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The aftermath of Waco : changes in federal law enforcement : hearings before the Committee on the Judiciary, United States Senate, One Hundred Fourth Congress, first session ... October 31 and November 1, 1995 online

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4. J 89/2:
S. Hrg.
104-824



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HE AFTERMATH OF WACO:



S. Hrg. 104-824



CHANGES IN FEDERAL LAW ENFORCEMENT



HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

ON

EXAMINING CHANGES IN FEDERAL LAW ENFORCEMENT AS A RESULT
OF THE INCIDENT IN WACO, TEXAS



BP

605
.B72
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1997



OCTOBER 31 AND NOVEMBER 1, 1995



Serial No. J-104-51



Printed for the use of the Committee on lifiCftfliJ^I^ , ,, „ -^ ,

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DEPOSITOR



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U.S. GOVERNMENT PRINTING OFFICE



WASHINGTON : 1997



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-054375-4



4. J 89/2:
S. Hrg.
104-824



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m AFTERMATH OF WACO:



S. Hrg. 104-824



CHANGES IN FEDERAL UW ENFORCEMENT



HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIAKY
UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

ON

EXAMINING CHANGES IN FEDERAL LAW ENFORCEMENT AS A RESULT
OF THE INCIDENT IN WACO, TEXAS



BP

605
.B72
MSI
1997



OCTOBER 31 AND NOVEMBER 1, 1995



Serial No. J-104-51



Printed for the use of the Committee on ifiOyflSliliM^^ ^, . _. ,



BOSTON P'^'sB'-'C t




OOV'T.
DEPOSITORY




^iHAMF«PKAWl>BRARy

U.S. GOVERNMENT PRINTING OFFICE



WASHINGTON : 1997



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-054375-4



BP 605 .B72 A181 1997
United States. Congress.

Senate. Conniittee on the
The aftermath of Waco



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HAMPDEN LAW LIBRARY

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CONTENTS



STATEMENTS OF COMMITTEE MEMBERS

Page

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah 1, 113

Biden, Hon. Joseph R., Jr., U.S. Senator from the State of Delaware 4

Simpson, Hon. Alan K., U.S. Senator from the State of Wyoming 6

Kohl, Hon. Herbert, U.S. Senator from the State of Wisconsin 7

Grassley, Hon. Charles E., U.S. Senator from the State of Iowa 24

Feingold, Hon. Russell D., U.S. Senator from the State of Wisconsin 41

CHRONOLOGICAL LIST OF WITNESSES

OCTOBER 31, 1995

Panel consisting of James J. Fyfe, professor of criminal justice and senior
public policy research fellow. Temple University, Philadelphia, PA; and
Nancy T. Ammerman, professor of sociology of reUgion, Center for Social
and ReUgious Research, Hartford Seminar, Hartford, CT 9

Panel consisting of H. Geoffrey Moulton, Jr., associate professor, Widener
University School of Law, Wilmington, DE; and John A. Kolman, captain
(retired), Los Angeles County Sheriffs Department, Whittier, CA 43

Panel consisting of Gerald T. PetriUi, special agent. Bureau of Alcohol, To-
bacco, and Firearms, Washington, DC; Jeff Brzozowski, special agent. Bu-
reau of Alcohol, Tobacco, and Firearms, Austin, TX; and Roger J. Guthrie,
special agent, Bureau of Alcohol, Tobacco, and Firearms, Detroit, MI 63

Panel consisting of the Hon. Ronald K. Noble, Under Secretary for Enforce-
ment, U.S. Department of the Treasury, Washington, DC; and the rion.
John Magaw, Director, Bureau of Alcohol, Tobacco, and Firearms, Washing-
ton, DC 75

NOVEMBER 1, 1995

Panel consisting of Frank A. Bolz, consultant, Frank A. Bolz Associates,
Inc., Huntington Station, NY; and Kenneth V. Lanning, supervisory special
agent. Behavioral Science Unit, Federal Bureau of Investigation, Quantico,
VA 113

Panel consisting of Clinton R. Van Zandt, president. Van Zandt & Associates,
Fredericksburg, VA; Peter Smerick, vice president, the Academy Group,
Manassas, VA; and Graeme Craddock, former resident. Branch Davidian
Complex, Waco, TX, accompanied by Patrick Brown, counsel 149

