The Tragedy at Waco
Paul H. Blackman

Twenty-five children and scores of adults died as a result of the United States governments assault on a Seventh-Day Adventist sect near Waco, Texas, in 1993. This article examines the government surveillance and search warrant that led to the attack, and finds that the warrant fell far short of proper Constitutional standards. After the deaths of most persons in the Branch Davidian compound in the April 19, 1993, inferno, the Department of the Treasury and the Department of Justice conducted their own internal reviews of governmental actions during the initial attack, the siege, and the final assault on the compound. This article discusses what is revealed, and what is deliberately obscured, in the governmental reports. Finally, the article proposes reforms to avoid future tragedies. The article is written by Dr. Paul H. Blackman, Research Coordinator with the National Rifle Association Institute for Legislative Action. Dr. Blackman received his Ph.D. in Government in 1970 from the University of Virginia, and taught at the University of North Dakota and the University of Maryland before joining the NRA in 1977.

Introduction

On February 28, 1993, based on search and arrest warrants which were obtained based on the affidavit of Bureau of Alcohol, Tobacco & Firearms (generally referred to as BATF, although the agency prefers ATF) agent Davy Aguilera, 76 BATF agents stormed Mount Carmel Center, near Waco, Texas.1 (Labaton, 1993d; U.S. Department of the Treasury, 1993) The Center was also known as Ranch Apocalypse and better known as the Branch Davidian Compound because it housed the Branch Davidian2 followers of David Koresh (né Vernon Wayne Howell). Although it is unclear whether Koresh and his followers or the BATF agents fired first, four BATF agents were killed and 14-28 others wounded_some probably struck by "friendly fire"_as were some Branch Davidians.

The incident was followed by a 51-day standoff led by the Federal Bureau of Investigation (FBI), including negotiations, the release of some of the adult and child residents of Mount Carmel Center, and psychological warfare efforts by the FBI, including bombardment with loud music and other unpleasant noises. Then, having grown impatient, the FBI, on April 19, 1993, began ramming holes into the structure in order to pump in CS gas, purportedly because of threats to the 25 children remaining in the compound. Eventually a fire broke out, killing most of the estimated 75 persons remaining in the compound, although Koresh and some of his followers were killed by gunshots rather than fire. (U.S. Department of Justice, 1993b:7) The government reports that the fire was started by Koresh and his followers. Nonetheless, the siege ended with most of the children who were held hostage for all of the 51 days dead in an effort to protect the children from alleged child abuse.

Civil libertarians ought to have been outraged by the government's activities in Waco_and, to be sure, some were. However, for the vast majority of the American public, Attorney General Janet Reno approached political beatification for having the nerve to accept responsibility for saving from abuse 25 children in religious fanatic David Koresh's compound by torturing them with tear gas until they could die in a fire_a willingness to take responsibility for the killing of innocents more commonly associated with Middle Eastern terrorists than with American politicians.

Generally ignored in the aftermath is the fact that the affidavit, which served as the supporting document for the search and arrest warrant, was flawed in a number of significant ways. Furthermore, while it is unclear who initiated the violence between Koresh and his followers and the BATF agents_which may have rendered the killings of the four agents non-criminal_there has been much discussion in the news media regarding the extent to which BATF erred by continuing the assault once they had lost the element of surprise. Next to no one has noted that, for the most part, search and arrest warrants are not supposed to be served with "surprise," but with a formal announcement; "no-knock" is the exception, not the rule. (18 U.S.C.paragraph 31093) In the case of Koresh, there is evidence not merely that the affidavit for the search and arrest warrants was inadequate_failing to establish probable cause that a federal crime had been committed_but that no warrant was needed to investigate Koresh or his house.

The affidavit of BATF agent Davy Aguilera did establish that Koresh owned a large number of semi-automatic firearms, mostly rifles_but not that they were at the compound rather than at the "Mag Bag," a commercial garage rented by Koresh, located miles away from Mount Carmel Center, used to work on and to store his car collection, and the place to which most firearms-related shipments were actually delivered_with over 100 acquired during 1992. With inadequate evidence gathered between June and December 1992 to justify a search or arrest warrant, it is also clear that greater efforts were made to justify a massive raid in late February 1993. The key apparent reason for wishing to stage such a raid is generally assumed: BATF Director Stephen Higgins was scheduled to testify at congressional appropriations hearings on March 10, 1993, and a media-publicized raid, resulting in the confiscation of hundreds of guns, would have made the agency look impressive at those hearings. (Wattenberg, 1993:39)

As importantly, the arrest and seizure of such an "arsenal" might have deflected any questions spurred by the January 12th "60 Minutes" episode indicating sexual harassment in the agency. Although the expose was not aired until January, BATF personnel had first been contacted by CBS in mid-November, shortly after the election of a new President of the United States, who might look askance at sexual harassment in BATF (Wattenberg, 1993:39), particularly coming on the heels of complaints by black BATF agents in October of discrimination in assignments within the agency. (Labaton, 1993) Coincidentally, the BATF investigation into Koresh, apparently moribund after June-July 1992, perked up in mid-November (Aguilera, 1993), with BATF planning for the raid on the compound beginning by early December. (U.S. Dept. of Treasury, 1993:32, 37)

Certain things appear clear, and would have been clear to BATF prior to the massive raid: (1) Koresh held unpopular religious views; (2) Koresh owned large numbers of guns and inert grenades, and may have had the capability of illegally converting or fabricating parts so some of the rifles could have full-auto capability, and of manufacturing "destructive devices"; (3) Koresh may have physically or sexually abused some of the children living at his house, which would have constituted a state, not a federal, offense; (4) Koresh posed no immediate danger to anyone off of his property. It was also abundantly clear to BATF that the raid would get massive publicity since, distinguishing the case from the service of most search and arrest warrants: "The Office of the Assistant Secretary for Enforcement was provided with a one page advisory. The purpose of the advisory was to keep the front office from being surprised should ATF's execution of search and arrest warrants near Waco, Texas receive public attention that would reach the office of the Assistant Secretary for Enforcement." (Noble, 1993:2)

Following the FBI's final assault on Mount Carmel Center, congressional interest in investigating a thoroughly botched operation first by the BATF and then by the FBI faded when public opinion surveys began to show massive blame of Koresh for the outcome of the standoff and praise for General Reno for taking responsibility. The Fourth Amendment protection against unreasonable searches and seizures, requiring the government to have some evidence of wrongdoing before storming a person's house or arresting him, is one of the fundamental freedoms in America. This is especially important in view of the fact that, if Koresh and his followers had broken the law, they were technical violations_victimless crimes_with no intention of resorting to violence unless the government or personal enemies invaded Koresh's property; the arrest and search warrants were obtained with an affidavit which failed to establish probable cause and, if served properly, might thus have resulted in any evidence being found inadmissible in criminal proceedings. The massive raid was unnecessary and unwarranted, and the immediate deaths and injuries of BATF agents and Koresh's Branch Davidian followers were largely the result of BATF's wanting impressive testimony at congressional hearings. The FBI's cleanup operation was similarly bungled and unjustified, and may have been influenced by judicial proceedings following another botched FBI operation in Idaho, involving white separatist Randall ("Randy") Weaver, his family, and friend and co-defendant, Kevin Harris.

Among lessons to be learned are that BATF cannot be trusted objectively and honestly to investigate gun owners, particularly if the gun owners have lots of firearms and hold unpopular religious or political views, that neither the Justice Department nor the courts exercise adequate oversight over affidavits for warrants to search or arrest, with the judicial evaluation of applications for search and arrest warrants being inadequate in the face of agents either ignorant of law and facts or willing deliberately to mislead a judge or magistrate in an effort to obtain a search or arrest warrant. The special fear for those concerned with constitutional liberties should be the apparent willingness of Congress, the news media, and the public, to accept violations of constitutional rights protecting oddball or obnoxious religious or political views if the constitutional right to keep and bear arms is also being infringed.

I. The Unnecessary Warrant

In June 1992, BATF began an investigation of possible violations of federal firearms laws by David Koresh and a few of his close associates. The justification for the initial investigation was that a United Parcel Service (UPS) driver reported to the McLennan County sheriff's office several deliveries of firearms components and explosives which the driver found suspicious.

The driver found it suspicious that some deliveries to a place known as the Mag Bag in Waco, to Mike Schroeder, Woodrow Kendrick, or David Koresh, resulted in his being instructed actually to deliver them to Koresh's residence at Mount Carmel Center, near Waco. (Aguilera, 1993:1-2) One fairly simple explanation was hinted at in the warrant: the deliveries not accepted at the Mag Bag were Cash on Delivery (C.O.D.). Firearms components, ordered in quantity, cost money. The safer place to keep money for which to pay for a delivery which might come at any time was at Mount Carmel Center, which was populated and possibly guarded, rather than at the Mag Bag, which was just a rented garage.

The UPS driver's suspicions heightened when boxes, reportedly accidentally, broke open and he could tell their contents were inert hand grenade hulls and a quantity of blackpowder_legal and largely unregulated items. (U.S. Dept. of Treasury, 1993:17, 74) A competent investigation spurred by the UPS driver's report would have found that Koresh, Schroeder, and Kendrick frequently went to gun shows where, among other things, they sold inert hand grenade hulls, having first made them into paperweights and the like. Koresh had a number of schemes for raising money for the Branch Davidians, and mounting inert grenade hulls as plaques and selling them at gun shows was one of their biggest moneymakers. (Washington Post, May 19, 1993:A19) Koresh also used gun shows as a way to make a profit on surplus meals-ready-to-eat (MREs), among other things. Two of the reasons he purchased guns and gun parts involved money-making: he put parts together to sell guns through a licensed dealer in the hope of profit, and he purchased military-style semi-automatics as an investment, assuming that an anti-gun President would act in such a way as to dramatically increase their value, as President George Bush's ban on the imports of such rifles increased their value in 19894. (McMahon and Kilpatrick, 1993:26, 108-109; Pate, 1993e:38) BATF knew that Koresh and some of his followers attended gun shows (Aguilera, 1993:13; Dunagan, 1993c:5); it might have inquired what they did there.

A. Initial Investigation

BATF began its investigation in June 1992, spurred by the large number of guns and parts being purchased by Koresh and two of his colleagues. To make sure that, had they owned machineguns, they might still be acting within the law, BATF checked to determine whether Vernon Howell (but not, apparently, David Koresh) or Paul Fatta, a close associate, had arms regulated under Title II of the Gun Control Act, generally known as NFA (National Firearms Act) weapons, registered to them. BATF also attempted to determine whether Mag Bag, Howell, Koresh, David Jones, or Fatta were federally-licensed firearms dealers. (Aguilera, 1993:5) They were not, but that accounted for only three persons in Mount Carmel Center, and did not include one of the regular recipients of UPS packages, Mike Schroeder. In its official cover-up of the BATF investigation, the Treasury Department misleadingly suggested that Aguilera checked lots of names_"neither Koresh nor any of his known followers owned such a registered weapon"_whereas he apparently knew few names and did not check them all. (U.S. Dept. of Treasury, 1993:24)

The investigation quickly led to Henry McMahon, doing business as Hewitt Handguns, Koresh's favorite gun dealer. Aguilera listed in his affidavit for the search and arrest warrants all of the relatively recent purchases by Koresh, including flare launchers, over 100 rifles, an M-76 grenade launcher, various kits, cardboard tubes, blackpowder, practice grenades, etc. (Aguilera, 1993:6) Two points are worth noting regarding the items purchased: (1) All, so far as anyone knows, were lawfully purchased, and may be lawfully owned; (2) none established probable cause that Koresh or his followers had violated or were planning to violate any federal law.

B. Invitation to Mount Carmel Center

More important is the part left out of the affidavit. An interview of McMahon (McMahon and Kilpatrick, 1993:75-76) concerning an inspection of his records and inventory in July 1992 confirmed reports elsewhere (Lee, 1993a:24; Pate, 1993e:37):

While [agents] Skinner and Aguilera pored through McMahon's records, the dealer excused himself and telephoned Koresh. "I told him there were ATF agents at my house asking a lot of questions about him," McMahon said. "He said, 'If there's a problem, tell them to come out here. If they want to see my guns, they're more than welcome.'"

"So I walked back in the room, holding the cordless phone and said, 'I've got [Koresh] on the phone. If you'd like to go out there and see those guns, you're more than welcome to.' They looked at each other and Aguilera got real paranoid, shaking his head and whispering, "No, no!'" so I went back to the phone and told David they wouldn't be coming out.'" (Pate, 1993e:37)

On its face, such an invitation suggests (1) no warrant was needed, nor was an assault with 76 BATF agents; (2) Koresh either was in compliance with federal gun laws, believed he was in compliance, or believed he could hide any violations from invited guests. It has been suggested that accepting such invitations violates normal investigative techniques. There are, however, a few arguments against that explanation.

First, although BATF was investigating Koresh, not McMahon, the pretense was that it was an ordinary compliance inspection of a licensed gun dealer5. (U.S. Dept. of Treasury, 1993:26, 286) Such inspections involve checking to see if inventory is accounted for or properly logged out. There were 65 lower receivers in Koresh's custody but not yet recorded out of inventory, presumably because Koresh was going to make them into complete guns before having McMahon sell them and splitting the profits. Under the circumstances, the offer to show where and what was being done with the guns would not be totally out of line. In addition, in asserting that the igniter cord Koresh had was an explosive regulated by federal law, requiring proper storage (U.S. Dept. of Treasury, 1993:124)6, BATF was, in effect, suggesting a reason for visiting the house, to see if the storage was in compliance with federal requirements.

Second, the Treasury report on the BATF investigation did not explain away such a visit, as one might have expected were there a valid law-enforcement explanation. Most of the other commonly-made criticisms of the investigation and affidavit were explained, convincingly or not, in the report. The invitation was not mentioned when the investigation of McMahon was mentioned. (U.S. Dept. of Treasury, 1993:26, 186) The closest that report comes to anything of the sort is praise of Aguilera for attempting "to keep his investigation a secret from Koresh and his followers in order to ensure strategic and tactical flexibility in case search or arrest warrants needed to be served." (U.S. Dept. of Treasury, 1993:123) The effort was a failure, but even if the invitation should have been ignored, the fact of its offer may be significant in evaluating the need for either a siege or an assault in serving the warrants.

Was Koresh's invitation valid? Would he have cooperated with federal agents without a warrant? Or, later, could a warrant have been served without massive violence by both sides? The indications are that Koresh was sincere, and that there was no need for violence, even if Koresh were in violation of federal gun laws. He had, after all, submitted without incident to an earlier arrest and seizure of guns for attempted murder in 1987. The district attorney at the time "recalled, 'We had no problems' with arresting the Davidians. The sheriff and a deputy simply called Koresh and told him that charges were pending and that he and his associates would have to turn themselves in and surrender their weapons. Deputies went to the compound and the suspects readily complied." (Lee, 1993a:23)

The Treasury cover-up essentially denies any such cooperation occurred, noting that the initial arrest was at the incident, and asserting: "There was, in fact, no evidence that Koresh was prepared to submit to law enforcement authorities or that he had done so in the past." (U.S. Dept. of Treasury, 1993:135) The chronology provided with that report, however, notes that Koresh visited the Waco social services agency on request regarding allegations of unlawful child abuse (U.S. Dept. of Treasury, 1993:Appendix D-3 and D-4); in addition, he was visited at least twice in 1992, and continued to have telephone contact with the investigator.

Instead of learning from these incidents that massive force was not needed, BATF cited his only arrest as evidence BATF agents "were keenly aware of the dangerous nature of the search warrant to be executed. Several years ago, Howell and others, many of whom are still with the group, were involved in a fierce gun battle at the area of the compound with a former or rival cult member." (Dunagan, 1993b:2) Ignored in that follow-up affidavit supporting a broader search warrant are the facts that: (a) the shootout, involving one minor injury to one participant, was determined by a jury to be self-defense, (b) the shootout did not involve law enforcement officers, but, indeed, occurred in part because law enforcement refused to intervene in response to Koresh's expressed concerns about possible violations of the law until Koresh could provide more evidence (Nossiter, 1993), and (c) the shootout resulted in an arrest warrant, including the seizure of firearms, being served without resistance.

Koresh had also submitted to a warrantless investigation by Joyce Sparks, of the Texas Department of Human Services, who went to the compound on at least two occasions to investigate possible child sexual abuse charges against Koresh. On the second visit, on April 6, 1992, he reportedly escorted her through the compound and showed her some of his guns, and where he did some target shooting. (Aguilera, 1993:7-9) Earlier, in compliance with a Michigan court order, he had allowed a child to be removed from the compound.7 (Wattenberg, 1993:32)

In addition, after a neighboring farmer, Robert L. Cervenka, complained to the sheriff's office that he had heard machinegun fire in January and February 1992 (Aguilera, 1993:4), the sheriff's office investigated the incidents. "He [Koresh] escorted local sheriff's deputies...through the compound after they had called beforehand to say they were coming. Koresh even invited one of the deputy sheriffs to come back and fish in their lake, according to McLennan County Sheriff Jack Harwell." (Wattenberg, 1993:32) Koresh showed the sheriff that he was using something similar to the Hellfire device, which allows a semi-automatic to be fired in a manner almost replicating in speed and regularity a machinegun burst. Koresh and the Branch Davidians checked with the sheriff to make sure that the devices were legal and did not require registration or federal tax payment. (McMahon and Kilpatrick, 1993:58-59; Pate, 1993c:47) As the Christian Science Monitor noted: "In the past, upon learning that local authorities were concerned about the types of weapons the Branch Davidians might possess, sect members elected to take samples in for examination to prove the weapons were legal." (Pendleton, 1993; Hinds, 1993:8)

After the BATF raid, during the early negotiations, Koresh insisted that there was no need for the raid. He was quoted as having said: "It would have been better if you just called me up or talked to me....Then you could have come in and done your work." (Washington Times, May 26, 1993:A3) Previous activities would suggest that he was being honest, and that there was no need for the raid, and no need for any deaths of either Branch Davidians or BATF agents.

