Profile: US Department of Justice
US Department of Justice was a participant or observer in the following events:
The Office of Professional Responsibility (OPR), an oversight unit at the Justice Department, conducts an initial review of bias allegations against departmental officials in the Inslaw affair. The exact timing of the review is uncertain, although it may come after a query about the case from Senator Paul Simon in June (see June 16, 1986). The review finds that there is no misconduct by Justice Department manager Lowell Jensen. According to statements made by acting OPR counsel Robert Lyon and assistant counsel David Bobzein to the House Judiciary Committee in 1990, the OPR does not perform a full review at this time because the allegations of bias are not an issue OPR would normally review. Therefore, it plans to rely on the findings of a bankruptcy court hearing the Inslaw case (see June 9, 1986). However, after the bankruptcy court finds in favour of Inslaw (see September 28, 1987), partly because it thinks the bias allegations are well founded, OPR begins a full investigation (see October 14, 1987) and concludes there was no bias (see March 31, 1989). [US Congress, 9/10/1992]
Senator Charles Mathias (R-MD) sends a letter to the Justice Department asking about the dispute with Inslaw over enhanced PROMIS software. The letter will spark interest by Deputy Attorney General Arnold Burns in the case (see After July 9, 1986). [US Congress, 9/10/1992]
Deputy Attorney General Arnold Burns is told that the Justice Department has waived its rights to enhanced PROMIS software (see August 11, 1982). Following a letter asking about the Inslaw case from Senator Charles Mathias (see July 9, 1986), Burns asks subordinates about the litigation with Inslaw and is told the company wants the department to pay royalties. Burns then suggests that the issue should be turned around and that a claim against Inslaw should be made for it to pay royalties to the government, which funded the development of the first version of PROMIS (see Mid-1970s). However, further research comes up with a result shocking to Burns, who will say in 1988, “The answer that I got, which I wasn’t terribly happy with but which I accepted, was that there had been a series of old correspondence and back and forthing [sic] and stuff, that in all of that, our lawyers were satisfied that Inslaw could sustain the claim in court, that we had waived those rights, not that I was wrong that we didn’t have them but that somebody in the Department of Justice, in a letter or letters, as I say in this back and forthing [sic], had, in effect, waived those rights.” The House Judiciary Committee will later comment, “Considering that the deputy attorney general was aware of Inslaw’s proprietary rights, the department’s pursuit of litigation can only be understood as a war of attrition between the department’s massive, tax-supported resources and Inslaw’s desperate financial condition, with shrinking (courtesy of the department) income.” The committee will add, “In light of Mr. Burns’ revelation, it is important to note that committee investigators found no surviving documentation (from that time frame) which reveal the department’s awareness of the relative legal positions of the department and Inslaw, on Inslaw’s claims to proprietary enhancements referred to by Mr. Burns.” [US Congress, 9/10/1992]
Antonin Scalia. [Source: Oyez.org]Appeals court judge Antonin Scalia is sworn in as an Associate Justice of the US Supreme Court. [Legal Information Institute, 7/30/2007] Although Scalia is an ardent social conservative, with strongly negative views on such issues as abortion and homosexual rights, Scalia and Reagan administration officials both have consistently refused to answer questions about his positions on these issues, as President Reagan did at his June announcement of Scalia’s nomination. [Ronald Reagan Presidential Library, 6/17/1986] Scalia’s nomination is, in the words of Justice Department official Terry Eastland, “no better example of how a president should work in an institutional sense in choosing a nominee….” Eastland advocates the practice of a president seeking a judiciary nominee who has the proper “judicial philosophy.” A president can “influence the direction of the courts through his appointments” because “the judiciary has become more significant in our politics,” meaning Republican politics. [Dean, 2007, pp. 132] Scalia is the product of a careful search by Attorney General Edwin Meese and a team of Justice Department officials who wanted to find the nominee who would most closely mirror Reagan’s judicial and political philosophy (see 1985-1986).
Richard Willard, assistant attorney general of the civil division, writes a memo to Deputy Attorney General Arnold Burns about the Inslaw affair. According to Willard, George Bason, the bankruptcy court judge dealing with the Justice Department’s alleged theft of enhanced PROMIS software, should be taken off the case. Willard writes that Bason’s conduct is “so extraordinary that it warranted reassignment to another judge.” The House Judiciary Committee will comment that department officials are “concerned” about Bason’s handling of the case “very early in the litigation,” and that they think Bason tends to believe statements made by Inslaw. The committee will add: “The department believed that Judge Bason disregarded the sworn statements of department witnesses. The department also believed that Judge Bason made lengthy observations regarding the credibility of its witnesses and that Judge Bason’s uniformly negative conclusions were based on inferences not supported by the record.” Therefore, by the summer of 1987, the department is “actively seeking ways to remove Judge Bason from the case.” Bason will rule in favor of Inslaw in the autumn (see September 28, 1987). [US Congress, 9/10/1992]
Former Deputy Attorney General Lowell Jensen says that Attorney General Ed Meese was informed about the Justice Department’s dealings with Inslaw. He makes the statement in a sworn deposition to the Office of Professional Responsibility, a Justice Department unit investigating the department’s alleged theft of the enhanced PROMIS case tracking software from Inslaw. Jensen says, “I have had conversations with the attorney general [Meese] about the whole Inslaw matter, as to what had taken place in the PROMIS development and what had taken place with the contract and what decisions had been made by the department with reference to that.” [US Congress, 9/10/1992] However, Meese will tell the House Judiciary Committee he has no recollection of any discussions about case tracking (see July 12, 1990).
Justice Department staff tell Attorney General Edwin Meese that Judge George Bason of the Bankruptcy Court for the District of Columbia is “off his rocker,” according to a sworn statement Meese will later make to the House Judiciary Committee. Bason is presiding over a dispute between the department and the software company Inslaw (see June 9, 1986) and will eventually rule against the department (see September 28, 1987). This comment appears to be part of a campaign to get Bason removed from the case (see June 19, 1987) and a judge more favorable to the department appointed. [US Congress, 9/10/1992]
Robert Bork. [Source: National Constitution Center]The controversial nomination of conservative judge Robert Bork to the Supreme Court is defeated in the US Senate. Bork is denied a seat on the Court in a 58-42 vote, because his views are thought to be extremist and even some Republicans vote against him.
'Right-Wing Zealot' - Bork, nominated by President Reagan as one of the sitting judges who most completely reflects Reagan’s judiciary philosophy (see 1985-1986), is characterized even by administration officials as a “right-wing zealot.” Reagan also wants a nominee to placate the hard right over their disaffection caused by the brewing Iran-Contra scandal. However, to make him more palatable for the majority of Americans, Reagan officials attempt to repackage Bork as a moderate conservative. Senate Judiciary Committee member Edward Kennedy (D-MA) attacks Bork’s political philosophy, saying before the committee hearings: “[In Bork’s America] women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is the—and is often the only—protector of the individual rights that are the heart of our democracy.… No justice would be better than this injustice.” Kennedy’s words provoke complaint, but the characterization of Bork is based on his lengthy record of court verdicts and his large body of judicial writings.
Racial Equality Issues - Although there is no evidence to suggest that Bork is himself a racist, former Nixon White House counsel John Dean will write that “his positions on civil rights were an anathema to all who cared about equality in America.” Constitutional law professor Herman Schwartz will write in 2004, “Bork condemned the Fourteenth Amendment’s Equal Protection Clause decisions outlawing the poll tax (to him it was just ‘a very small tax’), the decision establishing the one-person, one-vote principle, abolishing school segregation in the District of Columbia, barring courts from enforcing racially restrictive housing covenants, preventing a state from sterilizing certain criminals or interfering with the right to travel, and prohibiting discrimination against out-of-wedlock children…. Bork’s hostility to governmental action on behalf of minorities did not stop with his critique of court action. In 1963 he criticized a section of the proposed Civil Rights Act of 1964 that required white businesses to serve blacks as resting on a principle of ‘unsurpassed ugliness.’”
Ready to Fight - The Reagan administration understands that Bork’s nomination is opposed; on July 1, the day of his announced nomination, the media reports that Reagan will try to ensure Bork’s confirmation by waging an “active campaign.” Even Senate-savvy James Baker, Reagan’s chief of staff, is uncertain about Bork’s chances at being confirmed, and further worries that even if Bork wins the fight, the cost to Reagan’s political capital will be too high.
His Own Worst Enemy - Conservatives Justice Department official Terry Eastland will later say Senate Democrats sabotage Bork’s chances at faring well in the confirmation hearings, even positioning his table to ensure the least favorable angles for Bork on television. However, the public’s opinion of Bork is unfavorable, and Dean will write: “[I]t was not the position of his chair in the hearing room that made Bork look bad, but rather his arrogance, his hubris, and his occasional cold-bloodedness, not to mention his equivocations and occasional ‘confirmation conversions,’ where he did what no one else could do. He made himself a terrible witness who did not appear to be truthful.” The confirmation conversions even surprise some of his supporters, as Bork abandons his previous stances that the First Amendment only applies to political speech, and the Fourteenth Amendment’s equal protection clause does not apply to women. The Senate Judiciary Committee passes Bork’s nomination along to the full Senate, where Bork is defeated 58-42.
The Verb 'To Bork' - In 2007, Dean will write, “Bork’s defeat made him both a martyr and a verb,” and quotes conservative pundit William Safire as writing that “to bork” someone means to viciously attack a political figure, particularly by misrepresenting that figure in the media. [Dean, 2007, pp. 137-143]
Entity Tags: Herman Schwartz, US Department of Justice, Gregory Peck, Edward M. (“Ted”) Kennedy, US Supreme Court, William Safire, Ronald Reagan, James A. Baker, Senate Judiciary Committee, Terry Eastland, Robert Bork, John Dean
Timeline Tags: Civil Liberties
Deputy Attorney General Arnold Burns asks his subordinates at the Justice Department’s civil division to “consider initiatives for achieving a more favorable disposition of this matter [a legal dispute between the department and Inslaw over PROMIS software].” This is apparently a reference to the possible removal of Judge George Bason from the case, as the department thinks he is biased against it (see June 19, 1987). In response to the comments, the department will draft a report about removing Bason (see After July 7, 1987). [US Congress, 9/10/1992]
Following a request from the Justice Department’s leadership (see July 7, 1987), Michael Hertz, the director of the civil division’s commercial litigation branch at the department, writes a memo entitled “Feasibility of Motion to Disqualify the Judge in Inslaw.” The department has come to believe that the judge, George Bason, is biased against it (see June 19, 1987) and hopes to challenge his findings of fact by saying they are unsupported by evidence and reflect a desire to reach a preordained conclusion. This position is mostly based on the department’s observations that some of Bason’s findings of fact are “rambling and based on deductions that are both strained and have flimsy support.” However, Hertz writes to Deputy Assistant Attorney General Stuart Schiffer that the facts simply do not support a case of bias strong enough to disqualify Bason from the remainder of the Inslaw case. Hertz adds that he is “fairly confident” that any motion to dismiss Bason would not succeed and the denial of any such motion could not be successfully challenged on appeal. He gives the following reasons:
The department has no evidence that what it views as “Bason’s incredible factual conclusions or alleged bias” actually stem from an extrajudicial source, as the case law requires;
Adverse factual findings and inferences against the government are not enough to support a claim of bias; and
Adverse credibility rulings about some of the government’s witnesses in a prior phase of the proceedings are not on their own sufficient to disqualify Bason from the rest of the proceedings.
Hertz says that attempting to demonstrate bias by Bason could adversely affect any future appeal by the department on the findings of fact. He also advises Schiffer that as much as the department may disagree with
Bason’s findings: “[T]hey are not mere conclusory statements. Instead they reflect a relatively detailed judicial analysis of the evidence, including reasons for believing certain witnesses and disbelieving others, as well as consideration of what inferences might or might not be drawn from the evidence.” [US Congress, 9/10/1992] Despite this, the department will twice attempt to get Bason recused, failing both times (see January 19, 1988 and January 25, 1988).
Assistant Attorney General Richard Willard reports to Deputy Attorney General Arnold Burns about the Inslaw case. Willard says that the Justice Department has developed a good trial record, but: “[T]here is virtually no reason for optimism about the judge’s ruling. Even though our witnesses performed admirably and we believe we clearly have the better case, Judge Bason made it apparent in a number of ways that he is not favorably disposed to our position.” The department has been trying to have Bason removed from the case for some time (see June 19, 1987) and he will soon rule in favor of Inslaw (see September 28, 1987). [US Congress, 9/10/1992]
Judge George Bason of the Bankruptcy Court for the District of Columbia issues an oral finding that the Justice Department “took, converted, and stole” the enhanced version of Inslaw’s PROMIS software by “trickery, fraud, and deceit.” The ruling is issued at the end of a trial that lasts over two weeks and involves sworn statements from over 40 witnesses and thousands of pages of documentary evidence. Bason finds that a key departmental official, project manager C. Madison Brewer, was biased against Inslaw (see April 1982, April 14, 1982, and April 19, 1982). In addition, Brewer’s boss Lowell Jensen (see December 29, 1983 and February 1984) is said to have “a previously developed negative attitude about PROMIS and Inslaw,” because he had been associated with the development of a rival case management system while he was a district attorney in California, and this affected his judgment throughout his oversight of the contract. Further, the department violated bankruptcy protection legislation that applied to Inslaw by using and exercising control over Inslaw’s property—the enhanced PROMIS software—without negotiating a license fee. This oral finding is confirmed in a written opinion issued on January 25, 1988. In the written finding, Bason adds, “[T]his court finds and concludes that the department never intended to meet its commitment and that once the department had received enhanced PROMIS pursuant to Modification 12 (see April 11, 1983), the department thereafter refused to bargain in good faith with Inslaw and instead engaged in an outrageous, deceitful, fraudulent game of ‘cat and mouse,’ demonstrating contempt for both the law and any principle of fair dealing.” [US Congress, 9/10/1992]
The Office of Professional Responsibility (OPR), an oversight component at the Justice Department, begins an investigation into allegations made by the software company Inslaw against some Justice Department staff. The OPR had conducted a preliminary investigation the previous year (see 1986), concluding the officials were not biased against the company. However, after a bankruptcy court finds serious wrongdoing by departmental officials (see September 28, 1987), Deputy Attorney General Arnold Burns asks for “a complete and thorough investigation into the allegation of bias and misconduct by various Justice Department officials against Inslaw.” The full investigation will again conclude that the officials were not biased against Inslaw (see March 31, 1989). [US Congress, 9/10/1992]
Stuart Schiffer, deputy assistant attorney general for the Justice Department’s civil division, writes to Richard Willard, the assistant attorney general for the civil division, about the Inslaw case. Schiffer writes: “[Judge George] Bason has scheduled the next [Inslaw] trial for February 2 . Coincidentally, it has been my understanding that February 1  is the date on which he [Bason] will either be reappointed or replaced.” Bason had ruled in favor of Inslaw (see September 28, 1987) and the department had been trying to have him removed from the case for months (see June 19, 1987). After Bason’s bid for reappointment fails (see December 15, 1987), he will say that the department used its influence against him (see December 5, 1990). [US Congress, 9/10/1992]
After Robert Bork’s nomination to the Supreme Court fails (see July 1-October 23, 1987), President Reagan nominates an equally hard-line conservative, appeals court judge Douglas Ginsberg. Ginsberg withdraws his nomination after the press learns that he had ignored a serious conflict-of-interest problem while at the Department of Justice, that he had smoked marijuana as both a student and a professor at Harvard Law School, and that, though Ginsberg professes to be stringently anti-abortion, his wife is a doctor who has herself performed abortions. Reagan will nominate a third and final selection for the Court, the somewhat more moderate Anthony Kennedy. [Washington Post, 1998; Federal Judicial Center, 9/26/2006; Dean, 2007, pp. 143-144]
The Army Corps of Engineers notifies the head of Systems Evaluations Incorporated, Fred Westerman, that his company’s contract to set up secret storage facilities for the highly secretive Continuity of Government program will not being extended, despite previous promises that a five-year renewal was forthcoming. Westerman, a retired 20-year Army intelligence veteran, began work on the secret project in 1985 (see 1985). He began reporting irregularities within the program to government officials in 1986, against the wishes of his superiors (see 1986-1987). Westerman will file a lawsuit against the government seeking restitution (see November 1988), but the suit will be frozen when the Justice Department opens an investigation of him (see November 1988). US District Judge Norma Johnson will seal the suit shortly after an in-depth story on the COG program referring to Westerman’s case is published in a major magazine (see August 8, 1989). In 1990, Westerman will lose another contract, along with his security clearances (see 1990). By November 1991, he will be unemployable, several hundred thousand dollars in debt, and unable to gain any restitution from the government (see November 1991). [Emerson, 8/7/1989; San Francisco Chronicle, 8/8/1989; Associated Press, 9/11/1989; CNN Special Assignment, 11/17/1991]
The Justice Department files a motion that bankruptcy court judge George Bason recuse himself from further participation in a case over the bankruptcy of Inslaw and the department’s alleged theft of the enhanced PROMIS application, saying that he is biased against the department. Bason had ruled in favor of Inslaw (see September 28, 1987) and the department has been trying to have him removed from the case for months (see June 19, 1987). The motion is filed despite a report from Michael Hertz, the director of the civil division’s commercial litigation branch at the department, saying that such a move would not succeed (see After July 7, 1987). The bankruptcy court denies the motion three days later. [US Congress, 9/10/1992] The department will make a similar request later in the month (see January 25, 1988).
The Justice Department again tries to get Judge George Bason removed from the Inslaw case over the company’s bankruptcy and the department’s alleged theft of an enhanced version of the PROMIS software. Bason had ruled in favor of Inslaw (see September 28, 1987) and the department has been trying to have him removed from the case for months (see June 19, 1987). Following the failure of a recusal motion to Bason (see January 19, 1988), the department argues a motion before Chief Judge of the District Court for Columbia Aubrey Robinson for a writ of mandamus directing Judge Bason to recuse himself over allegations of bias. Robinson denies the department’s writ, ruling: “I can’t see anything in this record that measures up to the standards that would be applicable to force another judge to take over this case. There isn’t any doubt in my mind, for example, that the declaration filed by the Justice Department in support of the original motion is inadequate.” When the department appeals Bason’s ruling (see Between February 2, 1988 and November 22, 1989), it will again raise the issue of recusal, but District Court Judge William Bryant will say, “This court like the courts before it can find no basis in fact to support a motion for recusal.” [US Congress, 9/10/1992]
The software company Inslaw submits allegations about the Justice Department’s conduct in the dispute over the enhanced PROMIS application to the Public Integrity Section (PIS), a departmental oversight component. The allegations follow on from the findings of a bankruptcy court favourable to Inslaw (see September 28, 1987 and January 25, 1988). In the complaint, Inslaw charges the department with:
Procurement fraud. Inslaw claims that Attorney General Edwin Meese and former Deputy Attorney General Lowell Jensen schemed to ensure that enhancements made to the PROMIS software by Inslaw would be obtained for free by the department, which would then make them available to a businessman named Earl Brian;
Violation of automatic stay debtor protection provisions invoked by the bankruptcy court. Inslaw says that by using the enhancements it made to the software after the bankruptcy case was filed, the department violated federal bankruptcy law. The bankruptcy court found that the department committed such violation, an act that could constitute an obstruction of the bankruptcy proceedings; and
Attempts to change Inslaw’s Chapter 11 bankruptcy, for the company’s reorganization, into a Chapter 7 bankruptcy, for the company’s liquidation. Inslaw says that the department unsuccessfully attempted to have an official named Harry Jones detailed from the US Trustee’s office in New York to Washington to take over the Inslaw bankruptcy to get Inslaw liquidated. Inslaw also says unsuccessful pressure was exerted by departmental official Thomas Stanton on US Trustee William White to convert the bankruptcy case into a Chapter 7 liquidation.
The PIS says it will examine some of the allegations, but in the end it will not open a formal preliminary investigation (see February 29, 1988). [US Congress, 9/10/1992]
US Justice Department headquarters. [Source: GlobeXplorer]Sen. John Kerry (D-MA) stumbles across the criminality of the Bank of Credit and Commerce International (BCCI) while investigating international drug trafficking as part of a congressional oversight committee. He soon starts a vigorous congressional investigation of BCCI, and New York district attorney Robert Morgenthau launches a vigorous investigation as well. [New York Times, 7/29/1991] However, Kerry’s and Morgenthau’s investigations are consistently stifled. Kerry will later say that, “with the key exception of the Federal Reserve, there was almost [no]… information or cooperation provided by other government agencies.” [US Congress, Senate, Committee on Foreign Relations, 12/1992] Kerry will later conclude that the Justice Department in particular went to great lengths to block his and Morgenthau’s investigations “through a variety of mechanisms, ranging from not making witnesses available, to not returning phone calls, to claiming that every aspect of the case was under investigation in a period when little, if anything was being done.” After the Bank of England shuts down BCCI in July 1991 (see July 5, 1991), making big headlines, Under Assistant Attorney General Robert Mueller takes over Justice Department efforts on BCCI and assigns many new attorneys to the case. But Kerry will ultimately conclude that the indictments the Justice Department brings forth against BCCI after that time were narrower and less detailed than those of Morgenthau’s, and often seemed to be in response to what Morgenthau was doing. [US Congress, 12/1992] Kerry submits his report on BCCI in December 1992, and after that investigations into BCCI peter out. President Bush will appoint Mueller to be director of the FBI shortly before 9/11 (see September 4, 2001).
