A Review of the September 2005 Shooting Incident Involving
the Federal Bureau of Investigation and Filiberto Ojeda Ríos
Office of the Inspector General
In this Chapter, the OIG analyzes the decision made by SAC Fraticelli, in consultation with HRT Deputy Commander Steve, to conduct an emergency daylight assault on the Ojeda residence. This decision was made in response to the report from the sniper-observers at approximately 2:36 p.m. on September 23 that their position in the woods near the residence had been discovered. As part of this analysis, we examine several issues, including: 1) the circumstances of the reported compromise; 2) the risky nature of the daylight assault plan; 3) the availability of other options for capturing Ojeda; and 4) whether a better assault route was available.
In conducting this assessment, the OIG relied extensively on input from its experts. The OIG also considered the assessments provided by the FBI agents involved in the matter, including the SAC, agents from CIRG, and senior agents from the Counterterrorism Division at FBI Headquarters.
In making our assessment, the OIG was mindful of the fact that the agents involved in deciding what action to take in response to the reported compromise were required to make decisions with imperfect information under circumstances that were tense and rapidly evolving, and that they had limited time for reflection or consultation. However, we concluded that the decision to conduct an emergency daylight assault was based on an inadequate assessment of the foreseeable risks of conducting such an operation under conditions in which the element of surprise had been lost. Because Ojeda was prepared for the FBI’s frontal assault on the residence, the assault failed and an agent was seriously wounded. As explained below, we believe that the FBI should have given more consideration to other available options, such as surrounding Ojeda’s residence and forcing him out with tear gas, or withdrawing without taking any further immediate action to arrest or surround Ojeda. We discuss both of those options below.
During the afternoon of September 23, the sniper-observers were positioned at the Mission Support Site, approximately 200-250 meters from the Site 1 residence, when they heard vehicles stop on the road near their position and heard the occupants get out and begin talking. One of the sniper-observers (Paul) saw a person gesturing with his hands and pointing at the ground and toward the trailhead. The sniper-observers concluded that their presence had been detected, and at 2:36 p.m. they requested by radio that the TOC order a “deliberate” assault on the residence to prevent Ojeda from escaping.
SAC Fraticelli and other agents in the San Juan FBI subsequently told the OIG that they now believe that the sniper-observers were not in fact compromised and that the people who exited the vehicle or vehicles and who were overheard conversing in Spanish were in fact discussing matters unrelated to the operation. The agents told the OIG that FBI interviews with a person or persons at Site 2 at the time of the assault persuaded them that the people who had stepped out of the vehicles near the road were discussing matters unrelated to the sniper-observers. This information was passed on to FBI Headquarters in an informal report prepared by a CTD Intelligence Analyst shortly after the incident, which stated: “One of the individuals that exited the vehicle was the owner of [Site 2] and it is believed the other men with him were discussing the purchase of a horse. No arrests were made and it is believed that this vehicle and the three (3) individuals are total[ly] unrelated to this operation.”
The OIG was unable to locate any information to confirm or refute the information regarding the activities of the persons who were seen and heard by the sniper-observers. The Intelligence Analyst who wrote the informal report told us she could not recall who provided this information. The only formal written report produced by the San Juan FBI relating to this question was a memorandum of interview written by a San Juan FBI agent who had interviewed an individual who was detained at Site 2 during the arrest operation. The memorandum contains no information regarding the people who stopped near the sniper-observers, and the agent told the OIG that at the time of the interview he was unaware that anyone had been seen or heard by the sniper-observers near Site 2. None of the San Juan FBI agents interviewed by the OIG was able to provide any additional information regarding the circumstances of the compromise. We were therefore unable to determine with certainty whether the sniper-observers were actually compromised.
