U.S. Department of Justice
Report to the Deputy Attorney General on the Events at Waco, Texas
February 28 to April 19, 1993
XI. Planning and Decision-making Between March 23 and April 19, 1993
- From the time the standoff at the Branch Davidian compound began on February 28, the principal headquarters responsibility in Washington for planning and decision-making lay with the Terrorism and Violent Crimes Section of the Justice Department's Criminal Division (TVCS/C RM) and the Violent Crimes and Major Offenders Section (VCMOS) of the FBI's Criminal Investigative Division (CID). The organization of the VCMOS and the key participants from that section have been described in Part III above. As the Chief of the TVCS/CRM, James S. Reynolds was substantially involved, as were both Deputy Chief Mary Incontro and section attorney John Lancaster. John C. Keeney was the Acting Assistant Attorney General for the Criminal Division during the crisis, and Deputy Assistant Attorney General (DAAG) Mark Richard oversaw the activities of TVCS/CRM. AG Reno relied a great deal on DAAG Richard during the latter days of the crisis. As discussed in more detail above, the primary headquarters responsibility for decision-making throughout the crisis at the FBI lay with Director Sessions, Deputy Director Clarke, and Associate Deputy Director Gow.
- From February 28 until March 23, the principal role of the Criminal Division representatives -- particularly Mr. Reynolds, Ms. Incontro and Mr. Lancaster -- was to act as liaison between the U.S. Attorney's office (USAO) for the Western District of Texas and the VCMOS at FBI Headquarters. That role began to change significantly on March 23.
A. Coordination of the Prosecutive and Investigative Teams
- This report previously addressed the tension between certain members of the USAO, local law enforcement and the FBI. The following section addresses the resolution of these conflicts by the Department.
- By letter dated March 23, 1993, William Johnston, the Assistant United States Attorney in charge of the Waco office, complained to the Attorney General about decisions affecting the investigation of the shootings of the ATF agents made by then U.S. Attorney, Ronald Ederer. Specifically, Johnston complained about Ederer's seeming lack of concern about leaks occurring during the investigation; his characterization of the local media's interceptions of cellular telephone conversations among agents as only a "nuisance"; and his instructions to Johnston that he refrain from assembling an investigative team consisting of Texas Rangers, other agencies and crime laboratories to work on the homicide case. He further alleged that Ederer inexplicably declined an offer of assistance from a District Attorney's office with which the USAO had enjoyed a "great relationship for years." According to Johnston, Ederer had made the USAO look "silly, inept and confused" by charging two elderly women who had been released from the compound with conspiracy to murder, only to dismiss the charges when it became obvious that there was insufficient evidence to support them and when the FBI complained that the charges might harm ongoing negotiations.
- Johnston also complained that the FBI was using tanks to push vehicles away from the compound. Because the vehicles had been used by the ATF agents as cover and were riddled with gunfire from the compound, Johnston expressed concern that the FBI was destroying important trajectory evidence. While acknowledging that the FBI probably had sound reasons for moving the vehicles, he was unhappy that Ederer had done nothing to represent to the FBI the investigative team's position on preserving the crime scene.
- Finally, Johnston complained about Ederer's instruction to the Waco office "not to charge anyone with anything (other than being a material witness) until further notice." This instruction came after the FBI complained to Ederer about Johnston's plan to present evidence to a grand jury against Brad Branch, who was released from the compound on March 19 and who allegedly played a significant role in the February 28 shootings.
- Based on discussions between March 26 and 29 with James Reynolds and Robert McNamara, the Assistant General Counsel for Enforcement at the Treasury Department, Mr. Richard learned that there were strong indications of tension both between the USAO in San Antonio and the Waco office, and among a number of the agencies involved in the investigation. He also learned of Johnston's March 23 letter to the Attorney General and of a request by Reno to Acting Assistant Attorney General Keeney that a review be made of the situation in Waco. Richard was further advised that either Reno or Webb Hubbell, Special Assistant to the Attorney General, had been contacted by a Congressman about a complaint from a Texas Ranger concerning the way the FBI was allegedly damaging the crime scene at the compound. (Earlier, Mr. Reynolds had telephoned First AUSA DeAtley in San Antonio to discuss in detail the background and relationships of individuals in the USAO in the Branch Davidian investigation, and how often DeAtley traveled to Waco. It was clear to Reynolds from his conversation with DeAtley that he was aware of the letter to the Attorney General from Johnston.)