The Bankruptcy Court for the District of Columbia awards $8 million in damages to Inslaw in the dispute over the Justice Department’s use of the enhanced PROMIS software. The decision follows on from a ruling by the court that the department had violated Inslaw’s automatic stay bankruptcy protection rights by using and copying an enhanced version of Inslaw’s PROMIS software (see September 28, 1987). The award consists of $6.8 million in actual and punitive damages, as well as $1.2 million in attorneys’ fees. [US Congress, 9/10/1992]
The Public Integrity Section (PIS), a Justice Department oversight component, decides not to open a preliminary investigation of the Inslaw affair over the department’s alleged misappropriation of PROMIS software (see February 1988). The decision is communicated in a memo drafted by William F. Weld, the assistant attorney general for the department’s criminal division, of which the PIS is a part. The PIS finds that at least some of the people Inslaw complains about, including Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, and Deputy Attorney General Arnold Burns, are appropriate targets of an investigation and that Inslaw is generally a credible source for allegations. However, according to Weld, the information Inslaw provides is not specific enough to constitute grounds to begin a preliminary investigation of the need for an independent counsel. This is because the PIS regards the facts Inslaw presented as unsupported speculation that the officials were involved in a scheme to get the enhanced PROMIS software. Therefore, the review should be closed “due to lack of evidence of criminality.” The House Judiciary Committee will be critical of the PIS’s finding, calling its investigation “shallow and incomplete,” and saying the department appeared to be “more interested in constructing legal defenses for its managerial actions rather than investigating claims of wrongdoing which, if proved, could undermine or weaken its litigating posture.” [US Congress, 9/10/1992]
The Justice Department issues a memo formally authorizing the use of rendition as a technique by the CIA and FBI to transport terrorist suspects from foreign countries. The terrorists are to be brought to the US, where they will face trial. This is the first known official use of the term rendition, although it is already in informal use. According to CIA Director William Webster, the technique is to be used in countries like Lebanon, due to the poor state of the judicial system there, and the other country’s government does not have to be informed or approve the operation. Webster will comment, “It seems to me that you have a different set of circumstances in a country like Lebanon which has no capacity to provide law enforcement or assistance than going to another neighbor such as Sweden or someplace and lifting somebody out of there.” Webster will point out that US courts will not consider seizing a terrorist in another country a bar to trying him in the US, as courts “do not much care how the defendant happened to come into America.” [Washington Post, 11/4/1989; Grey, 2007, pp. 133-134] At least one such rendition operation was carried out before the memo was issued (see September 18, 1987).
Retired 20-year Army intelligence veteran Fred Westerman, who now heads the security firm Systems Evaluations Incorporated (see 1985) and whose government contract was canceled after he reported abuses inside the highly secretive Continuity of Government program (see December 1987 and 1986-1987), is alerted that his recently filed lawsuit against the government (see November 1988) is being frozen because the Justice Department has opened a criminal investigation into his company for allegedly trying to defraud the government. The suit, now frozen, will later be sealed (see August 8, 1989). Westerman will eventually lose another contract, along with his security clearances (see 1990). He will end up living in debt and unable to gain any restitution from the government (see November 1991). [Emerson, 8/7/1989; San Francisco Chronicle, 8/8/1989; Associated Press, 9/11/1989; CNN Special Assignment, 11/17/1991]
President Ronald Reagan signs Executive Order 12656, assigning a wide range of emergency responsibilities to a number of executive departments. The order calls for establishing emergency procedures that go far beyond the nation’s standard disaster relief plans. It offers a rare glimpse of the government’s plans for maintaining “continuity of government” in times of extreme national emergency. The order declares the national security of the country to be “dependent upon our ability to assure continuity of government, at every level, in any national security emergency situation,” which is defined as “any occurrence, including natural disaster, military attack, technological emergency, or other emergency, that seriously degrades or seriously threatens the national security of the United States.” The order instructs department leaders to establish various protocols for crisis situations, including rules for delegating authorities to emergency officials, establishing emergency operating facilities, protecting and allocating the nation’s essential resources, and managing terrorist attacks and civil disturbances. The plans are to be coordinated and managed by the National Security Council and the Federal Emergency Management Agency (FEMA). The presidential order suggests certain laws may have to be altered or expanded to carry out the plans. Although it encourages federal agencies to base the emergency protocols on “existing authorities, organizations, resources, and systems,” it also calls on government leaders to identify “areas where additional legal authorities may be needed to assist management and, consistent with applicable executive orders, take appropriate measures toward acquiring those authorities.” According to the executive order, the plans “will be designed and developed to provide maximum flexibility to the president.” Executive Order 12656 gives specific instructions to numerous federal departments:
The Department of Justice is ordered to coordinate emergency “domestic law enforcement activities” and plan for situations “beyond the capabilities of state and local agencies.” The Justice Department is to establish plans for responding to “civil disturbances” and “terrorism incidents” within the US that “may result in a national security emergency or that occur during such an emergency.” The attorney general is to establish emergency “plans and procedures for the custody and protection of prisoners and the use of Federal penal and correctional institutions and resources.” The Department of Justice is also instructed to develop “national security emergency plans for regulation of immigration, regulation of nationals of enemy countries, and plans to implement laws for the control of persons entering or leaving the United States.” The attorney general is additionally instructed to assist the “heads of federal departments and agencies, state and local governments, and the private sector in the development of plans to physically protect essential resources and facilities.”
The Department of Defense, acting through the Army, is to develop “overall plans for the management, control, and allocation of all usable waters from all sources within the jurisdiction of the United States.” The secretary of defense is to arrange, “through agreements with the heads of other federal departments and agencies, for the transfer of certain federal resources to the jurisdiction and/or operational control of the Department of Defense in national security emergencies.” The secretary of defense is also instructed to work with industry, government, and the private sector, to ensure “reliable capabilities for the rapid increase of defense production.”
The Department of Commerce is ordered to develop “control systems for priorities, allocation, production, and distribution of materials and other resources that will be available to support both national defense and essential civilian programs.” The secretary of commerce is instructed to cooperate with the secretary of defense to “perform industry analyses to assess capabilities of the commercial industrial base to support the national defense, and develop policy alternatives to improve the international competitiveness of specific domestic industries and their abilities to meet defense program needs.” The Commerce Department is also instructed to develop plans to “regulate and control exports and imports in national security emergencies.”
The Department of Agriculture is ordered to create plans to “provide for the continuation of agricultural production, food processing, storage, and distribution through the wholesale level in national security emergencies, and to provide for the domestic distribution of seed, feed, fertilizer, and farm equipment to agricultural producers.” The secretary of agriculture is also instructed to “assist the secretary of defense in formulating and carrying out plans for stockpiling strategic and critical agricultural materials.”
The Department of Labor is ordered to develop plans to “ensure effective use of civilian workforce resources during national security emergencies.” The Labor Department is to support “planning by the secretary of defense and the private sector for the provision of human resources to critical defense industries.” The Selective Service System is ordered to develop plans to “provide by induction, as authorized by law, personnel that would be required by the armed forces during national security emergencies.” The agency is also vaguely instructed to establish plans for “implementing an alternative service program.”
The Transportation Department is to create emergency plans to manage and control “civil transportation resources and systems, including privately owned automobiles, urban mass transit, intermodal transportation systems, the National Railroad Passenger Corporation, and the St. Lawrence Seaway Development Corporation.” The Transportation Department is also to establish plans for a “smooth transition” of the Coast Guard to the Navy during a national security emergency. The Transportation Department is additionally instructed to establish plans for “emergency management and control of the National Airspace System, including provision of war risk insurance and for transfer of the Federal Aviation Administration, in the event of war, to the Department of Defense.”
The Department of the Treasury is ordered to develop plans to “maintain stable economic conditions and a market economy during national security emergencies.” The Treasury Department is to provide for the “preservation of, and facilitate emergency operations of, public and private financial institution systems, and provide for their restoration during or after national security emergencies.”
The Department of Energy is to identify “energy facilities essential to the mobilization, deployment, and sustainment of resources to support the national security and national welfare, and develop energy supply and demand strategies to ensure continued provision of minimum essential services in national security emergencies.”
The Department of Health and Human Services is instructed to develop programs to “reduce or eliminate adverse health and mental health effects produced by hazardous agents (biological, chemical, or radiological), and, in coordination with appropriate federal agencies, develop programs to minimize property and environmental damage associated with national security emergencies.” The health secretary is also to assist state and local governments in the “provision of emergency human services, including lodging, feeding, clothing, registration and inquiry, social services, family reunification, and mortuary services and interment.” [US President, 11/18/1988]
Entity Tags: US Department of Agriculture, Selective Service System, US Department of Labor, US Department of Defense, US Department of Commerce, Ronald Reagan, National Security Council, US Department of Health and Human Services, US Department of Transportation, US Department of the Treasury, Federal Emergency Management Agency, US Department of Justice, US Department of Energy
Timeline Tags: Civil Liberties
The Office of Professional Responsibility (OPR), an oversight unit at the Justice Department, issues a report on the Inslaw affair over the department’s alleged theft of enhanced PROMIS software. The report finds that allegations of bias made by Inslaw and seconded by a bankruptcy court (see September 28, 1987) against departmental officials are unsupported. Inslaw had questioned the performance of former Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, former Deputy Attorney General Arnold Burns, and others. The OPR says that the court’s findings on misconduct by department officials are “clearly erroneous.” In addition, the report says: “There is no credible evidence that the department took or stole Inslaw’s enhanced PROMIS by trickery, fraud, and deceit. Additionally, we have found no credible evidence that there existed in the department a plot to move to convert Inslaw’s Chapter 11 bankruptcy to one under Chapter 7 of the bankruptcy code.” The House Judiciary Committee will be extremely critical of this investigation, commenting, “During its investigation OPR chose to ignore the court’s findings and conclusions that there was bias against Inslaw at the department.” In addition, the committee will say that the OPR looked at the bias allegations in isolation and “incredibly” did not examine the merits of the contract dispute, meaning its conclusions on the taking of PROMIS and the type of bankruptcy were “gratuitous,” especially as Burns had told it the department agreed Inslaw owned the enhancements it made to PROMIS (see August 11, 1982). The committee will also point out that the OPR’s deputy counsel, Richard M. Rogers, said he was recused from the investigation because of his association with Burns, although he was present when Meese provided a sworn statement. In this context, the committee will highlight problems found by the Government Accountability Office with OPR around this time (see February 7, 1992). [US Congress, 9/10/1992]
Elliot Richardson, an attorney acting for the software company Inslaw, writes to Attorney General Richard Thornburgh about the dispute with the Justice Department over the department’s alleged misappropriation of enhanced PROMIS software. Richardson complains about a review of the case by the Public Integrity Section (PIS), an oversight component at the department, which came down against Inslaw’s claims (see February 29, 1988). He says that there is a conflict of interest because the department is defending itself against a civil action by Inslaw while at the same time investigating itself over the allegations that form the basis of the action. If the internal investigation found wrongdoing by the department, this would destroy the department’s case in court. His view is that the department has given priority to defending itself against the civil action, not the criminal investigation of its own wrongdoing. Richardson adds that no one from the PIS has contacted him, Inslaw counsel Charles Work, some of the witnesses in the case, or Inslaw’s owners. Despite this, the owners provided the PIS with the names of 30 people who had information relevant to the investigation in December 1988. Therefore, Richardson concludes that the only solution is for the department to appoint an independent counsel. [US Congress, 9/10/1992]
The newly appointed general counsels of each executive branch receive a memo from William Barr, the new head of the Justice Department’s Office of Legal Counsel (OLC). The memo, entitled “Common Legislative Encroachments on Executive Branch Authority,” details the top 10 ways in which, in Barr’s view, Congress tries to interfere with executive branch powers. The list includes:
“4. Micromanagement of the Executive Branch”;
“5. Attempts to Gain Access to Sensitive Executive Branch Information”;
“9. Attempts to Restrict the President’s Foreign Affairs Powers.”
The memo unequivocally endorses the “unitary executive theory” of the presidency (see April 30, 1986), despite that theory’s complete rejection by the Supreme Court (see June 1988). Barr also reiterates the belief that the Constitution requires the executive branch to “speak with one voice”—the president’s—and tells the general counsels to watch for any legislation that would protect executive branch officials from being fired at will by the president, one of the powers that Barr and other unitary executive proponents believe has been illegally taken by Congress. “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved,” Barr writes. Reflecting on Barr’s arguments, law professor Neil Kinkopf, who will later serve in the OLC under President Clinton, will later write: “Never before had the Office of Legal Counsel… publicly articulated a policy of resisting Congress. The Barr memo did so with belligerence, staking out an expansive view of presidential power while asserting positions that contradicted recent Supreme Court precedent. Rather than fade away as ill-conceived and legally dubious, however, the memo’s ideas persisted and evolved within the Republican Party and conservative legal circles like the Federalist Society.” [Savage, 2007, pp. 57-59]
Charles Work, counsel for the software company Inslaw, writes to the Justice Department over the department’s alleged misappropriation of enhanced PROMIS software. Work says that an investigation of the case by the Public Integrity Section, an oversight component at the department, is deficient, and he describes specific problems with it (see February 29, 1988). However, the department does not re-open the inquiry. [US Congress, 9/10/1992]
The US District Court for the District of Columbia upholds a bankruptcy court ruling in favor of Inslaw. The ruling concerned the dispute over the PROMIS software between Inslaw and the Justice Department, which was found to have violated bankruptcy protection provisions (see September 28, 1987 and February 2, 1988), but had appealed (see Between February 2, 1988 and November 22, 1989). Judge William Bryant finds that the department knew an enhanced version of PROMIS was Inslaw’s central asset, that ownership of the software was critical to the company’s reorganization in Chapter 11 bankruptcy, and that the department’s unilateral claim of ownership and its installation of the enhanced version in offices around the United States violated automatic stay bankruptcy provisions in multiple ways. In addition, Bryant agrees with the bankruptcy court’s conclusion that the department never had any rights to the enhanced version and that “the government acted willfully and fraudulently to obtain property that it was not entitled to under the contract.” In addition, when Inslaw suggested mechanisms to determine whether the private enhancements had been made, the government rejected them, and “when asked to provide an alternative methodology that would be acceptable, the government declined.” The department could have used established procedures to get relief from the automatic stay provisions, but simply chose not to do so. Bryant, who also finds that the department tried to convert Inslaw’s bankruptcy to Chapter 7 liquidation, adds, “What is strikingly apparent from the testimony and depositions of key witnesses and many documents is that Inslaw performed its contract in a hostile environment that extended from the higher echelons of the Justice Department to the officials who had the day-to-day responsibility for supervising its work.” Finally, Bryant finds that, as the case was grounded in bankruptcy law, the bankruptcy court was an appropriate forum to hear the dispute and it did not have to be submitted to the Department of Transportation Board of Contract Appeals, an arena for contract disputes. Although most of the damages awarded are upheld, as Bryant finds the bankruptcy court assessed damages based on the evidence it obtained, he reduces compensatory damages by $655,200.88. [US Congress, 9/10/1992]
A US District Court rules that Attorney General Richard Thornburgh does not have to appoint a special prosecutor in the Inslaw affair. Inslaw’s attorney Elliot Richardson had filed the case because of a dispute with the Justice Department over allegations that the department had stolen a version of the PROMIS database and search application from the company. However, the court rules against Inslaw, stating that a prosecutor’s decision not to investigate—“no matter how indefensible”—cannot be corrected by any court. [Wired News, 3/1993]
Retired 20-year Army intelligence veteran and whistleblower Fred Westerman, who came under investigation by the Justice Department shortly after filing a lawsuit against the government (see November 1988 and November 1988), loses his security clearances, as well as a classified federal contract, when officials notify his boss that he is facing indictment. Westerman lost a previous contract (see December 1987) after reporting several abuses inside the highly classified Continuity of Government program (see 1986-1987). His lawsuit has been frozen and sealed by the government (see November 1988 and August 8, 1989). With no security clearances and a tarnished reputation, Westerman will become unemployable in the field he knows best. By November 1991, he will be several hundred thousand dollars in debt and unable to gain any restitution from the government (see November 1991). [CNN Special Assignment, 11/17/1991]
As part of its ongoing battle against drug trafficking, the US routinely monitors the phone records of thousands of US citizens and others inside the country who make phone calls to Latin America. The NSA works with the Drug Enforcement Agency in collecting phone records that show patterns of calls between the US, Latin America, and other drug-producing regions. The program is significantly expanded after George W. Bush takes office in 2001. Government officials will say in 2007 that the phone conversations themselves are not monitored, but the NSA and DEA use phone numbers and e-mail addresses to analyze possible links between US citizens and foreign nationals. The program is approved by Justice Department officials in both the Bush and Clinton administrations, and does not require court approval to demand communications records. In 2004, one US telecommunications firm, who is not identified, will refuse to turn over its phone records to the government (see 2004). [New York Times, 12/16/2007] The Bush administration will repeatedly claim that the government did not begin monitoring US citizens until after the attacks of September 11, 2001. However, this NSA/DEA program proves otherwise.
The Justice Department investigates and clears veteran US Army intelligence officer Tom Golden, who has been the target of a smear campaign since blowing the whistle on corrupt activities within the highly clandestine Continuity of Government (COG) program (see July 1987 and After July 1987). In January 1990, the Justice Department receives a 21-page document, classified higher than top secret, from within the COG project. Members involved with the secret program, commonly referred to as the Doomsday project, allege Golden is a security risk and depict him as Soviet spy with personal issues. The document offers as evidence detailed conversations provided by an informant, Army officer Robert Rendon, who is a convicted criminal and admitted black-marketer who worked in the COG program at the same time as Golden (see July 28, 1983). The FBI opens an investigation of Golden based on the document, but finds he is guilty of no wrongdoing and concludes he is in fact the target of a retaliatory smear campaign spearheaded by Rendon and other members of the COG project. The Army Inspector General’s Office and the House Armed Services Committee have investigated the issue and reached the same conclusion (see Summer 1987 and Summer 1988-1989), but the effort to discredit Golden will continue (see August 1990). [Philadelphia Inquirer, 12/16/1990; Knight Ridder, 12/18/1990]
The Justice Department asks an appellate court to consider its dispute with Inslaw over the enhanced PROMIS software for the Appellate Mediation Program. The program, which has been running for about two years, is intended to benefit parties to a dispute by providing a forum which encourages cases to be settled, or at least the resolution or simplification of some of the issues, through an independent and neutral mediator. However, the success of such attempts hinges on their confidentiality, as cases are not to be shared with judges or anyone outside the relevant court. [US Congress, 9/10/1992] Despite this, the mediation attempts will fail when news of them is leaked to the Washington Post (see October 1, 1990).
The Washington Post reports that the Justice Department has asked an appeals court to consider its dispute with Inslaw over enhanced PROMIS software for mediation. The request was made several months earlier (see June 28, 1990), but the process requires confidentially, so the leak forces Inslaw to withdraw and ends the mediation attempts. The House Judiciary Committee will comment that the leak was “completely contrary to the standards of the Appellate Program.” The committee will add: “It is difficult to understand the department’s strategy by this action. It may be that the department wanted to maintain the facade of working diligently to settle a sticky contract dispute while working behind the scenes to sabotage it and keep pressure on Inslaw by forcing it to expend additional resources on legal support during the mediation process. If this is the case, the department was successful. But the department also succeeded in maintaining a near-flawless record of seeking delay over resolution and raising the level of suspicion about its motives to a point where the public trust in the untarnished pursuit of justice is subject to grave doubts.” [US Congress, 9/10/1992]
’Nayirah’ testifying before Congress. [Source: Web Fairy (.com)]An unconfirmed report of Iraqi soldiers entering a Kuwaiti hospital during the Iraqi invasion of Kuwait (see August 2, 1990) and removing newborns from their incubators causes a sensation in the US media. The rumor, which later turns out to be false, is seized upon by senior executives of the PR firm Hill & Knowlton, which has a $11.9 million contract from the Kuwaiti royal family to win support for a US-led intervention against Iraq—the largest foreign-funded campaign ever mounted to shape US public opinion. (Under the Foreign Agents Registration Act, the firm should have been held accountable for its marketing campaign, but the Justice Department fails to intervene.) The firm also has close ties to the Bush administration, and will assist in marketing the war to the US citizenry. [Christian Science Monitor, 9/6/2002; Independent, 10/19/2003; Public Relations Watch, 6/3/2007] Hill & Knowlton uses a front group, “Citizens for a Free Kuwait” (see August 11, 1990), to plant the stories in the news media.
Congressional Hearings - Hearings on the story, and other tales of Iraqi atrocities, are convened by the Congressional Human Rights Caucus, chaired by Representatives Tom Lantos (D-CA) and John Porter (R-IL). Reporters John Stauber and Sheldon Rampton will later characterize the caucus as little more than an H&K-funded sham; Lantos and Porter are also co-chairs of the Congressional Human Rights Foundation, a legally separate entity that occupied free office space in Hill & Knowlton’s Washington, DC offices. The star of the hearings is a slender, 15-year old Kuwaiti girl called “Nayirah.” According to the Caucus, her true identity is being concealed to prevent Iraqi reprisals against her or her family. Sobbing throughout her testimony, “Nayirah” describes what she says she witnessed in a hospital in Kuwait City; her written testimony is provided to reporters and Congressmen in a media kit prepared by Citizens for a Free Kuwait. “I volunteered at the al-Addan hospital,” she tells the assemblage. “While I was there, I saw the Iraqi soldiers come into the hospital with guns, and go into the room where… babies were in incubators. They took the babies out of the incubators, took the incubators, and left the babies on the cold floor to die.” [Christian Science Monitor, 9/6/2002; Los Angeles Times, 1/5/2003; Public Relations Watch, 6/3/2007] The hearings, and particularly “Nayirah’s” emotional tale, inflame American public opinion against the Iraqis (see October 10, 1990 and After) and help drum up support for a US invasion of Iraq (see January 9-13, 1991).