William J. Esposito, Assistant Director, Criminal Investigative Division, Fed-
eral Bureau of Investigation, Washington, DC; accompanied by Robin Mont-
gomery, special agent in charge, Critical Incident Response Group, Federal
Bureau of Investigation, Quantico, VA, and Gary Noesner, supervisory spe-
cial agent. Critical Incident Response Group, Crisis Management Unit,
and chief negotiator. Federal Bureau of Investigation, Quantico, VA 187

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Ammerman, Nancy T.:

Testimony 13

Prepared statement 15

Bolz, Frank A.: Testimony 113

Brzozowski, JeflF: Testimony 66

Craddock, Graeme: Testimony 155

(III)



IV

Page

Esposito, William J.:

Testimony 187

Charts depicting the progress made since the Waco incident 188

Prepared statement 198

Report entitled "Investigation of the April 19, 1993 Assault on the
Mt. Carmel Center, Waco, Texas" prepared by Failiire Analysis
Associates, Inc., Menlo Park, CA for the National Rifle Association,

Fairfax, VA, dated July 1995 201

Fjrfe, James J.:

Testimony 9

Prepared statement 11

Grassley, Charles E.: Chronology submitted by Karl Seger, president. Associ-
ated Corporate Consviltants, Inc 136

Guthrie, Roger: Testimony 67

Kolman, John A.: Testimony 52

Lanning, Kenneth V.:

Testimony 119

Responses to questions submitted by Senator Simpson 121

Magaw, Hon. John W.:

Testimony 85

Prepared statement 90

Moulton, H. Geoffrey, Jr.:

Testimony 43

Prepared statement 46

Noble, Hon. Ronald K.:

Testimony 75

Prepared statement 78

Petrilli, Gerald T.: Testimony 63

Smerick, Peter:

Testimony 152

Memorandum to special agents in charge concerning negotiation strategy

consideration, dated Mar. 7, 1993 153

Van Zandt, Clinton R.: Testimony 149



THE AFTERMATH OF WACO: CHANGES IN
FEDERAL LAW ENFORCEMENT



TUESDAY, OCTOBER 31, 1995

U.S. Senate,
Committee on the Judiciary,

Washington, DC.
The committee met, pursuant to notice, at 10:06 a.m., in room
SH-216, Hart Senate Office Building, Hon. Orrin G. Hatch (chair-
man of the committee), presiding.

Also present: Senators Grassley, Specter, Kyi, DeWine, Abraham,
Biden, Simon, Feinstein, and Feingold.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.
SENATOR FROM THE STATE OF UTAH

The Chairman. Over the years, I have been a very strong sup-
porter of Federal law enforcement, both of its people and agencies,
and I still am. However, in recent years and recent months, law en-
forcement at both the Federal and State levels has been the subject
of much scrutiny and criticism. I sense the frustration of those men
and women of high integrity who are true public servants employed
to enforce our Nation's laws and who often endanger their own
lives in the process.

Not surprisingly, there is a growing sentiment in law enforce-
ment that they are being unfairly treated. Recent tragedies and
other troubling news stories they feel are being used by the media
and by some in Congress to undermine public confidence in those
we have hired to protect the public. To those brave men and
women, I say this Senator shares your concern. I want nothing but
the best for you who serve with the FBI, ATF, DEA, and every
other law enforcement agency. And that includes fair recognition
for the sacrifices you make.

But I also want what is best for the public, and that is something
that is part of these hearings. We want what is best for the public
as a whole. It is for this reason that I am particularly saddened
by the events that have transpired in the last 3 years. Such events,
if not responded to, will permanently erode the public's confidence
in Federal law enforcement in our country. This we cannot allow
to happen.

This hearing is not an effort to place blame on any individual or
on the administration. Indeed, we will be examining the systemic
bureaucratic problems and policies at ATF and FBI that resulted
in the tragedy at Waco. The mandate for this committee is to en-
sure that tragedies like the one at Waco — I am specifically refer-
ring to the deaths of the residents of Mt. Carmel Center, including

(1)



25 children, and to the 4 ATF agents who were killed in the line
of duty — are never again associated with a law enforcement oper-
ation.

What I find most troubling is that the American people now per-
ceive law enforcement as it is suggested in this picture over here,
and I would just point to poster No. 1. Contrary to what one may
think when first glancing at this photograph, this picture is not a
soldier fighting for peace in the gulf war or in Somalia; rather, it
is an FBI agent at Waco.