- Late on March 30, Richard, Reynolds and -- at the request of AD Potts -- E. Michael Kahoe, section chief of the VCMOS of the FBI's CID, traveled to Waco at the behest of the Attorney General to assess the effectiveness of the prosecutive and investigative teams assembled there and the interrelation among the various agencies involved. The following day, they toured the area of the compound to get a sense of the terrain and received a briefing from SAC Jamar on why an HRT assault of the compound on foot was not feasible. They then met with AUSA Johnston to discuss his concerns. Johnston expressed his concern that the FBI was causing evidence to deteriorate and making no effort to preserve the crime scene. Johnston specifically cited the movement of vehicles at the compound, an action which had not been cleared through him, and which -- in his view -- could be devastating to the prosecution. It appeared to Johnston that whatever the FBI wanted, it got. He also alleged that Ederer and First AUSA DeAtley would not listen to him about his needs. Richard and Reynolds also met with Texas Ranger Captain David Byrnes, who was in charge of the Rangers, investigation of the February 28 shootings. Like Johnston, Byrnes was concerned about the preservation of the crime scene and complained that the FBI had failed to make an effort to coordinate their activities with the Rangers.
- It was clear to Mr. Richard from these meetings that the FBI was concerned principally with resolving the standoff, while the Texas Rangers and Johnston were concerned primarily with preserving the crime scene. It appeared that the FBI was not coordinating their actions with other agencies, and the Texas Rangers no longer sent a representative to the FBI command post.
- Also on March 31, Kahoe, Reynolds and Richard flew to San Antonio, where they met with Ederer and DeAtley concerning the coordination of the investigation and prosecution in Waco. During the meeting, Ederer stated that Acting Attorney General Gerson had told him in an earlier conversation that the standoff should be resolved with a minimum loss of life and prevention of further bloodshed. In Ederer's view, if the FBI believed that something had to be done to achieve that goal, there would be no disagreement. Since his primary concern was to put together a smooth-running and successful prosecutive operation, Richard discussed with Ederer and DeAtley the feasibility of removing the case from San Antonio and having a team of AUSAs report directly to the Criminal Division in Washington. Both Ederer and DeAtley supported the idea and considered it an appropriate strategy. After further discussion, they decided that AUSA Ray Jahn would lead the prosecutive team in Waco.
- On April 1, Richard and Reynolds met with Attorney General Reno and Hubbell in Washington, D.C. to report on their trip and to propose ways of improving the coordination among the investigative agencies and between the investigators and prosecutors. After Reno approved the proposals, Richard and Reynolds met with Assistant General Counsel McNamara and ATF Director Higgins to discuss the composition of the prosecution team, and the coordination between the investigators and the prosecutors. The following day, Richard briefed Reno on the reaction of the Treasury Department officials to the changes. Also on April 2, AUSA Jahn was formally designated to head the prosecution team.
- On April 7, Richard and Reynolds returned to Waco, this time accompanied by McNamara and Brad Buckles of ATF. While in Waco, Richard met privately with Johnston and spoke by telephone to United States District Judge Walter Smith (who had received a copy of the letter from Johnston to Reno) to inform him as a courtesy of the changes. AUSA Johnston was supportive of the plan, considered it in the best interests of the investigation, and later became a part of the team of six AUSAs assigned to the case. Richard and Reynolds then attended a meeting with Captain Byrnes of the Texas Rangers, official-s from the Texas Department of Public Safety, Buckles and McNamara, Clarke, Potts and Jamar of the FBI,'and AUSAs Ray Jahn and LeRoy Jahn of the USAO. They announced the new prosecution team and discussed the revised lines of communication and coordination. Richard and Reynolds also disclosed that AUSA Ray Jahn would be reporting to Acting Assistant Attorney General Keeney; that the FBI would maintain jurisdiction over the resolution of the standoff; and that the Texas Rangers, in consultation with the ATF, would retain jurisdiction over the February 28 shooting case. It appeared to Richard that by the time of the meeting, the different agencies had "mended their fences" and begun working toward effective coordination. (Earlier, on March 21, in an effort to resolve the issue, the FBI had agreed to photograph, graph, and grid the portion of the compound where the vehicles sought to be moved were located. That way, the vehicles could be returned to their exact positions after the standoff ended.) Richard also heard for the first time about the FBI's proposed use of gas to end the standoff.