Outright Lies - Neither Lantos, Porter, nor H&K officials tell Congress that the entire testimony is a lie. “Nayirah” is the daughter of Saud Nasir al-Sabah, the Kuwaiti ambassador to the US. Neither do they reveal that “Nayirah’s” testimony was coached by H&K vice president Lauri Fitz-Pegado. Seven other “witnesses” testify to the same atrocities before the United Nations; the seven use false names and identities. The US even presents a video made by Hill & Knowlton to the Security Council. No journalist investigates the claims. As author Susan Trento will write: “The diplomats, the congressmen, and the senators wanted something to support their positions. The media wanted visual, interesting stories.” It is not until after the war that human rights investigators look into the charges. No other witnesses can be located to confirm “Nayirah’s” story. Dr. Mohammed Matar, director of Kuwait’s primary care system, and his wife, Dr. Fayeza Youssef, who runs the obstretrics unit at the maternity hospital, says that at the time of the so-called atrocities, few if any babies were in incubator units—and Kuwait only possesses a few such units anyway. “I think it was just something for propaganda,” Dr. Matar will say. It is doubtful that “Nayirah” was even in the country at the time, as the Kuwaiti aristocracy had fled the country weeks before the Iraqi invasion. Amnesty International, which had supported the story, will issue a retraction. Porter will claim that he had no knowledge that the sobbing little girl was a well-rehearsed fabricator, much less an ambassador’s daughter. Canadian Broadcasting Corporation reporters will ask al-Sabah for permission to question his daughter about her testimony; he will angrily refuse. “Naiyrah” herself will later admit that she had never been in the hospital herself, but had learned of the supposed baby murders from a friend. In a subsequent interview about media manipulation during the war, Fitz-Pegado will say: “Come on.… Who gives a sh_t whether there were six babies or two? I believed her.” She will later clarify that statement: “What I meant was one baby would be too many.” [CounterPunch, 12/28/2002; Independent, 10/19/2003; Public Relations Watch, 6/3/2007]
Entity Tags: Susan Trento, Tom Lantos, Sheldon Rampton, US Congress, United Nations Security Council, Saud Nasir al-Sabah, US Department of Justice, Mohammed Matar, Lauri Fitz-Pegado, Citizens for a Free Kuwait, ’Nayirah’, Amnesty International, Bush administration (41), John Stauber, Congressional Human Rights Caucus, Canadian Broadcasting Corporation, Fayeza Youssef, John MacArthur, John Porter, Hill and Knowlton, Congressional Human Rights Foundation, Jack O’Dwyer
Timeline Tags: Events Leading to Iraq Invasion, Domestic Propaganda
The US Justice Department appeals an adverse decision of the US District Court for the District of Columbia in the dispute with Inslaw over the alleged theft of the enhanced PROMIS application (see November 22, 1989). The department raises some of the same issues previously raised in its appeal of a bankruptcy court ruling to the District Court and requests a reversal on the basis of the facts found in the bankruptcy court, which it says made “clear errors.” In addition, it argues:
That its use of enhanced PROMIS did not violate automatic stay bankruptcy protection, so the argument should not have been in the bankruptcy court, but before the Department of Transportation Board of Contract Appeals under the Contract Disputes Act;
That since no motion was filed to convert Inslaw from a chapter 11 bankruptcy to a chapter 7, there was no violation of the automatic stay protection in this respect;
That the department has not filed a claim, so it is still entitled to sovereign immunity; and
That damage awards for violation of the automatic stay can only be paid to individuals, not corporations.
The department will be successful and the District Court ruling will be overturned (see May 7, 1991). [US Congress, 9/10/1992]
The CIA says that it does not have the PROMIS database and search application (see Mid-1970s). The statement is made in response to a letter sent to CIA Director William Webster by the House Judiciary Committee on November 20 asking him to help them “by determining whether the CIA has the PROMIS software.” In response the CIA states, “We have checked with Agency components that track data processing procurement or that would be likely users of PROMIS, and we have been unable to find any indication that the [CIA] ever obtained PROMIS software.” However, information contradicting this will subsequently emerge. For example, a retired CIA official whose job it is to investigate the Inslaw allegations internally will tell Wired magazine that the Justice Department gave PROMIS to the CIA: “Well, the Congressional committees were after us to look into allegations that somehow the agency had been culpable of what would have been, in essence, taking advantage of, like stealing, the technology [PROMIS]. We looked into it and there was enough to it, the agency had been involved.” However, the official will say that when the CIA accepted PROMIS, it did not know that there was a serious dispute about the Justice Department’s ownership of the software. [Wired News, 3/1993]
The Justice Department refuses to provide the House Judiciary Committee with some equipment and documentation relating to its alleged theft of an enhanced version of the PROMIS software. The refusal is in response to a request for access to the equipment and documents sent by the committee in November, following allegations by used computer dealer Charles Hayes (see August 1990). However, W. Lee Rawls, the assistant attorney general for the Office of Legislative Affairs, says that although the committee can see the equipment and examine the documents that came with it based on a civil writ of possession, the committee cannot operate the equipment. Nor can the department provide a printout of the information contained in the equipment, as it does not have such a printout and “disclosure of this information would compromise an ongoing criminal investigation.” In addition, the committee cannot have access to some documents in civil division files, as providing them could harm a pending criminal investigation relating to the matter. These documents are non-public witness statements, attorneys’ notes about the statements and conversations with prosecutors, draft pleadings and memoranda, and other material, as well as exhibits sealed by a court. [US Congress, 9/10/1992]
The US Court of Appeals for the District of Columbia reverses two rulings in favor of Inslaw in the dispute over enhanced PROMIS software, following an appeal by the Justice Department (see October 12, 1990). The rulings had been issued by Bankruptcy Court for the District of Columbia (see September 28, 1987) and the US District Court for the District of Columbia (see November 22, 1989). The reversal is granted on what a House Judiciary Committee report favorable to Inslaw will call “primarily jurisdictional grounds.” The appeal court says the bankruptcy court was the wrong place to litigate the issues it decided and, in any case, the department has not violated automatic stay bankruptcy provisions. However, the appeal court notes that both lower courts found that the department had “fraudulently obtained and then converted Enhanced PROMIS to its own use,” and that “such conduct, if it occurred, is inexcusable.” [US Congress, 9/10/1992]
Anti-abortion protesters gather on a street corner in Wichita. [Source: Patriotic Thunder (.org)]Anti-abortion organization Operation Rescue (see 1986), under the new leadership of the Reverend Keith Tucci, conducts a seven-week occupation of three women’s clinics in Wichita, Kansas. Some 2,700 activists and protesters are arrested during the course of events. [Associated Press, 7/5/1993; Kushner, 2003, pp. 38-39] The occupation is part of what the organization calls the “Summer of Mercy,” which involves a series of clinic blockades, occupations, and harassment of abortion providers, clinic staff, and patients. The event lasts six weeks, and culminates in a rally that fills Wichita’s Cessna Stadium and features conservative Christian activist Dr. James Dobson. One of the clinics targeted is operated by Dr. George Tiller; Tiller will be shot by an anti-abortion activist in 1993 (see August 19, 1993) and murdered by another in 2009 (see May 31, 2009). [Associated Press, 7/5/1993] Some of the Operation Rescue members arrested face charges for attacking police officers trying to keep order at the clinics. Tucci and two other anti-abortion organization leaders, the Reverends Pat Mahoney and Joe Slovenec, are jailed until they agree to comply with Judge Patrick Kelly’s order not to blockade the clinics. Two other Operation Rescue leaders, Randall Terry and Michael McMonagle, are ordered along with Tucci, Mahoney, and Slovenec to leave Wichita; when they refuse to comply with Kelly’s initial order to stop the blockades after agreeing to it, Kelly observes, “You are learning for the first time, I think, that you can’t trust a damned thing they say.” Mahoney retorts, “Hell will freeze over before I surrender my constitutional rights.” He, Tucci, and Slovenec promise to return to Wichita despite the court orders and again protest at the clinics. [Associated Press, 8/31/1991; Associated Press, 7/5/1993] The Bush administration attempts to derail Kelly’s curbing of the anti-abortion activities; the Justice Department files a “friend of the court” brief challenging Kelly’s jurisdiction in the case. “The position we have taken before the Supreme Court of the United States is that the courts do not have jurisdiction, that it is a matter properly handled in state and local courts,” says Attorney General Richard Thornburgh. [Newport News Daily Press, 8/9/1991]
Entity Tags: Richard Thornburgh, US Department of Justice, Patrick Kelly, Operation Rescue, Michael McMonagle, Bush administration (41), George Tiller, James Dobson, Joe Slovenec, Keith Tucci, Pat Mahoney, Randall Terry
Timeline Tags: US Health Care, US Domestic Terrorism
The House Subcommittee on Economic and Commercial Law votes 10 to six to authorize the issuance of a subpoena to the Department of Justice for documents related to the Inslaw affair. The subpoena follows on from a refusal by Attorney General Richard Thornburgh to appear before the House Judiciary Committee (see July 17, 1991). [US Congress, 9/10/1992] Some of the documents will be forthcoming, but others will be reported missing (see July 31, 1991).
Responding to a Congressional subpoena (see July 25, 1991), the Justice Department sends most documents requested about the alleged theft of a version of the enhanced PROMIS software to the House Subcommittee on Economic and Commercial Law. However, the department says that 51 documents or files are missing and cannot be found. A report issued by the House Judiciary Committee in September 1992 will say that the subcommittee has still not received an adequate explanation on how the documents came to be missing. [US Congress, 9/10/1992]
Lois Battistoni, a former employee of the Justice Department’s criminal division, says that the PROMIS application may have been transferred from the department to a private business. She makes the claim in a sworn statement for the House Judiciary Committee in October 1991, and again in an interview in February of the next year. According to Battistoni, a criminal division employee had previously told her that there was a company chosen to take over PROMIS implementation contracts served by Inslaw at that time. This company was apparently connected to a top department official through a California relationship. Inslaw owner William Hamilton will speculate that this company is Hadron, Inc., as it was owned by businessman Earl Brian, who was linked to former Attorney General Edwin Meese. However, Battistoni says that she has little firsthand knowledge of the facts surrounding these allegations, and does not provide the committee with the name of the criminal division employee who made the claim to her, indicating department employees are afraid to cooperate with Congress for fear of reprisal. She also makes a number of allegations about the involvement of department employees in the destruction of documents related to the affair. [US Congress, 9/10/1992]
Following an adverse ruling in an appeals court, Inslaw files an appeal for a writ of certiorari to the Supreme Court. If the writ were granted, it would mean the Supreme Court agreed to hear a further appeal in the case. The appeals court had reversed bankruptcy and district court rulings favorable to Inslaw in its dispute with the Justice Department over the enhanced PROMIS software (see September 28, 1987, November 22, 1989, and May 7, 1991). The application will be denied (see January 13, 1992). [US Congress, 9/10/1992]
Retired 20-year Army intelligence veteran, classified security expert, and whistleblower Fred Westerman is hundreds of thousands of dollars in debt and unable to find work in the field he knows best. Beginning in 1985, Westerman headed a security firm that worked on the highly classified Continuity of Government program, which is designed to keep the government functioning in times of disaster (see 1985). The program is predominantly run by the clandestine National Program Office (see (1982 -1991)) and the Federal Emergency Management Agency (FEMA—see April 1, 1979-Present). Westerman reported several instances of waste, fraud, and abuse within the classified program to the FBI, the Army, and the inspector general’s office within FEMA (see 1986-1987). Westerman’s contract with the government was subsequently canceled (see December 1987) and the Justice Department launched an investigation of Westerman and his company when he attempted to file a lawsuit against the government (see November 1988 and November 1988). For the past three years, Westerman has been living in what CNN describes as an “intelligence twilight zone… unable to clear his name, unable to resolve his legal cases… caught in an unwinnable struggle with the powerful secret National Program Office.” Westerman has lost his security clearances, government contracts, and reputation (see 1990). “What assets I did have, have either been sold off or have been mortgaged to the hilt,” he tells CNN. “I am in financial disrepair. I am unemployable in the profession that I know best.” David Mann, a security consultant who served with Westerman, tells CNN: “I think what is happening to him particularly is that the federal attorneys and whoever is driving them to do their job are attempting to ruin the man through legal means.… It is a type of modern McCarthyism if you will.” [CNN Special Assignment, 11/17/1991]
A judge hearing the PROMIS case for the Department of Transportation Board of Contract Appeals (DOTBCA) says that findings by the Bankruptcy Court for the District of Columbia and the US District Court for the District of Columbia have left a “cloud” over the Justice Department. The two courts originally found for Inslaw (see September 28, 1987 and November 22, 1989), which is in dispute with the department over an enhanced version of the PROMIS software, but these rulings were overturned on appeal, mostly on jurisdictional grounds (see May 7, 1991). At a hearing, counsel for the department says, “I think those trials speak for themselves, and every order has been vacated.” However, the judge responds: “There is one problem. The fact that a judge or a court doesn’t have jurisdiction doesn’t mean that the court is completely ignorant. True, Mr. Bason [the bankruptcy court judge] and Mr. Bryant [the judge that heard the initial appeal] did not have jurisdiction, but they did make some very serious findings on the basis of sworn testimony. They had been truly vacated, and it may be that all the statutes to run have run and they can’t go anywhere. Those cases may be dead forever. But it has left a cloud over the respondent [the department].” The House Judiciary Committee will comment: “As the DOTBCA judge concluded, there definitely remains a cloud over the department’s handling of Inslaw’s proprietary software. Department officials should not be allowed to avoid accountability through a technicality or a jurisdiction ruling by the Appeals Court.” [US Congress, 9/10/1992]
Attorney General William Barr appoints Nicholas Bua, a retired federal judge from Chicago, as his special counsel to investigate and advise him on the Inslaw controversy. The affair has been running for nearly a decade and stems from a dispute over a contract signed by the Justice Department and Inslaw in 1982 (see March 1982). However, because Bua does not have independent status, the House Judiciary Committee will comment, “as long as the investigation of wrongdoing by former and current high level Justice officials remains under the ultimate control of the department itself, there will always be serious doubt about the objectivity and thoroughness of the inquiry.” [US Congress, 9/10/1992]
The US Supreme Court denies an application for a writ of certiorari made by Inslaw, meaning that the court will not hear its case. The application had been filed the previous year (see October 9, 1991), as Inslaw wanted to overturn an adverse ruling by an appeals court in its dispute with the Justice Department over the alleged theft of enhanced PROMIS software (see May 7, 1991). [US Congress, 9/10/1992]
The Government Accountability Office (GAO) releases a study of the Office of Professional Responsibility (OPR) called “Employee Misconduct: Justice Should Clearly Document Investigative Actions.” The report is drafted at the request of the House Government Information, Justice, and Agriculture Subcommittee. The GAO finds that:
OPR operates informally, does not routinely document key aspects of its investigations, and provides little background information in its case documentation;
OPR generally does not record the complete scope of and rationale behind its investigations, or of the decisions reached in the course of its investigations;
OPR’s conclusions that allegations are or are not substantiated are generally not explained;
In many instances, OPR does not pursue all available avenues of inquiry;
OPR counsel rely on an attorney’s judgment and informal consulting among attorneys within OPR as the basis for making decisions and reaching conclusions about specific investigations.
The GAO concludes that these failings expose the OPR and the department to a range of risks, such as if OPR’s informality led it to conclude an investigation prematurely, the department’s integrity could be compromised. In addition, if asked to defend an investigation against a charge that it was not aggressively pursued, OPR probably would not have sufficient documentation to do so. A review of the quality of an investigation based on the documentation would yield little information. Therefore, the GAO recommends that OPR:
Establish basic standards for conducting its investigations;
Establish case documentation standards;
Follow up more consistently on the results of misconduct investigations done by other units and what disciplinary actions, if any, are taken as a result of all misconduct investigations. [US Congress, 9/10/1992]
Rita Machakos, a paralegal at the Justice Department’s employment office, witnesses an employee of the US Department of Agriculture “spending an entire weekend shredding documents that described the administration’s role in obtaining $5.5 billion in US-taxpayer-guaranteed agricultural loans for Iraq from the Banca Nazionale del Lavoro” (BNL) (see 1985-1989). [Mother Jones, 1/1993]
Branch Davidian member Rita Riddle, who left the besieged Waco compound days before (see March 21, 1993), says that when Bureau of Alcohol, Tobacco and Firearms (BATF) agents raided the compound (see 5:00 A.M. - 9:30 A.M. February 28, 1993 and March 1, 1993), she saw shots fired from BATF helicopters. BATF and Justice Department officials have denied that any gunfire was delivered from the helicopters, which they say served as observation posts and instruments of intimidation during the raid. Riddle says bullets were coming straight down through the roof, and could only have come from helicopters. “They say these helicopters were not armed. Bull puck,” she tells reporters. “I heard them spraying the building when they went over.” BATF spokesman David Troy says flatly that “the helicopters did not overfly the compound.” The helicopters were made available to the BATF by the Texas National Guard, which had been informed by BATF agents that the compound may have housed a methamphetamine laboratory. Drug interdiction is one reason the National Guard can loan helicopters to another agency. BATF agents told the National Guard that their evidence was based on infrared scans, which located two “hot spots” that sometimes indicate a place where drugs are being manufactured. Riddle says those “hot spots” were places where the Davidians have heaters. “Once they go in there, they’ll be in for a big surprise,” she says. “To my knowledge, there’s nothing illegal in there.” [Los Angeles Times, 3/30/1993]
Deputy Assistant Attorney General Mark Richard, who represents Attorney General Janet Reno in the Branch Davidian situation (see 5:00 A.M. - 9:30 A.M. February 28, 1993 and March 1, 1993), holds meetings in Waco and San Antonio to learn about the infighting between FBI and other law enforcement officials. The next day, Reno hears Richard’s report, and assigns Ray Jahn as the Justice Department’s lead prosecutor and coordinator. [PBS Frontline, 10/1995] The infighting at Waco is largely between two camps: the FBI negotiators and the FBI Hostage Rescue Team, or HRT. The negotiators are willing to take whatever time is needed to win the release of everyone inside the compound, mostly by building trust and then using that trust to get people out. The HRT, more inclined to action than talk, has pressed since the beginning of the standoff to increase the pressure on Davidian leader David Koresh and his followers. Several times, the HRT has actively undermined negotiators’ efforts with the Davidians; at one point, the negotiators persuaded Koresh to let two people leave, but that very same night, HRT turned off the electricity to the compound, enraging Koresh (see March 12, 1993). Days later, the negotiators won the release of seven more people, but that same evening, HRT ordered the bulldozing of several Davidian cars outside the compound and bombarded the compound with loud music (see March 21, 1993). Negotiators have complained that whatever trust they have managed to secure has been undermined by the HRT. Two FBI agents who agree with the negotiators are the profilers Peter Smerick and Mark Young (see March 3-4, 1993), who warned their superiors that increasing the pressure on Koresh and the Davidians would precipitate a bloody, violent end to the standoff (see March 7-8, 1993). Smerick and Young also warned that the HRT’s tactics would drive the Davidians ever closer to Koresh, uniting them together by demonstrating that the government agents outside the compound are indeed their enemy, as Koresh preaches. Later investigation will show that the negotiators failed to make progress in part because of harassment from the HRT. [New Yorker, 5/15/1995]
Several dozen libertarian, right-wing “patriot,” and gun rights activists protest outside the besieged Branch Davidian compound (see 5:00 A.M. - 9:30 A.M. February 28, 1993, March 1, 1993, and March 25, 1993). In addition, right-wing extremist Linda Thompson has a cadre of armed “unorganized militia” members involved in the protests. [Moore, 1995] The protests will lead some in the Justice Department to speculate that organizations such as Thompson’s may attempt to effectuate an armed “rescue” of the Davidians (see April 17-18, 1993).
Attorney General Janet Reno discusses tear-gassing the Branch Davidian compound (see 5:00 A.M. - 9:30 A.M. February 28, 1993, March 1, 1993, and April 7, 1993) with senior Justice Department and FBI officials. At first she is reluctant to approve any such plan, asking repeatedly, “Why now, why not wait?” but as the discussion progresses, she becomes more convinced that action must be taken (see April 9, 1993). The plan is presented not as an all-out assault, but as a staged assault whereby gas is used on parts of the compound, theoretically allowing sect members to exit through uncontaminated areas. Reno asks if it is feasible to cut the water supply to the compound. [PBS Frontline, 10/1995] Reno has little real knowledge of the level of infighting and dissension among the FBI officials involved in the standoff (see March 31, 1993). The FBI officials who come to her office give no hint that many are recommending that the negotiations continue and the pressure on the Davidians be lessened. Reporter Peter Boyer will later note that Reno, a Washington outsider only a month into the job (see March 12, 1993), has no “cadre of confidants” willing to give her an unvarnished, complete picture of events. Instead, the FBI officials, led by Director William Sessions, present her with what Boyer will call a “united front,” all agreeing that negotiations have completely broken down and action is now the only option. [New Yorker, 5/15/1995] In 1995, FBI profiler Peter Smerick will claim that top FBI officials “misled” Reno by not providing her with work by himself and other FBI behavioral analysts and negotiators that warned of the risks of such an assault (see 1995). Unbeknownst to Reno, the Washington FBI officials have sent a high-priority request to the FBI commanders in Waco asking for “specific documentation to support our position” that tear gas is the only option. The request outlines how the information would be used to argue against waiting out the Davidians. The request also states the FBI’s plan for addressing questions about negotiations in the report to the attorney general: “The universal assessment of all involved—including FBI and outside consultants: that negotiation would not work,” it says. [Dallas Morning News, 3/6/2000]
A variety of military-grade CS gas canisters. A ruler lies between them as a size reference. It is unclear if the FBI plans to use canisters similar to these in the Davidian assault. [Source: British Ordnance Collectors]Attorney General Janet Reno approves a modified version of the FBI’s original plan to flush the Branch Davidian compound, Mt. Carmel, with tear gas and force the departure of the 80-odd members (see 5:00 A.M. - 9:30 A.M. February 28, 1993, March 1, 1993, and April 7, 1993). Reno rejected an earlier plan, instead asking for further review (see April 14-15, 1993). According to a later Justice Department report, she gives the prepared material “only a cursory review, leaving tactical decisions to those at Waco,” and begins discussing rules of engagement with FBI Director William Sessions and his top aides. She briefs President Clinton, who concurs with the plan after asking questions about measures designed to ensure the safety of the children in the compound (see March 28, 1993). According to Reno, who will later discuss her conversation with Clinton: “He said: ‘Have you carefully considered it? Have you looked at everything? Do you feel like this is the best way to go?’ And I said: ‘Yes, sir. It’s my responsibility, and I think it’s the best way to go.’” Ultimately, Clinton says, “it is your decision.” The plan has been under discussion since March 22 (see March 22, 1993); Reno will acknowledge that she has been appraised of such a plan since “around March 27th or sometime near the very end of March.” [New York Times, 4/20/1993; PBS Frontline, 10/1995]
Parameters of Plan - The stated mission of the plan is to “secure the surrender/arrest of all adult occupants of the residence while providing the maximum possible security for the children within the compound.” The plan spans some 48 hours, or until all the Davidians have left the building and surrendered. The raid will start with the first “insertion” of CS gas into the front left portion of the residence, the main building of the compound. After a period of time dependent on the Davidians’ response to the CS gas and any negotiations that might take place, more CS will be inserted into the back right portion of the residence. A third insertion will be made at an unspecified point in the residence. After that, all subsequent insertions will be made through the upper and lower windows of the building. The first three insertions will be made by two combat engineering vehicles (CEVs), military vehicles similar to Bradley fighting vehicles but lacking armaments. The CEVs to be used have been outfitted with boom-like arms capable of punching through the walls of the residence. On the booms are mechanical sprayers for the CS. After the third insertion, agents will fire “ferret” round projectiles through the windows; these are small, non-explosive grenade-like projectiles containing CS gas which break apart upon impact and deliver the gas. In addition, more CS will be inserted by the CEVs. HRT (hostage rescue team) and SWAT (special weapons and tactics) units have specific assignments. Maneuvers for the two CEVs, nine Bradleys, and one M-88 tank retrieval vehicle are also specified. FBI snipers are carefully positioned. A “medical annex” is placed to treat what the plan calls “the potentially large number of casualties which could exceed the current medical capabilities of any single agency present,” and there are procedures to be followed to arrest persons exposed to CS. The annex is prepared to evacuate seriously injured agents or Davidians to local and secondary hospitals, as well as the mass surrender of the Davidians if that occurs. The plan also provides for the possibility that the Davidians might not surrender. In that case, the plan states that “if all subjects failed to surrender after 48 hours of tear gas, then a CEV with a modified blade will commence a systematic opening up/disassembly of the structure until all subjects are located.” If Davidians are observed in the compound’s guard tower, agents will fire ferret rounds into the tower. Also: “If during any tear gas delivery operations, subjects open fire with a weapon, then the FBI rules of engagement will apply and appropriate deadly force will be used. Additionally, tear gas will immediately be inserted into all windows of the compound utilizing the four Bradley vehicles as well as the CEVs.”