Yet, it is important to note that because none of the sniper-observers sent to the scene spoke Spanish, they were unable to determine the substance of the conversation that they overheard. If the individuals who stopped near the sniper-observers had in fact been discussing unrelated matters such as the purchase of a horse, there was no way for the sniper-observer team to know it. In light of the prevalence of Spanish as the primary language for most residents of this area, including Ojeda and his wife, and the need to identify Ojeda, it should have been anticipated that the sniper-observers might need to understand relevant conversations in Spanish. It clearly would have been useful to have had some Spanish-speaking agents on the sniper-observer team, particularly because one of their important objectives was to identify Ojeda.
However, during the afternoon of September 23, the information available to Fraticelli was that the HRT sniper-observers were convinced that their presence had been detected. Fraticelli had no basis to reject the sniper-observers’ assessment that someone had detected them. At that point, Fraticelli had to select among several options for action, taking into account the risk that these persons might alert Ojeda to the presence of the sniper-observers or otherwise assist him in evading or resisting arrest.
In the next sections we examine Fraticelli’s decision to respond to the reported compromise by ordering an emergency daylight assault on Ojeda’s residence to effectuate an arrest, in light of the available alternatives.
The OIG concluded that a daylight assault of the kind implemented at the Ojeda residence was extremely dangerous and not the best alternative available to the FBI. Indeed, if Ojeda was more heavily armed, more casualties would likely have occurred. As HRT Deputy Commander Steve pointed out, if Ojeda had been firing a high-powered rifle, several FBI agents could have been killed in the operation.
The conclusion that the emergency daylight assault was not the best available option was shared by all of the OIG’s experts who participated in this investigation.
Fraticelli told the OIG that he was concerned that in light of the compromise of the sniper-observers and the daylight conditions, the FBI would not have an element of surprise in a daylight assault. He stated that after Steve explained the speed with which the HRT agents would be transported by the helicopters and rope-dropped to the ground, he became convinced that an immediate assault on the house was the best option. Steve stated that he felt that even with a helicopter insertion the FBI had enough of an element of surprise to get into the house without a gunfight.
However, the assumption that the FBI still had the advantage of surprise was inconsistent with the reasons given for the emergency daylight assault. The FBI’s primary reason for deciding that action was necessary was the concern that the persons seen by the sniper-observer near the trailhead were sympathizers who would warn Ojeda. If this risk was sufficient to justify ordering an immediate arrest operation, it should likewise have been sufficient to support an assumption that Ojeda would be ready for the FBI by the time the assault team arrived, two hours after the compromise was reported. The FBI also had reason to be concerned that the persons believed to have detected the sniper-observers or other Macheteros sympathizers might have joined Ojeda to assist his resistance during the nearly 2-hour interval from the time the compromise was reported to the time the HRT agents arrived.88
In addition, the FBI was aware that delivering the HRT agents by helicopter with a rope drop in a small field located in plain view of the front of Ojeda’s residence would generate a great deal of noise and alert Ojeda. Even a perfectly executed rope drop would require several minutes for both helicopters to complete, because they could not have dropped their passengers into such a small target simultaneously. The HRT agents would also require additional time to assemble into the planned order of march and to ascend the steep hill between the banana field and the Ojeda residence. Any hovering or circling by the helicopters as they located the small landing zone would result in additional noise, further ensuring that Ojeda would be prepared. In light of these factors, it was not realistic to expect that Ojeda, a violent fugitive believed to be familiar with FBI tactics, would be surprised by the assault.
The FBI’s plan for assaulting the house was quickly adapted from the plan being prepared for a surreptitious nighttime assault. However, it was poorly suited to daylight conditions in which Ojeda would very likely be prepared to offer violent resistance. Once he knew the FBI was coming, Ojeda had the advantage of high ground, superior cover, and superior visibility. As the FBI was also aware, Ojeda’s house provided him with a highly defensible position with cement walls and limited entry points.
Moreover, the FBI’s plan called for the assault team to follow a route of approach in plain view of the house through the front yard, up the front steps, and across the porch to two breach points. The selected route required the agents to approach the house and pass directly in front of the kitchen window to reach the breach points, exposing agents to close-range gunfire.89 While this route may have been suitable for a surreptitious nighttime approach, in daytime conditions, with Ojeda alerted, the approach maximized the agents’ exposure to gunfire.