- Clarke and Potts were in Waco on April 7 and 8 as well to participate in the discussions about the lines of authority and respective roles of the law enforcement agencies. They also met with SAC Jamar and representatives of the crisis management team to discuss future strategy. One of the issues discussed was the removal of the last portion of a fence and several vehicles from the front of the compound. Opposition to the removal focused on preserving the crime scene, as these vehicles had numerous bullet holes in them : from the shootings on February 28. The FBI wanted them removed to ensure accessibility and improve the clear line-of-sight, which was important if gas were to be inserted. Although everyone agreed that constant efforts would be made to negotiate a resolution to the standoff, the negotiators were not sanguine about any imminent progress.(29) Accordingly, after days of general discussions about the use of gas, attention turned to the formulation of a specific plan for delivery of the gas to the Branch Davidian compound.
- ASAC Rogers gave Clarke and Potts a briefing on the use of CS gas and suggested an operation plan for such use. One option they considered was "total insertion," covering all portions of the compound simultaneously. This would require, however, insertion by a projectile, presenting a potential conflict with the non-aggressive strategy already in place. The discussion then evolved into a plan for a less aggressive systematic and incremental process which would include advance notification to the occupants of the compound. They agreed that the preferable plan would be one which would be least likely to provoke a hostile response and would be more in keeping with a gradual denial of access to the space in and around the compound, thus making clear the FBI's intention to bring about a safe resolution without further hostility.
- In completing the plan, Rogers also wanted to be prepared for the possibility of a hostile reaction. He intended to counter any such reaction with only that amount of force necessary to protect law enforcement personnel. In this regard, it was agreed that four Bradley vehicles would be positioned to enable CS gas to be introduced to any portion of the building from which hostile fire might emanate. This contingency included the use of M-79 grenade launchers to introduce gas to those areas of the compound not accessible by the CEVs.
- The portion of the compound that presented the most concern to the HRT was the tower near the middle of the structure. The tower provided the Branch Davidians with a very threatening offensive position. The FBI decided that the tower would be immediately placed "off limits" to the Branch Davidians as soon as the gas was introduced. The FBI intended to communicate this to the Branch Davidians over the loudspeakers. If they refused to comply with the tower proscription, the FBI would insert CS gas by firing ferret rounds from M-79 grenade-launchers from inside the Bradley vehicles.
- Rogers also focused on the potential vulnerability of the Bradley vehicle shooting ports to sniper fire. At a distance of approximately 75 yards -- the distance at which the Bradley vehicles would be positioned during the insertion -- the firing ports offered easy targets for snipers. The FBI decided that the best time to initiate the plan was in the pre-dawn hours, with the Bradley vehicles behind floodlights to decrease their visibility to the compound occupants.
- Once all the FBI personnel who participated in these sessions agreed with the unified plan, Clarke and Potts returned to Washington and briefed Director Sessions and Gow.(30) Both Director Sessions and Gow agreed that it was a solid plan and stated that arrangements should be made to brief the Attorney General as soon as possible.
- On April 8, Reynolds attended a meeting at which ATF briefed him on the initial occurrences at Waco. He learned at this meeting that some of the ATF personnel who had participated on the initial raid were assisting the Rangers in the present investigation. After some discussion, he determined that it was in the best interest of the investigation for those persons to be removed from the case.
- On April 9, Richard and Reynolds briefed the Attorney General on the results of their trip to Waco. Later that day, Ray Jahn called Reynolds to advise him that the FBI had a plan to end the standoff. Reynolds also learned that day that Director Sessions had requested a meeting with the Attorney General on Monday, April 12.
B. The CS Gas-Insertion Plan
- 1. Tactical Concerns
- In a continuing effort to constrict the environment inside the compound and induce persons inside to come out or negotiate in good faith, the FBI took measured steps designed to bring the episode to a safe and satisfactory conclusion. Its concerns centered on suicide by cult members and the substantial likelihood that agents would sustain heavy casualties if an attempt were made to execute a frontal assault on the compound. It was the FBI's view that based on the physical layout of the compound and the tactics of Koresh and his followers, a surprise attack would be virtually impossible. In fact, the HRT had observed Koresh and others maintaining guard duty in the tower structure in the center of the compound. Agents were aware that shooting from the tower was instrumental in the deaths and injuries of the ATF agents in the initial raid.