No Frontal Assault - The plan has no provision for any sort of frontal assault by armed FBI agents; the planners feel that any such assault would almost certainly result in “significant casualties” among the agents, and might well trigger a mass suicide among the Davidians. [House Committee on Government Reform and Oversight, 8/2/1996]
Reno Deliberately Misinformed - Later investigations will show that Reno is being actively misinformed by the FBI in order to secure her approval for the tear gas plan. The FBI procured documentation from the on-site commanders in Waco that supports only the Washington officials’ desire for an aggressive assault using a heavy bombardment of tear gas, and omits material from FBI profiler Pete Smerick and FBI negotiators that warns against such a plan (see April 12, 1993 and 1995). The FBI information presented to Reno does not contain Smerick’s behavioral memos, omits complaints from Smerick and an array of negotiators that negotiations had been progressing until derailed by more aggressive FBI tactics, and omits warnings that using tanks or other force against the Davidians would cause violence and death. The report concludes, “Since negotiations began on Feb. 28, 1993, despite 51 days of efforts, the negotiators have concluded that they have not been able to successfully negotiate a single item with [Davidian leader David] Koresh.” [New Yorker, 5/15/1995; Wall Street Journal, 10/17/1995; Dallas Morning News, 3/6/2000]
Allegations of Child Abuse - A later Justice Department study will show that Reno changes her mind about the plan primarily because she fears the children in the compound are being abused. The FBI’s briefing book notes allegations of child abuse by Davidian leader David Koresh, both sexual and physical. Although the FBI has no evidence of current abuse taking place, someone in the FBI tells Reno that children in the compound are being raped and beaten. According to the Justice Department report, “someone had made a comment in one of the meetings that Koresh was beating babies.” Reno, who came to Washington with the reputation of being a child advocate, later says she “double-checked” the allegation and got “the clear impression that, at some point since the FBI had assumed command and control for the situation, they had learned that the Branch Davidians were beating babies.” However, it is highly unlikely that Koresh is abusing children, largely because the wounds he suffered in the February 28 shootout sharply limit his mobility. Dr. Bruce Perry, chief of psychiatry at Texas Children’s Hospital, has closely examined the children already released from the compound, and concluded that none of them had been subjected to sexual or physical abuse. Perry will later say of the child-abuse allegations, “The FBI maximized things they knew would ring a bell with her.” [New Yorker, 5/15/1995; Wall Street Journal, 10/17/1995] FBI Director William Sessions says on April 19 that no direct evidence exists of current sexual or physical abuse going on among the Davidians. Reno will later state that she possessed “no contemporary evidence” of such abuse. [PBS Frontline, 10/1995] Additionally, some FBI officials worry that Koresh and the other adults may try to break out of the compound using the children as human shields, though no evidence supports this fear. [House Committee on Government Reform and Oversight, 8/2/1996]
Reno Not Told CS Gas Can Be Flammable - The CS gas to be used is also flammable under certain conditions, a fact of which Reno may not be aware. [Dick J. Reavis, 7/19/1995; Wall Street Journal, 10/17/1995]
Exaggerated Warnings of Militia Members En Route - Reno will later state that she receives warnings during the briefings about the possibility that armed militia members may be preparing to converge on Waco to join Koresh in resisting the law enforcement forces gathered around the Mt. Carmel compound (see April 3, 1993). Later investigation shows that the “threat” of “armed militias” consists of one Indianapolis lawyer, Linda Thompson, who has promised to load people into a van, drive to Waco, and protest for the right to bear arms. Thompson says she is part of an organization called the Unorganized Militia of the United States, an organization of which few Justice Department officials are aware. [Wall Street Journal, 10/17/1995]
'Highly Irresponsible' - A House committee investigation in 1996 will find Reno’s decision to approve the assault “highly irresponsible,” and will find, “The final assault put the children at the greatest risk” (see August 2, 1996). [House Committee on Government Reform and Oversight, 8/2/1996]
Combat engineering vehicles (CEVs) lined up outside the blazing Branch Davidian compound. [Source: PBS]The FBI and local law enforcement officials begin their planned assault on the besieged Branch Davidian compound near Waco, Texas (see 5:00 A.M. - 9:30 A.M. February 28, 1993, March 1, 1993, and April 17-18, 1993), despite indications that the Davidians inside the compound will retaliate either by firing on the gathered law enforcement officials, by torching the main residential building, or perhaps both (see April 18, 1993). [PBS Frontline, 10/1995]
Warning - At 5:55 a.m., Richard Rogers, the commander of the FBI’s Hostage Rescue Team (HRT), orders two combat engineering vehicles (CEVs, unarmed modifications of Bradley fighting vehicles and the primary means for deplying CS “riot control agent” into the main building) deployed to the main building. One minute later, senior negotiator Byron Sage telephones the residence and speaks with Davidian Steve Schneider. At 5:59, Schneider comes to the phone. Sage tells him: “We are in the process of putting tear gas into the building. This is not an assault. We will not enter the building.” Schneider replies, “You are going to spray tear gas into the building?” Sage says, “In the building… no, we are not entering the building.” At the conclusion of the conversation, Schneider or another Davidian throws the telephone out of the building. [PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996; House Committee on Government Reform and Oversight, 8/2/1996] Minutes later, Schneider slips out, retrieves the phone, and ducks back inside. [Time, 5/3/1993]
Combat Vehicles Begin Deploying Gas, Davidians Open Fire - At 6:02 a.m., the two CEVs begin inserting CS gas into the compound, using spray nozzles attached to booms. The booms punch holes through the exterior walls of the building. The FBI uses unarmed Bradley Fighting Vehicles to deploy “ferret rounds,” military ammunition designed to release CS after penetrating a barricade such as a wall or window. As the CEVs and the Bradleys punch holes into the buildings for the deployment of the gas, Sage makes the following statement over the loudspeakers: “We are in the process of placing tear gas into the building. This is not an assault. We are not entering the building. This is not an assault. Do not fire your weapons. If you fire, fire will be returned. Do not shoot. This is not an assault. The gas you smell is a non-lethal tear gas. This gas will temporarily render the building uninhabitable. Exit the residence now and follow instructions. You are not to have anyone in the tower. The [guard] tower is off limits. No one is to be in the tower. Anyone observed to be in the tower will be considered to be an act of aggression [sic] and will be dealt with accordingly. If you come out now, you will not be harmed. Follow all instructions. Come out with your hands up. Carry nothing. Come out of the building and walk up the driveway toward the Double-E Ranch Road. Walk toward the large Red Cross flag. Follow all instructions of the FBI agents in the Bradleys. Follow all instructions. You are under arrest. This standoff is over. We do not want to hurt anyone. Follow all instructions. This is not an assault. Do not fire any weapons. We do not want anyone hurt. Gas will continue to be delivered until everyone is out of the building.” Two minutes later, Davidians begin firing on the vehicles from the windows. The gunfire from the Davidians prompts Rogers and FBI commander Jeffrey Jamar to decide to change tactics; at 6:07 a.m., the assault forces begin deploying all of the gas at once instead of dispersing it in a controlled manner over the course of 48-72 hours as originally envisioned. [Dean M. Kelley, 5/1995; PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996; House Committee on Government Reform and Oversight, 8/2/1996; USMC Weapons, 2002] (Jamar will later testify that before the assault even began, he was “99 percent certain” that the FBI would have to escalate its assault because the Davidians would open fire.) [House Committee on Government Reform and Oversight, 8/2/1996] As a CEV demolishes the back wall of the gymnasium area of the compound, negotiators broadcast: “David, we are facilitating you leaving the compound by enlarging the door.… Leave the building now.” [Cox News Service, 1/30/2000] Jamar will later explain that the Bradleys do not carry military weaponry. “Of course we had all the firepower removed,” he will say in a 1995 interview. “There were no cannons or anything on them. We used them for transportation. And they’re more than a personnel carrier—they’re a track vehicle. I mean it’s mud, just thick mud there the whole time. And the agents learned how to drive ‘em. But the idea was to protect them as best we could. And we didn’t know—they talked about blowing a 50—did they have rockets? Who knows? Did they have explosives buried in various vicinities? Are they prepared to run out with Molatov cocktails? What’s in their mind?” Jamar is referring to threats made by Koresh and other Davidians to blow up FBI vehicles. As for the CEVs, they are tanks modified for construction and engineering purposes, and are often used as bulldozers. Observers watching the events live on television or later on videotape will sometimes mistake the CEVs for actual tanks, though two M1A1 Abrams tanks are actually on site and take part in the assault. [PBS Frontline, 10/1995; PBS Frontline, 10/1995]
House Report: Davidians Would Certainly Consider FBI's Actions an Assault - A 1996 report by a House of Representatives investigative committee (see August 2, 1996) will note that it is almost impossible for the Davidians not to consider themselves under assault, with tank-like vehicles tearing holes in the building, CS being sprayed everywhere, grenade-like projectiles crashing through windows, men in body armor swarming around the compound, and the sounds of what seems like combat all around them. “Most people would consider this to be an attack on them—an ‘assault’ in the simplest terms,” the report will find. “If they then saw other military vehicles approaching, from which projectiles were fired through the windows of their home, most people are even more likely to believe that they were under an assault. If those vehicles then began to tear down their home there would be little doubt that they were being attacked. These events are what the Davidians inside the residence experienced on April 19, yet the FBI did not consider their actions an assault.” Moreover, the FBI did not consider the close-knit, home-centered community the Davidians have long since formed. “Their religious leader led them to believe that one day a group of outsiders, non-believers, most likely in the form of government agents, would come for them,” the report will state. “Indeed, they believed that this destiny had been predicted 2,000 years before in Biblical prophecy. Given this mindset, it can hardly be disputed that the Davidians thought they were under assault at 6 a.m. on April 19.” [House Committee on Government Reform and Oversight, 8/2/1996]
Monitoring from Washington - At 7:00 a.m., Attorney General Janet Reno and senior Justice Department and FBI officials go to the FBI situation room to monitor the assault. [PBS Frontline, 10/1995]
Buildings Breached - At 7:30 a.m., a CEV breaches the side of one of the main buildings and injects large amounts of tear gas into the interior of the compound. At 7:58 a.m., gas is fired into the second floor of the back-right corner of the building. The FBI asks for more ferret rounds, and by 9:30 a.m., 48 more ferret rounds arrive from Houston. The assault is hampered by the FBI’s dwindling supply of ferret rounds, a CEV with mechanical difficulties, and high winds dispersing the gas. Another CEV enlarges the opening in the center-front of the building, with the idea of providing an escape route for the trapped Davidians. A third CEV breaches the rear of the building, according to a later Justice Department report, “to create openings near the gymnasium.” [PBS Frontline, 10/1995]
Clinton Told Assault Progressing Well - At about 11 a.m., Reno briefs President Clinton, tells him that the assault seems to be going well, and leaves for a judicial conference in Baltimore. During this time, a CEV breaches the back side of the compound. At 11:40 a.m., the FBI fires the last of the ferret rounds into the building. At 11:45 a.m., one wall of the compound collapses. [PBS Frontline, 10/1995]
Transcriptionist Escapes - Ruth Riddle, the typist and transcriptionist sent inside the compound by the FBI to help Koresh finish his “Seven Seals” manuscript (see April 18, 1993), escapes the compound before the fire. She brings out a computer disk containing the unfinished manuscript. [Dean M. Kelley, 5/1995]
Davidians Set Fires throughout Compound - At 12:07 p.m., according to the Justice Department and House reports, the Davidians start “simultaneous fires at three or more different locations within the compound.” An FBI Hostage Rescue Team member reports seeing “a male starting a fire” in the front of the building. Later analyses show that the first fire begins in a second-floor bedroom, the second in the first floor dining room, and the third in the first floor chapel. Evidence also shows that the fires spread according to “accelerant trails,” such as a trail of flammable liquid being poured on the floor. Some of the Davidians’ clothing found in the rubble also shows traces of gasoline, kerosene, Coleman fuel (liquid petroleum, sometimes called “white gas”), and lighter fluid, further suggesting that the Davidians use accelerants to start and spread the fires. [PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996] Within eight minutes, the main building is engulfed in flames. One explosion, probably from a propane gas tank, is observed. Later investigation will find a propane tank with its top blown off in the debris. [House Committee on Government Reform and Oversight, 8/2/1996; House Committee on Government Reform and Oversight, 8/2/1996] After the compound burns to the ground, FBI agent Bob Ricks tells reporters, “David Koresh, we believe, gave the order to commit suicide and they all willingly followed.” [New York Times, 4/20/1993] Some of the Davidians who survive the conflagration later claim that the Davidians did not start the fires, but arson investigators with the Justice Department and the Texas Rangers, as well as an independent investigator, will conclude that Davidians did indeed start the fires in at least three different areas of the main building. [PBS Frontline, 10/1995] A 1993 Treasury Department report (see Late September - October 1993) will produce audiotapes of Davidians inside the compound and transcripts of conversations, secured via electronic surveillance, discussing the means of setting the fires. Voices on the tapes and in the transcripts say such things as: “The fuel has to go all around to get started.” “Got to put enough fuel in there.” “So, we only light ‘em as they come in,” or as a slightly different version has it, “So, we only light ‘em as soon as they tell me.” Once the fires begin, high winds and the breaches in the walls cause the flames to almost immediately begin consuming the compound. [Dean M. Kelley, 5/1995] In 1999, Colonel Rodney Rawlings, the senior military liaison to the HRT, will tell reporters that he heard Koresh give the orders to start the fires over FBI surveillance “bugs” (see October 8, 1999). Sage later describes the horror that goes through him and his fellow agents when they realize that the Davidians have torched the compound. He will recall “pleading” with the Davidians to leave the compound, and say: “I can’t express the emotions that goes through you. I had to physically turn around away from the monitor to keep my mind focused on what I was trying to broadcast to those people.” He will recall being horrified by the failure of people to flee the compound. “I fully anticipated those people would come pouring out of there,” he says. “I’d been through CS teargas on numerous occasions [in training exercises]. And I would move heaven and earth to get my kids out of that kind of an environment. And that’s frankly what we were banking on. That at least the parents would remove their children from that kind of situation.” Of Koresh, he will say: “By him intentionally lighting that place afire and consuming the lives of 78 people, including over 20 young children, was just inconceivable to me. In 25 years of law enforcement I’ve never been faced with someone that was capable of doing that.” [PBS Frontline, 10/1995] Six years later, the FBI will admit to releasing two pyrotechnic grenades into the compound, but insists the grenades did not start the fires (see August 25, 1999 and After).
Plea for Release - At 12:12 p.m., Sage calls on Koresh to lead the Davidians to safety. Nine Davidians flee the compound and are arrested [PBS Frontline, 10/1995] , including one woman who leaves, attempts to return to the burning building, and tries unsuccessfully to fight off a federal agent who comes to her aid. [New York Times, 4/20/1993] One of the nine runs out of the building at around 12:28 p.m., indicating that even 21 minutes after the fire, it is possible for some of the inhabitants to make their escape. However, most of the Davidians retreat to areas in the center of the building and do not attempt to get out. [House Committee on Government Reform and Oversight, 8/2/1996]
'Systematic Gunfire' - At 12:25 p.m., FBI agents hear “systematic gunfire” coming from inside of the building; some agents believe that the Davidians are either killing themselves or each other. The House committee investigation later finds that FBI agents hear rapid-fire gunshots coming from the compound; while many of the gunshots are probably caused by exploding ammunition, “other sounds were methodical and evenly-spaced, indicating the deliberate firing of weapons.”