Ojeda’s positional advantage was demonstrated by the outcome of the initial assault. During the initial exchange of gunfire, Ojeda fired 19 times and struck Frank 4 times, Brian twice, and George once. If Ojeda had been armed with a higher-powered weapon that could penetrate FBI’s armor or helmets, he likely would have killed at least two agents. The FBI agents fired their high-powered M4 carbines at least 107 times and did not strike Ojeda at all during the initial exchange.
In addition, if Ojeda had been armed with explosive devices, the casualties would have been great. The HRT had been specifically warned that explosives were a danger, given Ojeda’s history and associations. After the initial exchange of gunfire, there were several agents in exposed positions on the bank below the balcony porch. A grenade tossed onto the bank from the front door, the gated doorway, or the kitchen window could have resulted in far more numerous and severe casualties.
These dangers were not unknown to the FBI. The San Juan FBI specifically recognized the difficulties inherent in a daylight assault to arrest Ojeda when they requested authority to execute the search warrant at any hour, without having to “knock and announce.” The supporting affidavit signed by an agent from the Domestic Terrorism squad in the San Juan FBI on September 22 stated:
The San Juan FBI agent-affiant was remarkably prescient in his description of the threat Ojeda would present in daylight conditions, under circumstances when he would have enough warning of the FBI’s approach to arm himself.
When questioned about the risks inherent in the daylight entry, several HRT agents responded with words to the effect of “we are trained to handle these situations.” However, the fact that HRT agents were trained to conduct risky operations and exhibited courage during the assault does not mean that clear and known risks to HRT agents should have been discounted in choosing a dangerous course of action.
The FBI Critical Incident Handbook, which is “designed to assist the FBI On-Scene Commander (OSC) in quickly organizing and executing an effective response to a critical incident,” repeatedly emphasizes that assessment of risks and “risk effectiveness” is essential to selecting any planned action or tactical response in a crisis situation. The Handbook contains a discussion of emergency assaults that has particular relevance to this discussion:
An Emergency Assault Plan (EAP) is an immediate measure designed to regain control or stabilize a rapidly deteriorating crisis situation that poses imminent danger to the lives of innocent people. It generally lacks contingency planning, preparation, rehearsal, and full use of tactical capabilities. Consequently, execution of the EAP presents a high level of risk to all concerned.
By this definition (which we recognize is not a binding regulation), the circumstances presented to the FBI when the compromise was reported by the sniper-observers did not justify an “emergency assault.” The only “crisis” was the FBI’s concern that Ojeda would escape.90 At that moment, he had no hostages and was not posing an imminent danger to the lives of innocent people. The implication of the Handbook is that unrehearsed, quickly devised emergency assaults are inherently risky and typically justified only by serious and imminent threats. While we recognize that decisions must be made quickly in the field, with imperfect information, we believe that the FBI should have given more careful consideration to alternative strategies.
It is important to note that the OIG is not suggesting that the decision to conduct an emergency daylight assault was the cause of Ojeda’s death. Ojeda was not killed or injured during the assault. Ojeda was shot approximately 100 minutes after the assault because he presented a threat of imminent harm to the agents at that moment, not because the FBI had selected the emergency daylight assault option.
The OIG’s experts told us that they believe there was a superior strategy for arresting Ojeda that was available to the FBI after the sniper-observers reported that they were compromised. Specifically, the experts noted that another option available to the FBI was: (1) to establish a perimeter around the residence sufficient to prevent Ojeda from escaping, (2) demanding Ojeda’s surrender with a short deadline for responding, followed by (3) the use of chemical agents, such tear gas and smoke. The experts concluded that this approach would have offered a superior strategy from the standpoint of agent safety and offered at least as good a chance to take Ojeda into custody without injury as did the emergency assault.
