primarily in open spaces,
to disperse crowds, and not in closed areas.
The AG's information emphasized the British experience and
understated the potential health consequences in closed
spaces. The AG also had a consultation with a physician; but
the exact content of that discussion has not been reported,
and the available summary is uninformative. The FBI commander
on the ground assures me that the agency has detailed,
ongoing expertise on C.S. gas and its medical consequences.
If so, no such FBI information was supplied in the written
material to the AG or subsequently to this panelist.
Based on my review, the American scientific literature on
the toxic effects of C.S. gas on adults and children is also
limited. Of course, there has, been no deliberate
experimentation on infants. The Journal of the American
Medical Association published two articles in recent years in
which physicians expressed concern about the use of C.S. gas
on civilians, including children in South Korea and Israel.
Anecdotal reports of the serious consequences of tear gas,
however, approved as early as 1956. Case reports indicate
that prolonged exposure to tear gas in closed quarters causes
chemical pneumonia and lethal pulmonary edema. (Gonzalez,
T.A., et al, Legal Medicine Pathology and Toxicology East
Norwalk, Conn: Appleton Century Crofts, 1957). According to a
1978 report, a disturbed adult died after only a half-hour
exposure to C.S. gas in closed quarters. Chapman,
A.J. and White C. ``Case Report: Death Resulting from
Lacrimatory Agents,'' J. Forensic Sci., 23 (1978): 527-30)
The clinical pathology found at autopsy in these cases is
exactly what common medical understanding and ordinary
pulmonary physiology predicts would follow prolonged
exposure in closed quarters.
The potential effects of C.S. gas are easily explained.
C.S. gas causes among other things, irritation and
inflammation of mucus membrane. The lung is a sack full of
membranes. The inhalation of C.S. gas would eventually cause
inflammation, and fluid would move across the membranes and
collect in the alveoli, the tiny air sacks in the lungs that
are necessary for breathing. The result is like pneumonia and
can be lethal. Animal studies are available to confirm that
C.S. gas has this effect on lung tissue. Ballantyne, B. and
Callaway, S., ``Inhalation toxicology and pathology of
animals exposed to omicron-chlorobenzylidene malonitrile
(CS),'' Med. Sci. Law, 12 (1972): 43-65. The Special
Communication published in J.A.M.A. 220 (