- Moreover, there were nearly 70 adults inside the compound with access to a large supply of weapons and ammunition, as well as night vision equipment enabling them to track the movements of federal agents'. The FBI believed that those inside had been fortifying the compound and creating new shooting ports. The wood construction of the compound made it possible to fire through the walls at law enforcement personnel. This was precisely what occurred on February 28.
- While it was conceivable that tanks and other armored vehicles could be used to demolish the compound, the FBI considered that such a plan would risk harming the children inside. The presence of innocent children, and the FBI's concern to minimize the risk of harm to them, influenced all tactical considerations.
- There were also other concerns. The FBI considered its outer perimeter to be vulnerable, for the Branch Davidians had .50 caliber rifles with an effective range of 3000 yards, a distance roughly equal to the distance between the White House and the Capitol. This vulnerability created a threat to the safety of curiosity seekers and of the agents assigned to maintain the perimeter. There was always the possibility of an armed mass breakout by cult members, and the concern that children might be used as human shields in such a breakout. As the standoff continued, there was an increasing risk to the agents, either by accident or by the risk of shooting from inside the compound.(31) Finally, there was a concern about the well-being of the children inside the compound, given the deteriorating sanitary conditions, the apparent lack of adequate medical care inside, and the reports of prior sexual abuse.
- 2. The Strategy
- Given the many concerns of the FBI, it was apparent that permitting the standoff to continue would neither lead to the peaceful surrender of Koresh, nor eliminate the risk to the safety of the innocent children in the compound, the public at large, and the government agents at the scene. Accordingly, the strategy continued to be aimed at restricting the options of those inside the compound and reducing their level of comfort. The FBI hoped to make the Davidians' environment sufficiently unpleasant that their only choices would be to come out or resume negotiating in good faith.
- To further its efforts to encourage a negotiated peaceful resolution of the matter, the FBI proposed beginning to restrict access to certain parts of the compound by the use of CS gas. The plan was to introduce the liquid CS into the compound in stages. Initially, only one small part of the compound was to be affected. The goal of this restrained "response" was to allow the insiders ready access to other exits or unaffected portions of the compound, while at the same time minimizing the risk of panic. Medical support was to be available, and the FBI planned to use loudspeakers and large signs to guide people out of the compound. The FBI hoped thereby to indicate that the action was neither an assault nor a modification of the rules of engagement. Except for two controlled exit routes, concertina wire had been strung around the compound to diminish the possibility that people would escape. Those people leaving the compound would be guided to safety by the loudspeakers down a single path to a large Red Cross flag. A joint law-enforcement contingent would be in place tp surround the compound and ensure the safety of those who came out.
- In the event that everyone did not leave the compound after the initial introduction of gas, or that good faith negotiations intended to resolve the conflict were not resumed, gas would be introduced in other wings of the compound. Eventually, walls would be torn down to increase the exposure of those remaining inside. The FBI's intention was to develop the "response" gradually and only to the degree needed to accomplish the evacuation of the compound.
- The following portion of this report chronicles the detailed process undertaken by the Justice Department and FBI officials in planning the insertion of the gas the week prior to April 19.
C. Week of April 12, 1993
- On April 12, 1993, the FBI presented the tear gas plan to the Attorney General for her approval. over the next several days the Attorney General and senior Justice Department and FBI officials discussed, debated and dissected, every aspect of the plan. Before even,--discussing the merits of the plan the Attorney General repeatedly asked why it is was necessary to do anything to change the status quo: "Why now, why not wait," she asked.
- After becoming convinced that some action was needed, the Attorney General vigorously questioned every aspect of the proposed plan, and the FBI provided her the answers to all her questions. Ultimately, she approved the plan on the night of Saturday, April 17, 1993. Following is a description of the events leading to her decision.
- 1. April 12 Meetings
- Three significant meetings occurred on Monday, April 12. The first took place in Acting Assistant Attorney General Keeney's office where Clarke and Potts briefed Keeney, Richard and Reynolds on the FBI's proposed plan to introduce CS gas into the compound unless Koresh and the others came out. Reynolds asked the FBI representatives what would happen if individuals came out of the compound shooting, and was advised that they would be shot. Thereafter, the participants at that meeting adjourned to the FBI's Strategic Information Operations Center. (SIOC) where they were joined by the Attorney General, Acting Associate Attorney General Hubbell, FBI Director Sessions, Associate Deputy Director Gow, FBI Legal Counsel Joe Davis, John Collingwood, Director of the Bureau's office of Public Affairs, and Anthony Betz, Chief of the FBI CID's Domestic Terrorism Section. This was the first time that the Attorney General was briefed on the proposal to use gas. She asked how the gas might affect pregnant women and children. Hubbell suggested that they consult with the military about the effects of the gas.