From Koresh's standpoint, violence may have appeared inevitable based upon how BATF proceeded. Koresh knew that he had always cooperated with the authorities before, and knew that he had made it clear to BATF when they visited McMahon's gun shop that they could investigate without hassle. He presumably also knew of instances where government raids began with violence regardless of the likely actions or reactions of the persons being investigated, from the shooting of gun and inert grenade hull owner Kenyon Ballew in 1971 (Sherrill, 1975:274-278) to the raid on white separatist Randy Weaver by the FBI in 1992. It would not necessarily be unreasonable to conclude that if 76 armed men and women, including land and air vehicles, storm your home_after you have made it clear you cooperate with investigations and knowing that the normal service of warrants involves notice _their intentions are not peaceable and self-defense may be rational, even legal, as a jury eventually found it to be in the case of Randy Weaver. Koresh's apparent perception on being informed that the raid was about to begin, was that BATF and the National Guard were coming to get him. (Dunagan, 1993c:8)

Warrant or not, indications are that Koresh tended to cooperate with authorities, had expressly offered to cooperate with BATF's investigation, and there was no reason to conclude he would not have continued to do so. Instead, BATF obtained a warrant, but there was no probable cause justifying a magistrate to issue a warrant, and, based upon the deliberate distortions, prevarications, and misleading accounts in the affidavit, BATF probably knew it had no basis for a warrant.

C. Inadequacy of Affidavit for a Warrant

In testimony before the House Judiciary Committee on April 28, 1993, the week after the final FBI assault on Ranch Apocalypse, BATF Director Stephen Higgins noted that the warrant was not served earlier because analysis of the investigation in December indicated that, at that time, there was no probable cause. According to Higgins's testimony: "We had a review in here at headquarters office in December with respect to whether we had probable cause. We decided at that point that we did not, and we continued to gather information. We brought people in from Australia; we got the undercover agent in; we interviewed any number of people." When asked by Rep. William Hughes: "When did you determine that you had probable cause?" the response was "I think it was mid-February." According to an informal source, a memorandum from the FBI's San Antonio office dated five days prior to the BATF raid noted that "ATF intends to execute a warrant on 3/18....to date no information has been developed to verify the allegations." (Pate, 1993a:63)

The Treasury review of the BATF investigation sees things differently, and, appropriate for a self-serving investigation, asserts probable cause existed much earlier. Assistant U.S. Attorney Bill Johnston determined that the threshold of probable cause had been met by late November. (U.S. Dept. of Treasury, 1993:37) On the other hand, by January, Aguilera had been seeking additional evidence "to establish probable cause" in early January, leading to the decision to establish undercover surveillance (U.S. Dept. of Treasury, 1993:44), and a reporter, perhaps to prevent media interference with the attack on the compound, was told by one of Aguilera's superiors in February that "he had not yet obtained warrants and was not sure he would be able to get any." (U.S. Dept. of Treasury, 1993:71)

The official Treasury Department chronology would suggest probable cause was not believed to exist in December, when Aguilera was told to concentrate on establishing it, and a firearms expert told Aguilera the gun parts and accessories Koresh had obtained appeared lawful. In early January, an explosives expert reportedly opined that Koresh was purchasing chemicals and explosive materials for illegal use, although the chronology does not explain the basis for that belief. (U.S. Dept. of Treasury, 1993:Appendix D-5-8)

Parts of the affidavit relating the investigation should be read with the clear lack of probable cause at least until January in mind; much of agent Aguilera's affidavit is clearly intended to convey a dislike and suspicion of Koresh and his followers without actually asserting that anything unlawful had been done. Some irony in the effort to condemn Koresh regardless of what he did appears in the final paragraph of the affidavit, where it is asserted both that persons engaged in violating the gun laws "employ surreptitious methods and means," and "maintain records of receipt and ownership." (Aguilera, 1993:15)

D. Misleading the Magistrate

The affidavit is filled with assertions which are dishonest, inadequate, or_probably deliberately_misleading, with flaws which should not have occurred in an affidavit prepared with the aid of two assistant U.S. attorneys. (U.S. Dept. of Treasury, 1993:73) Its acceptance by a federal magistrate_as the basis for a warrant to arrest Koresh and another warrant to search the entire 77-acre compound and the entire house, including the living quarters of roughly 100 persons not mentioned in the affidavit_may be partly due to the fact that it was presented to a relatively inexperienced magistrate judge, Dennis G. Green, much of whose legal career was as a prosecutor, giving him a pro-prosecution bias. 9(Brownson, 1991:701-702) Nonetheless, the job of the magistrate is to "perform his_'neutral and detached' function and not serve merely as a rubber stamp for the police." (Aguilar v. Texas, 378 U.S. 108 at 111 [1964])

The fact that Aguilera deliberately misled the magistrate, who neglected to perform the job expected of him by the Constitution, might not have invalidated the search and arrest warrants, but Aguilera could certainly be held responsible for his wrongdoing, based upon BATF requirements. According to the official BATF orders on Searches and Examinations (ATF 0 3240.1A, 1981), p. 4: "The special agent is liable if he/she exceeds his/her authority while executing a search warrant and must be sure that a search warrant is sufficient on its face, even when issued by the magistrate."

If nothing else, Magistrate Green should have noted the staleness of the material. A key requirement of warrant applications is that they give some indication that the evidence is fresh. (United States v. Ruff, 984 F.2d 635 [5th Cir., 1993]) Most of the Aguilera affidavit involves an investigation conducted in June and July 1992. Most of the portions of the investigation conducted in December 1992 and January 1993 involved activities reported to have occurred between 1988 and June 1992. Even such key issues as whether Koresh or his followers had machineguns or "destructive devices" registered to them_and it is only the unregistered possession which constitutes a crime_was determined only in June 1992_and regarding only two of the persons residing at Mount Carmel Center. Indeed, there was apparently never a check to determine whether David Koresh had destructive devices registered to him under his legal name, only under his birth name, Vernon Howell. (Aguilera, 1993:5) It would have been perfectly lawful for Koresh to acquire items in the first half of 1992, which might be made into destructive devices, if the actual manufacture did not occur until after an appropriate federal license had been acquired or registration occurred. The federal government apparently made no effort to determine whether that might have occurred between June 1992 and February 1993.

More importantly, in a warrant affidavit filled with information irrelevant to the question of whether Koresh and his followers had violated any federal firearms or related tax laws, most of the information was misleading regarding the law, guns, gun parts, gun publications, what Koresh and his followers had bought or not bought, and what would or would not constitute a violation of federal laws.

E. Ignorance of the Law and of Firearms

The arrest and search warrant applications misapplied the law even before Aguilera's affidavit in support of those applications had begun. The search warrant alleged violation of two federal statutes, but the arrest warrant alleged only that Koresh had violated paragraph 5845(f) of Title 26 of the U.S. Code. (Aguilera, 1993) That provision does not establish anything as a crime against the United States; it merely defines"destructive device"; it does not say that it is lawful or unlawful to manufacture, possess, use, or anything else with relation to destructive devices. A different provision (paragraph 5861) establishes unlawful activities related to destructive devices. It is a minor point; such an error would not invalidate a warrant. But it does indicate Aguilera's general ignorance of the law and/or carelessness, and set the stage for more misleading statements to a rubberstamp magistrate. The error also indicates that Magistrate Green did not so much as check the U.S. Code to determine whether BATF had asserted an offense had been committed by Koresh.

Aguilera goes on with similarly misleading statements indicating a misunderstanding of firearms and explosives, confusing explosives (defined in Chapter 40 of Title 18 of the Code) with explosive devices (unknown in federal law). The items to be searched for (Aguilera, 1993:Attachment D) includes "machinegun conversion parts, which, when assembled, would be classified as machineguns," and items "which, when assembled, would be classified as destructive devices," but lists no actual machineguns or destructive devices among the items to be searched for except for "sten guns" and "pipe bombs." But the affidavit does not allege the existence of pipe bombs, and the only allegation of a sten gun was on "an Auto Cad Computer located at the residence building at the compound. The computer has the capability of displaying a three dimensional rendering of objects on a computer monitor screen." (Aguilera, 1993:13-14)

Further misunderstanding or, at any rate, misstating the law, the affidavit, immediately upon asserting that Aguilera was familiar with federal laws, asserted that a "machinegun conversion kit" was a combination of parts "either designed or intended" to convert a firearm into a machinegun, whereas federal law says it is a combination of parts designed and intended to convert_with the designed or intended language applicable only to destructive devices. (Aguilera, 1993:1; 26 U.S.C. paragraph 5845) However, while the affidavit makes numerous statements suggesting Koresh's interest in machineguns, there is no suggestion he intended or had an interest in making destructive devices from the various parts which_with some additional parts and some machining_could have been used in that way.

As an agent seeking a warrant used, eventually, to kill about 85 persons, Aguilera also asserted a knowledge of firearms. He then went on to note that Koresh had ordered M16 "EZ kits" (Aguilera, 1993:5), without noting that E2_not "EZ"_kits were equally usable in semi-automatic Colt AR-15 Sporters, and, when combined with the (regulated) receivers purchased elsewhere, would allow the manufacture of a complete E2 model AR-15; it was a parts kit, not a conversion kit, and is not regulated by federal law. Further indicating a lack of knowledge about guns, or an indifference as to accuracy, Aguilera noted both that the AR-15 is a .223 caliber firearm (1993:3) and that Koresh ordered barrels for it in "various calibers"(1993:4).

Aguilera (1993:3) also asserted that, in unrelated cases, persons have quickly and easily converted AR-15 rifles into machineguns, often using milling machines and lathes_thus confusing the fabrication of a machinegun from a semi-automatic_a difficult machining process requiring expertise _and the installation of a conversion kit, which requires assembly only. Aguilera generally and consistently misdescribed the fabrication process; and none of the machinegun parts actually alleged to have been delivered to Koresh were conversion kits.

Indeed, even the expert opinions of firearms experts reprinted in the whitewashing Treasury Department report on the investigation10, while assuming that Koresh was making machineguns, noted that: "None of the many pieces of information available to me is sufficient, by itself, to answer the question as to whether Koresh and his followers inside the compound were engaged in assembling automatic weapons in violation of the National Firearms Act," noting that the various parts he ordered "do not convert the rifle to automatic fire, except in combination with an automatic sear. There is no automatic sear listed in the accounting...." (U.S. Dept. of Treasury, 1993:Appendix B-164-165) "The material made available does not indicate that the Branch Davidians received shipments containing automatic sears.."_going on to indicate they could have been readily manufactured or the lower receivers modified unlawfully. (U.S. Dept. of Treasury, 1993:Appendix B-182)

To suggest that Koresh was intending to convert AR-15s and semi-automatic imitations of the AK-47 into machineguns, Aguilera's affidavit asserted that Koresh made purchases from a South Carolina company which had all the necessary parts to "convert AR-15 rifles and semi-automatic AK-47 rifles into machineguns if their customers had the upper and lower receivers of those firearms....I know that Howell possesses the upper and lower receivers for the firearms which he is apparently trying to convert to fully automatic." (Aguilera, 1993:13) Aguilera here is merely hinting that Koresh may have purchased the parts, not asserting it, since there is no allegation that those necessary parts were purchased from the South Carolina firm.

In addition, Aguilera, knowingly or unknowingly, suggested that AK-47s have upper and lower receivers, whereas the AK-47 has a single receiver, not an upper and lower receiver.11

References to M16 and AR-15 parts kits misleadingly suggested the parts kits were for conversions, whereas they were simply parts which would fit either semi-automatics or machineguns; and suggesting that the kits included all parts necessary to have a machinegun except the lower receiver (Aguilera, 1993:5) is highly misleading.

Following the raid, Aguilera supplemented his affidavit with more details found out about purchases from South Carolina, with shipment not to the Center but to the Mag Bag. Unfortunately, he also, due to ignorance or deceit, falsely asserted that the bolt carriers, M16 selector, and M16 full auto sears and pins, are "used to convert an AR-15 semi-automatic rifle into a M-16 machinegun rifle." (Dunagan and Aguilera, 1993:17) In fact, those are all replacement parts, and have nothing to do with conversion. One would have to first convert the AR-15 receiver to an M16 receiver before some of the replacement parts would fit, but that conversion would constitute the manufacture of a machinegun, not the follow-up substitution of a replacement part.

The only time the investigation reached the point where it might have found that Koresh had purchased parts really capable of converting a semi-automatic into a machinegun, the investigation, amazingly, was not followed through: "Because of the sensitivity of this investigation, these vendors have not been contacted by me for copies of invoices indicating the exact items shipped to the Mag-Bag," (Aguilera, 1993:7) Curiously, that lack of thorough investigating was praised by the Treasury Department, which noted he "sharply circumscribed his inquiries about Koresh to third parties, including arms dealers..., for fear of alerting the Branch Davidians that they were under scrutiny." (U.S. Dept. of Treasury, 1993:123) It is hard legally to establish probable cause when the only source which might supply it is not pursued; and probable cause cannot constitutionally be inferred. If items purchased might have been lawful and might have been unlawful, some reason has to be given for presuming the items to have been unlawful. BATF did not even investigate that, either in June-July 1992, or in 1993, after the agency had determined that Aguilera's investigation had not as yet established probable cause.

Aguilera also suggested that there was something suspicious in Koresh's acquisition of blackpowder, quoting a BATF expert as asserting that blackpowder is routinely used when making grenades and pipe bombs. (Aguilera, 1993:11-12) The statement is not totally false, since BATF's Explosives Incidents System's analysis of 1991 pipe bombings notes blackpowder as the filler material in 41% of the investigations reported. On the other hand, 48% involved smokeless powder, the gunpowder used in most modern ammunition, and most persons recognize ammunition as the routine use of smokeless powder.

As it happens, the most widespread and routine use of blackpowder is as gunpowder for antique and replica firearms, mostly muzzleloading, which do not use commercially-manufactured ammunition. While a tiny percentage is criminally misused, there is nothing suspicious about the acquisition of blackpowder, which is largely unregulated by the federal government. Aguilera's affidavit is deliberately skewed to mislead the magistrate into thinking such ownership unusual except in association with criminal manufacture of destructive devices. Because blackpowder firearms are not "firearms" under federal or Texas state regulations concerning the transfer of firearms, there would not necessarily have been any records available to BATF indicating whether and how many blackpowder firearms Koresh and his followers may have purchased or owned.

F. Widely-Available "Clandestine" Publications

The affidavit also created bias in indicating as evidence of some wrongdoing with firearms that a witness interviewed in January 1993, after having been at the compound from March-June 1992, had "observed at the compound published magazines such as, the 'Shotgun News' and other related clandestine magazines." (Aguilera, 1993:14) Shotgun News is listed in the Gale Directory of Publications and Broadcast Media as being a tri-monthly publication, with a reported circulation of about 165,000. Published by Snell Publishing Co. of Hastings, Nebraska, subscriptions are available by mail or telephone (1-800-345-6923); Visa and Mastercard are accepted. Since the nearly 200 pages of each issue consist largely of advertisements of firearms and accessories, including all types of other weaponry and collectibles_its dramatically understated self-description is as "The Trading Post for anything that shoots"_and the sales by mail of such items are often restricted by federal law, BATF, at headquarters and its various field offices, has 65 subscriptions to the 47-year-old "Clandestine" publication. One of those subscriptions is by the Austin, Texas, office, out of which agent Aguilera works (Aguilera, 1993:1), and of which Earl Dunagan, author of most post-raid affidavits, served as Acting Resident Agent-in-Charge. None of the other "Clandestine" publications is identified12, although the witness reportedly heard talk of, but apparently saw no evidence of, the "Anarchist Cook Book."