It is my absolute belief that this is not the image that the Fram-
ers of our Constitution had in mind when they carefully con-
structed that sacred document. It is certainly not how I perceive
the FBI, nor is it the image held by the legions of American citi-
zens who have worked with, and been helped by, the FBI over the
years.

Ask the parent of a missing child. Ask a senior citizen in my own
home State of Utah whose life savings were saved when the FBI
shut down a fraudulent telemarketing racket that preyed on sen-
iors. And you could go through countless other innumerable illus-
trations. But, sadly, the image in this poster is the image many
people now have, and it is imperative that we address these con-
cerns.

I hope that the Americans who serve in Federal law enforcement
will see this hearing as an opportunity. My mother used to tell me
that whenever I made a mistake, I should learn lessons from it,
correct my actions or my thinking, and then move on. This hearing
is an opportunity to find the lessons in this tragedy, make nec-
essary corrections in our actions or our thinking, and then move
on.

It is with these ideas in mind that this committee conducted its
investigation into the events at Waco, and in this framework, I in-
tend to conduct these hearings. We have met with, heard from, and
examined information from numerous Federal agencies, private
citizens, activist groups, and the media. In excess of 300,000 docu-
ments and 700 hours of videotape and audiotape have been ana-
lyzed, and dozens of interviews have been conducted in preparation
for these hearings.

Let me be clear. This investigation has not uncovered any evi-
dence of political corruption or influences. We have not found any
of that. There was no conspiracy to kill Branch Davidians. What
the investigation has uncovered is that there are several troubling
patterns which have developed in Federal law enforcement. Over
the next 2 days, we hope to discuss just what those patterns are,
as well as review what Congress and the American people expect
from their law enforcement agencies.

This country is based on the principles embodied in the Constitu-
tion. Fundamental to this document is the concept that Govern-
ment must be kept within bounds. The fourth amendment — iron-
ically, a charred copy of the very amendment, was found in the de-
bris at Waco, and that is poster No. 2; there is the charred copy
that was found right there at Waco — guarantees the right of the
people to be secure in their persons, houses, papers, and effects.

In my opinion, the handling of this situation by Federal law en-
forcement was not in keeping with that principle. Americans have



come to expect that law enforcement's primary responsibility is the
investigation of crime and protection of the public, not the frighten-
ing of people via paramilitary units.

Having had the benefit of the Ruby Ridge hearings, the House
of Representatives hearings on Waco, and the enormous docu-
mentation regarding these matters, I believe that it is in the best
interest of this committee, the U.S. Senate, and, most importantly,
the American public to air these concerns.

Further, we must establish a level of oversight over the manage-
ment of law enforcement agencies that will ensure that debacles
like Ruby Ridge and Waco will never happen again. To that end,
I would like to briefly outline what will be addressed at these hear-
ings.

The first day of this 2-day hearing will focus on the collecting
and processing of intelligence information by the Bureau of Alcohol,
Tobacco, and Firearms [ATF]. ATF's failure to adequately collect
and analyze the relevant and available information on David
Koresh and his followers directly resulted in a plan that did not
properly assess the mindset of the Davidians. ATF only considered
information that supported the tactical approach it had preselected.
No contingencies were ever developed. It defies logic that any law
enforcement agency would attempt to accomplish such an operation
without a contingency plan, especially a plan that puts more than
100 agents in harm's way. This fatal flaw paved the way for the
tragic deaths of four brave, young, dedicated law enforcement offi-
cers.

The second day, the committee will carefully examine the rela-
tionship between the FBI negotiators and the FBI Hostage Rescue
Team, or the HRT. At the heart of this debate is the degree to
which the emplo3anent of an HRT is appropriate in U.S. law en-
forcement operations. I believe it is appropriate in many instances,
but not so in others. These people are people who risk their lives
for us, but they should be used very sparingly. This issue is par-
ticularly relevant in barricade situations.

In the case of Waco, there appears to have been tension between
those who felt that a military-style response was appropriate and
those who believed that the negotiation process would be more ef-
fective. Although I am a proponent of using the HRT in appropriate
situations, the question whether Waco and Ruby Ridge were two of
those circumstances does arise.

Unfortunately, there are numerous situations where HRT has
been successfully employed that have not made the newspapers. I
am aware that many of these successes, both domestically and
overseas, are situations that could not have been resolved without
the use of the Hostage Rescue Team. However, I firmly believe that
paramilitary units such as HRT must be employed against U.S.
citizens as a last resort, not as the first.