- The Attorney General also asked whether the Branch Davidians might injure themselves, as well as the need to resolve the standoff by Wednesday, April 14, the date the FBI proposed for executing the plan. Hubbell and Richard inquired about the timing as well. Although the FBI gave no reasons for the urgency, its representatives stated that Koresh and the other Branch Davidians did not appear to be coming out. Instead, due to the supply of food and water in the compound, it looked like they were going to stay for an extended period of time. FBI personnel giving the briefing felt that the pressure on the Davidians had to be increased to move the negotiations forward. The Attorney General asked additional questions, but made no decision to act at the time.
- More discussion on the plan occurred at a third meeting, in the AG's office, with Ms. Reno, and Messrs. Hubbell, Keeney, Richard, and Reynolds; however, no decision was reached as to proceeding.
- Richard recalled generally that there was much discussion about the use of gas, the adequacy of available medical data concerning its effects, and other aspects of the FBI's plan. He further related that the FBI's strategy during the standoff had been to contain, restrict and control. In that vein, the FBI had been slowly but surely cutting down the size of the compound without unnecessarily provoking a response. He regarded the plan to end the standoff as consistent with this policy, because the tear gas would be used in a deliberate and controlled manner. The intent was to give the Branch Davidians the clear impression that although there was an alternative and this was not a panic situation, the FBI was maintaining maximum control. Richard understood that the use of tear gas to end the standoff would take several days; the plan was to inject the gas through the windows methodically. He added that both he and the Attorney General were confident that there would be enhanced medical capabilities to meet all needs. He also said that the FBI informed them that the tear gas would not cause a fire.
- 2. April 14 Meetings
- On Wednesday, April 14, a large meeting was held in the FBI Director's office: The Justice Department was represented by Reno, Hubbell, Keeney and Incontro. Along with Director Sessions, the FBI representatives included Clarke, Gow, Potts, Coulson, Rogers, and Anthony Betz, chief of the Domestic Terrorism unit in CID. There were also several military representatives, and Dr. Harry Salem, who was present to summarize results of studies of effects of CS gas on children, pregnant women and the elderly. The Attorney General described Dr. Salem as "careful and scientific." She recalled that although there had been no laboratory tests performed on children relative to the effects of the gas, anecdotal evidence was convincing that there would be no permanent injury.
- The military personnel present told her that the gas was used at least annually on soldiers in the U.S. Army during training exercises. They also discussed properties of the gas, including any pyrotechnic qualities. The military personnel made Reno feel more confident with the concept of tear gas, as opposed to the original concept in her mind of "gassing." The military officials also said that in a military operation, the entire compound would be gassed at once, not gradually. However, the law enforcement interest was to go step-by-step, increase the pressure, and make it increasingly uncomfortable inside the structure in an effort to drive them out. After discussing the nature of the gas and varied tolerance levels to be expected from the occupants, the meeting participants were prepared to wait two to three days for everyone eventually to come out. The action was viewed as a gradual, step-by-step process. It was not law enforcement's intent that this was to be "D-Day." Both the Attorney General and Director Sessions voiced concern for achieving the end result with maximum safety. Clarke made it clear that the goal of the plan was to introduce the tear gas one step at a time to avoid confusing the Branch Davidians and thereby maintain the impression that they were not trapped.
- Once the Attorney General was convinced that the gas was non-lethal and would not cause permanent harm to children, pregnant women and others, she turned her attention to the HRT. One of the military officers argued that maintaining the HRT in a constant state of readiness was not possible. He advised that the HRT be withdrawn. Rogers advised that his team had received sufficient breaks during the standoff that they were not too fatigued to perform at top capacity in any tactical operation at the time. He added, however, that if the standoff continued for an extended length of time, he would propose that the HRT stand down for rest and retraining.(32) When Reno asked about using SWAT teams to take the place of the HRT, she was told that the HRT's expertise in dealing with the powerful weapons inside the compound, driving the armored vehicles, and maintaining the security of the perimeter was essential.