According to the advertisement for The Anarchist Cookbook_available from Paladin Press in Boulder, Colorado, at 1-800-392-2400 or 1-800-872-4993; they, too, take Visa or Mastercard_it was "written in an era when 'turn on, burn down, blow up' were revolutionary slogans of the day." Other First Amendment-protected publications available from Paladin Press include information on building claymore mines, picking locks, turning "junk" into arsenal weaponry, constructing grenade launchers, defending the home, and conducting homicide investigations. (Paladin Press, 1993:19) With regard to some of the other portions of the catalogue, it is noted: "Warning: The books and videos in this section detail procedures and products that are extremely dangerous! They are presented for information [sic] purposes only." (Paladin Press, 1993:43) There was no allegation that Koresh possessed any of those other non-clandestine publications. And, clandestine or not, there was no reliable evidence that Koresh or anyone else in Mount Carmel Center actually owned a copy of The Anarchist Cookbook13; the testimony was that the witness had "heard extensive talk of the existence of the 'Anarchist Cook Book.'"14 (Aguilera, 1993:14) One possible reason one of the witnesses had heard talk of the "cook book" but had not seen it was that the witness, who had left the compound in 1989, is reportedly blind (Wattenberg, 1993:34) _although that was not mentioned by Aguilera, who noted that the witness "participated in physical training and firearm shooting exercises conducted by Howell. He stood guard armed with a loaded weapon." (Aguilera, 1993:12)

G. Unreliable and Ignorant Witnesses

One area where Aguilera's affidavit was not directly misleading, but provided information which was, dealt with the credibility of the witnesses he interviewed. In some ways, this flaw may reflect more ill on the assistant U.S. attorneys who helped him with the affidavit and on Magistrate Green than on agent Aguilera. Search and arrest warrants are supposed to be based upon reliable evidence; thus, government agents should assert something suggesting that the witness interviewed is reliable. The Supreme Court has noted that "an informant's 'veracity,' 'reliability,' and 'basis of knowledge' are all highly relevant in determining the value of his report." (Illinois v. Gates, 462 U.S. 213, 230 [1983]) Even the Treasury review, which found probable cause, noted that it could be based on "any reliable evidence, including...hearsay from reliable sources.... " (U.S. Dept. of Treasury, 1993:122n) But there was no assertion that the sources were reliable.

Green should have been looking at least for a pro forma assertion that the people interviewed regarding the firearms and parts they had seen had some knowledge of firearms. Otherwise, every time the news media misidentified a gun as a machinegun, BATF could interview the reporter and get a warrant regarding the gun shop or sportsman on whom the report was made. Not only were assertions of expertise lacking, but much of the information suggested the witnesses were ignorant on the subjects for which their testimony was being used. Aside from the farmer who asserted knowledge that he would know machinegun fire when he heard it: "All other allegations that Mr. Koresh owned machine guns were made by persons who were clearly ignorant of firearms and could not reliably testify to whether the guns, or the pictures of guns, they saw were legal semiautomatic firearms or illegal machine guns. Amazingly, the magistrate apparently failed to notice that Mr. Aguilera had not sworn that his informants were knowledgeable or reliable." (Fiddleman and Kopel, 1993)

Aguilera attempted to establish that he believed one witness, Jeannine Bunds, was able to identify an AK-47, based on her descriptions, but he went on to assert: "She knew it was a machinegun because it functioned with a very rapid fire and would tear up the ground when Howell shot it." (1993:9) The description does not suggest expertise, although the similar assertion of more rapid fire than was more commonly used in training, was the basis for another assertion that a machinegun was being fired, this time by Deborah Sue Bunds. (1993:10)

Others suggest even less expertise. Robyn Bunds noted that something was identified to her by her brother_whom she reported "has some knowledge of firearms"_as a conversion kit. But Aguilera did not interview the brother, assert that Robyn Bunds had any knowledge of firearms, nor did she assert that her brother was an expert. (1993:9) A more contemporary description of a firearm by one of Aguilera's witnesses not only failed to establish the witness's expertise, but disputed it: "Mr. Block told me that he observed a .50 caliber rifle mounted on a bi-pod along with .50 caliber ammunition. However, what Mr. Block described to ATF Agents, was a British Boys, .52 caliber anti-tank rifle (a destructive device).15"

In all likelihood, Aguilera impeached the veracity of his own witness in order to support the allegation of possession of destructive devices_the only charge against Koresh asserted in the application for an arrest warrant_since the affidavit goes on to assert that Block heard talk of additional .50 caliber rifles and the possibility of converting the .50 caliber and other rifles to machineguns. (1993:14) Although there may have been talk of such conversions, there is no allegation in the affidavit, from either reliable or unreliable sources, that any such conversion occurred. Regarding BATF's assumption that the .50 caliber firearm was really a destructive device, according to private statements by Koresh's gun dealer, McMahon, Koresh did not like bolt-action rifles, preferring semi-automatics, in which case Aguilera's assumption that the .50 caliber rifle described was actually a bolt-action "anti-tank" gun is probably inaccurate. In addition, "anti-tank" is somewhat misleading in this context; developed as an anti-tank gun_although all it would be expected to do was penetrate, with no damage beyond that_the bolt-action rifle was obsolete as such by about 1941.

Further undermining the credibility of BATF's Aguilera, the Boys rifle was initially produced in .55 caliber, not .52; it is unlikely there is such a version as the .52. (Hogg, 1978:94) And, with regard to BATF's effort to cite that firearm as evidence that Koresh possessed a firearm in a caliber larger than .50_thus a destructive device under federal law_when the Gun Control Act of 1968 was enacted so defining rifles of larger caliber, most guns like the Boys were rebarreled in .50 caliber to make them legal. Thus, if Koresh owned a Boys, there would be no reason, absent other evidence, to believe it to be an illegal version rather than the more readily available .50 caliber version_especially since that is how Aguilera's witness described it. To the extent BATF has any experts on firearms, they ought to have known that a Boys rifle owned by a private citizen was more apt to be .50 caliber than .55_and that the .55 caliber would be lawful if registered as a destructive device.

The Treasury investigation of BATF's activities, which blithely assumes probable cause existed, accidentally makes it clear that BATF and agent Aguilera should have known that some of his witnesses were unreliable or that their information was stale, either of which would have undermined the validity of their evidence as a basis for a search or arrest warrant. For example, the raid planners "concluded that neither armed guards nor sentries were posted at the Compound at any time...."16 (U.S. Dept. of Treasury, 1993:53) Two of the six key witnesses who had at some point lived in the compound mentioned 24-hour armed guards. (Aguilera, 1993:9, 12) Even if the raid planners were wrong, it means BATF had reason to doubt the reliability of the witnesses or the ongoing validity of their evidence.

It was only after the botched raid that supplemental affidavit information at least recognized the desirability of claiming a witness was reliable. Then Aguilera finally insisted that he had been able to independently corroborate some of the information received from his informant, that the information was extremely accurate and consistent with other evidence, and the like. Some of the information relates to items which are lawful to own, like MAC-10 and MAC-11 semi-automatic pistols, as well as the unlawful manufacture of silencers and live grenades, and the possession of machineguns. And the informant is still not described as an expert on firearms, with the information merely described as being consistent with the other information learned during the preceding year (Dunagan and Aguilera, 1993:16), which failed to establish probable cause.

H. Lack of Evidence of Illegal Weapons at Mount Carmel Center

Overall, most of the allegations made in the affidavit by BATF's Aguilera, especially regarding the initial investigation, focused on Koresh during June-July 1992, dealt with the possibility that Koresh might have enough items to make hand grenades or other destructive devices, and had an interest in owning machineguns, and had some_but apparently not all_of the parts needed for the conversion. Most of the affidavit's discussion of the acquisition of guns and parts suggested there was something wrong with the ownership of a large number of firearms per se, a view contrary to judicial decision (United States v. Anderson, 885 F.2d 1248 [5th Cir. 1989]) and federal statute (Firearms Owners' Protection Act of 1986, paragraph 1). Some of the firearms parts identified in the affidavit could have been used in either semi-automatic or full-auto firearms; some were clearly semi-automatic, and duly purchased from licensed dealers. The only identified hand grenades were inert, since they were only hulls. So far as the affidavit's identification, no item listed as having been purchased by Koresh or his associates was purchased unlawfully, nor was it necessarily to be used unlawfully.

Since the search warrant for machineguns named Mount Carmel Center, it is significant that most deliveries of gun parts went to the Mag Bag, not to the Center. (Aguilera, 1993:2, 4-6) Although some attempts at delivery to the Mag Bag led to actual delivery to the compound, there is no specification of any particular firearms parts being sent to the Center. The Mag Bag could have been searched rather easily, with little threat to others, since there were rarely many men there, and no reports of women or children. To the extent the affidavit established probable cause to search any place for machineguns, it was the Mag Bag and not Mount Carmel Center.17

For the most part, the affidavit indicated a belief that Koresh unlawfully converted firearms to full-auto because (a) he wanted machineguns, (b) had firearms which had been identified as machineguns by persons with no knowledge of firearms, and (c) had the capability of manufacturing destructive devices, although there is no allegation in the affidavit that Koresh wanted to make hand grenades.18 Significantly, there was virtually no effort made to determine whether machineguns or destructive devices might be lawfully owned. The only check of BATF registration records was conducted in June 1992 and included only two names, neither of which was that of "David Koresh." And there were dozens of other adults living at Ranch Apocalypse. It has been reported that "a computer check run on all known Branch Davidians revealed one male cultist had legally purchased a .50-caliber machinegun within the past two years from a Class III dealer [one federally licensed to deal in machineguns] in Tulsa, Oklahoma. The gun dealer reportedly told authorities the buyer was legitimate and had paid a $200 transfer tax required to purchase a Class III weapon." (Pate, 1993a:50) Another, related rumor, in law-enforcement circles, is that the machinegun was not at the compound, having been sent to Oklahoma for repairs, with_as required by federal law for interstate transportation_written permission from BATF. That the sources are not necessarily reliable does not alter the fact that apparently BATF ran no checks on most of the adults, and ran no name checks between June 1992 and the February 25, 1993, affidavit.

Much of the information was not only irrelevant and unreliable, but it came from biased sources, persons who had left the compound, often years before the BATF investigation began. As one hostile reviewer put it:

Let us suppose that you and your spouse had a horrible fight, characterized by fervent anger, ugly words and nasty accusations, resulting in your spouse moving out of the home. Let us suppose your spouse goes to the Bureau of Alcohol, Tobacco and Firearms and tells them that you are distilling alcohol without a proper license. The ATF checks with your supermarket and learns that you have over the past few years on numerous occasions purchased sugar and on a few occasions purchased yeast, and verifies with your local utility that you have purchased water. You have acquired all the ingredients needed to manufacture alcohol. The ATF also checks the Treasury's records and verifies that you have never acquired a license to make alcohol.

In every detail, this situation is identical to the Davidians': there is testimony from an angry former close associate anxious to cause you trouble, there is evidence that you acquired the means to manufacture a product whose manufacture requires a license and there is evidence that you had not obtained the license. Is this evidence_"probable cause"_sufficient for you to lose your right to privacy in your home as guaranteed by the Fourth Amendment? (Bradford, 1993:31)

There are actually some differences, since a license is not needed to produce some alcohol for personal use. But the affidavit also included many items not especially relevant to the issue of whether Koresh and his followers had violated federal laws enforced by the BATF. Irrelevant issues abound.

I. Irrelevant, State Investigated, and Absurd Allegations Against Koresh

Among the more prominent irrelevant issues are reports involving possible child_particularly child sexual_abuse by Koresh. Whether the allegations were valid or not, they do not involve the federal government. However, in the affidavit of BATF's Aguilera, the investigation is not only prominent, but there is no mention of the fact that the Texas state investigation of possible child abuse had ended April 30, 1992 (Wattenberg, 1993:37), nearly ten months before the assault on Mount Carmel Center. Other allegations were even less supported, such as an allegation by someone who had left the compound in 1989 that Koresh had falsely imprisoned a woman in June 1991. (Aguilera, 1993:10-11)

Following the assault, Aguilera voyeuristically returned to the case of alleged child sexual abuse, going into some detail of an incident alleged by the social worker to have occurred, but with no time frame given. From the Justice Department review, it appears that the social worker's interview occurred on February 22, 1993 (U.S. Dept. of Justice, 1993b:219), and it may have been related to an effort to lure Koresh off of his property by having local charges of child abuse brought, since that effort was given up on February 22, when a female minor told a state prosecutor she would not testify against Koresh. (U.S. Dept. of Treasury, 1993:App.D-12) Clearly, Aguilera, even after a massive shootout, was still concerned with possible violations of Texas state law found in an investigation which had been closed over nine months before his interview. (Dunagan and Aguilera, 1993:18-19)

Perhaps the social worker, who had been unable to convince her superiors that she had made a case against Koresh, was envious of Aguilera's less stringent supervision; perhaps Aguilera thought he could make a better case against Koresh for child sexual abuse than for firearms law violations. The Treasury Department review explains focusing on the child abuse investigation: "While reports that Koresh was permitted to sexually and physically abuse children were not eveidence that firearms or explosives violations were occurring, they showed Koresh to have set up a world of his own where legal prohibitions were disregarded freely." (U.S. Dept. of Treasury, 1993.27) Such a theory would allow law enforcement agencies to allow any allegations of any serious criminal activity to help to establish probable cause that all other criminal activities were also being engaged in. In law, the theory is currently indefensible.

The Texas investigation of child abuse, however, led to the only bit of information which could possibly be interpreted as suggesting that Koresh represented a danger to anyone except those in his compound. On the other hand, that investigation also produced evidence which was contrary to other conclusions, since that investigation included Koresh's assertion that few of the persons in the compound knew of the firearms, and that there were few firearms and they were generally locked up (Koresh was, after all, trying to reassure a social worker that the children were safe). Since Aguilera thought that there were large numbers of firearms in the Branch Davidian compound, the reliability of his witness probably might have been doubted: however honest she may have been, Koresh may not have been honest with her.

In fact, Koresh's statement that there were few guns in the compound and few persons knew about them, and the fact that he owned over 200 firearms could both, in a sense, be true. According to his gun dealer (McMahon and Kilpatrick, 1993:105-106), Koresh was concerned about a possible attack from George Roden, the person with whom Koresh and his followers had had a shootout in 1987, and from other persons who regularly sent hate mail to Koresh. Some of the firearms were practiced with for possible protective use. But most of the firearms were purchased as investments, kept boxed to enhance resale value, and never fired. And it is possible that he kept some or many of those investment firearms stored at the Mag Bag. Statements in Aguilera's affidavit suggesting firearms training could have been referring to the single occasion when McMahon attempted a general firearms safety course, with only a few persons getting hands-on instruction before McMahon decided one-on-one would be the only safe way to teach so many persons, and that actual firearms training could have involved only a small percentage of the adults living at Ranch Apocalypse. This idea is supported by the Treasury Department's reporting that some of Aguilera's witnesses noted that McMahon "had participated in some of the shooting exercises." (U.S. Dept. of Treasury, 1993:28) This would also be supported by the allegation, yet to be proven, that most Branch Davidians killed in the initial shootout with BATF were unarmed_and known by BATF shooters to be unarmed. (Pate, 1993d:74)

It is Koresh's statements to the social worker_expressly identified as having been made on April 6, 1992_which suggest he might have envisioned violent use of the firearms. It is worth noting that the social worker was not interviewed until December, several months after BATF declined an invitation to visit Koresh's home to see his guns, and apparently after BATF began planning and preparing for a massive raid on Mount Carmel Center. Reportedly, Koresh "told her that he was the 'Messenger' from God, that the world was coming to an end, and that when he 'reveals' himself the riots in Los Angeles would pale in comparison to what was going to happen in Waco, Texas. Koresh stated that it would be a 'military type operation' and that all the 'non-believers' would have to suffer." (Aguilera, 1993:9) The statement was allegedly made some 3.5 weeks prior to the start of the Los Angeles riots.19 Even if the statement were made later, the error in the allegation suggests neither competency in reporting on an investigation by Aguilera or review of his affidavit by the Justice Department attorneys or the federal magistrate.

Had anyone bothered to check out this stale information, it would have been clear that the affidavit was inaccurate. Had persons checked on the way Koresh talked, they would have found that he did talk that way about the apocalypse, in the Book of Revelations, but the destruction he described was normally attributed to God rather than to David Koresh. The closest Koresh came to perceiving himself as Christ-like, according to his gun dealer, with whom he was on fairly friendly terms, was that he expected, like Jesus, to be killed by the government when he was 33 years old. (McMahon and Kilpatrick, 1993:284-85) But he expected the initiative for his death to come from the government, not from Koresh.20

In addition to the filler regarding firearms and destructive devices, and the terminated sexual abuse investigation, one person purported to know machinegun fire when he heard it was cited as having heard it in 1992. A farmer, with property near the Koresh compound, stated that he had heard machinegun fire in January and February, and again in November. He also offered law enforcement authorities his residence to be used as a surveillance post. (Aguilera, 1993:4) What the BATF agent did not note was that the firing had been reported to the sheriff's office, which had investigated it and found that the supposed machinegun fire actually involved something similar to the Hellfire device. BATF's affidavit also failed to note that the farmer was hostile toward Koresh, having been involved _which may have been part of the reason he offered BATF so much assistance. Credibility and reliability of witnesses is also dependent upon motivation, and BATF did not question the local farmer's.

Another deputy sheriff reportedly had heard an explosion in the area of Mount Carmel Center in November 1992, and saw grey smoke near the north end of the property. (Aguilera, 1993:7) This, as BATF recognized in December, does not establish probable cause for unlawful possession of destructive devices, since explosives are lawful, and the Branch Davidians were working to construct a swimming pool near the house.

J. Stale Witnesses to Establish Recognized Lack of "Probable Cause"

Despite a mass of material relating to possibly legal and possibly illegal activities involving explosives and firearms, and masses of irrelevant information regarding Koresh's peculiar religious views and possible violations of Texas state laws regarding minors, BATF recognized that it lacked probable cause in December. The agency therefore undertook to improve their knowledge, using an undercover agent and additional interviews.