Fire Department Responds; Search for Survivors - At 12:41 p.m., fire trucks and firefighters begin attempting to put out the flames. HRT agents enter tunnels to search for survivors, particularly children. [Dean M. Kelley, 5/1995; PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996] No fire trucks are at the scene when the assault begins, and it takes around 25 minutes for the first fire department vehicles to respond to emergency calls from their stations in Waco. Bob Sheehy, mayor of Waco, later says the city fire department “first got a call after the fire had already started.” Ricks explains that fire engines were not brought to the compound earlier for fear that firefighters might have been exposed to gunfire from the compound, and because FBI officials did not expect a fire. “We did not introduce fire to this compound, and it was not our intention that this compound be burned down. I can’t tell you the shock and the horror that all of us felt when we saw those flames coming out of there. It was, ‘Oh, my God, they’re killing themselves.’” [New York Times, 4/20/1993]
Death Toll - In all, 78 Branch Davidians, including over 20 children, two pregnant women, and Koresh himself, die in the fire. Nineteen of the dead are killed by close-range gunshot wounds. Almost all of the others either die from smoke inhalation, burns, or both. [PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996] The number is improperly reported in a number of media sources, and varies from 75 to 81. Even the House committee report does not cite a definitive total. [House Committee on Government Reform and Oversight, 8/2/1996] Some of the FBI negotiators involved in the siege later say that they feel continued negotiations might have saved many, perhaps all, of the lives of those inside the compound. In an interview later in the year, one negotiator tells a reporter, “I’ll always, in my own mind, feel like maybe we could have gotten some more people out.” [New Yorker, 5/15/1995] But HRT member Barry Higginbotham, one of the snipers who observes the Davidians throughout the siege, will later state that neither he nor anyone on his team believed the Davidians would ever willingly surrender. Higginbotham will say: “We just felt that if you make them suffer a little more, deny them perhaps a little more food, lighting, power, things like that inside, that would cause more pressure on their leadership inside. And perhaps their leadership would go to Koresh and pressure him to start negotiating in good faith. It was hard to believe that Koresh was ever negotiating in good faith.” [PBS Frontline, 10/1995] In the hours after the conflagration, Ricks tells reporters: “We had hoped the women would grab their children and flee. That did not occur and they bunkered down the children and allowed them to go up in flames with them.… It was truly an inferno of flames.” Ricks says that authorities receive reports, perhaps from some of the survivors, that the children had been injected with some kind of poison to ease their pain. This claim is never confirmed. [New York Times, 4/20/1993]
In the Bunker - FBI investigators combing the building after the conflagration find an enormous amount of guns and other weaponry inside. Dr. Rodney Crow, the FBI’s chief of identification services and one of the officials who examine the bodies of the Davidians, spends much of his time in the compound’s underground bunker, where many of the bodies are found. Crow later says: “There were weapons everywhere. I don’t remember moving a body that didn’t have a gun melted to it, intertwined with it, between the legs, under the arm, or in close proximity. And I’d say 18 inches to 20 inches would be close proximity.… The women were probably more immersed in the weapons than anyone else, because there was so much weaponry inside the bunker. It was like sea shells on a beach, but they were spent casings and spent bullets. If you had rubber gloves and tried to smooth it away, you’d tear your gloves away from the bullet points that are unexploded, or unspent ammunition. Then as you went through layer after layer, you came upon weapons that were totally burned. Until we got down to the floor, and it was mint condition ammunition there. Ammunition boxes not even singed.” The most powerful weapon Crow finds is a .50-caliber machine gun. Some of the bodies have gunshot wounds. Crow will say: “My theory is there was a lot of euthanasia and mercy killing. That group probably were just about as active as anywhere in the compound, mercifully putting each other out of misery in the last moments.” In total, 33 bodies are found inside the bunker; almost all the women and children found inside the compound are in the bunker. Many are found to have died from suffocation or smoke inhalation (two died from falling debris), but some died from gunshot wounds, and one woman was stabbed to death. [PBS Frontline, 10/1995; PBS Frontline, 10/1995] Local medical examiner Nizam Peerwani later says he does not believe the people in the bunker committed suicide, saying: “There has been a lot of speculation if this is a mass suicide or not. And—did they all go there to die? Ah, we don’t really think so. What I feel personally is that they tried to escape. A bunker was perhaps the safest area in the compound.” [PBS Frontline, 10/1995] Sage will say that he knew the children were dead sometime around 12:30 p.m. He recalls terminating the negotiations at that time, “because I didn’t want the loudspeaker bank to interfere with instructions being given on the ground. At that point in time, I walked over to the site in shock, basically. And, uh, the first thing I asked is, ‘Where are the kids?’” He is told, “Nowhere.” Sage will say: “They had not come out. They had been consumed.” [PBS Frontline, 10/1995]
Koresh's Fate - Koresh and Schneider are found in a small room the authorities call “the communication room.” Koresh is dead of a single gunshot wound to the forehead. Schneider is dead from a gunshot wound in the mouth. Peerwani later says: “Did David Koresh shoot himself and Schneider shoot himself? Or did Schneider shoot David Koresh and then turn around and shoot himself? Certainly both are possible. We cannot be certain as to what really transpired.” [PBS Frontline, 10/1995]
No Ill Effects from Gas - Peerwani and his colleagues examine the bodies for damage caused by the CS gas used in the assault, and find none. While many of the Davidians were exposed to the gas, according to tissue and blood studies, none inhaled enough of it to cause anything more than short-term discomfort. Concurrently, Peerwani and his colleagues find no damage from the propellant used in the ferret rounds. A fire report later written by Texas-based investigators will call the tear gas operation a failure at dispersing the Davidians. [PBS Frontline, 10/1995; PBS Frontline, 10/1995] Medical examinations show that some of the children may well have been overcome by the gas, and rendered unable to escape, but the compound had not been gassed for an hour before the fires began, and CS has a persistence factor of only 10 minutes—in other words, the effects should have worn off by the time the fires broke out. The gas proves ineffective against the adults, because the adult Davidians are equipped with gas masks. [PBS Frontline, 10/1995]
Wrongly Executed Plan - The plan as signed by Reno called on law enforcement forces to deploy tear gas into the compound at stated intervals, then have agents retreat to await evacuees before approaching again. This “passive,” “restrained” approach was to have been followed for up to 72 hours before using assault vehicles to force entry. Instead, the agents wait only 12 minutes before beginning a motorized vehicle assault. [New Yorker, 5/15/1995]
Taking Responsibility - One of the unlikely “heroes” of the debacle is Reno. She signed off on the attack (see April 17-18, 1993), and within hours of the attacks, she holds a televised press conference where she says: “I made the decision. I am accountable . The buck stops here” (see April 19, 1993). She repeats this statement over and over again on national television. [New Yorker, 5/15/1995]
Entity Tags: Bob Ricks, Bob Sheehy, Branch Davidians, David Koresh, FBI Hostage Rescue Team, Barry Higginbotham, Federal Bureau of Investigation, Janet Reno, Jeffrey Jamar, Byron Sage, US Department of Justice, Nizam Peerwani, William Jefferson (“Bill”) Clinton, Richard Rogers, Rodney Rawlings, Rodney Crow, Ruth Riddle, Texas Rangers, Steve Schneider
Timeline Tags: 1993 Branch Davidian Crisis
The National Voter Registration Act (NVRA), or the “Motor Voter” Bill, signed into law by President Clinton, increases opportunities for voter registration. It particularly impacts minority and low-income voters. The NVRA requires states to provide for voter registration by mail, to allow voters to register when they receive driver’s licenses, and to allow voter registration at state agencies such as welfare and unemployment offices. The NVRA provides for the Justice Department to use federal courts to ensure compliance, and gives the Federal Election Commission (FEC) the responsibility of helping the 50 states develop mail-in voter registration forms. (In 2002, that responsibility will be shifted to the Election Assistance Commission under the Help America Vote Act—see October 29, 2002.) The NVRA takes effect on January 1, 1995, in all but six states—Idaho, Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming—because they have no voter registration requirements, or they have election-day registration at polling places. Arkansas, Vermont, and Virginia are given extra time to comply with the NVRA because they need to modify their state constitutions. Many states, including California, Illinois, Michigan, Mississippi, Pennsylvania, New York, South Carolina, Vermont, and Virginia, will refuse to comply with the NVRA, and the resulting court cases will establish the constitutionality of the NVRA, and the Justice Department will order the states to drop their objections and comply with the act. [American Civil Liberties Union, 2012; US Department of Justice, 2012]
In interviews conducted for the Justice Department’s probe of the FBI’s 51-day siege of the Branch Davidian compound (see October 8, 1993), several FBI agents present during the siege and/or final assault say the bureau abandoned negotiations much too early and instead implemented aggressive measures that were counterproductive (see March 23, 1993). The interviews will not be included in the Justice Department’s report, and will not be released until December 1999, when they are made available to the special counsel investigating the FBI’s conduct during the final assault (see September 7-8, 1999).
Negotiators 'Had the Rug Pulled Out from under Them' - Some negotiators say during their interviews that because the FBI used punitive paramilitary actions (see March 12, 1993, March 14, 1993, March 17-18, 1993, March 21, 1993, March 22, 1993, March 23-24, 1993, March 25-26, 1993, April 7, 1993, April 10, 1993, and April 17-18, 1993), many Davidians chose to remain inside the compound rather than leave. Gary Noesner, the FBI’s negotiation coordinator for the first weeks of the siege, says, “The negotiators’ approach was working until they had the rug pulled out from under them” by aggressive tactical actions. Noesner’s replacement, Clint Van Zandt, agrees, saying the negotiators’ position was “akin to sitting on the bow of the Titanic and watching the iceberg approach.” Former FBI profiler Pete Smerick, who warned early in the siege that the aggressive tactics being used by the FBI might backfire (see March 3-4, 1993 and March 7-8, 1993), says that the FBI “should not send in the tanks, because if they did so, children would die and the FBI would be blamed even if they were not responsible.… The outcome would have been different if the negotiation approach had been used. More people would have come out, even if Koresh and his core never did.”
Negotiators Submitted Own Plan for Tear-Gas Assault - Noesner says that on March 22, he and other negotiators submitted their own plan for gassing the compound, in hopes that their more moderated plan would be chosen over a more aggressive plan from the Hostage Rescue Team (HRT). “This showed a clear realization… that the negotiations were basically over. They knew they were at an impasse,” Noesner says of FBI negotiators. “They recommended that tear gas be used because they realized this was going to happen anyway and they wanted to control it, to use it with leverage in the negotiations. The tactical interests just wanted to throw the gas in.” The negotiators’ plan became the blueprint for the plan accepted by Attorney General Janet Reno. “It would be allowed to work by letting them sit in it. The idea was to increase pressure but not in a way to provoke a violent response,” Noesner says.
Negotiators' Positions Disputed - FBI agent Byron Sage, one of the senior agents present during the siege, disagrees with some of his colleagues’ comments. In an interview repeatedly cited in the Justice Department report, Sage says: “Could we have gotten a few more people out [had the FBI used different tactics]? Maybe so, and God knows, any life that we could’ve saved would’ve been important. But it’s a total what-if. The fact remains that we did everything we could.” According to former White House counsel Webster Hubbell, also interviewed for the Justice Department report, Sage told him in a phone call that further negotiations were useless, and that some kind of assault on the compound was the only way to resolve the situation. Sage disputes Hubbell’s recollections, saying, “I never said negotiations were abandoned or at a total impasse.” Van Zandt, speaking to reporters in 1999, will say that he is not surprised to learn that Sage, and not Van Zandt, received Hubbell’s phone call. “I probably would’ve told him a lot different,” Van Zandt will recall. “When anyone from Washington asked who should we talk to, [on-site commander Jeffrey] Jamar strongly suggested Sage because he would speak the company line.… I don’t say [Sage] was Jeff Jamar’s man in a negative sense. But Jamar trusted him and knew he’d be working for Jamar when this was all over.” Van Zandt will recall warning “whoever would listen” that the plan was too risky and wouldn’t work. “That fell on deaf ears. I said we’re playing into Koresh’s prophecies. We’re doing what he wants.” Van Zandt will say that shortly before the assault he told the other negotiators what was coming. “It was a very deep, sobering time,” he will recall. Sage will dispute Van Zandt’s recollections also. “I don’t remember anyone jumping up and disagreeing,” he will say. “Hindsight is 20/20. We all agreed that we had reached a point where we would try to force the issue. If that meant the exercise of some force, then tear gas was the lowest level of force available.” [Dallas Morning News, 12/30/1999; USA Today, 12/30/1999]
Entity Tags: Peter Smerick, FBI Hostage Rescue Team, David Koresh, Clinton R. Van Zandt, Byron Sage, Branch Davidians, Federal Bureau of Investigation, Jeffrey Jamar, Gary Noesner, Janet Reno, US Department of Justice, Webster Hubbell
Timeline Tags: 1993 Branch Davidian Crisis
The Justice Department issues a 187-page report clearing department officials of wrongdoing in the Inslaw affair, which concerned the alleged misappropriation of an enhanced version of PROMIS software. According to a department press release, “there is no credible evidence that department officials conspired to steal computer software developed by Inslaw, Inc. or that the company is entitled to additional government payments.” This concurs with a previous report by Nicolas Bua, a special counsel appointed by the department. The main points of the report are:
The use of PROMIS by the Executive Office of United States Attorneys and in US attorneys’ offices conforms with contractual agreements, and Inslaw is not entitled to additional compensation for the use of its PROMIS software;
No independent counsel should be appointed and the matter should be closed;
The investigative journalist Danny Casolaro, who died while investigating the Inslaw affair and other issues, committed suicide;
MIT professor Dr. Randall Davis was hired to compare the computer code in Inslaw’s PROMIS software with the code in the FBI’s FOIMS software, which Inslaw claimed was a pirated version of PROMIS. Davis concluded that there was no relation between FOIMS and PROMIS;
Two of the people who made allegations about the distribution of PROMIS outside the Justice Department, Michael Riconosciuto and Ari Ben-Menashe, are untrustworthy. The departmental press release calls them “primary sources relied on by Inslaw”;
None of the anonymous sources that had previously been reported to have made statements supportive of Inslaw came forward, despite assurances from Attorney General Janet Reno that they would be protected from reprisals. The press release says, “Individuals who were identified as sources denied making the statements attributed to them by Inslaw”;
The department did not obstruct the reappointment of bankruptcy Judge George Bason, who ruled in favour of Inslaw (see September 28, 1987, November 24, 1987, December 8, 1987, December 15, 1987, and January 12, 1988);
No documents related to the matter have been destroyed by the Justice Department command center;
There is no credible evidence that Inslaw’s PROMIS is being used elsewhere in the government (see 1982-1984, December 11, 1990, and May 2008), or has been improperly distributed to a foreign government or entity (see May 6, 1983, May 12, 1983, November 1990, and January 1991);
PROMIS was not stolen to raise money to reward people working for the release of American hostages in Iran, to penetrate foreign intelligence agencies, as part of a US-Israeli slush fund connected with the late British publisher Robert Maxwell, or in aid of a secret US intelligence agency concealed within the Office of Special Investigations Nazi-hunting unit. [US Department of Justice, 9/27/1994]
President Clinton issues Executive Order 12949, which marginally extends the powers of the Justice Department to conduct warrantless surveillance of designated targets, specifically suspected foreign terrorists. Perhaps the most controversial aspect of the order comes in the first section, which reads, “Pursuant to section 302(a)(1) of the [Foreign Intelligence Surveillance] Act [FISA], the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.” [US President, 2/9/1995] As with then-president Jimmy Carter’s own May 1979 order extending the Justice Department’s surveillance capabilities (see May 23, 1979), after George W. Bush’s warrantless domestic wiretapping program will be revealed in December 2005 (see December 15, 2005), many of that program’s defenders will point to Clinton’s order as “proof” that Clinton, too, exercised unconstitutionally broad powers in authorizing wiretaps and other surveillance of Americans. These defenders will point to the “physical search” clause in Clinton’s order to support their contention that, if anything, Clinton’s order was even more egregrious than anything Bush will order. This contention is false. [50 U.S.C. 1802(a); Think Progress, 12/20/2005] Under FISA, the Attorney General must certify that any such physical search does not involve the premises, information, material, or property of a United States person.” That means US citizens or anyone inside the United States. Clinton’s order does not authorize warrantless surveillance or physical searches of US citizens. [US President, 2/9/1995; Think Progress, 12/20/2005]
Deputy Attorney General Jamie Gorelick issues a memo establishing procedures to regulate prosecutors’ and criminal investigators’ access to intelligence information generated in the wake of the 1993 WTC bombing cases (see February 26, 1993). These new procedures effectively extend the so-called “wall” that arose in the early 1980s. During the criminal investigation of the bombing, the FBI came across counterintelligence information related to Islamic extremists operating inside the United States, so it began an intelligence investigation. The new procedures are established because the Justice Department does not want to be perceived as using warrants issued under the Foreign Intelligence Surveillance Act (FISA), which are thought to be easier to obtain than criminal warrants, to further the criminal investigations, because this might possibly lead to problems in court (see Early 1980s). In the memo, Gorelick, who will later be a 9/11 Commissioner (see December 16, 2002), acknowledges that the procedures go “beyond what is legally required.” [US Department of Justice, 11/2004, pp. 28 ; Lance, 2006, pp. 549-550] A similar set of controversial procedures is issued later covering all intelligence investigations (see July 19, 1995). However, Andrew McCarthy, one of the WTC prosecutors cut off from the information, will later say this policy is “excessively prohibitive” and “virtually guaranteed intelligence failure” in the fight against terrorism. McCarthy will also note that there already are procedures in place to prevent the misuse of FISA-derived evidence. [National Review, 4/19/2004]
Bin Laden’s brother-in-law Mohammed Jamal Khalifa, who is being detained in the US, files a civil suit to have his possessions returned to him. These possessions, confiscated at the time of his arrest, include an address book and computer files linking him to Islamic militancy (see December 16, 1994-May 1995 and Late December 1994-April 1995). On this day, the Justice Department states that it has no objection to returning his possessions to him. Author Peter Lance will later call these possessions a “treasure trove of al-Qaeda related intelligence” that the US loses access to. While some or all of material may have been copied, having the originals would increase their value in future trials. [Lance, 2006, pp. 162] Khalifa will be deported from the US with all his possessions in early May 1995 (see April 26-May 3, 1995).
Two US Senators, Lauch Faircloth (R-NC) and Larry E. Craig (R-ID), ask the Justice Department to explain rumors they have heard from militia groups that federal agents are training at Fort Bliss, Texas, to assault those militia groups. In a letter, Faircloth and Craig ask about Fort Bliss and police training, writing in part, “You are doubtless aware of the concerns being raised in many quarters about what is perceived as the growing militarization of our domestic law enforcement agencies.” When the letter becomes publicly known, aides for both senators will claim that the senators are merely seeking information and concerned only about federal police agencies’ going beyond their normal training. The aides will claim that the letter does not mention the paramilitary groups, and will say neither Faircloth nor Craig support such groups. In a separate letter to Attorney General Janet Reno, Representative Steve Stockman (R-TX) makes the same accusation, saying that he has heard from militia group representatives that “New World Order” agents (see September 11, 1990) were preparing to invade them. Stockman calls these group representatives “reliable sources.” Stockman’s “reliable sources” told him that the assault was scheduled for March 25. It is unclear what Stockman believes had happened to that scheduled assault, which did not take place. Fort Bliss spokesperson Jean Offutt calls the warnings “ridiculous,” and Justice Department officials call them “nonsense.” Stockman, like Faircloth and Craig, says he has no ties to paramilitary groups, a statement that is false (see 10:50 a.m. April 19, 1995 and April 23-24, 1995). [New York Times, 5/2/1995]
Merrick Garland, the head of the Justice Department’s criminal division in Washington, receives an “Urgent” report on his computer from Oklahoma City. The report concerns the bomb that has just ripped through the Murrah Federal Building (see 8:35 a.m. - 9:02 a.m. April 19, 1995). Some of the report is speculation and some of it is incorrect. It was hastily compiled and sent out from the administrative office of the US Attorney for the Western District of Oklahoma. The report reads in part: “An explosion was heard. Black smoke billowed from a few blocks north.… The explosion rocked the private leased space which houses the US Attorney’s office three blocks north from the federal courthouse.” The report gives details about the federal safety officials sent to investigate: “Along the three-block walk, they found massive glass in the streets from several of the high-rise buildings. Along the way, walking wounded were everywhere, along with emergency rescue vehicles. It appears, and has been speculated, that a massive bomb exploded in the area of ATF, DEA, or Secret Service offices in the Murrah Federal Building. Employees from HUD indicated there were a few suspected deaths, and a couple of critically injured.… Damage to the Murrah building included the front of the building being blown off, several floors seem to be missing, and you can see right through the building in the area of the 7th, 8th, and 9th floors.” Safety officials have inspected the nearby federal courthouse and found extensive damage there as well. “It appeared some small explosions were continuing, perhaps gas lines.” Garland enters the office of Deputy Attorney General Jamie Gorelick, who calls Attorney General Janet Reno with the news. Reno asks for further information as it comes in. Garland looks for television news reports but sees nothing yet. Another “Urgent” report comes over his computer, again from the US Attorney’s office for the Western District in Oklahoma, and again mixing factual details with errors. “Information was received by the district that it was a bomb,” it reads. “Information was received by the district that there was a second bomb and it was NOT detonated. The northeast side of the Alfred P. Murrah Federal Building was blown out. The 9th floor of the building is gone. All grand jurors have been evacuated. One WDOK (Western District of Oklahoma) employee has a child in the day care center in the Federal Building. Unconfirmed reports from the district were six children in the day care center killed, although CNN is reporting that all of the children are safe. The district reported that there was a bomb threat at a church located north of Oklahoma City. In reviewing cases, the US Attorney’s office initially reported that a defendant in a methamphetamine case had apparently made threats against the government.” Garland now sees pictures from the scene on television news reports, and realizes immediately that the devastation had to have been caused by a bomb and not a gas main break or any other accidental occurrance. By this time, Garland’s office is filling with prosecutors and staffers, stunned at the scenes they are witnessing on TV. Garland meets again with Gorelick, and both meet with Reno. Their first priority is to take control of the situation, and Reno alerts the Federal Emergency Management Agency (FEMA). A third “Urgent” report comes in; Garland reads: “A Channel 4 [local Oklahoma City television station] reporter reported the Nation of Islam has claimed responsibility for the bombing.… (see 10:00 a.m. April 19, 1995 and After) Dahlia Lehman, the victim witness coordinator in the Western District of Oklahoma, has a daughter employed at the DEA office in the Alfred Murrah Federal Building.” Garland leaves the Justice Department and runs across the street to the FBI building. Stepping into the Strategic Information Operations Center (SIOC), he is amazed at the number of tips already pouring in about the bombing. He stays in the SIOC office for much of the day, coordinating leads and details as information arrives. FBI Director Louis Freeh is in an adjacent room; like Garland, he is collating and processing information. Reports of bomb threats swamp the offices throughout the day (see 9:22 a.m. April 19, 1995 and 10:00 a.m. and After, April 19, 1995). [Serrano, 1998, pp. 182-187]