- The FBI asserted that law enforcement on the scene in Waco could not safely maintain the security perimeter indefinitely. There was a vast open area surrounding the compound, and it was impossible safely to keep people from wandering in and out. Moreover, the Branch Davidian compound itself was a heavily armed camp, with dangerous people inside who had already killed four law enforcement agents. The situation was difficult to control, and the area was difficult to defend. In the FBI's view, there were extraordinary public safety issues. Containment of the Branch Davidians in the building with walls or wire appeared infeasible, and posse comitatus proscriptions prevented the use of a military force to secure the area. Some experts had raised the distinct possibility that Koresh might actually mount an offensive attack against the perimeter security, with Branch Davidians using children as shields. This would have required the best trained forces available to the FBI. Finally, the FBI expressed its concern about the possible incursions of fringe groups intent on coming to Koresh's aid. For all these reasons, the FBI regarded perimeter security as so significant that it urged the Attorney General to relieve the HRT with SWAT teams only as a last resort.
- There were additional discussions about the prosecutors' concerns over maintaining the integrity of the crime scene, the rules of engagement, the deteriorating sanitary conditions, and the lack of Medical personnel inside the compound. When the Attorney General asked why the standoff had to be resolved soon, Rogers and others offered the following additional reasons: Koresh had broken every promise he had made; negotiations had broken down; no one had been released since March 21; and it appeared that no one else would surrender.
- Following this meeting, Reno met in her office with Hubbell, Keeney, and Incontro to discuss the plan. AUSA Ray Jahn was consulted during this meeting about indications from electronic surveillance of conversations inside the compound that the Branch Davidians might be running out of water. After additional review of the issue, the FBI became convinced that Koresh was rationing water to ensure discipline and that he was continuing to replenish the 6upply. Furthermore, it was believed that the Branch Davidians had provisions to last one year.
- 3. April 15 Meetings
- The Attorney General considered all non-lethal options other than gas. When the FBI satisfied her that nothing else could end the standoff, she asked why it was important to act right away. To assist her, Hubbell called Supervisory Special Resident Agent Byron Sage in Waco for a briefing on the conclusions of the negotiators. Hubbell, Keeney, Richard, Clarke and Potts met on April 15 for the call to Sage. In the ensuing two-hour telephone conversation, Hubbell recalls that Sage said further negotiations with the subjects in the compound would be fruitless. The only people Koresh had released were older, or people who had given him problems during the time they were in the compound, or children whom he had not fathered. Sage further advised Hubbell that Koresh had been disingenuous in his discussions with Sage about the "Seven Seals." He was also convinced that the FBI had not succeeded in getting anyone released from the compound through negotiation. Sage indicated-that he had never been in any previous situation in which he had experienced such a total impasse. Hubbell recalls Sage saying he believed there was nothing more he or the negotiators could do to persuade Koresh to release anyone else, or to come out himself. In addition, Hubbell was told that law enforcement personnel at Waco were getting tired and their tempers were fraying. Hubbell advised the Attorney General about this conversation.
- 4. April 16 Meetings
- On April 16, Richard met with Hubbell and Carl Stern, Director of the Office of Public Affairs. According to Richard, Hubbell advised him that the Attorney General had disapproved the plan to end the FBI standoff. Hubbell then asked Richard what he thought the FBI's reaction might be. Richard answered that the FBI would not be pleased, that they would nonetheless accept the decision, and that they may then talk in terms of withdrawal. When Hubbell asked Richard if he would like to speak to the Attorney General about the decision, Richard declined, explaining that he had nothing more to say. According to Richard, Stern commented that going ahead with the plan might be looked down on in the eyes of the public, and likened it to Saddam Hussein's gassing of the Kurds. Richard disagreed with Stern's analogy.
- A short time after Hubbell spoke to the FBI to report the decision, Director Sessions, Clarke, and Potts arrived in his office. According to Richard, when Hubbell advised them that the Attorney General had disapproved the plan, Director Sessions asked to speak to her.(33) Hubbell left and returned ten minutes later with the Attorney General, who made no reference to her disapproval of the plan. Instead, Reno, who was still not convinced about the timing, requested the preparation of a documented statement describing the situation inside the compound, the progress of the negotiations, and the merits of the proposal. She asked that the statement be completed by the following afternoon.(34) She ruled out the weekend for the execution of the plan because of her concern about the availability of emergency rooms.