Most of the BATF investigation of Koresh from December 1992 on, however, focused on persons whose knowledge was even more stale than that obtained in June and July_and from persons with clearer anti-Koresh biases, being, for the most part, disenchanted former followers. Three Bunds, who had left the compound before 1992, were interviewed, and described events occurring around 1989-91. The three women were not knowledgeable about firearms and identified firearms mostly by pictures and how rapidly they fired. All of the information from the Bunds, and from a woman from New Zealand, was old (Aguilera, 1993:9-11), and would no more have established probable cause than the June-July 1992 investigation. The information added staleness to unreliability.21

The closest item to new information was that one of the Bunds reported having found some gun parts in her parents' Los Angeles, California, home, noted that her brother_"who has some knowledge of firearms" (Aguilera, 1993:9)_identified it as a machinegun conversion kit, and that three members of Koresh's cult eventually came to pick it up. No reason is given for not having interviewed the brother, David Bunds_son of one former Branch Davidian, brother of another, husband of a third, but not listed as having been involved with Koresh at the time of the BATF raid (New York Times, April 22, 1993:B12).

Nor is there clear evidence that the conversion kit, if it was one, was taken to Mount Carmel Center, as opposed to the Mag Bag or any other place in the United States. After all, although Aguilera did not mention it in his initial application for search and arrest warrants, Koresh also owned a house with garage in La Verne, California, a suburb of Los Angeles_which he visited from time to time (Pate, 1993e:38) and where materials showing a "predisposition toward violence" and "components for improvised explosives" were also found. (Dunagan and Aguilera, 1993:17-18) Probable cause was, once again, not established, even for a single conversion kit_although the information might have suggested a reason for further investigation. No information had been obtained by a reliable source with any knowledge of firearms_and talk about machineguns, even about the desire for them, is not the same as unlawful possession of them or unlawful conversion of semi-automatics to full-auto capability.

Another witness, David Block, noted that he had been in the compound during the spring of 1992, and had attended gun shows with Koresh, McMahon (Koresh's gun dealer), and others from the compound. According to McMahon, Block was anti-gun, unfamiliar with and uncomfortable around guns, and it was the gun activities which caused him to leave the compound in June of 1992. (McMahon and Kilpatrick, 1993:50-52) But the only allegation of illegal activities was rendering a gun on a computer monitor screen, which is no more a crime than playing with destructive devices on videogames. No evidence asserted that it went beyond the designing stage. (Aguilera, 1993:13-14) Block also reportedly heard talk about the "Anarchist Cook Book" and saw "'Shotgun News' and other related [but unidentified] clandestine magazines." And Block observed a .50 caliber rifle, which BATF misidentified as a Boys .52 caliber anti-tank rifle, and a person visiting the compound who was supposed to be a firearms and explosives expert. No probable cause was established by these inquiries.

One witness interviewed, Marc Breault, did indicate that Koresh thought "gun control laws were ludicrous, because an individual could easily acquire a firearm and the necessary parts to convert it to a machinegun, but if a person had the gun and the parts together they would be in violation of the law." (Aguilera, 1993:12) Koresh was not quoted as having confessed to any such confluence of events. Interestingly, in its efforts to learn about Koresh and the Branch Davidians, the FBI determined that "he [Breault] had no current reliable information." (U.S. Dept. of Justice, 1993b:192) But BATF agents are less concerned with about staleness or reliability when there is serious criticism of firearms laws, and that seemed to lead to the only pieces of evidence which would establish, in BATF's view, probable cause in February 1993 which was lacking in December 1992.

K. Exercising First Amendment Rights as "Probable Cause"

BATF had an undercover agent, Robert Rodriguez, inside Ranch Apocalypse. His was, apparently, the only information obtained during the month of February, all of the other interviews in the revived investigation having been completed by January 25th. (Aguilera, 1993; U.S. Dept. of Treasury, 1993:App.D) In a meeting three days before the warrant was issued, Koresh played the guitar for Rodriguez, read from the Bible, and invited him to take training preparatory to joining the group. Koresh warned Rodriguez that if he joined, he "would be disliked because the Government did not consider the group religious and that he (Koresh) did not pay taxes or local taxes because he felt he did not have to."22 (Aguilera 1993:14-15) Aguilera went on to explain what seems to many to have been the basis for BATF's belief that probable cause existed:

David Koresh told Special Agent Rodriguez that he believed in the right to bear arms but that the U.S. Government was going to take away that right. David Koresh asked Special Agent Rodriguez if he knew that if he (Rodriguez) purchased a drop-in-Sear for an AR-15 rifle it would not be illegal, but if he (Rodriguez) had an AR-15 rifle with the Sear that it would be against the law.23 David Koresh stated that the Sear could be purchased legally. David Koresh stated that the Bible gave him the right to bear arms. David Koresh then advised Special Agent Rodriguez that he had something he wanted Special Agent Rodriguez to see. At that point he showed Special Agent Rodriguez a video tape on ATF which was made by the Gun Owners Association (G.O.A.)24. This film portrayed the ATF as an agency who violated the rights of Gun Owners by threats and lies. (Aguilera, 1993:15)

Based on the rambling 15-page affidavit climaxed by the report of agent Rodriguez, Aguilera announced (1993:15) that "I believe that Vernon Howell, also known as David Koresh and/or his followers...are unlawfully manufacturing and possessing machineguns and explosive devices,25" Magistrate Green agreed and, on February 25, 1993, issued a search warrant for machineguns and destructive devices (among other things) and an arrest warrant for Vernon Howell a/k/a David Koresh for possession of destructive devices. The following day, Assistant U.S. Attorney William W. Johnston, chief of the Waco Division, who had assisted Aguilera in his preparation of the affidavit, on behalf of U.S. Attorney Ronald Ederer, obtained an order to seal the complaint against Koresh "to ensure the integrity of an ongoing criminal investigation....It is believed that evidence may be altered or destroyed should the direction of the investigation become evident.26"

Nine days after the initial assault, Magistrate Green later issued a similarly sealed warrant dramatically expanding the items to be searched for at Mount Carmel Center. Some of the expansion was to items relevant to investigation of the possible charges related to the Branch Davidian resistance to the BATF's serving of the first warrant, looking for spent cartridges, bullets, bullet holes, blood, and the like, but including video and audio tapes which would indicate criticism "of firearms law enforcement and particularly the Bureau of Alcohol, Tobacco and Firearms (ATF)," as "evidence Howell or other cult members' motive for wanting to shoot and kill ATF agents." Some, however, dealt with finding more evidence to prove the initial suspicions of unlawfully possessed machineguns and destructive devices, including a search for photographs, because "I know that often times persons who violate firearms laws take or cause to be taken photographs of themselves displaying their weapons...." (Dunagan, 1993b:4)

What BATF agent Dunagan neglected to note to the never-vigilant Magistrate Green was that photographs of inert grenade hulls look identical to those of live grenades, and that photographs of semi-automatic firearms generally look identical to photographs of semi-automatic firearms unlawfully converted to full-auto capability. And, while the assertion that persons who violate gun laws have photographs taken of themselves with their firearms_certainly true of criminals who misuse firearms, including "Billy the Kid" and Lee Harvey Oswald, who were never accused of violating the sorts of gun laws enforced by BATF_the statement is also true of children posing with their cap guns in hand or holster, of successful hunters and target shooters, and of politicians seeking the votes of sportsmen. In a popular biography of the young Theodore Roosevelt, one-third of the photographs of T.R. show him wearing or carrying a firearm. (McCullough, 1981) The figure was about one-sixth in a collage of T.R. photos inside the front cover of the Theodore Roosevelt Cyclopedia. (Hart and Ferleger, 1941)

While Koresh may well have converted semi-automatic rifles into machineguns and made some inert grenade hulls into live grenades, no probable cause was established by the evidence presented in the affidavit. And the key evidence in BATF Director Higgins's mind_based on his testimony before the House Judiciary Committee_appears to have been Koresh's religious views, pro-gun rights views, criticism of federal gun laws, and hostility toward the BATF, all of which are protected by the First Amendment_based on the fact that Higgins testified that the necessary probable cause was not obtained until mid-February and the only evidence after January involved religious and political views expressed or displayed by Koresh. The applications for the search and arrest warrants, based on identical affidavits by Aguilera, were rubberstamped by a federal magistrate and the U.S. Attorney's office, either with or without reading the affidavit to notice the lack of probable cause for anything beyond the clear expression of First Amendment rights.

Neither the affidavit nor the arrest or search warrants make any reference to dangers Koresh might pose to arresting officers. Even post-raid affidavits indicating a "predisposition toward violence" (Dunagan and Aguilera, 1993:17) apparently referred to violent movies_especially war movies_a partiality which would put Koresh in the same camp as John Wayne, Oliver Stone, and the Academy of Motion Picture Arts and Sciences.

In the review by the Treasury Department, while there are frequent assertions of Koresh's hatred of law enforcement and a tendency toward violence, reasons to expect violence in response to a search or arrest warrant are weak. BATF apparently expected Koresh to respond violently to the expose which began in the Waco newspaper the day before the raid. BATF seemed surprised that "The article had not caused the cult to arm itself," but did not infer from that that their perceptions of his violence might have been exaggerated. (U.S. Dept. of Treasury, 1993:10-11) Similarly, although one former cult member said Koresh would remind them that they might have to resist a confrontation with local or federal authorities_with no indication the Branch Davidians would seek out such a confrontation_"as far as the former cult members knew, Koresh had not specifically trained his followers to repulse law enforcement officers or other visitors perceived to be hostile." (U.S. Dept. of Treasury, 1993:45)

Neither the arrest or search warrants indicated that Koresh rarely left the compound, since there was at least one reference to Koresh's attending gun shows. The affidavit repeatedly noted armed guards protecting the Ranch Apocalypse, which, if true, would render complete surprise unlikely. And the only reference to possible destruction of evidence was to seal the complaint, not to justify a "no-knock" raid. How to serve the warrants was largely left to BATF. Was it an affidavit to arrest, search and seize, or an affidavit to kill?

II. Executing a Warrant or a Cult?

When BATF gathered its 76 agents to storm Koresh's property, they were met with armed resistance. In the ensuing shootout, four BATF agents were killed with another 14-28 injured; some Branch Davidians were also killed or wounded, including Koresh himself.27 BATF (Dunagan, 1993c:12), the Departments of the Treasury (1993:100) and Justice (1993b:209), and NBC called the Branch Davidians' response an "ambush" of BATF. One might similarly have noted that when Hitler's troops invaded Poland, they were "ambushed" by Polish military units. The word "ambush" would normally refer to lying in wait, hiding, for an opportunity to attack.

The Branch Davidians were not sneakily lying in wait; they were at home, a home with lots of firearms. The news media have "almost invariably characterized the Davidian arms cache as breathtakingly large. But that is a matter of interpretation." (Wattenberg, 1993:32) According to BATF claims after the standoff ended, there were 237 firearms recovered (Letter from BATF Deputy Director Daniel Hartnett to U.S. Rep. John Kyl, June 29, 1993). Assuming about 40-60 legally-qualified adults, that would work out to about 4-6 firearms per gun-owning adult_assuming all adults lawfully allowed to own firearms were considered gun owners in the compound. That is somewhat, but not dramatically, higher than the national, or even Texas, average. On the other hand, Koresh was a gun collector_not an especially sophisticated one, but a collector, nonetheless. And ownership of 50-500 guns by collectors is not uncommon.

And BATF knew there were lots of firearms, and knew the residents were awake. Part of the dispute after the botched assault on the compound dealt with the questions of whether BATF should have attempted to arrest Koresh when he was alone, or almost alone, outside of the compound. BATF's response is to assert that it was difficult to find Koresh off the grounds of Mount Carmel Center: "In January 1993, ATF initiated a surveillance of the compound. Koresh was never seen leaving the property by ATF. Additionally, an undercover operation by ATF indicated that Koresh had no intention of leaving the compound." (Letter from Hartnett to Kyl) The two sources for the allegation that he rarely left the compound were the social worker, Joyce Sparks, and a former cult member who said Koresh feared arrest by the sheriff's department. (U.S. Dept. of Treasury, 1993:43, 51) There is no indication BATF asked the sheriffs department if they found the statement credible.

If the assertion is true, BATF seemed uniquely unable to find Koresh outside Ranch Apocalypse. The Waco Tribune-Herald, which was preparing an expose of Koresh, noted that Koresh had been out of the compound as recently as February 22, when he went to an auto repair shop. (Pate, 1993a:63) He had also been seen twice at the Chelsea Street Pub during 1993, according to the manager, had been seen at another nightspot in January, and a businessman who wished to remain anonymous showed the newspaper a sales slip indicating Koresh had been in his shop as recently as January 5, 1993. (Pate, 1993a:63) And his jogging, alone or with associates, has been reported regularly. And he also went shopping, to music stores, gun shows, or auto parts shops (Wattenberg, 1993:38; U.S. Dept. of Treasury, 1993:App.D-10)_Mag Bag was also a garage leased and used by the Branch Davidians. And he reportedly attended a gun show in Waco during February. (McMahon and Kilpatrick, 1993:171) One of the active Branch Davidians, Paul Fatta, stated that on several occasions in the weeks leading up to the raid, he, Koresh, and others had gone jogging almost three miles down the road. (Lee, 1993a:24)

Arresting Koresh on such occasions would not only have left the compound in an easier position to search because of the absence of its leader, but would also have reduced the risk that Fatta or another leader/jogger might have spurred resistance. Eventually, BATF admitted it did not keep close tabs on Koresh and did not know whether or how often he left the compound. (Labaton and Verhovek, 1993:20) Yet BATF's only effort to arrest Koresh off the compound involved trying to talk Texas authorities into issuing an arrest warrant for child abuse (U.S. Dept. of Treasury, 1993:App. D-11-12)_and assuming he would cooperate with that warrant. Aside from that, the Treasury review indicates that the only two options seriously considered for arresting Koresh were an assault on the compound and a siege of the compound. And the Treasury review merely found it unclear whether BATF's decision to assault rather than lay siege was well founded. (U.S. Dept. of Treasury, 1993:134)

Rather than try to isolate Koresh, BATF managed, with almost complete success, to consolidate the Branch Davidians. They did this by selecting Sunday rather than a weekday for the raid. On the weekday originally selected for the raid, the men in the compound, with the day jobs many of them had, would have been off the grounds of Mount Carmel Center. (Hinds, 1993:8) And the children who attended school would have been in school, minimizing the threat to them from any possible shootout. If BATF were really observing the activities at Ranch Apocalypse, they should have known that many of the men left during the day for work, and that a school bus stopped there regularly to pick up at least one of the children.

A. Why an Element of "Surprise"?

BATF was supposed to be serving a warrant to arrest Koresh and search the 77-acre compound and all structures there and to seize rifles, conversion parts, metal lathes and milling machines, grenade launchers, various chemicals, pipe bombs, destructive devices, computer hardware and software, etc. (Aguilera, 1993:Attachment D) Unless there is fear that the property might be destroyed while police identify themselves and give notice of why they are at a particular place, warrants are not supposed to be served with "surprise," In this case, the crimes alleged were all non-violent offenses _felonies with the cumulative potential of decades of prison time, but generally crimes in and of themselves victimless. Even anti-gun columnist Jimmy Breslin sneered that "The case against Koresh was for simple gun possession, which in Texas is the same thing as keeping Kit-Kat bars. I began to wonder why the ATF agents would go into training for a couple of months so they could assault religious fanatics over failure to answer a cheap warrant."

In fact, of course, the fanatics had not initially failed to answer a cheap warrant. What one Justice Department reviewer found unique in the eventual confrontation the FBI had to deal with was that "an assault by law enforcement had preceded negotiations with heavily armed cult members who had planned for a confrontation." (U.S. Dept. of Justice, 1993b:119n) The assault was planned and begun before there was any evidence presented to a magistrate or judge that the warrant would be defied.

Under federal law, some force may be used by an officer to "execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant." (U.S.Code, Title 18, paragraph 3109) A key question is whether the BATF agents identified themselves and their purpose, giving residents a reasonable opportunity to cooperate. There was nothing in the application for the warrants which indicated a concern that the guns would, or could, somehow be destroyed. There was nothing in the warrant applications indicating that Koresh or his followers posed any danger to federal agents. A follow-up affidavit by Agent Dunagan hypocritically asserted as evidence of danger the shootout in 1987, but that, of course, was followed by arrest and search-and-seize warrants served peacefully. There was no apparent reason for staging a "Surprise" raid.

By all accounts, however weird the Branch Davidians may have been, they lived peaceful lives, bothering no one. (Blum, 1993:31) Local law enforcement saw them as private and territorial but no threat to the surrounding community. (Wattenberg, 1993:32) And "There isn't a smidgen of evidence that Koresh and his followers ever intended or considered using anything they had or might make for anything other than to defend themselves and the Mount Carmel Center where they lived." (Knox, 1993) Even one of the FBI's consultants said "Koresh's use of religion seemed designed more to legitimize his thoughts and behavior and his desire to live apart from society than to form a basis for martyrdom." (U.S. Dept. of Treasury, 1993:170)

If BATF feared violence, there might have been a reason to attempt to achieve the element of surprise, but such fears are inconsistent with the minimal efforts to keep the news media away, both because the news media are not secretive in their actions and because government agencies are not in the business of endangering the lives of reporters. (Labaton and Verhovek, 1993:20; Danish, 1993:3 and 72; Bradford, 1993:30) If they were not expecting violence, a massive raid would produce good television and other media coverage, but be a poor justification for a massive show of force. (Danish, 1993:72)

Aside from fearing violence, the other reason for an element of surprise would be the possibility that evidence might be destroyed. Neither firearms, nor conversion equipment such as were mentioned in the affidavit (lathes, etc.), are easy to destroy. The most common evidence subject to destruction is drugs. The only allegation of drugs in the affidavit of Aguilera was the report that one person associated with the Branch Davidians had formerly used, and been convicted of using, drugs, and was paroled to McLennan County (Waco), Texas (1993:7).