President Clinton declares a state of emergency for Oklahoma City. Attorney Janet Reno is at the left. [Source: The Oklahoman]In a live television press conference, President Clinton addresses the nation regarding the morning’s bombing in Oklahoma City (see 8:35 a.m. - 9:02 a.m. April 19, 1995). He says: “The bombing in Oklahoma City was an attack on innocent children and defenseless citizens. It was an act of cowardice and it was evil. The United States will not tolerate it. And I will not allow the people of this country to be intimidated by evil cowards. I have met with our team which we assembled to deal with this bombing, and I have determined to take the following steps to assure the strongest response to this situation. First, I have deployed a crisis management under the leadership of the FBI (see After 9:02 a.m., April 19, 1995), working with the Department of Justice, the Bureau of Alcohol, Tobacco and Firearms, military and local authorities. We are sending the world’s finest investigators to solve these murders. Second, I have declared an emergency in Oklahoma City. And at my direction, James Lee Witt, the director of the Federal Emergency Management Agency, is now on his way there to make sure we do everything we can to help the people of Oklahoma deal with the tragedy. Third, we are taking every precaution to reassure and to protect people who work in or live near other federal facilities. Let there be no room for doubt. We will find the people who did this. When we do, justice will be swift, certain, and severe. These people are killers and they must be treated like killers. Finally, let me say that I ask all Americans tonight to pray, to pray for the people who have lost their lives, to pray for the families and the friends of the dead and the wounded, to pray for the people of Oklahoma City. May God’s grace be with them. Meanwhile, we will be about our work. Thank you.” Clinton asks Americans to pray for the victims. Attorney General Janet Reno follows Clinton in the conference, and says, “The death penalty is available and we will seek it.” She refuses to speculate on whether the date of the bombing—the two-year anniversary of the Branch Davidian tragedy (see April 19, 1993 and April 19, 1993 and After)—is a coincidence or something more. “We are pursuing all leads,” she says. “This has been a tragic and heartbreaking day.… We cannot tell you how long it will be before we can say with certainty what occurred and who is responsible but we will find the perpetrators and we will bring them to justice.” At another time during the same day, Clinton tells a Des Moines reporter: “I was sick all day long. All of us have been looking at the scene where those children were taken out, and all of us were seeing our own children there. This is an awful, awful thing.” [PBS, 4/19/1995; Los Angeles Times, 4/20/1995; Associated Press, 4/20/1995; Serrano, 1998, pp. 187] Clinton press secretary Michael “Mack” McCurry later credits Clinton for putting an end to what he will call “the anti-Arab hysteria that almost swept this country. Because remember, in the first several hours, everyone was pointing fingers at Arab terrorists (see 10:00 a.m. April 19, 1995 and After and April 19, 1995), which turned out to be obviously wrong.” [PBS Frontline, 2000]
The press reports that Representative Steve Stockman (R-TX) received a fax shortly after the Oklahoma City bombing (see 8:35 a.m. - 9:02 a.m. April 19, 1995) that described the effects of the blast (see 10:50 a.m. April 19, 1995). FBI investigators initially believed that Stockman received the fax three minutes before the 9:02 a.m. blast, but later determined that it had been sent shortly afterwards. They believe that the fax may have been sent by Mark Koernke, a member of the Michigan Militia. Authorities are seeking Koernke for questioning, but say that questioning him is not a high priority. [New York Times, 4/23/1995; 'Lectric Law Library, 4/24/1995] The fax will later be determined to have been sent around 10:50 a.m., almost two hours after the blast. Subsequent reporting claims that Stockman received the fax from Libby Molloy, the former Republican chairwoman from Orange County, Texas, who has ties to the Michigan Militia. Texas State Senator Mike Galloway also says that his office received a copy of the fax the same day, and turned it over to the FBI. The fax contained the word “Wolverine” stamped at the top; Molloy now works for Wolverine Productions, a Michigan firm that produces shortwave broadcasts aimed at militia audiences. [Dallas Morning News, 4/25/1995] Koernke broadcasts via Wolverine Productions. Stockman will deny knowing either Molloy or Koernke, though Molloy will later say that Stockman’s office has provided Wolverine Productions with information helpful for Koernke’s broadcasts. [Time, 5/8/1995] Stockman releases a statement concerning the fax and the subsequent press reporting, writing in part: “On the day of the Oklahoma City bombing someone sent our office an anonymous fax which appeared to relate to that tragedy. Our office—not aware of the bombing or the meaning of the fax—set it aside. Our office—like the offices of most public officials, receives every imaginable kind of mail from the public. This fax was no different. After my staff heard news reports of the tragedy—the fax was retrieved and I was made aware of it. I immediately instructed my staff to turn the fax over to the FBI. My office did so within minutes. There has been some confusion in the media over when my office received this fax and when we turned it over to the FBI. There has been no confusion in my office—we turned it over right away.” Stockman says the FBI has confirmed his version of events, and attaches a statement from FBI official John Collingwood showing that he sent the fax “at 11:57 a.m. on April 19, 1995, to the FBI Office of Public and Congressional Affairs.” Stockman also says that a member of his staff sent another copy of the fax to the National Rifle Association (NRA) on April 20, and says, “I believe the staffer acted in good faith, nonetheless, this was done without my knowledge.” Stockman believes he received the fax because of a memo he sent to Attorney General Janet Reno on March 22, 1995, asking if the Justice Department planned any raids against “citizen’s militia” groups and warning of a Branch Davidian-like debacle (see April 19, 1993 and April 19, 1993 and After) if the raids were actually carried out. ['Lectric Law Library, 4/24/1995] The Houston Press will later report that the initial confusion about the timing of the fax was caused by the NRA, whom the Press will call “Stockman’s chief patron.” The Press will also note that Stockman has ties to the militia movement, and in a recent Guns and Ammo magazine article, accused the Clinton administration of deliberately killing the Branch Davidians and burning their compound in order to justify its ban on assault weapons (see September 13, 1994). Stockman says he regrets “some of the language he used” in the article. Stockman has also associated himself with anti-Semitic radio show host Tom Valentine, and railed against “outside influences,” presumably Jewish, in the Federal Reserve and other federal financial institutions. [Houston Press, 6/22/1995]
Entity Tags: Mark Koernke, Houston Press, Federal Bureau of Investigation, Clinton administration, Janet Reno, Libby Molloy, US Department of Justice, John Collingwood, Tom Valentine, Steve Stockman, Wolverine Productions, Michigan Militia, Mike Galloway, National Rifle Association
Timeline Tags: US Domestic Terrorism
Joseph H. Hartzler. [Source: Associated Press]The US Justice Department names Joseph H. Hartzler, an Assistant US Attorney in Springfield, Illinois, to lead its prosecution of accused Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995, April 21, 1995, and May 16, 1995). Attorney General Janet Reno has moved Merrick Garland, who oversaw the initial phase of the bombing investigation, back to Washington to head the Justice Department’s criminal division. She creates what becomes known as the OKBOMB task force, a trial team focusing on continued investigation and the prosecution of McVeigh and his alleged accomplice, Terry Nichols. Reno selects Hartzler from dozens of resumes submitted by government lawyers from around the country. In the 1980s, Hartzler, who suffers from multiple sclerosis and is wheelchair-bound, helped convict four Puerto Rican nationalists accused in a bombing plot, and helped prosecute a federal judge in Chicago, in what became known as the “Greylord investigation.” He has worked as the chief of both the criminal and civil divisions in Chicago, one of the country’s largest US Attorney’s offices. Arlene Joplin, an Oklahoma City prosecutor, will remain on Hartzler’s prosecution team. Justice officials say that Hartzler was chosen because of several factors, including his background in complex criminal cases, terrorist prosecutions, and his ability to work with other government lawyers already on the case. Hartzler is asked by a criminal defense attorney not involved in the case what he thinks about it. Hartzler responds: “Whoever did this should spend some time in hell. I just want to accelerate the process.” Hartzler vows to have no press conferences, and will in fact have very few, though his team does have a few media “favorites,” most notably Jeffrey Toobin, a writer for the New Yorker and a legal analyst for ABC News who once worked with two of the OKBOMB staffers and is considered a supporter of the prosecution. [New York Times, 5/22/1995; Serrano, 1998, pp. 249-250] Missouri criminal defense lawyer Michael B. Metnick will later say of Hartzler: “His integrity is beyond reproach. He’s a prosecutor I can turn my back on.” Hartzler will tell a reporter that he asked for the McVeigh prosecution because “I thought I could make a difference.” [New York Times, 6/2/1997]
Attorney General Janet Reno, who signed the 1995 Procedures memo. [Source: US Department of Justice]The Justice Department issues the “wall” memo, a later heavily criticized memo that establishes procedures to regulate the flow of information from FBI intelligence investigations to criminal investigators and prosecutors. Such procedures already exist, but this “wall” is now formalized and extended. The memo is signed by Attorney General Janet Reno, but is based on a similar one recently issued by Deputy Attorney General Jamie Gorelick governing the 1993 WTC bombing cases (see March 4, 1995). The wall exists to prevent defendants from successfully arguing in court that information gathered under a warrant issued under the Foreign Intelligence Surveillance Act (FISA) should not be used in a criminal prosecution, as the standard for obtaining a FISA warrant is considered to be lower than that for obtaining a criminal search warrant (see Early 1980s). Such arguments are usually unsuccessful, according to the Justice Department’s Office of Legal Counsel, which believes that courts are showing “great deference” to the government when such challenges are made. The procedures, which now apply to all intelligence investigations regardless of whether or not a FISA warrant has been issued, state that the FBI must consult the Justice Department’s Criminal Division, not local United States Attorneys’ offices, about intelligence investigations when it is considering starting a parallel criminal investigation, and that it must do so when there is reasonable indication of a significant federal crime. This means that FBI headquarters has veto power over whether a field office can contact a local prosecutor about an intelligence investigation. However, Criminal Division prosecutors should only be consulted and cannot control an investigation. [Office of the Attorney General, 7/19/1995; US Department of Justice, 11/2004, pp. 25-30 ] These procedures will be implemented in such a way that even greater restrictions are placed on information sharing (see (Late 1995-1997)), although a partial exception will be created for the Southern District of New York, which handles a lot of terrorism work (see August 29, 1997). The procedures will also be much criticized for the way they are implemented in the FBI (see July 1999). The increased barriers to information sharing often mean that the FBI monitors terrorists as before, but the information does not get passed to criminal investigators, so the cells carry on operating in the US and the FBI carries on monitoring them. For example, the FBI monitors a Florida-based cell that funds and recruits for jihad throughout the world for nearly a decade before it is rolled up (see (October 1993-November 2001)). Some money raised by terrorism financiers in the US goes to Bosnia, where the US has a policy of enabling covert support for the Muslim side in the civil war (see April 27, 1994). Prosecutor Andrew McCarthy will later call the wall a “rudimentary blunder,” and say that it “was not only a deliberate and unnecessary impediment to information sharing; it bred a culture of intelligence dysfunction.” [National Review, 4/13/2004] John Ashcroft, Attorney General in the Bush Administration (see April 13, 2004), will say that “Government buttressed this ‘wall’,” and will call it the “single greatest structural cause for September 11.” [9/11 Commission, 4/13/2004]
Lawyers for Terry Nichols, accused of conspiring with Timothy McVeigh to bomb a federal building in Oklahoma City (see March 1995, April 16-17, 1995, 5:00 a.m. April 18, 1995, 8:15 a.m. and After, April 18, 1995, and June 23, 1995), say that the government’s case against Nichols is built on a series of innocent coincidences, and accuse the FBI of unfairly pressuring Nichols’s family for information. Nichols’s lawyer Michael Tigar and others on the defense team meet with US Attorney Patrick Ryan and Justice Department officials to argue that the government should not seek the death penalty against their client (see July 11-13, 1995). After the closed-door meeting, Tigar tells reporters that the FBI improperly recorded over 20 conversations Nichols had, including telephone conversations with his wife and mother, after his arrest (see 3:15 p.m. and After, April 21-22, 1995). “We’ve already seen the results of the government’s search warrants, the many tape-recorded conversations that were surreptitiously recorded without his knowledge,” Tigar says. “In short, we’ve seen it all. And we didn’t see anything in there that says the government has evidence that Terry Nichols did this.” Nichols, Tigar says, is an innocent victim of circumstance.
'Reasonable' Explanations - Tigar says that Nichols has reasonable explanations for using false names to rent two storage units in Kansas in the months before the bombing. According to these explanations, Nichols left his job as a farm worker in Marion, Kansas, on September 30, 1994 (see (September 30, 1994)), and had nowhere to live. He needed somewhere to store his household goods until he could find another place to live. He stored some of his goods in a storage unit rented under the alias “Shawn Rivers”; though authorities say Nichols rented the storage unit under the alias, Nichols says that McVeigh rented the unit (see September 22, 1994; Nichols may have rented a separate unit for his goods). Nichols kept his furniture and other items in that locker until October, when he rented two units in Council Grove, Kansas, under the names “Joe Kyle” (see October 17, 1994) and “Ted Parker” (see November 7, 1994). Nichols, according to Tigar, used the false names because he had an outstanding civil judgment on his credit card debts and wanted to prevent seizure of his possessions. Tigar also has an alternate explanation for a letter Nichols left behind him when he traveled to the Philippines (see November 5, 1994 - Early January 1995): the letter, which was to be opened only in the case of Nichols’s death, instructed McVeigh to clean everything out of one unit and liquidate the other. But Nichols’s lawyers now say these instructions contained an additional phrase, not previously disclosed by the government: “or you will have to pay extra months rent.” Nichols, according to Tigar, wanted McVeigh to sell his goods and give the proceeds to his family if for some reason he did not return from the Philippines. Instead, Nichols removed the goods from the unit when he bought a house in Herington, Kansas, in early 1995 (see (February 20, 1995)). Tigar says that Nichols had grown disaffected with McVeigh, and the more he learned of McVeigh’s proclivity towards violence, the less he wanted to have dealings with him. Nichols wanted to go into business as a gun dealer for himself, Tigar says: He had business cards and mailing labels printed in his own name, rented a mailbox under his name, registered with the state of Kansas so he could collect sales tax, and bought a license plate and insurance for his truck (see May 25 - June 2, 1995). Everything found in Nichols’s home and garage, Tigar claims, was for use in Nichols’s business. The fuel meter found in Nichols’s home, described by investigators as a device that “could be used to obtain the proper volume of diesel fuel to ammonium nitrate for a bomb,” did not work, Tigar says, and could not have been used to mix bomb ingredients. The anti-tank rocket found in Nichols’s home was, Tigar claims, an empty throw-away tube that such a rocket is packed in. The bags of fertilizer in the house were to be divided for resale in 8- and 24-ounce bottles at gun shows. The diesel fuel he bought in the days before the bombing (see April 15-16, 1995) was to fuel the diesel pickup truck he used to drive to Oklahoma City and pick up McVeigh (see April 16-17, 1995). The plastic barrels found on Nichols’s property are often used for storage and are thusly unremarkable. [New York Times, 9/7/1995; PBS Frontline, 1/22/1996]
Unreasonable Pressure - Tigar says that the pressure brought to bear on Nichols’s family members was improper and unreasonable. “To lie to Terry Nichols’s mother and say he’s not cooperating, and then to take her to the FBI office and record her as she talks to her son, I think is an outrage,” Tigar says. “To hold his wife for 34 days incommunicado and to tell her that the only way out for her husband is if she calls him up and reads to him a script written by FBI agents, I think is an outrage. Then to send his wife a Mother’s Day card signed by FBI agents saying they’re her only friends in the world and saying she should call the Kansas City field office if she ever needs to cry. What in the world are we coming to here?” The FBI also sent a Mother’s Day card to Nichols’s mother, Joyce Wilt of Lapeer, Michigan. Tigar gives reporters a copy of that card, which reads: “Please don’t believe that the government workers are the bad guys no matter what anyone tells you. We are here to help you. We are all here for you. If you are ever lonely, if you ever want to talk. If you ever want to cry, just call us. You are very special to us. You are a young girl caught up in something you don’t deserve to be in. We’re on your side. Think only about yourself and your kids.” [New York Times, 9/7/1995; Associated Press, 7/2/2005]
In a letter to US Attorney Patrick Ryan, Attorney General Janet Reno authorizes prosecutors to seek the death penalty against indicted Oklahoma City bombers Timothy McVeigh and Terry Nichols (see 8:35 a.m. - 9:02 a.m. April 19, 1995, 4:00 p.m., April 19, 1995, July 11-13, 1995, and August 10, 1995). The prosecutors promptly inform the federal court in Oklahoma City that they will do just that. Reno overrides protests from defense lawyers asking her to disqualify herself from the proceedings; McVeigh’s lawyer, Stephen Jones, told reporters that Reno and President Clinton both said “they would seek the death penalty before they even knew who the defendants were. We will mount our attack on the obvious prejudgment of the case.” Ryan says the prosecution will seek the death penalty on four of the counts lodged against McVeigh and Nichols: first-degree murder, conspiring to use a weapon of mass destruction with death resulting, using an explosive to destroy government property with death resulting, and using a weapon of mass destruction with death resulting. He says “aggravating factors” include the maiming, disfigurement, and other injuries inflicted on many individuals and the involvement of both defendants in “acts of burglary, robbery, and theft to finance and otherwise facilitate” the bombing. Governor Frank Keating (R-OK) approves of the decision, and recently said in an interview that it was not at all unusual “to see the president and the attorney general express their outrage” when they did. “This was an enormous national tragedy of titanic proportions,” Keating said. “The question is, are these [McVeigh and Nichols] the people who did it? If not, we need to find those who did.… But we want whoever did this to be prosecuted, convicted, and executed.” [New York Times, 8/21/1995; Washington Post, 10/21/1995; Douglas O. Linder, 2001] Jones refused to take part in the panel discussions over the use of the death penalty, calling them a fraud and a sham, and saying that the process should not have been conducted by the Justice Department. [Stickney, 1996, pp. 253]
President Clinton signs a classified presidential order “directing the Departments of Justice, State and Treasury, the National Security Council, the CIA, and other intelligence agencies to increase and integrate their efforts against international money laundering by terrorists and criminals.” The New York Times will later call this the first serious effort by the US government to track bin Laden’s businesses. However, according to the Times, “They failed.” William Wechsler, a National Security Council staff member during the Clinton administration, will say that the government agencies given the task suffered from “a lack of institutional knowledge, a lack of expertise… We could have been doing much more earlier. It didn’t happen.” [New York Times, 9/20/2001]
Following the issuance of the “wall” memo, which established procedures to regulate the flow of information from intelligence investigations by the FBI to local criminal prosecutors (see July 19, 1995), an additional information sharing “wall” is erected inside the FBI. After 9/11, the Justice Department’s Office of Inspector General will find, “Although it is unclear exactly when this ‘wall’ within the FBI began, [it was] sometime between 1995 and 1997.” This additional wall segregates FBI intelligence investigations from FBI criminal investigations and restricts the flow of information from agents on intelligence investigations to agents on criminal investigations, because of problems that may occur if the flow is not regulated (see Early 1980s). If an intelligence agent wants to “pass information over the wall” to a criminal agent, he should get approval from one of his superiors, either locally or at FBI headquarters. A description of wall procedures comes to be commonplace in all warrant requests filed under the Foreign Intelligence Surveillance Act (FISA). [US Department of Justice, 11/2004, pp. 30-32 ] However, FBI agents often ignore these restrictions and over a hundred cases where information is shared without permission between intelligence and criminal FBI agents will later be uncovered (see Summer-October 2000 and March 2001).
The cover of Conway and Siegelman’s book ‘Snapping.’ [Source: aLibris (.com)]In their book Snapping: America’s Epidemic of Sudden Personality Change, authors Flo Conway and Jim Siegelman write of their recent interviews with several law enforcement officials who dealt with various aspects of the Branch Davidian siege (see 5:00 A.M. - 9:30 A.M. February 28, 1993), the final tragic assault (see April 19, 1993), and the aftermath.
Former Deputy Attorney General Admits FBI Unprepared for Dealing with 'Cult' Behaviors - Former Deputy Attorney General Philip Heymann took his post on April 19, 1993, the day of the assault on the Davidian compound, and managed the Justice Department (DOJ) review of the siege and assault (see October 8, 1993). Heymann acknowledges that the FBI went into the siege unprepared to deal with a “cult,” as many label that particular group of the Branch Davidian sect, an offshoot of the Seventh-day Adventists Church. “The FBI was trained to deal with terrorists,” Heymann tells the authors, “but it wasn’t trained to deal with a religious group with a messianic leader. There was no precedent of the FBI’s handling such a situation and there had been no planning for one.” Heymann says he conducted the DOJ review less to assign blame than to help improve federal authorities’ future responses to situations like the Davidian confrontation, and even less connected situations such as the 1993 World Trade Center bombing (see February 26, 1993). “I wanted to see that we were organized in such a way that, if this situation came up again in any form, including an extreme Islamic fundamentalist group, we could understand how to think about them, how to talk to them, when to put pressure on and when not to put pressure on, all the things that go into negotiations,” Heymann says. He acknowledges that many DOJ and FBI officials are uncomfortable with the idea of cults and with the tactical changes dealing with such groups requires. “I hesitated to use any of those terms,” he says. “We tried to avoid labeling the group as a ‘cult’ suggesting crazies. There was a purposeful attempt to not give the group one label or another. The general understanding was that we were dealing with a, you know, a group that had passionate beliefs, that was extremely suspicious of the government.… We wanted to avoid having to dispute the people who, on the one side, treat groups like this as just another fundamentalist religion and, on the other, regard them as a dangerous form of mind control. I did not want to come down on one side or the other of that debate.” Conway and Siegelman believe that the FBI’s reluctance to deal with the “cult” aspect of the Davidians helped bring about the deaths of the Davidians on the final day of the siege. Heymann admits that many in the FBI and DOJ ignored or downplayed warnings that as a cult, the Davidians were prone to take unreasonable actions, such as hopeless confrontations with authorities and even mass suicide (see February 24-27, 1993, Around 4:00 p.m. February 28, 1993, March 5, 1993, March 7-8, 1993, March 12, 1993, (March 19, 1993), and March 23, 1993), and that some officials denied ever receiving those warnings after the final conflagration. “I think you have to assume that any organization after a result like this is going to try to play down their responsibility, but we ought to have picked that up in our report and I’m disappointed if we weren’t skeptical enough,” he says. He concludes: “I think we’re going to be prepared to confront any obvious illegality done in the name of religion. If someone commits a serious crime, like killing government agents, there’s no doubt that the government will be prepared to use force to make an arrest. But if they haven’t, if it’s a question of whether people have been brainwashed, I think you’ll continue to see the same history we’ve had for the last 20 or 30 years. We don’t really have any way of deciding whether brainwashing is holding someone against one’s will or not, or what to do about it.”
DOJ Assistant - Richard Scruggs, an assistant to the attorney general, worked with Heymann on the DOJ review, assembling the timeline of events of the siege. He recalls: “The AG [Attorney General Janet Reno] started here two weeks into the siege. I arrived two weeks later and, by that time, planning was already well underway to get the people out of the compound. After the fire, I was called in to try to figure out what the hell had happened. We did a thousand interviews. We got every piece of the story from everyone’s perspective.” He discusses the array of evidence and opinions the DOJ received concerning the reaction the Davidians were likely to have to the increasingly harsh and aggressive tactics mounted by the FBI during the siege. “The whole issue of suicide and the psychological makeup of Koresh and his followers was obviously something we looked into,” Scruggs says. “The bureau [FBI] sought dozens of expert opinions and many more were offered. There were literally hundreds of people calling in with advice, not just people off the street but people from recognized institutes and universities. The result was that FBI commanders, both in Waco and in Washington, had so many opinions, ranging from ‘they’ll commit suicide as soon as you make any move at all’ to ‘they’ll never commit suicide,’ that it really allowed them to pick whichever experts confirmed their own point of view. The experts FBI officials judged to be the most accurate were those who said suicide was unlikely, which turned out to be wrong.” Scruggs acknowledges that Reno was not given examples of all the opinions expressed, saying, “She only got the no-suicide opinion.” He insists that Reno was aware of the possibility of suicide, and offers two possible explanations as to why the FBI officials only gave her selected and slanted information (see April 17-18, 1993). “My first impression was that someone made a conscious decision to keep this information away from the AG,” he says. “It certainly looked that way. On the other hand, sometimes these things just happen, one decision leads to another, and nobody really thinks things through. I think the people who were putting together the material truly believed there was a low chance of suicide and then simply picked the materials that confirmed what they wanted to believe.” Scruggs acknowledges that DOJ and FBI officials ignored the warnings given by two FBI “profilers,” Peter Smerick and Mark Young (see March 3-4, 1993, March 7-8, 1993, and March 9, 1993). “Oh yes, absolutely,” he says. “Smerick and Young got wiped out by the on-site commander, who wanted a combination of negotiation and increasing pressure on the compound, the so-called ‘carrot-and-stick’ approach.” Scruggs, unlike Heymann and other government officials, says that the FBI “believes strongly in mind control, believe me.… There was a great debate going on in the bureau whether Koresh was a con man or whether he really thought he was some kind of messiah, but whichever he was there was no doubt that he was effectively controlling the rest of the people. Everybody assumed that.… Everybody believed he did it through some kind of brainwashing or mind control. We scrubbed the report of words like that, but the bureau used them. They fully understood that.” The mistake that was made during the siege was in believing that the increasingly aggressive “psywar” tactics used during the siege, even during the initial hours of the assault itself, was that “by making it very uncomfortable, they could overcome the control Koresh exercised over the rest and get out a large number of the women and children. They even used the phrase ‘the motherhood instinct.’”