- 5. April 17 Events
- On April 17, the Attorney General met in her conference room with Hubbell, Incontro, Stern, Richard, Director Sessions, Clarke and Potts to review the statement she had requested the previous day. After satisfying herself that the assertions underlying the plan were adequately documented,(35) she discussed with the FBI the effective rules of engagement, particularly exploring what the FBI's response would be to individuals carrying children while firing weapons, and to Koresh's putting children up in the tower. She said that she made it clear that if children were endangered, i.e., if they were held up to windows and threatened to be shot, the FBI was to "back off."(36) It was also agreed that once she approved the overall plan, decisions would be made on the scene. Although she had the specific authority to stop the action and tell the FBI to leave, tactical decisions were to be made by law enforcement officers in Waco.(37) Ms. Reno approved the plan with an execution date of Monday, April 19.
- 6. April 18 Events
- On April 18, Reno discussed the plan with the President. She told him that she had considered every possibility and had approved the use of tear gas. Nonetheless, she stressed the fact that April 19 would not be "D-Day." Reno considered the President to have been fully briefed.
- Incontro completed work on the statement, and she and Reynolds contacted the prosecutors in Waco to discuss which individuals surrendering would be charged as material witnesses and which would be charged with the shootings. The FBI provided her with the remainder of the supporting documentation for the statement, which Richard subsequently gave to the Attorney General.
- 7. The Attorney General's Concerns
- During the entire week of April 12, the Attorney General had considered every imaginable scenario. To her, the worst case would be an explosion, not a fire.(38) The FBI had concluded that if Koresh wanted to blow the building up he could have done so at any time. When Ms. Reno asked about the availability of emergency vehicles, she was concerned about helicopters and other medical evacuation capabilities, not fire trucks.
- The possibility of mass suicide was considered. The FBI told the Attorney General they regarded the possibility of mass suicide as remote. The FBI provided the Attorney General with copies of the memoranda prepared by Dr. Miron and Dr. Krofchek and SSA Van Zandt analyzing Koresh's April 9 letter, both in the April 12 briefing book and in the briefing book prepared over the weekend of April 17-18. The Attorney General did not consider Koresh's demonstrated rage and threats to law enforcement to be indicative of someone with a suicidal mentality. The Attorney General agreed with the FBI that if Koresh wanted to blow himself and his followers up, he could do so at any time, and law enforcement would be powerless to stop him.
- Also during the week of April 12, someone had made a comment in one of the meetings that Koresh was beating babies. When Reno inquired further, she had the clear impression that, at some point, since the FBI had assumed command and control of the situation they had learned that the Branch Davidians were beating babies. She had no doubt that the children were living in intolerable conditions. Moreover, she had been told that Koresh had sexually abused minors previously, and that he continued to have sex while recovering from his wounds. She also learned that the Branch Davidians had built firing ports in the structure and that the sanitary conditions had deteriorated significantly.
- 8. The Attorney General's Retrospective
- The Attorney General believes she was adequately informed and that the FBI was forthcoming.(39) She was impressed with the quality and timeliness of responses to her questions or to her requests for additional information. When she asked the FBI to seek input from the military, she was impressed that the FBI arranged a face-to-face briefing within two days. The FBI did not try to "railroad" her. Instead, they were respectful and seemed genuinely appreciative of the hard questions she posed. She did not believe that anyone at the FBI deliberately played up the issue of child abuse. In any event, that was only one of the many factors she considered in deciding to approve the tear-gas plan. The FBI kept an open mind, and no one ever suggested to her that they knew best or that they knew it all.
D. Details of the Tear Gas Plan
- The first stage of the operation required two Combat Engineering Vehicles (CEVs) to remove all fortifications, obstacles, and vehicles from the front side of the compound. Double rows of concertina wire were to be placed along the front of the building so that the compound would be completely encircled with wire.
- On execution of the operation order on April 19, two CEVs were to enter the compound inside the concertina wire prior to sunrise. One CEV would have its boom penetrate the structure on the first floor on one corner and project tear gas using the Mark 5 delivery system.(40) After delivery, the CEV would withdraw from the structure and stand by. Once the first CEV withdrew, the second CEV would insert additional tear gas into the second floor, on the middle of the right side of the building. The booms were to push aside obstructions and, if necessary, sweep left and right into the windows, making an alternative opening to facilitate the injection of the gas.