Under this plan, the arrest team could have established a perimeter from positions of cover permitting them to monitor Ojeda’s potential escape routes. The arrest team could have demanded that Ojeda and his wife surrender, with a short deadline for compliance.91 If Ojeda and his wife refused to surrender by the deadline, chemical agents (tear gas) could have been fired into the residence to force them out of their positions inside the house. If the gas proved ineffective, the next step would have been to insert smoke into the house. Smoke cannot be filtered by a gas mask and would have forced Ojeda and his wife to exit the residence.
According to one OIG expert, chemical agents are fired in 37mm or 40mm rounds capable of penetrating doors (up to ¾ inch plywood) and windows. The rounds are accurate up to 50 yards from the target. The rounds are shot with an upward trajectory to decrease the chance an occupant is hit. The rounds ricochet inside the target and break, releasing the gas. There are three chemical agents that can be utilized, individually or in some combination: CN (chloracetophenone), CS (ortho-chlorobenzalmalononitrile), or OC (Oleoresin Capsicum). Our experts told us that no one has died from the use of CS, the most common chemical agent, and that chemical agents work 90 percent of the time when deployed properly. One expert noted that the use of CN in a pyrotechnic form has resulted in death by oxygen deprivation in a couple cases.92
We believe that Ojeda’s positional advantage would have been reduced or neutralized in this scenario. We also believe that the FBI had enough information regarding the residence to adopt, or at least consider, this plan. In particular, the sniper-observers had already reported that there were no exit points on the Black or Red sides, and that there were windows but no doors on the Green side. Ojeda’s only true exit points were the front door and the gated doorway, both on the White (front) side of the house. Finding positions of cover from which to guard the available exit points would not have been an impossible problem; indeed, the assault team retreated to such positions shortly after the dynamic assault failed and Frank was wounded and evacuated.
Given Ojeda’s history, the likelihood that this scenario would have ultimately resulted in a gunfight with Ojeda cannot be excluded. But if Ojeda began shooting after he had been forced outdoors by gas, with the agents in positions of cover, the danger to the agents would have been far less than an exchange with Ojeda firing from a dark window at agents exposed on the porch, at very short range.
We concluded that the reasons given by the FBI witnesses for rejecting or not considering a surround and call-out strategy were not persuasive and were in some cases troubling. Fraticelli claimed that he proposed the surround and call-out when the compromise was reported by the sniper-observers. He said that although he originally wanted to avoid a standoff, he felt the calculation changed when the element of surprise was lost. However, Fraticelli said that after Steve pointed out that Ojeda had previously used a barricade situation to resist arrest, Fraticelli became convinced that an assault was the best option.
Steve told us, however, that “no consideration” was given to a surround and call-out option. The OTU agents (Kevin, Andy, and Jason) who participated in developing an assault plan told us that the surround and call-out option was excluded because Fraticelli had previously said he wanted to avoid a barricade situation. We found a significant conflict between the statements of Fraticelli and the other witnesses on this point, which we were not able to reconcile. At a minimum, it appears that there was no significant reconsideration or discussion of the surround and call-out option after the reported compromise of the sniper-observers.
We also believe that the reported compromise of the sniper-observers and the need to deliver the arrest team by helicopter changed the circumstances so significantly that the relative merits of a surround and call-out option as compared to an emergency daylight assault should have been given more consideration. Although we recognize that the ultimate decision was made under conditions of great stress, we note that the final determination to conduct an emergency assault was not made until approximately 3:45 p.m., over an hour after the compromise was reported. We believe that there was adequate time to revisit the surround and call-out option at this stage.93
We believe that the mindset of avoiding a barricaded subject scenario caused the FBI to make inadequate preparations in advance for contingencies under which such a scenario might arise. This mindset also prevented the agents from revisiting the surround and call-out strategy when circumstances changed as a result of the reported compromise.