Alternatives Considered and Rejected - But the options aside from assaulting the compound were in some ways worse. “The options were minimal. They could have killed Koresh—the Israelis couldn’t understand why he didn’t do that. The HRT had Koresh in their sights 50 times. They could have killed him and all his leaders and that would have been the end of it, but that was not an option. They looked into all kinds of other things. One official had heard rumors that the government had a secret weapon, like a laser weapon or sound weapon, that could vibrate people in some non-lethal way and get them out of there. We didn’t. We found out later there was a microwave weapon, but they couldn’t use it because it affected people differently based on their body size and weight. It didn’t do much to big people but it tended to cook little people.” Scruggs says that there was no “win” in any scenario they considered. “I’m not saying that mistakes weren’t made, because they were,” he says, “but I became firmly convinced in my own mind, after looking at this 16 hours a day for six months, that it was Koresh’s game. He was, in effect, controlling us no less than he was controlling his own people.” Scruggs echoes the words of senior FBI agent Byron Sage, who was present for the siege and the assault, who will say five years later that Koresh “had an apocalyptic end in mind, and he used us to fulfill his own prophecy” (see January 2000). Carl Stern, director of public affairs for the Department of Justice, was present at the decision-making sessions held in Reno’s office, and saw the FBI present its tear-gas assault plan for her approval. Stern, like Reno and others, was new to Washington and to the Davidian situation, and recalls the turmoil of meetings and decisions in the final weekend before the assault on Monday, April 19. “I arrived here on Tuesday and had my first meeting on Waco 15 minutes after I walked in the door,” Stern says. “Two people from the criminal division were advocating the tear gas plan. I took the other position and we argued it in front of the attorney general. The next day I attended a meeting where I really felt the idea had been turned off. I was confident that nothing was going forward (see April 12, 1993). Then on Saturday it got turned around 180 degrees” (see April 17-18, 1993). Stern is still unsure why the opposition to the assault plan disappeared so thoroughly. “The AG [Reno] was there with her deputies, the FBI director [William Sessions] was there with his deputies, and they were going through the whole thing all over again.” Stern summarizes the list of official priorities that weighed in favor of the action. “The FBI was concerned about deteriorating health conditions in the compound. There were dead bodies on the premises. The building had no indoor plumbing. People were defecating in buckets and dumping it in a pit out back and, after 50 days, there was real concern that there would be a massive disease outbreak and the first ones to get sick would be the kids. They were concerned that the perimeter of the compound was highly unstable. It was a large perimeter. There had been several breaches of it. There were rumors that armed pro-Koresh groups might come from Houston or California or elsewhere to put an end to the siege. Finally, the Hostage Rescue Team had been there for 49 days at that point—the longest they had ever gone before was four days. They were in sniper positions around the clock. They were losing their edge, not training, sitting out there in mudholes, and they were afraid if something went wrong in the rest of the country they would not be able to respond.” Stern confirms that one of Reno’s overriding concerns was the reports of child abuse she was receiving. “The AG asked a number of questions and this became the legend of what she was concerned about. She asked first about sanitary conditions. She asked next about sexual assault and child abuse. The FBI replied that if Koresh was still doing what he had been point prior to the raid (see November 3, 1987 and After) he was legally committing statutory rape. Third, the question of beatings came up. As recently as March 21, youngsters had been released who described having been beaten. The consensus was that, at a minimum, the government was not adequately protecting these children, but all that got distorted later.”
Mass Suicide Never Considered an Option for Davidians - Stern also confirms that FBI officials dismissed any idea that the Davidians might commit mass suicide, and that possibility was never figured into the plans for the assault. “What the attorney general heard was the assessment that he was not suicidal,” Stern says. What did figure into the planning was what the authors calls the “tough-cop culture of the FBI, which later evaluators cited as central factors in the proposal by bureau commanders to attack the compound with tear gas.” Stern says, “Remember, four officers had been killed, the FBI had never waited so long in the hostage situation, and from their perspective, it was really untenable that people who had killed federal officers were going on week after week thumbing their noses at law enforcement.”
Assault Did Not Follow Plan - The plans as approved by Reno never contained an option to attack the compound with armored vehicles. “Please keep in mind that there was no plan to demolish the compound. As we said at the time, it was not D-Day. The original plan was a two-day plan for gradual insertion of gas to progressively shrink the usable space and continually encourage people to come out.” The assault was carried out entirely differently; when the Davidians began firing automatic weapons at the armored vehicles and at personnel, ground commanders abandoned the plans and ordered an all-out assault with tear gas and armored vehicles. Even weather conditions played a part in the final conflagration. “No one anticipated the wind,” Stern recalls. “The tanks were not supposed to strike the building, but because of the wind, the gas wasn’t getting in and they had to get closer and finally insert the booms through the window millwork. In the course of doing so, they struck the walls and the roof.” Stern recalls the moments when the fires erupted throughout the compound. “I was in the SIOC [Strategic Intervention Operations Center] when the fire broke out. At first, Floyd Clarke, the FBI’s deputy director, thought an engine had blown on one of the vehicles they had rented from the Army. They didn’t realize what had happened. Then, when it became clear that it was a fire, they all sat there waiting for the people to come out. They were saying, ‘Come on baby, come on out, come on out.’ They were expecting people to come flooding out and there were no people coming out and they were absolutely incredulous. Even when it was over, they were still assuming they would find the kids in the bus they had buried underground.” Stern says FBI and DOJ officials were stunned at the realization that the Davidians had, in essence, committed mass suicide. “All I can tell you is that, given the atmosphere at the time, it was a surprise the suicide occurred. Remember, by then, most of the children in the compound were Koresh’s own. The thought that he would permit his own children to be harmed was inconceivable.” Conway and Siegelman point out that those experienced in “cult” “mind control” techniques had, indeed, anticipated just such an outcome. They theorize “that ranking FBI officers, tired of being manipulated by Koresh and, no doubt, genuinely concerned for the precedents they were setting for future confrontations, may have misguided the attorney general into giving ground commanders too much leeway in the execution of the final assault plan—leeway that, as the tank and tear gas assault progressed, unleashed the full destructive potential of Koresh and the people under his control. However, in our view, that gaping hole in the government’s strategy was not wrought by any battering ram or armored vehicle. Amid the push and pull of the government’s internal debate, the failure of FBI officials in Washington and Waco to heed warning that the cult’s destructive urges would ignite under pressure hastened the demise of the doom-bent Davidians.” The Davidians were never Koresh’s hostages as the FBI viewed them, the authors conclude, but willing participants willing to die for their leader and for their beliefs.
Reno Forced to Rely on FBI - Stern reminds the authors: “The attorney general had only been on the job five weeks. She didn’t even have her own staff yet. She was really flying solo. She had to rely on somebody, so she relied on the FBI and their vaunted Hostage Rescue Team. Those of us who have been around town a little longer know that, while there’s much to admire about the FBI, it does not have an unblemished record. There are times when they have been mistaken. They’re not perfect. In the world of cats and dogs, sometimes they’re closer to dogs than cats. If she had been attorney general for two years and had more experience dealing with the bureau, she might have solicited more information.” [Conway and Siegelman, 1995]
Entity Tags: Flo Conway, David Koresh, Carl Stern, Byron Sage, Branch Davidians, Federal Bureau of Investigation, FBI Hostage Rescue Team, US Department of Justice, Philip Heymann, Mark Young, Jim Siegelman, Richard Scruggs, Janet Reno, Floyd Clarke, Peter Smerick
Timeline Tags: 1993 Branch Davidian Crisis
Vulgar Betrayal, the most significant US government investigation into terrorist financing before 9/11, is launched. This investigation grows out of investigations Chicago FBI agent Robert Wright had begun in 1993 (see After January 1993), and Wright appears to be the driving force behind Vulgar Betrayal. He later will say, “I named the case Vulgar Betrayal because of the many gross betrayals many Arab terrorists and their supporters” committed against the US, but the name will later prove to be bitterly ironic for him. Over a dozen FBI agents are assigned it and a grand jury is empanelled to hear evidence. Wright will be removed from the investigation in late 1999 (see August 3, 1999), and it will be completely shut down in early 2000 (see August 2000). [Federal News Service, 6/2/2003; Chicago Tribune, 8/22/2004; LA Weekly, 8/25/2004; Judicial Watch, 12/15/2004] The investigation will first identify suspected terrorism financier Yassin al-Qadi as a target in 1997, but it will run into many obstacles in investigating him and others. Assistant US attorney Mark Flessner, the lead prosecutor for Vulgar Betrayal, will later claim that supervisors at the Justice Department’s headquarters obstructed the investigation because it appeared to trace terrorism financing to important figures in Saudi Arabia, a key US ally. Wright will later state that had the leads into al-Qadi and others been fully investigated, “I believe the FBI could have identified other significant links to Osama bin Laden, links which may have been addressed to prevent future attacks against the United States by bin Laden and his terrorist trainees.” [Federal News Service, 6/2/2003; Chicago Tribune, 8/22/2004]
Jack Cloonan. [Source: PBS]The Justice Department directs an existing unit called Squad I-49 to begin building a legal case against bin Laden. This unit is unusual because it combines prosecutors from the Southern District of New York, who have been working on bin Laden related cases, with the FBI’s New York office, which was the FBI branch office that dealt the most with bin Laden -related intelligence. Patrick Fitzgerald effectively directs I-49 as the lead prosecutor. FBI agent Dan Coleman becomes a key member while simultaneously representing the FBI at Alec Station, the CIA’s new bin Laden unit (February 1996) where he has access to the CIA’s vast informational database. [Lance, 2006, pp. 218-219] The other initial members of I-49 are: Louis Napoli, John Anticev, Mike Anticev, Richard Karniewicz, Jack Cloonan, Carl Summerlin, Kevin Cruise, Mary Deborah Doran, and supervisor Tom Lang. All are FBI agents except for Napoli and Summerlin, a New York police detective and a New York state trooper, respectively. The unit will end up working closely with FBI agent John O’Neill, who heads the New York FBI office. Unlike the CIA’s Alec Station, which is focused solely on bin Laden, I-49 has to work on other Middle East -related issues. For much of the next year or so, most members will work on the July 1996 crash of TWA Flight 800, because it crashed near New York and is suspected to have been carried out by Middle Eastern militants (July 17, 1996-September 1996). However, in years to come, I-49 will grow considerably and focus more on bin Laden. [Wright, 2006, pp. 240-241] After 9/11, the “wall” between intelligence collection and criminal prosecution will often be cited for the failure to stop the 9/11 attacks. But as author Peter Lance will later note, “Little more than ten months after the issuance of Jamie Gorelick’s ‘wall memo,’ Fitzgerald and company were apparently disregarding her mandate that criminal investigation should be segregated from intelligence threat prevention. Squad I-49… was actively working both jobs.” Thanks to Coleman’s involvement in both I-49 and the CIA’s Alec Station, I-49 effectively avoids the so-called “wall” problem. [Lance, 2006, pp. 220]
Entity Tags: Mike Anticev, Tom Lang, US Department of Justice, Patrick J. Fitzgerald, Kevin Cruise, Dan Coleman, Carl Summerlin, Alec Station, Louis Napoli, Mary Deborah Doran, John Anticev, Jack Cloonan, I-49, Federal Bureau of Investigation
Timeline Tags: Complete 911 Timeline
The Justice Department ends its two-year grand jury investigation into possible conspiracies behind abortion clinic violence (see 1986, March 26, 1986, June 1986, March 10, 1993, 1995 and After, and 1996). The jury finds no evidence of any national conspiracy to commit violence on the part of anti-abortion organizations. However, Nation reporter Bruce Shapiro will write in 2001 that the evidence unearthed by the FBI’s investigation in a 1998 abortion doctor murder (see October 23, 1998 and March 17-18, 2003) proves the existence of just such a conspiracy. [Nation, 4/23/2001]
Congress passes a military budget that includes a section requiring the Pentagon to discharge all HIV-positive soldiers, regardless of their overall health. When President Clinton signs the bill, he issues a signing statement declaring he has “concluded that this discriminatory provision is unconstitutional.” He urges Congress to repeal the statute, and says he will refuse to allow the Justice Department to defend the law in court if an HIV-positive soldier sues the government. However, Clinton’s legal team, including the Justice Department’s head of the Office of Legal Counsel, Walter Dellinger, and White House counsel Jack Quinn, tells reporters that while Clinton believes the provision is unconstitutional, he cannot refuse to enforce it because no court ruling has supported his view. Until a court intervenes, the president is bound by Congress’s decision. “When the president’s obligation to execute laws enacted by Congress is in tension with his responsibility to act in accordance to the Constitution, questions arise that really go to the very heart of the system, and the president can decline to comply with the law, in our view, only where there is a judgment that the Supreme Court has resolved the issue.” [Savage, 2007, pp. 235-236]
Lawyers for the accused Oklahoma City bombers (see 8:35 a.m. - 9:02 a.m. April 19, 1995, July 11-13, 1995, and August 10, 1995) assail the prosecution’s decision to seek the death penalty against their clients. They say that Attorney General Janet Reno, who made the final decision to seek the execution of Timothy McVeigh and Terry Nichols if they are convicted (see October 20, 1995), ignored Justice Department procedures in making that decision. “The government cannot simply ignore its own rules when it decides who lives or dies,” says McVeigh’s lead lawyer, Stephen Jones. Jones accuses Reno of “categorical prejudgment” of the death penalty. Nichols’s lead lawyer, Michael Tigar, calls Reno’s decision “two-faced.” Both note that within hours of the bombing, Reno announced the government would seek to execute whoever carried out the attack (see 4:00 p.m., April 19, 1995 and April 22, 1995); rules adopted in February 1996 allow the attorney general to seek the death penalty in federal cases only after informing defense lawyers and going through a review by an in-house Death Penalty Committee. US Attorney Sean Connelly counters that when Reno announced that “she would prosecute [the bombing] to the fullest extent possible, she was not acting as a judge, she was acting as a law enforcement officer.” Defense lawyers also argue that the 1994 federal death penalty statutes are unconstitutional. Connelly retorts, “If the death penalty is not appropriate in this case, it would be hard to imagine any case where it would be.” [New York Times, 5/2/1996]
Four FBI workers who evaluated evidence surrounding the Oklahoma City bombings (see 8:35 a.m. - 9:02 a.m. April 19, 1995 and August 10, 1995) are transferred after a Justice Department report criticizes the FBI’s crime lab procedures. One of those suspended is forensic scientist Frederic Whitehurst, whose long-standing complaints triggered the Justice Department investigation. That investigation found that evidence in about two dozen cases had been mishandled. Whitehurst is placed on administrative leave with pay just days after the report is received by FBI HQ. The Justice Department report does not allege that evidence had been manipulated to benefit prosecutors. Some evidence was possibly contaminated, and in some instances, the FBI laboratory exercised lax control over evidence. Three of the 23 units in the laboratory were found to have substandard procedures. [Washington Post, 1/28/1997; Indianapolis Star, 2003] According to a technician (not Whitehurst), the black denim jeans that accused Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995 and August 10, 1995) wore on the day of the bombing were shipped to the forensics lab in a brown paper bag, and not a sealed plastic evidence bag as procedure dictates. A gun and a knife purportedly taken from McVeigh during his arrest (see 9:03 a.m. -- 10:17 a.m. April 19, 1995) were sent to the lab in a manila envelope. According to an FBI summary of interviews conducted with lab technicians, an employee in the explosives unit, LaToya Gadson, told investigators that “the evidence was a ‘mess’ when it came in because it had not been collected in an ‘orderly fashion.’ Additionally, most of the debris was not properly bagged, some was not bagged at all, and many of the bags were not closed tightly, allowing debris to fall out.” Travel cases potentially contaminated with explosive residue from the bomb were placed in an area where bomb debris had been stored awaiting testing, rendering the cases impossible to accurately test. And a technician obtained a false reading of cocaine in McVeigh’s car, possibly from using improperly cleaned equipment. The sample was discarded, a worker says. Three technicians who examined evidence from the bombing case were reassigned: David Williams, who supervised evidence collection; Roger Martz, head of the laboratory’s chemistry unit; and James T. Thurman, chief of the laboratory’s explosives unit. Lab workers say Williams changed his dictated reports in violation of laboratory policy. Martz examined explosive evidence even though he lacked the proper training to do so. [New York Times, 1/31/1997]
The Justice Department inspector general releases a report criticizing the FBI’s practices at its crime laboratory that may cast doubts on evidence to be presented in the trial of accused Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995 and August 10, 1995). The report, issued after an 18-month investigation of the laboratory, includes questions about the handling of evidence relating to the Oklahoma City bombing, including the size and composition of the bomb, and of chemical residues found on McVeigh’s clothing and on a knife he was carrying when apprehended. McVeigh’s lead lawyer, Stephen Jones, says he has always intended to challenge the integrity of the physical evidence against McVeigh. The report, prepared by the Justice Department’s inspector general, Michael R. Bromwich, finds that FBI examiner David R. Williams prepared his September 5, 1995, report on the explosives used in the Oklahoma City bombing “in a way most incriminating to the defendants” (McVeigh and co-conspirator Terry Nichols). Williams, his supervisor, and two other agents were transferred in January in response to Bromwich’s preliminary findings (see January 27, 1997). Williams has been dropped from the government’s witness list. [New York Times, 4/17/1997]
The defense in the trial of accused Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995, August 10, 1995, and April 24, 1997) calls Dr. Frederic Whitehurst, an FBI forensic lab specialist who has become a “whistleblower” for what he has called shoddy practices at the central FBI crime lab (see January 27, 1997). Lead defense lawyer Stephen Jones uses Whitehurst’s testimony to attack the credibility of the forensics tying McVeigh to the bombing (see April 16, 1997). Whitehurst casts aspersions on one lab technician’s handling of evidence obtained from a piece of the Ryder truck destroyed in the blast; the lab technician, David Williams, never told Whitehurst that the piece from the truck was found by a civilian and therefore of questionable evidentiary value. However, Whitehurst is unable to say that any evidence from the bombing itself was contaminated or handled poorly. Judge Richard P. Matsch refuses to allow the defense to introduce the Justice Department report criticizing the FBI lab’s “poor” handling of evidence in several cases (see April 16, 1997). [University of Missouri-Kansas City School of Law, 5/27/1997; CNN, 5/27/1997; Douglas O. Linder, 2006] Former US attorney Mimi Wesson later says that “the prosecution was able to dilute quite a bit of the impact of Whitehurst’s testimony during cross-examination.” [Salon, 5/29/1997]
Lawyers for convicted Oklahoma City bomber Timothy McVeigh (see June 2, 1997 and June 11-13, 1997) ask Judge Richard P. Matsch for a new trial. They cite a number of reasons for the request, including what they call juror misconduct. Lead lawyer Stephen Jones says that jurors violated an order by Matsch not to discuss the case among themselves before they began their deliberations, referring to a conversation held on May 9 in which one juror allegedly said during a break, “I think we all know what the verdict should be.” Matsch was made aware of the conversation and decided it warranted no action. However, Jones says the conversation proves that McVeigh did not have “an impartial jury.” Jones also says McVeigh was denied a fair trial by Matsch’s ruling that the defense could not introduce into evidence a Justice Department report that criticized practices at the FBI crime laboratory (see January 27, 1997 and April 16, 1997). Jones also attacks Matsch’s refusal to allow the testimony of federal informant Carole Howe (see May 23, 1997), which might have led the jury to conclude that “the government failed to investigate leads which concerned a larger conspiracy to bomb the Federal Building in Oklahoma.” Matsch ruled that Howe’s testimony would have been irrelevant to the charges against McVeigh. “Had the defense been allowed to admit Howe’s testimony and present evidence that others may have committed the bombing,” Jones argues, “the seeds of reasonable doubt would have been planted in the minds of the jurors.” [New York Times, 7/8/1997] Prosecutors will oppose the request, calling the trial “scrupulously fair” and “close to perfect” in its handling. [New York Times, 7/25/1997] Matsch will deny the request (see August 12, 1997).
Judge Christine Miller of the Court of Federal Claims rejects allegations by the software firm Inslaw that the Justice Department illegally stole its enhanced PROMIS software and distributed it. The finding is contained in a 186-page opinion issued by Miller that says there is “no merit to the claims.” The decision follows a three-week trial. The matter was sent to the court by Congress, which referred the case as a part of considerations about whether to pass a private bill to compensate Inslaw. The original contract required Inslaw to install in US attorneys’ offices a public domain version of PROMIS owned by the government. But, according to Miller, without notice to the government, Inslaw installed a different version of the software and then asserted that the government could not use the software in other offices. (Note: the contract was signed in March 1982 (see March 1982), and Inslaw notified the department of the enhancements on April 2 (see April 2, 1982).) Miller’s findings are:
Inslaw has not shown it has any ownership rights to the software and that the enhancements it claims are not proprietary to it. Miller says that some of the enhancements do actually exist—12 of the over 100 Inslaw says it made—but Inslaw cannot demonstrate it owns them;
Neither has Inslaw shown that the department acted improperly in any way in connection with the software, as it had unlimited rights to the enhanced software it received and acted in good faith;
Inslaw’s decision to take its case to the bankruptcy court, rather than courts with certain jurisdiction to hear it, was a tactical one (see June 9, 1986);
A panel of independent experts appointed by the judge to review other software applications Inslaw claims are pirated versions of PROMIS found that Inslaw’s allegations were false;
In addition to not having a legal claim against the US, Inslaw does not have an equitable claim either, because it did not own the software and the Justice Department acted properly.