One of the major problems at Waco appears to have been the in-
fusion of HRT tactics into the negotiations process. Such an infu-
sion served to work at cross purposes with what was a successful
negotiation strategy. Negotiations had successfully resulted in the
release of a number of men, women, and, most importantly, chil-
dren. Although we will never know whether a strict negotiation
strategy would have been completely successful if it had been al-



lowed to play out, it is clear that the mechanism for continuing ne-
gotiations was available to the FBI. As there was no escalation in
the level of threat or violence by the Davidians, the use of military-
style tactics by HRT was arguably not appropriate or necessary.

In conclusion, I look forward to hearing from the administration
as to how they intend to ensure that tragedies like Ruby Ridge and
Waco are never repeated. So I stand ready to work constructively
with them toward this goal, and I believe this committee as a
whole does as well.

We will now turn to our Republican — or excuse me, our Demo-
crat leader on the committee, Senator Biden.

Senator BiDEN. It is happening all too often, Mr. Chairman.
[Laughter.]

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR
FROM THE STATE OF DELAWARE

Senator BiDEN. Mr. Chairman, thank you and good morning.

The stated goal of these 2 days of hearings on the siege at Waco
is, in my view, a good one: To discuss with two Federal law enforce-
ment agencies involved in the siege a number of important changes
in policies and practices they have implemented in order to im-
prove their operations and to reduce the possibility that another
tragedy like Waco could occur in the future.

Both agencies have candidly admitted that serious mistakes oc-
curred at Waco and that improvements needed to be made. This
hearing provides a forum to evaluate these new policies and proce-
dures and to ensure that the chsinges made are the right ones and
that implementation is complete and effective.

But, I believe, it is important that these hearings serve a second
goal as well, and that is, to put the incident at Waco, with all the
mistakes that were made, into its proper context.

Let me make this point absolutely clear: There is no place in our
country for racist cops like Mark Fuhrman. There is no place in our
country for abusive cops. There is no place in our country for law
enforcement bent on the use of unjustified force.

But there is a big difference between mistakes and malevolence.
The record of the Waco incident documents mistakes — mistakes in
gathering intelligence and mistakes in planning and executing
operational plans. And law enforcement should and must be held
accountable for such mistakes.

What the record from Waco does not evidence, however, is any
improper motive or intent on the part of law enforcement.

I believe this is a very important point to make to the American
public because there are a growing number of people across the
country who are seizing on the incidents at Waco as well as at
Ruby Ridge to suggest that law enforcement is our enemy.

This suggestion is powerful because every Federal law enforce-
ment officer is entrusted with one of the most important powers
the public bestows upon its Government: The authority to inves-
tigate and prosecute violations of our laws, particularly the crimi-
nal laws of the United States.

But this suggestion stands in conflict not only with the record
from Waco, but with the excellent overall record of the Federal law
enforcement agencies, including both the ATF and the FBI. It



stands in conflict with the vast majority of Federal law enforce-
ment officers who deserve our trust. They are hardworking, dedi-
cated professionals who protect the public every day, and as we
saw in Waco and in many other instances, by giving their lives, not
just putting them on the line.

So as we examine the mistakes made by ATF and the FBI, I
think it is very important we, as elected members of this Govern-
ment, keep certain key facts in mind.

First, that the ATF had a legitimate and very important reason
to be at Waco in the first place, that is, to serve warrants on those
reasonably suspected of violating the Federal criminal laws.

Second, that the FBI had a legitimate and very important reason
to get David Koresh and the Davidians out of their fortified
compound and brought to justice. The Davidians had responded to
the agents' attempting to serve lawful warrants by killing 4 and
wounding 2 1.

Third, that in the end, David Koresh and the Davidians set fire
to themselves and committed suicide. The Government did not do
that.

And, finally, we must keep in mind one other fact, and that is,
the changing nature of criminal activity and the very difficult prob-
lem this creates for American law enforcement.

The days of the FBI agent with his trusty revolver are over. To-
day's criminals ai"e armed with automatic and semiautomatic
weapons, including high-caliber, armor-piercing ammunition.