We also acknowledge that the surround and call-out option was not a perfect one. If the agents attempting to establish a perimeter could not establish positions of adequate cover, they might be exposed to gunfire from the residence, particularly if the subject was armed with a rifle. The agents also faced uncertainty regarding whether they could establish a safe perimeter in an area believed to be populated with sympathizers. (As it happened, the agents were required to establish such a perimeter after Frank was wounded, and they were able to do so successfully.) If it had been necessary to launch chemical agents into the house, the agents doing so might have also been exposed to fire during that operation.94
We also recognize that during his 1985 arrest, Ojeda had apparently used the time after the agents called him out to prepare for his violent resistance. However, in this case the assault option did not eliminate this problem, because it took almost two hours for the HRT agents to arrive at the scene after the compromise was reported. During this interim, Ojeda had ample time to prepare for a gunfight.
In sum, we concluded that the surround and call-out option presented significantly less risk to the agents and at least as great a likelihood of success as did the emergency daylight entry that was advocated by Steve and ordered by Fraticelli. We recognize that the advantages may not necessarily have been obvious to the commanders in Puerto Rico, and that we are making this finding with the benefit of hindsight. But at the very least, we believe that the surround and call-out option should have been considered and revisited with greater attention, which the FBI never did.
We also are concerned that the FBI gave little or no consideration to the option of extracting the sniper-observers without taking immediate action to arrest or surround Ojeda at the residence. In raising this concern, we are not making a finding that the “extract and withdraw” option should have been selected in this case. As we explain below, there were several valid reasons for the FBI to decide that immediate affirmative steps should be taken to capture or contain Ojeda. However, we believe that when a subject is not creating a crisis situation that poses imminent danger to innocent people, and the available options for immediately arresting or containing the subject present major risks to agents or others, FBI incident commanders should at least consider seriously the possibility of withdrawing. In this case, we do not believe this option was given more than cursory consideration.
As noted above, we determined that when the potential compromise was reported, the TOC asked the sniper-observers by radio if they could exit the area by the same route they came in. The sniper-observers – who were urging immediate action by the FBI to “hit the house” to arrest Ojeda – reported that they did not have adequate supplies to exit the area by the same route. Fraticelli and Steve told us that in order to extract the sniper-observers the FBI would have had to send a vehicle up the road that runs alongside Ojeda’s residence to pick up the sniper-observers near the trailhead. They said they rejected this option because sending a vehicle up the road near the residence would alert Ojeda to the FBI’s presence.
When we asked Steve to describe the deliberations regarding what action to take in response to the reported compromise of the sniper-observers, he stated that “[w]e gave no consideration to options other than a direct assault on the house.”
It is not clear that a vehicle extraction would have alerted Ojeda or exposed the HRT agents to danger.95 In any event, the incident commanders should have weighed the risk of that outcome against the foreseeable risk to the agents or other persons posed by the more aggressive alternatives.
The OIG’s experts told us that they did not believe that an “extract and withdraw” strategy should have been selected in this case. Among other things, they pointed out that Ojeda was a high priority fugitive who had eluded capture for 15 years and who was considered a threat. They noted that allowing Ojeda to escape may have resulted in his disappearance for many more years. They also noted that there was no assurance that the FBI would get a future opportunity to arrest Ojeda under circumstances offering a greater tactical advantage. The experts felt that Ojeda’s isolated location and limited resources gave the FBI a tactical advantage if exercised properly and with adequate law enforcement manpower (including sufficient resources to control potential crowds of sympathizers).
The FBI was justifiably concerned that Ojeda would elude apprehension again. While Fraticelli had no specific information regarding the identity or sympathies of the persons who were seen and heard by the sniper-observers, he knew that the Ojeda house was one of six residences on a property owned by a known Machetero. Given all of these circumstances, we concluded that it was not inappropriate for the FBI to reject an “extract and withdraw” strategy after due consideration.