- Prior to the entry of the CEVs, the Bradley vehicles would engage in routine spotlight maintenance. After the CEVs delivered the gas, a Bradley vehicle near the building would deliver ferret liquid tear gas rounds(41)
- into an unfinished, unoccupied construction area near the main structure. The purpose would be to deny access to this zone. The second stage of the "chemical agent plan" called for the injection of the gas through a corner in the rear of the structure. It was hoped that by introducing gas at opposite ends of the compound, the Branch Davidians would be forced out the front door and surrender. If firing commenced from the compound, the Bradleys would be prepared to deliver ferret liquid tear gas rounds into all windows and openings in the compound structure. If all subjects failed to exit the structure after 48 hours of tear gas, then a modified CEV would proceed to open up and begin disassembling the structure at the location that was least exposed to the gas. The CEV would continue until all the Branch Davidians were located.
- If the FBI observed people up in the center tower, the Bradley vehicles would immediately deliver ferret rounds into the tower. As people left the compound, they were to be directed to a location fortified with the M-88 and a Bradley vehicle. They would then be moved to a second point for processing and decontamination.
- Members of the HRT were assigned to be tank drivers, tank commanders, Bradley vehicle crew, snipers, and snipers' support. Fifteen snipers were to be deployed. Similarly, the FBI SWAT teams were assigned such duties as accepting escorted prisoners from the crisis site; maintaining the integrity of the perimeter and ensuring that no unauthorized persons, moved forward of their positions; serving on the FBI helicopter as a response force for potential fleeing subjects from the crisis site; supporting the "medical response" and security of the medical personnel and wounded; and establishing "blocking positions" on nearby roads. Agents from ATF were to provide outer perimeter coverage and blocking positions, and Texas Department of Public Safety personnel were to provide "line of sight coverage" from nearby vantage points.
- Branch Davidians who exited the compound and surrendered would be directed to a designated Bradley vehicle. These individuals would then be escorted on foot in a single file line to a nearby point. Upon arrival at that point, SWAT personnel would hold the subjects in front of pre-positioned Bradley vehicles there. The subjects would then be moved in an orderly fashion to a designated area behind the vehicles where they would be searched and turned over to waiting ATF personnel for handcuffing and transport. An orbiting helicopter with SWAT personnel aboard would apprehend and arrest subjects attempting to flee from the crisis site.
- Potts said that, although there were constant daily negotiations to get people out of the compound, it had become apparent after 30 days that Koresh a "master manipulator" -- was controlling the situation at Waco.
- Potts pointed out that the plan was really just an extension of the emergency assault plan, which had been in effect since the beginning of the standoff.
- At one point during the crisis, an HRT helicopter struck a wire and crashed while attempting to place a SWAT team in a field to search for a reported trespasser. Fortunately, there were no fatal injuries. Military personnel familiar with the situation in Waco stated that the HRT equipment could not be used indefinitely.
- Coulson described the factors in the deterioration of HRT effectiveness due to the lengthy deployment. The HRT operators, including the sniper observers, were required to watch for long hours through binoculars and rifle scopes in a very tense situation. Also, while the FBI snipers were observing the Branch Davidians, the Davidians likewise' observed and followed the movements of the HRT.
- According to Hubbell, he told the FBI representatives that although the Attorney General was not prepared to go forward with the plan, she had not yet made a decision.
- Incontro, upon whom fell part of the task of preparing the statement, recalled that Richard told her the evening of April 16 that Hubbell had advised him to the effect that "we were told it wasn't going to happen, but the FBI came over and the Attorney General wanted the statement in order to make a decision."
- The Attorney General did not read the prepared statement carefully, nor did she read the supporting documentation provided along with the statement. She read only a chronology, gave the rest of the materials a cursory review, and satisfied herself that "the documentation was there."
- She recalled her exact words to be "Get the hell out of there. Don't take any risks with the children."
- She did not consider herself in command of the operation -- she felt that any such comment would be "gratuitous" on her part.
- She recalls lying awake at night asking herself "Oh my God, what if he blows the place up? What if he holds children up in the windows and threatens to shoot them?"
- Her belief is well founded. Witnesses from the Department of Justice and the FBI involved in the planning process said the same thing. No witness in this review has claimed otherwise.
- This was a cylinder delivery system. Each of the six cylinders available at the crisis site had the capability of 15 one-second bursts per charge. Each burst would extend out approximately 55 feet from the cylinder creating a fog or gas mist in the area. There were enough raw materials available at the site to recharge each cylinder 20 times.
- The 40 mm liquid-filled ferret round, launched by a M79 grenade launcher, could deliver 25 grams of CS liquid on impact. There were approximately 400 ferret rounds available at Waco for HRT and SWAT use. When fired from 20 yards or less, the rounds are capable of penetrating a hollow core door.