BATF did allege possible drug law violations to obtain use of Texas National Guard helicopters, which otherwise would not have been used for law enforcement purposes. (Labaton and Verhovek, 1993:20; Pate, 1993c:48) But there was nothing in the initial affidavit regarding drug law violations, nor in the later affidavit filed in March by another BATF agent. Some have asserted that BATF "fabricated the allegation to defend their use of state-controlled aircraft." (Pate, 1993c:48) In fact, BATF used three minimal ties to establish possible drug law violations_which the Treasury Department review found neither misleading nor misrepresentative: the possible continued existence of parts of an amphetamine lab from several years before, and despite a change in control of the compound, and the destruction of most of the houses previously on the land; the presence of a drug-violation parolee; and that ten others had been arrested or at least investigated for some "drug activity"_apparently with no convictions. (U.S. Dept. of Treasury, 1993:16, 212) But those allegations were really merely for the purpose of obtaining use of the helicopters, not for pretending any need to prevent destruction of evidence.

BATF is left with the insufficient explanation offered by BATF spokesman Jack Killorin: "The warrant is for an imminent threat to the life and safety of everybody in that compound. The warrant is for the illicit manufacture of explosives and explosive devices which right away is an immediate threat to the life and safety of every person in there." (Wattenberg, 1993:38)

B. What Element of "Surprise"?

It is hard to know why BATF thought it could have achieved an element of surprise, when the affidavit indicated there were armed guards on patrol 24 hours per day. Certainly daytime hours would have made surprise harder to achieve_as, in fact, did the National Guard helicopters. But BATF never had the element of surprise. Part of that was not clear to BATF, but the agency's undercover operations are not especially secretive. It was clear that the farmhouse used for observation, ostensibly by students, was manned by persons too old to be students_the leader, Rodriguez, was over 40, but he and the others were chosen for their youthful appearances (U.S. Dept. of Treasury, 1993:51)_with one pretending to be a foreman in charge of cows whose ignorance of cows led Koresh's gun dealer to warn him that he needed to watch out, so that Koresh and cult members assumed them to be law enforcement agents. (Labaton and Verhovek, 1993:20; McMahon and Kilpatrick, 1993:258; Pate, 1993e:39) It is generally agreed that Koresh knew that agent Rodriguez was an undercover operative. He knew of other efforts to spy on his compound, where a BATF agent posed as a trainee with a UPS delivery truck, and Koresh made it clear to the driver that he knew he was being watched, and complained about the undercover effort to the sheriff's department. (U.S. Dept. of Treasury, 1993:188)

And BATF scheduled its raid_on a 77-acre property with an observation tower (Aguilera, 1993:Attachment D) and "several manned observation posts [where it was] believed that the observers were armed"(Aguilera, 1993:2)_for daylight,28 when everyone inside would be expected to be awake, on open plains, with numerous vehicles and 76 agents.29 The news media were known to be present, if they were not actually invited.

C. Was Koresh Expected to Resist?

There are two possibilities regarding BATF's expectations of Koresh's response to the search and arrest warrants, neither of which justified BATF's approach to the compound. Either they expected resistance or compliance. If compliance was expected, they did not need 76 agents, armed and armored, accompanied by helicopters, and plans for a quick assault on the compound_which is what they apparently had in mind. A telephone call had been used in the past. If nothing else, such a call might have clarified what Koresh's response would be. If resistance was expected, the news media should not have been allowed at a potentially dangerous location. But when a reporter met one of Koresh's followers outside the compound, the reporter said "The action was likely to be a raid of some type and that there might be shooting." (U.S. Dept. of Treasury, 1993:85)

The most likely explanation for BATF's behavior is that serious resistance was not expected but that the massive show of force was for the media_even if not invited to film the raid themselves, the news media would have had BATF's videotaping made available_so that the arrest of numerous Branch Davidians, possibly with some cultist casualties, and the gathering and photographing of hundreds of firearms and paraphernalia_which would be photographically just as impressive an "arsenal" whether eventually determined to be entirely legal or partially illegal_would afford BATF appropriate national news media coverage. No other explanation seems to cover both the careful planning of a massive raid with the poor arming and training for the agents along with at least some notice to the news media.

At any rate, the assault by BATF was in the planning stages for over two months. Drilling had been done so that some of the timing was down to the second_so long as the Branch Davidians did not interfere with the BATF scripting. As quoted in the Houston Chronicle, "We had practiced to where it took seven seconds for us to get out of the tarp-covered cattle trailers we rolled up in, and 12 seconds to reach the front door." (Lee, 1993a:23) Full control of the compound was to be achieved within 60 seconds. (Wattenberg, 1993:32) It is unclear how much time, if any, was allocated for the statutory obligation of BATF to identify its authority and purpose and to be refused admittance. Perhaps BATF mistakenly believed that Koresh's being tipped off to the raid settled the notice and refusal requirements.

Some of the planning was weak. The layout of the house, which was subject to constant expansion, was not known to BATF except by its undercover agent and by a former cult member who had left in 1989. (Pate, 1993a:62; Aguilera, 1993:12) Both of those persons were males, and men were generally restricted to the first level of the house, with only women and children allowed upstairs (McMahon and Kilpatrick, 1993:174-75; U.S. Dept. of Treasury, 1993:46), where part of the initial assault by BATF was planned to occur (Dunagan, 1993b:2-3)_enhancing the likelihood of confronting unarmed Branch Davidians, since the early-morning paramilitary drills were for males. (U.S. Dept. of Justice, 1993b:209) This information was supplemented, after the raid had failed, by one of the women who previously lived in the compound (U.S. Dept. of Justice, 1993b:203) and by another released from the compound, who was asked to provide agents with a floor plan, leading to the exaggerated complaint that: "They had launched a major assault, weapons drawn with the intent to kill, without having any knowledge of their objective site including entrances, exits, obstacles, hides [sic], passageways, etc." (Lesmeister, 1993:22)

In addition, considering BATF's Killorin's insistence that the possession of explosives threatened the lives of everyone, and the fact that the Ranch Apocalypse was known to house numerous firearms, and the agents were going in armed with guns drawn, planning oddly failed to include a doctor or dispensary to treat wounded agents, a common practice for the FBI. Nor were agents prepared for return fire.30 (Labaton and Verhovek, 1993:20) There was one ambulance available, but it was kept away because BATF could not guarantee the driver's safety. (U.S. Dept. of Treasury, 1993:106)

D. Who Started the Shooting?

It is unlikely that the question of who started the shooting will ever be answered satisfactorily. Most participants on both sides probably did not know for certain, and most of those inside the compound are in no position to express their opinions; surviving BATF agents' recollections might be self-serving, or they might not really have witnessed the first shots.31 BATF's obligation was to knock, identify itself, and give Koresh the opportunity to cooperate. Koresh and his supporters insisted that BATF started shooting before Koresh could either cooperate or defy, indeed, that the helicopters began firing on the compound before any knocking had been done. BATF and their supporters_and some of the news media witnessing the event32_insist that the shooting began from the inside, both at the helicopters and at the agents on the ground. (Pate, 1993a:51; Hedges and Seper, 1993; Dunagan, 1993b:2)

Psychiatrist Robert Cancro, one of the independent experts reviewing both BATF's and the FBI's actions for the Justice Department, suggested that it might not matter who fired first: "Certainly an armed assault by 100 agents had to be seen as an attack independent of who fired the first shot. If an armed individual enters your home by force and you have reason to believe that person represents a mortal threat, you are allowed to fire a weapon in self-defense in most states. The law does not usually allow the potential attacker to fire first before a response can be called self-defense. (Cancro: 3, in U.S. Dept. of Justice, 1993a)

There are actually five general scenarios, three of which would not conflict with the fact that news media witnesses located far from the house believed the first shots were fired by Koresh's supporters. The conflicting scenario is that the shooting began with shots fired from the helicopters, claimed by some surviving Branch Davidians, although some BATF agents insist the gunfire began with Branch Davidians firing at the helicopter. (Pate, 1993a:49-50; Pate, 1993b:41) The second scenario is that BATF knocked on the door to give notice, and that Koresh opened the door and he and/or his people began firing before BATF had the opportunity to identify themselves and their purpose. (Pate, 1993a:51) The third is that when Koresh opened the door, he was shot and wounded by an assigned BATF agent, whose gun was equipped with a silencer, after which the Branch Davidians responded with their firearms. (Pate, 1993a:51) The first shot, then, would have been fired by BATF but not heard by the witnessing media. A fourth scenario is that one of the BATF agents accidentally shot himself as he unholstered his gun, shouting that he was hit, and leading both sides to begin shooting. (Pate, 1993a:51) One modification of the now generally discounted fourth scenario, is that an agent on a ladder slipped, and BATF agents assumed Davidian gunfire was the cause and responded. The fifth is that the Branch Davidians' dogs, which were supposed to be kept under control with fire extinguishers, but with firearms as back-up, were shot at, leading each side to assume the other had begun firing and respond appropriately.

Most of the evidence has been destroyed_or is on videotapes which a judge has ordered to be preserved, but which have not been released. Supporting the BATF claim that Koresh started the shooting are his reported remarks on learning of the impending raid. According to agent Rodriguez, as revealed in agent Earl Dunagan's affidavit_a later affidavit filed by BATF in support of its continuing interest in Koresh_Koresh said, "Neither ATF or the National Guard will ever get me. They got me once, and they will never get me again. They are coming; the time has come."33 (Dunagan, 1993c:8) Why he would have thought the National Guard was coming is unclear, unless he identified the helicopters before their arrival. Even more unclear is why he would say the National Guard and BATF had gotten him before, when there is no record of any such event, and anyone listening to him_except Rodriguez_would presumably have known no such event had occurred. One possibility, of course, is that he did not make the statement, or that his statement was embellished by time and events in the minds of Rodriguez and Dunagan.

As Koresh told the story to his attorney, Dick DeGuerin, the BATF agents arrived in their cattle trailers, screaming like Marines storming a beach, not identifying themselves or asserting a search or arrest. Koresh opened the door, and suggested talking since there was otherwise a threat to women and children; then, according to Koresh, after BATF started shooting, Koresh's people got their guns and responded. (Wattenberg, 1993:40)

Supporting Koresh's version, which might otherwise simply be a nice afterthought, is the assertion of massive bullet damage reported to the front door of the house from the outside, whereas a BATF response to gunfire from within would have been more at sources of such gunfire. (Pate, 1993d:100-101) After all, BATF's follow-up affidavit asserted that agents at the scene claimed firing initiated by Koresh's followers coming from "every window of the compound building." (Dunagan, 1993b:2)

Also supporting Koresh's claims are the tapes from the telephone calls Koresh and his aide made to "911" a minute after the shooting started (U.S. Dept. of Treasury, 1993:App.D-17), in the heat of battle, with the gunfight still in progress with the result unclear. His aide called on the sheriff's office to get them to stop shooting, stating that "There are children and women in here." Koresh's telephone call, also to Sheriff's Lieutenant Larry Lynch_a last name Koresh found funny under the circumstances_included the assertion: "We told you we wanted to talk. No. How come you guys try to be ATF agents? How come you try to be so big all the time." (Wattenberg, 1993:40; Thomas, 1993) The tapes would indicate tapes that Koresh believed the Sheriff's office was responsible for the raid, lending additional support to the suggestion that BATF agents did not begin by identifying themselves as required by law, or at least did not identify themselves clearly and precisely. Additional support for that theory came from an explanation by an FBI spokesman as to why BATF would not have identified themselves first: "You don't want to give these guys a chance to get to their guns. In Waco, there was no announcement of who was there and the fact they're there for the lawful purpose of executing a warrant."34 (Pendleton, 1993)

E. Was It Murder?

Intentional and unjustified killings of other human beings_murder_almost certainly occurred on February 28, 1993, at Mount Carmel Center near Waco. The real question is who committed murder and whether trials are likely. Koresh's second call to "911" included the assertions "I have a right to defend myself," and "They started firing first." (Wattenberg, 1993:40) According to an anonymous former BATF official, "Unless the occupants of a dwelling are made aware that the persons attempting to enter have legal authority and a legal warrant to enter, the occupants have every right to defend themselves...." (Pate, 1993c:74)

The government will certainly act on the assumption that some Branch Davidians are guilty of murder or at least of being accomplices or otherwise culpable in murder. And it is highly unlikely that any of the killings by BATF agents will be treated as murder.35 To some, it would appear that a better case could be made that the BATF agents were guilty of murder than Koresh or his followers.

Storming a building believed to house at least 100 firearms, and housing dozens of women and children, to serve a search and arrest warrant certainly allows a charge that the ensuing deaths were foreseeable. And a case can be made that BATF has "no mandate to raid a compound of women and children with military force to find out if they are making illegal weapons." (Blum, 1993:31) If BATF was also using the armor-piercing Cyclone round as ammunition, that would show wilful disregard for the safety of noncombatants. One of the reasons most police departments prefer hollow-point rounds for normal use is that, in addition to increased stopping power, there is less danger of injuring bystanders either by ricochet or by the bullets penetrating walls. BATF knew, or should have known, that the armor-piercing ammunition it was using could easily penetrate the thin walls of the compound at Mount Carmel Center.36

While criminal cases against BATF are unlikely, civil suits for damage are beginning, and could prove successful. (Blum, 1993) And it is unclear how successful government prosecution of survivors will be. According to the attorney for Steve Schneider, one of the Branch Davidian leaders, Schneider was planning to come out of the compound, at least in part because "he would have had a very triable case." (Blum, 1993:31) If true of the leaders, it would be more true of the followers, most of whom were not mentioned in the Aguilera affidavit and were under suspicion for no crimes prior to BATF's attack.

Interestingly, just before the confrontation in Waco ended in conflagration, a trial began in Idaho where two men were charged with murder for the death of a U.S. Deputy Marshal during a siege in Boundary County. Again, a confrontation between a federal official attempting to serve a fugitive arrest warrant led to a shootout, there resulting in the death of the deputy and the fugitive's 13-year-old son_who was shot twice from behind by other deputy marshals as he ran from deputies who had killed his dog. (Seper, 1993a) The survivor of the shootout, Kevin Harris, was charged with murder, and the person sought on the warrant, Randy Weaver, with conspiracy in the murder of the deputy marshal.

As with Koresh, the government attempted to portray Weaver as a political and religious zealot who prophesied and then sought to create a holy war with federal agents, even though his clear goal had been to avoid government agents. (Sahagan and Conner, 1993) Weaver and Harris claimed self-defense, and that the government unjustifiably fired first. With no defense evidence even introduced, the jury acquitted the accused of all charges of criminal violence, which some saw as a possible lesson for what might happen in trials of the Branch Davidian survivors of the BATF assault on Mount Carmel Center. (Sahagan and Conner, 1993; Ingrassia, 1993; Egan, 1993)

There were clear differences. Although Weaver's original troubles began with BATF_after an undercover purchase of two shotguns which had been, on the buyer's insistence, sawed off to one-quarter inch below the legal limit, Weaver was offered the choice of cooperating in setting up some neo-Nazis or being charged, and he refused to cooperate_the siege and shootout involved other federal agencies, primarily the FBI. In the case of the Waco fiasco, BATF staged the February 28th raid alone (although some other agencies, like the Immigration and Naturalization Service, were tangentially involved). Following the disastrous and embarrassing loss of government agents, the FBI was brought in to serve the search and arrest warrants at Mount Carmel Center, and to make additional arrests for shooting BATF agents serving a valid warrant based upon an insupportable affidavit.

III. The FBI Standoff and Final Assault

Like the advertisement for two-bladed razors, after BATF set them up, the FBI cut them down. That was not the initial intention. The FBI was called in to add some professionalism to a law-enforcement disaster, with the strategy of talking them out, no matter how long it took. (U.S. Dept. of Justice, 1993b:238) With up to 28 governmental casualties (over 35%) related to resistance from inside David Koresh's house and grounds, the majesty of the United States required a resolution, not a determination of whether BATF was responsible, or whether the affidavit justified a lawfully-issued warrant. According to Attorney General Reno:

From the start, the negotiation tactics focused on restricting the activities of those inside the compound, and depriving them of a comfortable environment so as to bring the matter to a conclusion without further violence. Those inside the compound were advised of the FBI's rules of engagement. Under those rules, agents would not use deadly force against any person except as necessary in self-defense or defense of another, when they had reason to believe that they or another were in danger of death or grievous bodily harm.