However, we are not persuaded that such consideration actually took place in this case. We believe that Fraticelli and Steve started from the unexamined assumption that affirmative steps had to be taken immediately to arrest Ojeda. We concluded that one lesson to be learned from the Ojeda incident is that in the absence of a crisis situation involving an imminent danger to FBI employees or innocent people, incident managers should at least seriously consider the “withdraw” or “no action” option along with other, more aggressive options.
V. Modification of the Approach Route
Even assuming an immediate assault was justifiable, there were ways that the HRT could have modified the assault plan to reduce the additional risks to the arresting agents associated with the daytime conditions. The approach route – through the front yard, up the steps and laterally along the porch to the breach points – was originally part of a plan for a clandestine nighttime assault, when the occupants were expected to be sleeping. As noted above, during the daytime this route maximized the visibility and exposure of the agents to fire from inside the house.
An alternate approach route was available. Earlier that day, during deliberations regarding plans for the deliberate nighttime assault, the sniper-observers suggested a route to the house from the direction of the Black/Red corner, which would have required the agents to go further up the road adjacent to the house before going over a fence and down a slope toward the Red/White corner. The agents could not be seen or fired on from inside the house on this route, because there were no windows or doors on the Black or Red sides. An approach from this direction would have reduced the exposure of the agents to fire from the house as they approached it from the road.96
We recognize that this route would not have eliminated all risk to the agents. Frank was wounded as he attempted to breach the gated doorway, a maneuver that would have been required no matter what route the agents took to get to the house. But the other agents (including SAs Brian and George, both of whom were shot by Ojeda) might not have taken the route along the porch or bank that exposed them to fire from the kitchen window.
The OIG experts also pointed out that there was an opportunity to adjust the emergency assault plan when the helicopters missed the intended landing zone. The emergency assault was premised on a very short amount of time between the arrival of the helicopters and entry of the house, to minimize Ojeda’s opportunity to prepare resistance. After the helicopters failed to find the banana field landing zone, circled near the target, and delivered the agents to the wrong location, the leader of the assault team should have recognized that any remaining element of surprise had been lost and halted the assault in order to regroup and adjust the plan.
Instead, the 10 HRT agents boarded an SUV driven by a San Juan FBI agent who was positioned at a choke point, drove to the Ojeda residence, crashed the gate, and began running up the front steps of the house in the face of fire from the kitchen window. According to the TOC Log, at least 10 minutes elapsed from the time the helicopters could be heard by the sniper-observers near the Ojeda residence and the time the HRT assault team arrived on the SUV. We agree with the OIG experts that at that stage it should have been clear that a daylight assault on the White side would be unduly dangerous to the agents, given Ojeda’s known history of violence and the additional opportunity he had to prepare an ambush.
The FBI’s decision to conduct the assault on September 23, El Grito de Lares, a holiday of great significance to the independence movement, has also been questioned by many people in Puerto Rico. Some have alleged that the FBI chose this day intentionally to send a message of intimidation to the independence movement.
We found no evidence to suggest that the FBI wanted to arrest Ojeda on El Grito de Lares because of the symbolic significance of that day. It is true that the FBI perceived the holiday as a potential opportunity to arrest Ojeda if he left his house to attend the festival and that HRT considered a car stop of Ojeda to be the safest means to arrest him. The consideration was one of opportunity, not symbolism or intimidation.
When Ojeda did not travel on the morning of September 23, the FBI began making plans to arrest him at his residence before dawn the next day, September 24. It was only because the sniper-observers reported that they were compromised during the afternoon of September 23 that the operation was conducted that day. Absent the compromise, the operation would not have taken place on the holiday. We found no support for the allegation that the FBI was attempting to intimidate or demoralize supporters of independence through its selection of the holiday as the day to arrest Ojeda.
In sum, we believe that the decision to conduct an emergency daylight assault was a flawed decision and not the best option available. However, we do not believe that Fraticelli and Steve’s selection of this option constituted misconduct. Rather, their actions raise performance issues that we believe the FBI should address.
More importantly, this case should provide important lessons for the FBI in the future. These include:
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