Assistant Attorney General Frank Hunger, head of the civil division, comments: “Both parties benefit from having a decision from a court with authority to resolve the matter—a court that has heard all the evidence. And the public benefits because all the evidence has been aired and they can be confident that the facts have finally been revealed. Certainly, the department benefits from the lifting of the cloud that has hung over it for a decade.” As the court investigated the matter at the request of Congress, the decision will be sent back there, although Inslaw will have the chance to appeal the matter to a three-judge panel at the same court beforehand. [US Department of Justice, 8/4/1997]
Mary Jo White. [Source: CNN]Mary Jo White, US Attorney for the Southern District of New York, which handles a lot of terrorism investigations, complains about the “wall” procedures regulating the passage of intelligence information to US attorneys and criminal agents at the FBI. The rules were recently formalized (see July 19, 1995), but she says that the 1995 procedures are building “unnecessary and counterproductive walls that inhibit rather than promote our ultimate objectives [and that] we must face the reality that the way we are proceeding now is inherently and in actuality very dangerous.” Following her complaints, an exception is created for the Southern District of New York Attorneys’ Office. The office works with the FBI’s I-49 squad, which handles international terrorism matters (see January 1996 and Late 1998-Early 2002). The FBI can now notify this office of evidence of a crime directly, without consulting the Justice Department. Once this is done, the office would then contact two units in the Justice Department, the Criminal Division and the Office of Intelligence Policy and Review. [US Department of Justice, 11/2004, pp. 29 ]
The media reports that federal prosecutors and Justice Department officials have rejected an offer by Theodore “Ted” Kaczynski, the so-called “Unabomber” (see April 3, 1996 and June 9, 1996), to plead guilty in his murder case to avoid the death penalty. [Washington Post, 1998]
FBI agent Robert Wright, apparently frustrated that his Vulgar Betrayal investigation is not allowed to criminally charge Hamas operative Mohammad Salah and Saudi multimillionaire Yassin al-Qadi, gets a court order to seize $1.4 million in bank accounts and the Chicago house Salah owns. Wright says in the suit that the money is linked directly to al-Qadi and would be destined for terrorist activities. Wright uses a civil forfeiture law that had been frequently used to seize properties and funds of drug dealers or gangsters, but had never been used for accused terrorists. Salah had living in Chicago since his release from an Israeli prison in November 1997. A highly detailed affidavit tracks wire transfers from the US and Switzerland to specific Hamas attacks in Israel. Al-Qadi’s money was deposited in bank accounts controlled by Salah, who is called an important courier and financial agent for Hamas. Then Salah invested the money in BMI Inc., a real estate investment firm with ties to many suspected terrorism financiers (see 1986-October 1999). Some of the money is eventually withdrawn by Salah, brought to the West Bank, and given to Hamas operatives there (see 1989-January 1993). Salah denies the charges and says all the transfers were for charitable causes. Al-Qadi also claims innocence. [New York Times, 6/14/1998; United Press International, 5/30/2002; Wall Street Journal, 12/6/2002] However, a federal judge agrees to the defendants’ request for a stay order, and the suit is said to “languish” in a Chicago federal court. The funds remain frozen and Salah continues to live in his house. [Wall Street Journal, 9/25/2001] During the summer of 2001, the government will negotiate with Salah to settle the civil case, according to court records. [Chicago Tribune, 8/22/2004] The Justice Department will even move ahead with plans to return $1.4 million that Wright had seized from al-Qadi. But the transfer will be set for October 2001, “and the 9/11 attacks came first, prompting wiser minds at Justice to quash the move.” [New York Post, 7/14/2004] But also, in 2000, the parents of a US teenager said to have been killed by a Hamas attack in Israel will sue Salah and others for damaged based on this investigation, and they will win the suit in 2004 (see May 12, 2000-December 9, 2004). The US government will finally arrest Salah in 2004, and will charge him for many of the same offenses described in this 1998 case (see August 20, 2004). As of the end of 2005, al-Qadi has not been charged of any crime.
Two months after the US embassy bombings in Africa (see 10:35-10:39 a.m., August 7, 1998), FBI agent Robert Wright and his Vulgar Betrayal investigation discover evidence they think ties Saudi multimillionaire Yassin al-Qadi to the bombings. Since 1997, Wright had been investigating a suspected terrorist cell in Chicago that was connected to fundraising for Hamas. They discovered what they considered to be clear proof that al-Qadi and other people they were already investigating had helped fund the embassy bombings. Wright asks FBI headquarters for permission to open an investigation into this money trail at this time, but the permission is not granted. Wright will later recall, “The supervisor who was there from headquarters was right straight across from me and started yelling at me: ‘You will not open criminal investigations. I forbid any of you. You will not open criminal investigations against any of these intelligence subjects.’” Instead, they are told to merely follow the suspects and file reports, but make no arrests. Federal prosecutor Mark Flessner, working with the Vulgar Betrayal investigation, later will claim that a strong criminal case was building against al-Qadi and his associates. “There were powers bigger than I was in the Justice Department and within the FBI that simply were not going to let [the building of a criminal case] happen. And it didn’t happen.… I think there were very serious mistakes made. And I think, it perhaps cost, it cost people their lives ultimately.” [ABC News, 12/19/2002] Flessner later will speculate that Saudi influence may have played a role. ABC News will report in 2002, “According to US officials, al-Qadi [has] close personal and business connections with the Saudi royal family.” [ABC News, 11/26/2002] Wright later will allege that FBI headquarters even attempted to shut down the Vulgar Betrayal investigation altogether at this time. He says, “They wanted to kill it.” [ABC News, 12/19/2002] However, he will claim, “Fortunately an assistant special agent in Chicago interceded to prevent FBI headquarters from closing Operation Vulgar Betrayal.” [Federal News Service, 6/2/2003] He claims that a new supervisor will write in late 1998, “Agent Wright has spearheaded this effort despite embarrassing lack of investigative resources available to the case, such as computers, financial analysis software, and a team of financial analysts. Although far from being concluded, the success of this investigation so far has been entirely due to the foresight and perseverance of Agent Wright.” [Federal News Service, 5/30/2002] When the story of this interference in the alleged al-Qadi-embassy bombings connection will be reported in late 2002, Wright will conclude, “September the 11th is a direct result of the incompetence of the FBI’s International Terrorism Unit. No doubt about that. Absolutely no doubt about that. You can’t know the things I know and not go public.” He will remain prohibited from telling all he knows, merely hinting, “There’s so much more. God, there’s so much more. A lot more.” [ABC News, 12/19/2002]
The Justice Department’s Office of Inspector General issues a report into the FBI’s use of intelligence information in an investigation into campaign finance, and this report is critical of the “wall”. The “wall” regulates the passage of some information from FBI intelligence investigations to criminal FBI agents and prosecutors, to ensure such information can legitimately be used in court (see Early 1980s). After the procedures were formalized (see July 19, 1995), the FBI drastically reduced its consultations with Justice Department attorneys about intelligence investigations, because any consultation with such attorneys could result in an intelligence warrant not being granted, as it may lead authorities reviewing a warrant application to conclude that the warrant was really being sought for a criminal investigation, not an intelligence investigation. The result is that the FBI does not ask for input from prosecutors until it is ready to close an intelligence investigation and “go criminal.” The campaign finance report finds that FBI failed to disclose some information from intelligence investigations not only to Congress and the Attorney General, but also to its own Director, Louis Freeh. The “wall” procedures are found to be vague and ineffective, as well as misunderstood and often misapplied. [US Department of Justice, 11/2004, pp. 32-33 ] The “wall” procedures are also criticized by other reports (see May 2000).
Attorney General Janet Reno says she knows of no evidence that would prove the FBI was responsible for the fires that killed nearly 80 Branch Davidians in a 1993 assault on the group’s Waco compound (see April 19, 1993). Reno is responding to questions raised by a Texas state commissioner and a documentary filmmaker that center on the possible use of incendiary devices by the FBI during the final assault on the Davidian compound (see July 29, 1999). “I have gone over everything and I know of no such evidence,” she says, and echoes Justice Department assertions that the Davidians themselves started the fires that destroyed their compound and killed most of their fellow group members. “Our practice has been… to review all reports, to consider all allegations. And to date, I have found no basis for concluding that the FBI was in any way responsible,” Reno says. A Justice Department spokesperson has called the allegations “nonsense.” [Excite, 7/29/1999] Shortly thereafter, the Justice Department will admit that such devices were indeed used during the assault, but will claim that they had nothing to do with starting the fires (see August 25, 1999 and After).
James B. Francis Jr., the head of the Texas Department of Public Safety and a fundraiser for the presidential campaign of Governor George W. Bush, convinces federal judge Walter Smith to order that government vaults containing 12 tons of evidence from the Branch Davidian compound near Waco be opened, and the contents reexamined. The Davidian compound was destroyed six years ago as the culmination of a 51-day standoff between the residents and the FBI (see April 19, 1993). Smith orders the reopening of the vaults after inquiries from an independent filmmaker, Michael McNulty (see July 29, 1999), and a lawyer, David Hardy, who has long challenged the government’s account of events. There are three kinds of evidence to be examined, Francis has said: “One is shells, shell casings, physical things. The second type of evidence is video and still photographs. The third type are interviews done there on the spot at the time.” Smith’s order reads in part: “First and foremost, the parties to civil litigation pending in this court have the right to seek access (see April 1995). Second, the events that took place between Feb. 28 and April 19, 1993, and thereafter, have resulted in sometimes intense interest from the national media and the members of the public. There may come a time when persons other than the current civil litigants would be allowed access to the materials.” [Associated Press, 8/10/1999; Associated Press, 9/10/1999; Associated Press, 9/17/1999] One document that will prove to be extremely significant is the 49th and final page of a December 1993 lab report that has long ago been made available to lawmakers and attorneys. The 49th page had been removed. It states that FBI investigators who examined the scene at Waco found a “fired US military 40mm shell casing which originally contained a CS gas round,” and two “expended 40mm tear gas projectiles.” (The Justice Department will later claim that the prosecution and defense lawyers in the civil trial received the 49th page as well.) [Associated Press, 9/11/1999] The Texas Rangers review the contents, and find a spent military tear-gas canister, which forces the FBI and the Justice Department to admit that their agents fired incendiary gas canisters into the compound during the final assault (see August 25, 1999 and After). The government has previously denied firing any weapons into the compound that might have caused the conflagration that consumed the building and killed almost all of the residents. As a result of the investigation, the federal government names a special prosecutor to investigate whether there was a government cover-up (see September 7-8, 1999 and July 21, 2000), and Attorney General Janet Reno (see July 29, 1999) has to weather calls from Republican lawmakers to resign. Later, Francis denies reopening the case for political reasons. His decision “unleashed a series of forces that were apparently a lot bigger than what I recognized,” he will say. “I never dreamed that it would turn into something like this.” He will claim that he is “doing everything in my power to not politicize this” controversy. Governor Bush himself refrains from commenting on the issue, though his chief of staff helped bring McNulty and Hardy to Francis’s attention. Hardy will say of Francis, “I don’t think there’s any question that he is the shining light of this entire inquiry.” Hardy used his friends in the Texas gun lobby to contact former Texas Senator Jerry Patterson; Patterson contacted Bush’s chief of staff Clay Johnson, who in turn referred him to Francis. “I think what happened to Jim Francis is he initially wanted to be very low-key and then as more and more revelations began to surface, he became angry and disgusted, as all of us are,” Patterson will say. “This was not a role that he sought.” As for his own role, Francis will say: “It’s important that the facts come out, whatever those are. I’m not a hero, but I have done the right thing.” [Excite, 7/28/1999; Excite, 7/29/1999; Associated Press, 8/10/1999; Associated Press, 9/10/1999; Associated Press, 9/17/1999] In July, the Justice Department called Francis’s allegations of mismanagement and possible cover-ups “nonsense.” [Excite, 7/28/1999; Excite, 7/29/1999]
Entity Tags: Branch Davidians, George W. Bush, David Hardy, Clay Johnson, Federal Bureau of Investigation, Walter Smith, Texas Rangers, James B. Francis Jr, US Department of Justice, Janet Reno, Michael McNulty, Jerry Patterson
Timeline Tags: 1993 Branch Davidian Crisis
Pyrotechnic CS gas canisters. [Source: Law Enforcement Equipment Distribution]According to newly presented documents, the FBI used two or three pyrotechnic tear gas canisters during the raid on the Branch Davidian compound near Waco, Texas (see April 19, 1993). The documents contradict earlier FBI and Justice Department claims that law enforcement officials did nothing that could have contributed to the fire that killed over 80 sect members. Former senior FBI official Danny Coulson begins the revelations by admitting to the Dallas Morning News that the FBI had indeed used pyrotechnic grenades, though he says the grenades did not start the fires that consumed the building. Texas Department of Public Safety Commission Chairman James Francis says the Texas Rangers have “overwhelming evidence” supporting Coulson’s statement. “There are written reports by Rangers, there is photographic evidence, there is physical evidence, all three of which are problematic,” Francis says. Coulson, the founder of the FBI’s Hostage Rescue Team and a former assistant deputy director, says that two M651 CS tear gas grenades were fired into the building, but they were fired hours before the blazes erupted. Attorney General Janet Reno, who tells reporters she knew nothing of the grenade usage and is “very, very frustrated” at the knowledge, appoints former Senator John C. Danforth (R-MO) as the head of an investigatory commission (see September 7-8, 1999); Danforth will find that, regardless of the use of the pyrotechnic gas canisters, law enforcement officials were not responsible for the fire, and neither the FBI nor the Justice Department tried to cover up any actions (see July 21, 2000). [PBS Frontline, 10/1995; Dallas Morning News, 8/25/1999; Salon, 9/9/1999] The military M651 canisters, which burn for about 30 seconds to heat and release the solidified tear gas inside, were fired from a Bradley fighting vehicle at a bunker near the main building (see September 3, 1999). After the assault, a Texas Ranger found a spent 40mm gas canister shell lying on the ground and asked a nearby FBI agent, “What’s this?” The agent promised to find out, but never returned with an answer; the shell went into evidence containers (see August 10, 1999 and After). Two weeks after the FBI acknowledges the use of incendiary gas canisters at the Waco assault, Reno testifies on the matter to the House Judiciary Committee. She says that, based on the briefings she had been given (see April 17-18, 1993), “It was my understanding that the tear gas produced no risk of fire.… That fire was set by David Koresh and the people in that building.” After her testimony, Senate Majority Leader Trent Lott (R-MS) calls on Reno to resign. [Newsweek, 9/6/1999; Associated Press, 9/10/1999] FBI agent Byron Sage, the chief negotiator during the Davidian standoff, will say in 2003 that the incendiary gas canisters could not have set the fires. “This is the critical point, the M651 rounds were never directed towards the wooden structure,” he will say. “They were used in an area yards away from the building. Also, they were used earlier in the day. The fire didn’t start until four hours later. They had absolutely nothing to do with that fire.” Sage will say that the canisters were fired only at a construction pit near the compound where other gas-discharging devices had been smothered in mud. The pit was targeted because some Davidian gunfire during the ATF raid had come from that area, he will say. [Waco Tribune-Herald, 3/16/2003] Charles Cutshaw, an editor of Jane’s Defense Information and an expert on this kind of weapon, says these military tear gas cartridges are not intended to start fires. He says he knows of no studies or reports on how often such cartridges may have caused fires. [Washington Post, 9/4/1999] Shortly after the admission, federal prosecutor Bill Johnston, one of the lawyers for the government in the wrongful-death lawsuit filed by surviving Davidians (see April 1995), informs Reno that government lawyers had known for years about the use of pyrotechnic tear-gas rounds (see August 30, 1999). Johnston will be removed from the lawsuit and replaced by US Attorney Michael Bradford. [Fort Worth Star-Telegram, 7/21/2000] He will also plead guilty to concealing evidence from investigators concerning the canisters (see November 9, 2000).
Entity Tags: FBI Hostage Rescue Team, Bill Johnston, Danny Coulson, Byron Sage, Branch Davidians, Federal Bureau of Investigation, James B. Francis Jr, Trent Lott, Janet Reno, US Department of Justice, John C. Danforth, Texas Rangers, Charles Cutshaw, Michael Bradford
Timeline Tags: 1993 Branch Davidian Crisis
The FBI launches an internal inquiry into why it took six years to admit that agents may have fired potentially flammable tear gas canisters on the final day of the 1993 standoff with the Branch Davidian cult near Waco, Texas (see August 25, 1999 and After). Attorney General Janet Reno and FBI Director Louis Freeh order 40 FBI agents led by an FBI inspector to re-interview everyone who was at the Waco scene. James Francis, the chairman of the Texas Department of Public Safety who pressed for evidence to be reexamined (see August 10, 1999 and After), says federal officials must explain why Delta Force members were at the scene of the final assault (see August 28, 1999). “Everyone involved knows they were there. If there is an issue, it was what was their role at the time,” Francis says. “Some of the evidence that I have reviewed and been made aware of is very problematical as to the role of Delta Force at the siege.” A Defense Department document shows that a Special Forces unit was at the assault; the US military is prohibited from involvement in domestic police work without a presidential order. FBI spokesman James Collingwood says the bureau continues to insist that it did nothing to start the fires that consumed the Davidian compound and killed almost 80 Davidians (see April 19, 1993). “Freeh is deeply concerned that prior Congressional testimony and public statements [about the use of flammable devices] may prove to be inaccurate, a possibility we sincerely would regret.… [A]ll available indications are that those [pyrotechnic gas] rounds were not directed at the main, wooden compound. The rounds did not land near the wooden compound, and they were discharged several hours before the fire started.” Dan Burton (R-IN), chairman of the House Government Reform Committee, says: “I am deeply concerned by these inconsistencies.… I intend for the committee to get to the bottom of this.” Senator Charles Grassley (R-IA) says that the new evidence indicated “further erosion of the FBI’s credibility.” Privately, Justice Department officials are said to be furious that Reno was allowed to maintain for years that no such incendiary rounds were used during the assault, when some FBI officials presumably knew otherwise. [Associated Press, 8/26/1999] Reno has publicly said she is “very, very upset” at the sequence of events, and Collingwood describes Freeh as “incredulous.” [Newsweek, 9/6/1999]
Assistant US Attorney William Johnston writes a letter to Attorney General Janet Reno, stating that he believes Justice Department officials may have withheld information from her about the FBI’s use of incendiary tear-gas canisters during the assault on the Branch Davidian compound (see April 17-18, 1993 and August 25, 1999 and After). “I have formed the belief that facts may have been kept from you—and quite possibly are being kept from you even now, by components of the department,” he writes. Johnston is the Justice Department’s assistant US attorney in Waco, Texas. [New York Times, 9/14/1999] As recently as a month ago, Reno told reporters that she knew nothing of the use of incendiary devices during the assault (see July 29, 1999). Over a year later, Johnston will plead guilty to concealing such evidence himself (see November 9, 2000).
The FBI releases a videotape taken during the first minutes of the April 1993 assault on the Branch Davidian compound near Waco, Texas (see April 19, 1993), which contains audio of Richard Rogers, the assistant special agent in charge of the FBI’s Hostage Rescue Team (see March 23, 1993), giving permission for agents to fire military tear gas at a bunker several hundred yards away from the main Davidian compound. Those military gas canisters contained incendiary devices to help disperse the gas. The Justice Department recently admitted, after six years of denials, that the FBI did use incendiary devices during the attack, though both agencies continue to insist that their actions did not lead to the fires that consumed the compound and killed almost 80 Davidians (see August 25, 1999 and After). Rogers gave permission to fire the incendiary canisters at 7:48 a.m., almost two hours after the assault commenced. The videotape was taken by an FBI surveillance aircraft using infrared radar during the first hours of the assault. [Reuters, 9/4/1999; Washington Post, 9/4/1999] The next day, the FBI will release another tape with audio describing the effects of one such gas canister on the bunker (see September 3, 1999).
The FBI releases a newly discovered videotape that shows FBI agents using incendiary, or pyrotechnic, tear-gas canisters during the April 1993 assault on the Branch Davidian compound near Waco, Texas (see April 19, 1993). The audio portion of the videotape, taken by an FBI surveillance aircraft using infrared radar during the first hours of the assault, shows that agents were unable to breach the concrete wall of a bunker near to the main compound with the gas canister; the tape has an agent saying: “Yeah, the military gas did not penetrate that, uh, bunker where the bus was. It bounced off.” Another agent then suggested moving to a different position where a gas canister could be fired into the bunker through a doorway. The day before, the FBI released an earlier portion of the same videotape that shows the head of the FBI’s Hostage Rescue Team (HRT) giving permission for agents to use the incendiary gas canisters on the bunker (see September 2, 1999). The canister bounced off the bunker wall at 8:08 a.m.; the tape runs through 8:24 a.m., when an agent asked that it be shut off. The videotape is more evidence that, contrary to six years of denials from the FBI and the Justice Department, the FBI did use two and perhaps three incendiary devices during the final assault (see August 25, 1999 and After). Four hours after the events of the videotape, the compound erupted in flames that killed almost 80 Davidians; both the Justice Department and the FBI insist that the Davidians, not the FBI, caused the fires that consumed the compound. Attorney General Janet Reno describes herself as “very troubled” over the new evidence. “Over the past two weeks, I, along with many Americans, have been troubled, very troubled, over what has transpired,” she says during a press converence. Reno says her orders to assault the compound (see April 17-18, 1993) were very specific in banning the use of incendiary devices on any portion of the compound. Reno says she will appoint an outsider to head an independent investigation to “get to the truth” of what happened during that assault (see September 7-8, 1999). Reno says she has asked why it took so long for the FBI to inform the Justice Department about the tapes: “I questioned that. I think this is a matter the outside investigator should look at.” [Reuters, 9/4/1999; Washington Post, 9/4/1999]
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