The FBI installed lights to illuminate the compound at night and loudspeakers to ensure that they could communicate with all members of the compound at once, rather than having to rely solely on the single telephone line available to speak to Koresh and those he permitted to talk on the phone. They also used the loudspeakers to disrupt their sleep, cut off their electricity, and sought to restrict communications of those within the compound to the hostage negotiators. Additionally, they sent in letters from family members, and made other good faith efforts designed to encourage surrender by those who wished to leave the compound. In particular, the negotiators made repeated efforts to secure the release of children. (Reno, 1993:3-4)

There is some inconsistency regarding the rules of engagement. In the smaller scale standoff in Idaho, in 1992, the rules of engagement were altered to allow FBI snipers to shoot any adult who was armed. Since virtually everyone went outside armed_in compliance with the laws of Idaho, and of most other states, since they were their own private property_everyone was a target outside the cabin. There, with the claim that the FBI's Hostage Rescue Team (HRT) snipers can hit a quarter size target at 200 meters, a sniper said he fired at a person outside the cabin whom he believed to be Kevin Harris, the man suspected of killing a deputy marshal, but he was actually firing at Weaver, a foot shorter and 20 years older, who was also outside the cabin, and succeeded in instantly killing Vicki Weaver, who was standing in the cabin doorway holding her infant daughter, with a bullet which then ricocheted into Harris, by then back inside the cabin. (Pate, 1993c:49; Spokesman-Review, 1993; Ingrassia, 1993) The same HRT, under the same leadership, served in both northern Idaho and Waco. (U.S. Dept. of Justice, 1993b:145; Seper, 1993c)

Attorney General Reno may have misstated the rules of engagement, at least as they were explained to David Koresh and his followers. They were warned that if FBI agents perceived any threat to themselves or others, they would shoot, and the rule was, "no one will be allowed to exit the building with a weapon." (U.S. Dept. of Justice, 1993b:42) This was amended after about ten days by prohibiting anyone's leaving the house without advance permission from the FBI. (U.S. Dept. of Justice, 1993b:62) The FBI used firecracker-like "flash bangs" fired at violators, to enforce the rule against leaving Koresh's house without permission. No one violated the more threatening rule.

One issue is whether the FBI would have been justified in using sniper fire to remove Koresh in an effort to end the confrontation with minimal additional bloodshed. While to kill generally violates the rules of engagement, the FBI insisted that the children in the compound were being held and used as hostages. FBI Deputy Director Floyd Clarke told the House Judiciary Committee that the Branch Davidians had used their children as human shields. (Lee, 1993a:26) In hostage situations, the suspect presumably is such a threat to the lives of others that the rules of engagement would allow sniper fire to remove a hostage holder. Richard J. Davis, one of the outside experts called in by the Justice Department to review the incident, suggested such a killing would only have been appropriate in a true hostage situation, where people were being held against their wills. (Davis:23, in U.S. Department of Justice, 1993a)

Since the FBI was largely treating the situation as a hostage situation, at least for some of the residents of the compound, it is unclear why the FBI was so restrained, although it may have been seeking to avoid a repeat of the Idaho killing, widely perceived in northern Idaho as a murder by the FBI sniper involved. The excuse given for choosing the time for the final assault_concern for the children_would appear to have justified the theory that Koresh was endangering them, in which case sniper fire to save them might have been warranted.

Until the final assault, however, the actions by the FBI were not designed to make the children in the compound safe and comfortable. The psychological weapons used on the Branch Davidians to deprive them of sleep (Sessions, 1993:10-11)_floodlights, the sounds of loud music, Tibetan chants, previously recorded negotiations, squawking birds, dying rabbits, etc.37 (U.S. Dept. of Justice, 1993b:78, 82, 88; Dennis, 1993:45)_used contrary to the negotiators' advice (Dennis, 1993:45), would presumably have been at least as efficacious against the children's sleep, and, to the extent any child abuse might be aggravated if the adult is irritable, had the effect of increasing such a risk. Interestingly, having used extensive efforts to cause conditions in the compound to deteriorate by cutting off electricity and the FBI's sleep-deprivation efforts, the FBI concluded that, "The children were living in a deteriorating environment, and that the prospect of sexual or physical abuse was likely as the standoff continued." (U.S. Dept. of Justice, 1993b:226)

Since, in hostage situations, time is generally perceived to be on the side of the government (Potok and Davis, 1993), it is unclear why the final assault suddenly occurred. The perimeter could have been controlled with limited manpower during extended hostage-type negotiations. (Hedges and Seper, 1993) Indeed, during the three weeks prior to the final assault on the compound, the FBI was making it easier to control the perimeter by removing trucks and cars, putting wire around the perimeter, and using "flash bangs" to limit freedom of movement around Koresh's house or on its roof.

Others complained that the FBI even treated the matter like a hostage situation since it involved a cult whose members were there voluntarily, with most subject to arrest, and possible loss of custody of their children, not a celebration of liberation, when the standoff would end. (Goleman, 1993; Christian Science Monitor, 1993) Koresh, especially, was rumored to fear the treatment a suspected child sexual abuser might receive in prison. In addition, he was concerned that his children, by various "wives," not only would be taken from him, but custody by their mothers would also be denied; the children would, instead, be placed outside the family in foster care. (Washington Times, September 6, 1993:A2) One of the psychiatrists consulted by the FBI noted Koresh's profound fear of prison. (U.S. Dept. of Justice, 1993b:163)

On the other hand, it is not at all clear that even Koresh, and even less likely that many of his followers, would actually go to prison. And that, apparently, was known to Koresh and his followers. According to Koresh's attorney, he was confident he would be exonerated in court after the standoff ended (Bradford, 1993:29), as was one of his key associates. (Blum, 1993) Even the FBI Director emphasized that Koresh was thinking of the future, having been successful in court before, and considering the profits from book and movie rights. (Sessions, 1993:22) The model Koresh and his associate had to go on was that of Weaver and Harris.

The preliminary motions involving Weaver and Harris_charged with gun-law violations and with murder for a death which occurred when a fugitive warrant was served related to those gun-law violations_had begun before BATF's assault on the Branch Davidian household. And those preliminary motions were not helping the prosecution's case. (Spokesman-Review, 1993:A9) The actual trial began between when the FBI began formulating its plan to use tanks to insert tear gas into the compound and when that assault occurred. It is unknown_and will probably never be known_whether the publicity certain to come with the Weaver-Harris trial, and the probable outcome, played any role in encouraging some of the FBI visionaries to finish off the Waco standoff regardless of possible deaths to Koresh and other leaders, or especially if those deaths might prevent any similarly embarrassing trial in Texas as the FBI was facing in Idaho.

The possibility of Koresh and his followers winning freedom would certainly be an effective negotiating tool. However, while the FBI was advised to note the possibility, and assured Koresh aF agents were killed and 14-28 others wounded_some probably struck by "friendly fire"_as were some Branch Davidians.

The incident was followed by a 51-day standoff led by the Federal Bureau of Investigation (FBI), including negotiations, the release of some of the adult and child residents of Mount Carmel Center, and psychological warfare efforts by the FBI, including bombardment with loud music and other unpleasant noises. Then, having grown impatient, the FBI, on April 19, 1993, began ramming holes intond his followers due process of law should they surrender to the authorities, the FBI also always told Koresh he would probably go to jail. (U.S. Dept. of Justice, 1993b:163-64) This was contrary to the advice of, among others (Dennis, 1993:49), psychiatrist Park Elliott Dietz, who was later relied upon to note the unlikelihood of a quick negotiated end to the standoff. He advised the FBI to distance itself from BATF "and express sympathy with Koresh's anti-BATF views. Dr. Dietz expressed the opinion that Koresh would choose death over losing power, and therefore the negotiation strategy should create the illusion that Koresh would not go to prison but would emerge with more followers than he had before." (Dennis, 1993:43) Some criticism of BATF could have been facilitated had overly-broad search warrant been released to the public, which would have raised questions about the basis for the raid, and made such a negotiation tactic more effective. The purpose of the sealing the search warrant ended when it was released to Koresh on March 19th (Dennis, 1993:15) and its release might have contributed to negotiations along the lines suggested by Dietz.

Despite the obvious possibility of using the Weaver-Harris trial for that end, the FBI did not use that tactic. Based on Deputy Attorney General Philip B. Heymann's remarks, such negotiation was unthinkable: "Certain peaceful negotiated outcomes, such as holding out the hope that some suspects might escape prosecution for serious offenses, were necessarily foreclosed. For David Koresh, surrender meant giving up everything, and possibly facing a death sentence. There was little for negotiators to offer him," (Heymann, 1993:4-5)

The official reason for escalating was that the HRT had been on the scene and was tiring, that there were no replacements, and that there was harm likely to the children from the deteriorating conditions in the house, if not from escalating abuse from David Koresh. (Sessions, 1993:20-22; U.S. Dept. of Justice, 1993b:247) There was apparently frustration and resentment by the HRT members that, while on duty, they suffered from poor weather conditions and the Branch Davidians were growing bolder and more comfortable in their house. (Isikoff and Thomas, 1993:A15) In fact, however, the FBI was curtailing any boldness by firing "flash bangs" and assuring lack of comfort in the house by shutting off the electricity. (U.S. Dept. of Justice, 1993b:98, 101, 140) If the HRT members were growing tired, however, that would have argued for reducing or ending the noisy psychological warfare against the compound, since such operations work on both sides, and effectiveness presumes fresher personnel than those at whom the warfare is aimed.

There was additional concern of risks to government personnel from accidents, exemplified by an FBI helicopter accident the week before the final assault. (Reno, 1993:7-8; Lee, 1993a:26) There are four areas of dispute regarding the FBI's actions. First is the issue of whether the FBI was justified in dramatically increasing pressure on Koresh due to the alleged uselessness of further negotiations. Second is the issue of whether the FBI was increasing pressure on Koresh or seeking to end the confrontation on the day of escalation. The third is the propriety of putting CS gas into the house. And the fourth is the issue of possible risks to innocents inside the house, particularly children, either from Koresh's response or as a result of accident.

A. Had Negotiations Reached a Dead-end?

The FBI's view was that negotiations were going nowhere, that Koresh never told the truth and would never come out. Therefore, it was necessary to go in, especially as the HRT men were tiring with tempers fraying. (U.S. Dept. of Justice, 1993b:71) The FBI saw increased threat to the perimeter they were maintaining from troublemakers on the outside and willingness to go outside the house by Branch Davidians. (U.S. Dept. of Justice, 1993b:151-154)

The theory that Koresh was utterly refusing to negotiate in good faith was based on refusing to credit Koresh with releasing any hostages through negotiation. A leader of the FBI's efforts "was convinced that the FBI had not succeeded in getting anyone released from the compound through negotiation....he had never been in any previous situation in which he had experienced such a total impasse." (U.S. Dept. of Justice, 1993b:270) Thirty-five persons had been released over time in what looked like negotiation, and some of those results appeared to be followed by punishment, with the loud noises and lights of psychological warfare, shutting off electricity, and removing automobiles from the compound after several persons exited. (U.S. Dept. of Justice, 1993b:140)

The decision to escalate pressure reportedly followed a psychological analysis of two of Koresh's letters, showing that "Koresh was a possibly functioning, paranoid-type psychotic and that he had no intention of surrendering." However, "The FBI began to finish plans for inserting nonlethal Orthochlorobenzalmalononitrile (CS) tear gas into the compound" on April 9, the same day the letters were sent to the experts. (U.S. Dept. of Justice, 1993b:100-101) The analyses were not received until after the plans were nearing completion. Furthermore, the letters, which included much religious citations, were sent only to psychiatrists. "But there is no indication that its thoroughgoing religious content, worldview, and significance were analyzed by anyone competent in religious studies," who might have reached different_possibly more accurate_conclusions. 38(Lawrence E. Sullivan, Harvard University Center for the Study of World Religions:4-6, in U.S. Dept. of Justice, 1993a)

And the Justice Department's analysis of them is inexact. One of the experts said Koresh was unlikely to agree to leave anytime soon. But that conclusion was based partly on the fact that the FBI had not distanced itself from BATF and that negotiations were "repeatedly undermined by ancillary actions." Had his recommendations been followed, far from being pointless, negotiations might well have found their ideal time from mid-April and the time after would have been ideal for using the Weaver-Harris trial to suggest to Koresh the possibility of his going free and his power actually being enhanced. (Dennis, 1993:43,53; U.S. Dept. of Justice, 1993b:166).

The other expert the FBI said concluded that Koresh would never come out voiced the concern that Koresh "may have been planning to set his own trap for the FBI, including 'the destruction by fire and explosion' referred to in many of the scriptural references contained in the April 9 letter." (U.S. Dept. of Justice, 1993b:176-177) Indeed, when the FBI began to clear the area around the house on April 18, preparatory to the April 19 tear-gas attack, Koresh reportedly warned that "this could be the worst day in law enforcement history," and a sniper later reported that he had seen a sign in one of the windows reading "Flames Await." (U.S. Dept. of Justice, 1993b:283-84).

B. Escalating or Ending the Standoff?

The FBI supposedly was merely escalating pressure on Koresh when it began to ram Koresh's house with tanks to pump in CS gas. The plan was proposed a week before being put into effect, and was to allow some Branch Davidians to escape and to encourage serious negotiations with Koresh. (Isikoff and Thomas, 1993:A15) The official "plan was to insert gas periodically over a 48-hour period, to then withdraw, and then to wait as large numbers of people left the compound." (U.S. Dept. of Justice, 1993b:5) "It was not law enforcement's intent that this was to be 'D-Day.'" (U.S. Dept. of Justice, 1993b:267) That, at any rate, was the plan as approved by the Attorney General, and emphasized in her conversations with the President. (U.S. Dept. of Justice, 1993b:273)

She testified: "I directed that if at any point Koresh or his followers threatened to harm the children, the FBI should cease the action immediately. Likewise, if it appeared that, as a result of the initial use of teargas, Koresh was prepared to negotiate in good faith for his ultimate surrender, the FBI was to cease the operation." She further authorized return of fire, and praised their response, which was to escalate still further the tear gas pumping rather than returning fire. (Reno, 1993:6-7)

On the other hand, while the FBI at first used a telephone_promptly rendered ineffective by residents of the compound, ending all formal communications_and loudspeakers to insist the tear gas was just a slight increment in pressure, everything the FBI did and said to the Branch Davidians indicated the FBI personnel on the scene were treating April 19th as D-Day. As soon as the tanks began making holes in the house and inserting tear gas by tank and firing canisters through the windows, a loudspeaker system announced that everyone was under arrest and should come out immediately_"You are under arrest. This standoff is over." (U.S. Dept. of Justice, 1993b:110, 286) The loudspeaker also said anyone going to the tower, perhaps to escape the fumes, "will be considered to be in an act of aggression and will be dealt with accordingly," despite official rules of engagement, which require real threat to life before such actions are taken. (U.S. Dept. of Justice, 1993b:286)

By mid-morning, despite pleas from the Branch Davidians to reconnect the telephone_their life-line to the outside world_the FBI refused to reconnect the telephone unless the "Davidians clearly indicated they intended to use the phone to make surrender arrangements." (U.S. Dept. of Justice, 1993b:292)

As the tanks completed their breaching operations, the loudspeakers were used to taunt Koresh, who disliked being called Vernon, known to be possibly suicidal and eager to maintain power, in the manner of someone shouting "Jump, coward" to someone on a the ledge of a tall building. "David, we are facilitating you leaving the compound by enlarging the door. David, you have had your 15 minutes of fame....[ellipsis in original] Vernon is no longer the Messiah. Leave the building now." Six or seven minutes later, the fire started. (U.S. Dept. of Justice, 1993b:111, 294-295) .

Despite the fact that the FBI clearly tricked the Attorney General and the President into approving a plan intended by them instantly to end the standoff, and the result was the deaths of an estimated 75 persons, neither of those officials has criticized the FBI.

C. On the Use of CS Gas

The FBI also deceived the Attorney General, and the Justice Department report continues that deception, regarding the effects of the CS tear gas. Experts assured her that it produced short-term discomfort, but had no long term effects and posed no special threat to pregnant women, children, or others. It was, in short, merely to cause tears, coughing, sneezing, etc., and at worst a feeling of suffocation and mild burns in sensitive people. (U.S. Dept. of Justice, 1993b:105-106, 266-270, Appendix J) Apparently, she was not told those were not the only effects, particularly when the gas was used inappropriately_indoors.

There are a number of problems with the CS tear gas used against the Branch Davidians. It ceases to be relatively harmless for the young or when it is otherwise misused_as it apparently was at the Ranch Apocalypse. The U.S. Army manual on Civil Disturbances, for example, notes that although CS and other agents "will not seriously endanger health or cause death when used properly, their use in buildings or other closed areas requires caution to avoid producing excessive concentrations of the agent....The dispersers should not be used to introduce a riot control agent directly into a closed structure except under extreme circumstances." (U.S. Department of the Army, 1975:6-1 and 6-3)

With regard to the idea that the gas was supposed to drive the Branch Davidians out of their house: "Generally, persons reacting to CS are incapable of executing organized and concerted actions and excessive exposure to CS may make them incapable of vacating the area." (U.S. Department of the Army, 1975:6-3) In addition, the tanks crushed a stairwell sealing off "what the FBI had touted as the major escape route for children and women," according to the arson investigator chosen to review the inferno. (Crime Control Digest, September 6, 1993:9) That, of course, would make it even more difficult to escape from the house.