Consider, for example, that the ATF and FBI agents at Waco
were facing a group that was heavily armed — in addition to numer-
ous fully automatic and semiautomatic assault rifles, grenades,
rocket projectiles, and hundreds of thousands of rounds of ammuni-
tion; the Davidians possessed two antitank, armor-piercing, long-
range assault weapons as well. Not your usual walk in the park.

I would like to show you this. This is an example of the .50 cali-
ber ammunition used in the two guns I just referred to. This is a
serious piece of weaponry. For comparison's sake, let me show you
the ammunition from the standard issue, 9 millimeter handgun,
carried by law enforcement. Times have changed. Bonnie and Clyde
didn't walk around with this .50 caliber ammunition. This is a dif-
ferent world in which these poor folks find themselves as they go
out to enforce our laws.

In short, law enforcement today faces criminals armed with mili-
tary-style weapons. Law enforcement today faces terrorist bomb-
ings like we have never seen in our history as a nation, like that
which occurred in Oklahoma, and also other deadly acts of sabo-
tage.

The safety of the public, as well as law enforcement officers
themselves, requires capabilities unthought of even 10 years ago.
Now, of course, these capabilities carry with them responsibilities
that did not exist to the same degree before. We have to ensure
that our Federal law enforcement receives the best training and
the best leadership possible.

This, in my view, is the context in which we must consider the
actions ATF and the FBI have taken at and since Waco.

Some of the specific questions I will pose to the panel of wit-
nesses today include: What is the process by which ATF and FBI



6

now formulate operational plans for difficult situations like Waco?
How do we ensure that teams planning operations receive the best
intelligence possible and the best information from relevant ex-
perts? And when is it appropriate for the hostage rescue teams to
be dispatched? Are there written guidelines governing the use of
these teams? Also, how is the inherent tension between negotia-
tions and action, between the carrot and the stick, to be handled
in these t5rpes of situations? How do we best equip onsite com-
manders in hostage or resistance-type situations to strike the elu-
sive balance between negotiations and increased pressure needed
to reach resolution?

There is no question that Waco was a terrible tragedy and that
in many respects Federal law enforcement handled a difficult situa-
tion badly. Both ATF and the FBI have made numerous, significant
changes — structural and operational — in an effort to use the les-
sons of Waco to avoid future tragedies. These are what we should
be looking at as well.

These hearings will serve an important goal if they convey to the
American public how seriously their (Government takes the respon-
sibilities of law enforcement, and that, responding to the short-
comings seen at Waco, we made priority efforts to see to it that the
Federal law enforcement agencies involved, in fact, made changes.

I look forward to discussing these and other issues with the wit-
nesses who will testify today and tomorrow, and I join Senator
Hatch in welcoming all of you here today.

Thank you, Mr. Chairman, for these hearings.

The Chairman. Well, thank you. Senator Biden.

At this time I would like to enter the statements of Senators
Simpson and Kohl for the record.

[TTie prepared statements of Senators Simpson and Kohl follow:]

Prepared Statement of Hon. Alan K. Simpson, a U.S. Senator From the State

OF Wyoming

Thank you, Mr. Chairman. I would like to take a few seconds of my time to thank
all the witnesses that have come to the Hill to testify over these long 2 days. As
we all know the incidents that occvtrred at Waco have stirred a great interest in
the American people. We all recall during the time of the incident not being able
to turn on the television without seeing it on the news.

Since one of the significant reasons for the Waco raid was alleged weapons viola-
tions, many of the citizens of my State of Wyoming were more profoundly troubled
by Waco than many Americans who have never owned, let alone never even seen,
a firearm. Unlike this Capital City where gun-related violence is so very high even
though it is illegal to own a firearm, the great majority of the citizens of my State
have chosen to exercise, in varying degrees, their second amendment rights. Some
have only guns for hunting or defense of life, home, or property, while many others
have guns and equipment devoted to the assembly and maintenance of firearms and
ammunition. Some of these same people are even beginning to hide firearms be-
cause they feel it is only a matter of time before their Government — staffed with
individuals who are increasingly hostile toward gunowners — will begin action to sys-
tematically confiscate all firearms fi-om law abiding citizens.

I have even had people accuse me of supporting this dreaded agenda even though
I grew up using firearms — indeed, having been on Federal probation as an over-
eager young man for shooting up mailboxes. So when I say that my constituents
are very concerned with recent actions of these Government agencies, I believe I
have ample evidence to stand on.

The thing that disturbs me the most about this is that the agencies involved in