Others have noted that CS gas, inserted into enclosed places like buildings, may immobilize by causing nausea, vomiting and vertigo, that the gas itself may hamper movement of rioters because of severe onslaught of symptoms, that it should not be used "where innocent persons may be affected...[or] where fires may start or asphyxiation may occur." (Lee, 1993b; Army Institute for Professional Development, n.d.:129) And there is evidence that by putting the gas "into enclosed areas such as rooms or small courtyards...such misuse of the gas can be harmful, especially to small children, the elderly, pregnant women and people suffering from heart or lung problems." (Frankel, 1985)

A study in the Journal of the American Medical Association noted that direct contact with the tear gas powder could cause sustained blistering skin burns, and although recovery is normally rapid (within minutes), side effects lasting up to weeks could include coughing and shortness of breath, and persons with asthma or chronic obstructive lung disease could require hospitalization. In addition to causing crying and temporary blindness, the CS can induce nausea, vomiting and possibly diarrhea_the compound lacked normal bathroom facilities_and headache. The authors questioned its further use "under any conditions." (Hu, et al., 1989)

The harm from CS gas, as the FBI knew, was in inverse proportion to the criminal culpability of those exposed to it in the Branch Davidian compound: children, women, older men would be the most affected, but the least culpable; young adult males the least affected and the most criminally culpable. And the government also knew, as an affidavit filed the previous day showed, gas masks were available (Dunagan, 1993c:6)ùat least to adults. One possibility is that the FBI hoped mask-wearing adults would be willing and able to escape to protect the unmasked children, the only ones expected to get the full brunt of the CS gas.

There was no fire equipment present or on call,39 despite the Attorney General's insistence that "I was concerned about intentional or accidental explosions and ordered that additional resources be provided to ensure that there was an adequate emergency response" (Reno, 1993:7), and FBI Director Sessions' insistence that there was a "fire contingency plan"_which expressly included determining that it would not be safe or useful to have fire trucks in the vicinity (Sessions, 1993:15, 18; U.S. Dept. of Justice, 1993b:302).

In fact, there was no effective plan, and any fire was likely to spread quickly in the brisk warm wind, and the FBI used tanks to alter the normal escape routes from the house. And the FBI was pumping in a gas which could disorient persons so they could not find an escape route, or could immobilize them by causing nausea, vomiting, and vertigo, into a tinderbox of a house, where hay was used for bullet resistance, and where lighting was achieved with kerosene lamps and heat with propane tanks. This was done to save the children, whose morning hours of government-supplied torture was completed with early-afternoon death. It is unclear whether fire equipment would have done any good, but it was not summoned until ten minutes after the fire began, and the firemen were held up by the FBI for 16 minutes after nearing Mount Carmel Center. (Pate, 1993b:41) According to the FBI, fire equipment had to be delayed "Because the exploding ammunition made it too dangerous" (Sessions, 1993:18), although when ammunition burns, it does not explode.

D. Predicting Koresh's Response

From early after the initial shootout between the Branch Davidians and the BATF, one widely discussed possibility was a mass suicide. (Lee, 1993a:29) One reason BATF adopted the assault method for serving the warrants rather than putting a siege into effect was the fear of suicide. (U.S. Dept. of Treasury, 1993:9) According to child psychologists who talked with the children released from Ranch Apocalypse, and who were consulted with by the FBI prior to the final assault on April 19th, children were taught how and that they might have to commit suicide. (Rimer and Verhovek, 1993:B11; NBC Evening News, May 4, 1993)

On April 19th and thereafter, the authorities expressed total surprise that Koresh may have ordered mass suicide through the burning of his compound, assisted by gunshots to limit the suffering of some of the Branch Davidians, including Koresh. FBI Director Sessions was quoted saying, "None of us expected them to commit suicide" (Pate, 1993b:39): "[E]very single analysis made of his writing, of what he had said, of what he had said to his lawyers, of what the behavioral science people said, what the psychologists thought, the psycholinguists thought, what the psychiatrists believed, was that this man was not suicidal, that he would not take his life." (Lee, 1993a:29) Similarly, AG Reno noted that "experts had advised the Bureau that the chances of suicide were not likely." (Reno, 1993:7)

The FBI director was not telling the truth. One of the psychologists (Dr. Bruce D. Terry) told the FBI only that Koresh would not personally take his own life, but also advised that he would arrange "an abstract suicide_some way for everyone to die, like setting up a large-scale explosion." (Rimer and Verhovek, 1993:B11) Another, Park Dietz, thought Koresh might have a mass suicide. And the FBI's Behavioral Sciences Unit suggested Koresh might arrange a "suicide by cop," where someone arranges for law enforcement to take his life. (U.S. Dept. of Justice, 1993b:161, 184) At best, FBI experts were uncertain, seeing inconsistencies regarding Koresh and the likelihood of mass suicide. (U.S. Dept. of Justice, 1993b:50, 157, 210-214)

Curiously, the FBI was reassured that suicide_if that is what it wasùwas unlikely because David Koresh assured them that suicide would not occur_although the FBI's reason for bringing more pressure on Koresh was that he never told the truth and the FBI could thus no longer negotiate with him in good faith. (Isikoff and Thomas, 1993) The Justice Department review makes it clear that Koresh regularly denied plans for suicide (U.S. Dept. of Justice, 1993b:37, passim.) On the other hand, there were frequent suggestions by the Branch Davidians that fire (or explosion) might be planned. At least twice the Branch Davidians suggested the government might destroy the compound to destroy the evidence. (U.S. Dept. of Justice, 1993b:52-53, 68) And there were other references with less clarity as to cause regarding fire and explosions, including a sign in the window the day before the final FBI assault, reading, "Flames await." (U.S. Dept. of Justice, 1993b:109, 177, 283-84)

Left to be explained by the FBI is why the listening devices secreted in items carried inside the compound, which told the FBI it had no optimism for a resolution (Isikoff and Thomas, 1993:A15), did not tell them that Koresh planned to burn the house in a mass suicide in case of an attack on April 18, the day before the assault. (Baltimore Sun, May 7, 1993:A8) Also to be explained is why it was reported that Koresh gave instructions to spread flammable fuel "on learning of the FBI teargassing plan." (Skorneck, 1993)40

According to one FBI spokesman, Bob Ricks, Koresh actually planned his suicide to include murder of assaulting FBI personnel, and that when the tanks began to withdraw after Koresh had ordered the fires lighted, he attempted to abort the murder-suicide, shouting "Don't light it up," but it was too late. (Washington Post, August 26, 1993:A6) Ricks, of course, was not in nor especially near the compound; tanks do not travel silently; and his statement was not reported promptly. The statement is supported by a statement from one of the so-called "Mighty Men" (U.S. Dept. of Justice, 1993b:App.F-3)_one of the males in the compound who enforced the will of Koresh-_who survived the blaze. He reported hearing words like "start the fires," "Light the fire," and "Don't light the fire," He also denied any knowledge of any suicide pact, making it hard for that Mighty Man to help enforce the decision. (U.S. Dept. of Justice, 1993b:301)

If the FBI analyses of Koresh's reluctance to kill himself were accurate, the fire could have been started without Koresh's authority by others in the cult, or accidentally by the FBI. The Justice Department review finds accidental fire unlikely because the fires started after the tanks had withdrawn. That statement is not entirely true. The tanks withdrew around 12:08 p.m., seconds after the fire began. (U.S. Dept. of Justice, 1993b:294-295) That timing would certainly fit in with the theory that tank damage to kerosene lamps and propane tanks accidentally started the fire, and would partially conflict with the theory that Koresh tried to call off the fire because the tanks had left_although it is possible Koresh had seen some tanks pull back before the final one left after the fire began.

Somewhat undermining confidence that the fire was started deliberately by Koresh or his people is the fact that the "independent" arson investigator chosen to review the evidence, Paul Gray, is married to a BATF employee, socialized with his wife's colleagues, including one of the agents killed in the BATF assault on Mount Carmel Center, Steve Willis, whose funeral he attended. Additionally, Gray's office used to be in BATF offices in Houston, and he carried a card identifying himself as a BATF special agent, whether because he was on the payroll or to inspire more cooperation with investigations being unclear. Asked Jack Zimmermann, attorney for Steve Schneider: "Out of all the independent fire examiners they have in these United States...why didn't they pick someone from Chicago, or Philadelphia, New York, Miami, California?...Why do they pick a guy from Houston who worked in the ATF office until three years ago, who's married to an ATF employee who, I understand, may have had something to do with typing the warrant? And then went to the funeral of one of the four guys who was killed. How much more partial can you be than that?" (Pate, 1993d:74-75)

In addition, even if one accepts the FBI and Justice Department case that the fire was not started by accident by the government, they nonetheless understate the government's contribution to the deadliness of the fire. It is possible that the spread of the fire might have been enhanced by spillage of flammables caused by the tanks, but that would have been minor. (Dennis, 1993:33)

"The arson team also concluded that the Davidians could have escaped the fire if they had wanted." (U.S. Dept. of Justice, 1993b:113) Another review asserted that all who died were there voluntarily, held against their will, or shot to prevent their escape. (Dennis, 1993:2) Those statements do not accurately reflect the report of the not-quite-independent fire investigator. For one thing, in making holes in the building to allow Branch Davidians to escape, the removal of walls and the high winds contributed to the fire's spread, although the inspector attempted to undermine the fire-fanning effects of oxygen with the suggestion that the oxygen would also have lowered the concentration of carbon monoxide, and increasing the time a person might have survived if trapped. (U.S. Dept. of Justice, 1993b:App.D-6) It is not entirely clear what the benefits are of surviving longer while trapped.

And trapped they were. While not agreeing that all Branch Davidians could have escaped if they wanted to, a "great many of the occupants could have escaped to the outside of the compound even as the building burned." (U.S. Dept. of Justice, 1993b:App.F-9) However, "It is also possible that the escape route planned included the...tunnel system accessible through an opening in the floor at the west end of the building. A significant amount of structural debris was found in this area indicating that the breaching operations could have caused this route to be blocked. (U.S. Dept. of Justice, 1993b:App.D-10) Thus, in addition to death from fire, smoke and carbon monoxide inhalation, gunshot wounds, blunt trauma, and stabbing, some were "buried alive and suffocated in the bunker." (U.S. Dept. of Justice, 1993:314-328)

Whether the fire was the result of intentional or accidental actions by the FBI or by the Branch Davidians, the FBI, acting under orders from the Attorney General, clearly facilitated the murder of dozens of innocent persons. The torture of adults, whose only offense was devotion to a man with unusual religious views, and of children, not necessarily even guilty of that, by tear gas was the FBI's plan and intention, and their death by fire was clearly foreseeable. The conflagration marked the culmination of an effort to serve search and arrest warrants involving victimless crimes and obtained with an affidavit demonstrating ignorance and deception rather than probable cause that a federal crime had been committed.

IV. The Cover-Up

The government immediately began a cover-up. To prevent its completion, on the motion of attorneys for David Koresh and Steven Schneider, U.S. District Judge Walter A. Smith, Jr., ordered that all BATF audiotapes and videotapes of the raid on Ranch Apocalypse be preserved, not trusting BATF, under the circumstances, to determine which were_and only to save those_exculpatory. (Order, April 20, U.S. v. Vernon Wayne Howell, U.S. District Court for the Western District of Texas, Waco Division) But BATF refused to make public the videotape it made of the episode. (Labaton and Verhovek, 1993:20)

The BATF approached Koresh's gun dealer, Henry McMahon, and his partner Karen Kilpatrick, on March 1. They were interviewed in Florida, and later kept away from home for about two weeks, constantly admonished not to talk to the press or to the FBI. (McMahon and Kilpatrick, 1993:193-199, 205; Pate, 1993e:39-40) While a review committee was named, it was initially told not to review the actions of April 19th (Labaton, 1993b), although that quickly changed. (Labaton, 1993c) And, of course, evidence was destroyed by the FBI as part of its conduct of the negotiations with Koresh, much to the chagrin of the Texas Rangers (U.S. Dept. of Justice, 1993b:228-230) and then the Branch Davidian compound was bulldozed once the Texas Rangers, FBI, and BATF had completed their clean-up operation. While ostensibly for reasons of health, a thorough study of evidence by unbiased parties was rendered moot.

Nevertheless, as the group reviewing BATF's actions neared completion of its task, the Treasury Department sought a proposed rule "to exempt a system of records, the Waco Administrative Review Group Investigation (DO/207) from certain provisions of the Privacy Act," (58 Federal Register 43312, 08/16/93) While some law enforcement records are thus exempt, the attempt to exempt these non-law enforcement records is clearly intended to hide material from Branch Davidians, their survivors, and the public. And the National Association of Medical Examiners barred the public and the news media from part of their conference discussion regarding the Branch Davidians on the grounds that some of the information revealed might have hindered the prosecution of surviving cult members. (Mahlburg, 1993)

The Treasury and Justice Department reviews of the actions, respectively, of the BATF and FBI, amounted to cover-ups, as might have been expected when a department reviews itself. The Treasury Department review claimed there was no evidence of religious bias in the investigation (1993:121), approved the stale and unconvincing allegations of a supposed drug nexus that justified the use of National Guard helicopters, merely suggesting that the criteria for using such helicopters be made more clear (1993:16, 212), and rhetorically referred to David Koresh's firetrap as a "fortress-like compound." (1993:9) Treasury also reported that the BATF assault was met with machinegun fire (1993:101), although firearms experts who have heard videotapes of the incident have heard no such regular rapid fire.

With no supporting evidence, and despite substantial evidence, the report ignored friendly relations between Koresh and law enforcement, Treasury repeatedly asserted Koresh had the overpowering hatred of law enforcement, particularly of BATF; no supporting documentation was ever provided. (1993:8, 172) Indeed, the Justice Department review noted: "Koresh's hatred of the government did not always seem apparent. The tapes of the negotiations between Koresh and the FBI contain many lighthearted moments, and many hours of calm, peaceful conversations between Koresh and the negotiators. Koresh even proclaimed his admiration for law enforcement during some of the conversations." (U.S. Dept. of Justice, 1993b:209)

Treasury falsely asserted that probable cause was obtained, and, indeed, obtained by December (1993:8, 122), in conflict with the chronology which makes it clear any probable cause was not found until 1993 (1993:App.D-3-6) It asserts that "Neither Koresh nor any of his followers were registered owners of any M-16 machineguns, indeed, of any machineguns at all" (1993:123), even though Aguilera (1993:5) made it clear he had checked very few names for possible registration.

Treasury accurately noted that of two explosives experts consulted, one said Koresh was clearly in violation of the law, and the other said otherwise. (1993:31, 124, App.D-7-8) The Treasury report failed to note that the one asserting a violation of law incorrectly asserted that the quantities of black powder and igniter cord possessed were explosives requiring proper registration and storage, which were lacking. (1993:31, 124) That amounted to a misstatement of the law, since the quantity of blackpowder was below that requiring conformance with any storage requirement, and neither requires registration. Similarly, the assertion that possession of the blackpowder and inert grenades constitutes an explosive grenade because it is possible to make one is misleading. Not only are more materials needed, along with machinery to drill and plug a hole, but without intent, there is no violation of the law. (1993:App.B-156) So BATF in conducting its investigation, and Treasury in conducting its cover-up, both misled about what constituted a violation of the law with regard to destructive devices.

Treasury further falsely asserted that Koresh had all the materials needed to convert semi-automatic rifles to full-auto capability (1993:22-24, App. B-156), a statement in conflict with the views of Treasury's own experts (1993:App. B-164-165, App. B-182) Oddly, considering BATF had been investigating possible unlawful conversion of a semi-automatic rifle into a machinegun, one of BATF's experts opined that something should be done to inhibit the sale and conversion of semi-automatics into machineguns. (1993:App.B-113)

And, finally, although it is known that Koresh's gun dealer told the Treasury Department investigators about the invitation Koresh had issued for BATF to visit the compound_and that the head of the investigation, H. Geoffrey Moulton, Jr. (1993:218), knew about that detail (private communications), the fact is ignored in the Treasury Department review. Instead, Treasury_and at least one reviewer, Los Angeles Police Chief Willie Williams_note only that the dealer allegedly lied about some lower receivers Koresh possessed by referring to him sometimes as Koresh and other times by the name on his driver's license, Vernon Howell. (1993:26, 218, App. A-7) With allegations of some injury or death to BATF agents from "friendly fire," although the report denies the allegation, it fails to report any specifics with regard to the ammunition involved in the shootings of government agents on February 28th.

The Justice Department's cover-up was more limited, in the sense that the overall report included the various conflicting recommendations which were obtained over the 51 days of the standoff, with the conclusion that no one was to blame for anything which went wrong except for Koresh. (U.S. Dept. of Justice, 1993b) The short summary review accompanying the more detailed one included such false statements as: "The Attorney General was adequately briefed on the tear gassing plan, was fully informed of the options, and was given a realistic appraisal of the risks." (Dennis, 1993:4) Furthermore, an additional review by outside consultants included severe criticisms of the FBI's failures, including its refusal to consult religious experts who might perceive the statements of a religious fanatic differently than either law enforcement or the psychiatrists assisting them. (U.S. Dept. of Justice, 1993a) Nonetheless, the news media found the "no fault" review of the Justice Department more puzzling than the Treasury Department's review. After all, while the Treasury Department ignored questions regarding why the raid was planned, it did severely criticize how it was carried out and the apparent cover-up which followed. (U.S. Dept. of Treasury, 1993)

V. Policy Lessons

Policy lessons are easier to envision than their implementation. After all, Attorney General Reno told the ABC News program "20/20" in July that she would approve the same actions nearly three months later, that there is nothing she would do differently. (Washington Times, July 9, 1993:A2) And, although it is clear that the FBI misled their new attorney general while planning the fatal assault on the compound_accidentally, perhaps, regarding child abuse, but intentionally regarding the lack of negotiation progress, the risk of possible suicide, and the effect of CS tear gas in an enclosed space_she defended the Justice Department cover-up (U.S. Dept. of Justice, 1993b; Dennis, 1993; Heymann, 1993) at the press conference for its formal release, October 8, 1993. Even Henry Ruth, an outsider reviewing, and approving, the BATF cover-up, asserted that the Justice Department review produced "limited, disingenuous assessments that raise more questions than they answer," insisting that "law enforcement can be taught by civilian control that a child's life takes precedence over seizure of evidence, that a tactical enforcement plan must first consider that government shall not once again be the instrument to fulfill the prophecy of apocalyptic deaths." (Ruth, 1993)

While Reno may lack 20/20 hindsight, others in the FBI and BATF are appalled at the actions undertaken by their organizations. That is one of the reasons information is coming out, but it is also one of the reasons much of the information is coming from unusual sources, as agents speak (or leak) to friends who write for right-wing publications or the gun press, or work for pro-gun organizations.41

A. BATF as Gun Law Enforcer

Columnists like Richard Cohen and Molly Ivins concluded that the Waco shootout showed that more restrictive gun laws were needed. With the possibility that some of the guns owned by Koresh were prohibited under federal law, the Ivins (1993) approach would put millions of additional Americans in the same situation of possessing outlawed items, with BATF encouraged to make arrests of such persons, who otherwise had harmed no one. This led columnists like Paul Craig Roberts to note that Waco "happened precisely because of federal laws regulating gun ownership. The Branch Davidians hadn't assaulted anything. They lived peacefully in the community. Except for the federal gun laws, they would all still be alive. It wasnÆt the state of Texas that provoked the confrontation....The liberals' premise that gun ownership should be illegal, or at least heavily regulated, has created the atmosphere in which the ATF, like an unthinking bully, feels compelled to increasingly and brazenly show its presence." (Washington Times, April 22, 1993)

One columnist responded to the BATF's long reputation of abusing rights by calling for the agency's abolition. (Reese, 1993) Others certainly noted that BATF abuse was not new (Lesmeister, 1993)_although nothing ever matched overkill like the raid on Mount Carmel Center based upon the affidavit by agent Aguilera. "The ATF has a reputation for claiming to focus on 'career criminals' while going all out to get niggling gun charges on otherwise law-abiding citizens." (Pate, 1993a:64) It seemed actually to surprise BATF agents interviewing Koresh's gun dealer the day after the raid that the agency was still unable to find any criminal record on Koresh in its computer checks. (McMahon and Kilpatrick, 1993:156)

For some, the raid spurred a comparison with the Nazi assault on the Warsaw Ghetto, with both incidents spurred by a religion held in contempt by the government, a search for weapons, accusations of child abuse, news media serving as government propagandists on the dangers of the group attacked, and unexpected resistance. (Dingell, 1993) Until the release of Aguilera's affidavit, it certainly looked as though the primary reason for focusing on Koresh was the unpopularity of the Branch Davidians, leading Randy Weaver's attorney to note: "I dare say the Bureau of Alcohol, Tobacco and Firearms and the FBI could, if they choose, infiltrate the Salvation Army and find some timid soul who chopped down a Christmas tree in a national forest. The wearisome pattern of the government is to discover, usually with the trickery of undercover agents, a violation of some petty law in order to do in these tricklet groups." (Spence, 1993) With the release of the affidavit, it looked more as if BATF's action were not spurred to infringe on religious freedom alone but they attacked Koresh because he freely expressed political views critical of federal gun laws and showed a videotape denouncing BATF's actions in the past. (Pate, 1993c:49; Aguilera, 1993:15)

Koresh may well have violated some federal gun laws. Certainly, BATF insists that the material found after the fire at Mount Carmel Center justifies the warrant: "The charred remains of a large arsenal of firearms, ammunition, silencers, and explosive devices were discovered. Preliminary examination reveals that over 44 of the 237 firearms found were machineguns and, therefore, possessed in violation of federal laws. In addition, approximately 200,000 rounds of ammunition were found." (Letter from Deputy Director Daniel Hartnett to U.S. Rep. Jon Kyl, June 29, 1993) Firearms and ammunition, in general, would be legal. The silencers42 and machineguns would only be unlawful if not duly registered; and "explosive devices" are not defined or regulated by federal law. If, like Aguilera, Hartnett meant to say "destructive devices," those would be illegal if unregistered, but it is unclear to what extent the destructive devices envisioned in the affidavit would have survived an inferno intact enough to constitute evidence. With the machineguns, the question would be whether Hartnett's statement is true, and whether they were machineguns before BATF began examining them after the fire; BATF had the means, motive, and opportunity to convert Koresh's semi-automatics to full-auto capability. Hartnett's honesty is undermined by the fact that the letter goes on to insist, long after the statement was disproved, that Koresh did not leave or intend to leave the compound.

With a serious crime problem, there remains the issue of why BATF tries to make cases among the non-violent rather than focusing on those violent criminals actively acquiring firearm for criminal misuse. Reforms of the federal gun laws, pushed by the National Rifle Association and other pro-gun organizations, were geared in part to have federal law emphasize the seriousness of repeat offenders, and reduce some paperwork offenses to misdemeanors on which BATF was unlikely to focus. BATF even managed to make lemonade from what may have seemed like lemons, emphasizing its role in focusing on career criminals. (BATF, 1992) So long as victimless possession crimes remain felonies, however, BATF is likely to engage in investigations of otherwise non-violent persons and persons without criminal records. The most that can be hoped for is that some oversight will limit gun laws being used with political motivation against those merely with unusual or offensive religious, racial, or political beliefs, and that Fourth Amendment protections are somehow enforced by law. It might be easier to impose a layer of effective oversight over the BATF than to hope for improvement from criticism alone.

B. Justice Department and Judicial Oversight of BATF

The Fourth Amendment envisioned having the independent judiciary exercise oversight of the executive branch, making sure there existed probable cause before privacy rights could be infringed by government. The Supreme Court has long insisted that, to enforce the constitutional protection, a warrant may only issue upon the determination of a neutral and detached magistrate that probable cause exists to believe that the search will yield evidence of criminality. The magistrate is to serve as something more than a rubber stamp. (Aguilar v. Texas, 378 U.S. 108 [1964]; United States v. Leon, 468 U.S. 897 [1984])

Magistrate Green did not so much as open the United States Code to determine that the crime Koresh was alleged to have violated was merely a definition of "destructive device" and that the affidavit usually referred to explosives or explosive devices rather than to destructive devices. He did not notice that virtually no one was alleged to have knowledge of firearms, that most of the allegations did not assert possible violations of federal law, or that most of the basis for belief there would be any evidence of a crime is that the evidence would be at the Mag Bag, not the Mount Carmel Center, and was over six months old.

One possible policy recommendation would be to amend the law to make it harder to obtain warrants for gun law violations, and to require by law that such warrants: (a) be reviewed and approved by a U.S. attorney before being presented to a judge or magistrate (although that might have been insufficient in this case); (b) admit hearsay in the affidavit only if the actual witness is unavailable by reason of death, or incapacity, unlike the Aguilera affidavit which used the sister of someone who may have known something about firearms; (c) establish a 30-day limit between the commission of the alleged illegal act and the date of the affidavit, where most of the Aguilera evidence occurred in early 1992; (d) obligate affiants to note possible exculpatory evidence, such as the Sheriff's investigation of alleged machinegun fire at Mount Carmel Center; (e) require that a person's qualifications be established where technical knowledge is required to establish probable cause, something utterly lacking for most of the persons who were supposed to have seen machineguns in Koresh's house; and (f) limit the time for which warrants, affidavits, and related items can be sealed prior to, and after, service, with periodic review if extensions are needed.

The changes would not alter the substance of the law, nor apply to allegations governing warrants for violent crimes or crimes with victims. The changes would merely limit the ease with which the government could obtain a warrant to enforce a victimless crime in an area related to the exercise of a constitutionally recognized right.

Another proposal, from Americans for Effective Law Enforcement, would establish more informal protocols, by agencies rather than by law, with judicial oversight only when law enforcement planned to take extraordinary actions, justifying to a court not merely the probable cause, but the need for use of extraordinary force, unconventional entry methods, abandonment of ongoing negotiations, and the like. (Schmidt, 1993)

C. Revive American and Media Support for Constitutional Freedoms

This is, of course, the most difficult of policy lessons to implement. Most of the news media simply accepted the propriety of the federal operation in Waco, criticizing its planning and performance but not its motivation, and accepting sharp limitations on their right to know which normally would have inspired editorials denouncing government-in-secret.43 (Cheshire, 1993) Some editorialists learned from the experience. The Nation began by sneeringly suggesting the Koresh was clearly "N.R.A. Gun Nut of the Month" (Nation, 1993a), but noted that "The root cause of the lethal outcome was its central concept as a military operation. The Branch Davidians, after all, were initially accused of illegal weapons possession_hardly a casus belli in Texas. In response the Bureau of Alcohol, Tobacco and Firearms assembled an invasion force and marched on the compound." (Nation, 1993b)

Unfortunately, for most in the news media, and for most Americans, the FBI's actions became an acceptable conclusion. "Of all the troubling questions raised by the tragedy at the Branch Davidian compound near Waco, Texas, perhaps the most disturbing arose a few days after some 90 cult members met their firey [sic] death. It was then that several national public opinion polls reported that an overwhelming majority of Americans found no fault with the way law-enforcement authorities had brought the standoff to a head....Such enthusiasm for an exercise that was botched from the beginning, that ended in a horrible blood bath, and that continues to pose agonizing questions, ought to dismay all of us: We have allowed our national zeal for 'law and order' to carry us beyond the bounds of reason." (Knoll, 1993)

One real concern is that the news media have made gun ownership itself a dubious activity to large numbers of Americans, and when media dislike of firearms is combined with popular and media dislike for persons with quirky religious or political views, the public is willing to accept almost any amount of government-sponsored violence to achieve a "two-fer": constitutional rights must be preserved, in the media's eyes, unless First Amendment rights and Second Amendment rights are both being violated in the same operation. One columnist noted: "It has been said that a 'cult' is what we call a religion that we don't like. Perhaps the Branch Davidians were so unlikable that they blinded federal authorities and, for that matter, most of the rest of us to common sense." (Page, 1993) There is, or should be, serious concern that there may be merit in the new bumper sticker, popular among some gun collectors: "Is your church BATF approved?"

An Oliphant cartoon depicts a Koresh-type character marching with a sign reading, "The end of the world is coming." On the back of the sign, it reads: "We gratefully acknowledge the kind assistance of the FBI, the ATF, and the Department of Justice in the production of this prophecy."

That is not the job of the federal government, and it is appalling that the American public so quickly accepted its revised job description. Criminal investigations of religious groups for possible technical gun-law violations are not supposed to result in government authorization to kill persons, most of whom are innocent of any suspected criminal wrongdoing.

REFERENCES

Aguilera, Davy 1993. Application and Affidavit for Search and Arrest Warrants for Vernon Wayne Howell and the Residence of Vernon Wayne Howell, and others. Waco, Texas, February 25.

Army Institute for Professional Developmentn.d. MP: Civil Disturbance Operations, Subcourse MP 1005, Edition 5.

Associated Press 1993. 4 U.S. agents killed in raid on Texas cult. Baltimore Sun, March 1.

BATF [Bureau of Alcohol, Tobacco and Firearms] 1992. Protecting America: The Effectiveness of the Federal Armed Career Criminal Statute. March.

Blum, Andrew1993. Waco Tragedy Spawns Litigation. National Law Journal, 3 and 31 (May 17).

Bradford, R.W. 1993.There's No Kill Like Overkill. Liberty 6(6): 28-32 and 56 (August).

Brownson, Ann L. (Ed.) 1991. 1992 Judicial Staff Directory. Mount Vernon, Va.: Staff Directories, Ltd.

Campbell, J.B. 1993.FBI knew holocaust likely. The National Educator, 1 and 15 (June).

Cheshire, William P. 1993. Looking beyond the Waco smoke. Arizona Republic, August 22.

Christian Science Monitor 1993. Lessons From Waco, March 16.

Danish, Paul 1993. The Real Reason the Feds Stormed the Cult. Soldier of Fortune, 3 and 72 (August).

Dennis, Edward S.G., Jr. 1993. Evaluation of the Handling of the Branch Davidian Stand-Off in Waco, Texas, February 28 to April 19, 1993, Redacted Version. Washington, D.C.: U.S. Department of Justice, October 8.

Dingell, John D., III 1993. Waco Shootout Evokes Memory of Warsaw '43. Wall Street Journal, A13 (March 13).

Dunagan, Earl 1993a. Criminal Complaint and Affidavit, U.S.A. v. Woodrow Hendricks, Waco, Texas, March 5.

Dunagan, Earl 1993b. Application and Affidavit for Search Warrant for the Residence of Vernon Wayne Howell, and others, Waco, Texas, March 9.

Dunagan, Earl1993c.Criminal Complaint and Affidavit, U.S.A. v. Rita Faye Riddle, Waco, Texas, April 18.

Dunagan, Earl, and Davy Aguilera 1993. Application and Affidavit for Search of Residence of Vernon Wayne Howell, and others. Waco, Texas, April 4.

Egan, Timothy1993. U.S. Hits Snags in Idaho Siege Trial. New York Times, June 23.

Fiddleman, Theodore, and David B. Kopel 1993. Unsettling question in probe of Waco: What motivated the raid? Washington Times, E3 (June 1).

Frankel, Glenn 1993. Israel's Use of Tear Gas Scrutinized. Washington Post, May 31.

Goleman, Daniel 1993. Experts Say Hostage Approach Led to Bloodshed. New York Times, April 21.

Hart, Albert Bushnell, and Herbert Ronald Ferleger 1941. Theodore Roosevelt Cyclopedia. New York: Roosevelt Memorial Association.

Hedges, Michael, and Jerry Seper 1993. Lawmen fault ATF assault on cult's fortress. Washington Times, March 2.

Heymann, Philip B. 1993. Lessons of Waco: Proposed Changes in Federal Law Enforcement. Washington, D.C.: U.S. Department of Justice, October 8.

Hinds, Michael deCourcy 1993. A Believer, Stranded in Battle, Says Sect Has Peaceful Goals. New York Times, 1 and 8 (March 6).

Hogg, Ian V. 1978. The Complete Illustrated Encyclopedia of the World's Firearms. New York: A & W Publishers.

Hu, Howard, et al. 1989. Tear Gas_Harassing Agent or Toxic Chemical Weapon? Journal of the American Medical Association 262: 660-663 (August 4).

Ingrassia, Michele 1993. Is Deadly Force Justifiable? Newsweek, 31 (June 2l).

Isikoff, Michael, and Pierre Thomas 1993. Reno, FBI Took Fatal Gamble. Washington Post, A1 and A15 (April 21).

Ivins, Molly 1993. Ban the Things. Ban Them All. Washington Post, March 16.

Johnson, Dirk 1993. 40 Bodies of Cult Members Are Found in Charred Ruins. New York Times, B12 (April 22).

Knoll, Erwin 1993. The Tragedy After WacoùPublic Response. Christian Science Monitor, 19 (April 27).

Knox, Neal 1993. Probing the Waco Tragedy. Rifle Magazine, 48-49 (July/August).

Labaton, Stephen 1993a. Saved From Extinction, Agency Faces New Peril. New York Times, March 4.

Labaton, Stephen 1993b. Inquiry Won't Look at Final Waco Raid. New York Times, May 16.

Labaton, Stephen 1993c. Justice Inquiry Will Now Examine Assault on Cult. New York Times, May 18.

Labaton, Stephen 1993d. Report to Fault Firearms Bureau for Raid on Cult. New York Times, August 30.

Labaton, Stephen, and Sam Howe Verhovek1993. U.S. Agents Say Fatal Flaws Doomed Raid on Waco Cult. New York Times, 1 and 20 (March 28).

Lee, Robert W. 1993a. Truth and Cover-up: Sorting out the Waco tragedy. The New American, 23-30 (June 14).

Lee, Robert W. 1993b. Lethal Fumes. The New American, 38 (June 28).

Lesmeister, Bob1993. BATF: Undisciplined and Deadly Sects, Lies, and Videotape. American Firearms Industry, 22-32 (June).

McCullough, David 1981. Mornings on Horseback. New York: Simon and Schuster.

McMahon, Henry Stanley, Jr., and Karen J. Kilpatrick 1993. In re: Interviews of Henry Stanley McMahon, Jr. and Karen J. Kilpatrick, May 25.

Mahlburg, Bob 1993. Secrecy shrouds coroners' talks on Waco deaths. Washington Times, A3 (September 13).

Melton, J. Gordon 1978. The Encyclopedia of American Religions, Volume 1. Wilmington, N.C.: McGrath Publishing Co.

Nation 1993a. Their Man in Waco. The Nation, April 19.

Nation 1993b. The War in Waco. The Nation, May 10.

Noble, Ronald K. 1993. Testimony of Assistant Secretary for Enforcement, Department of the Treasury, before the Subcommittee on Treasury, Postal Service, and General Government, Committee on Appropriations, U.S. House of Representatives, June 9.

Nossiter, Adam 1993. Warning of Violence Was Unheeded After Cult Leader's Gun Battle in '87. New York Times, March 10.

Page, Clarence1993. Costly impatience in Waco. Washington Times, F1 and F4 (April 27).

Paladin Press 1993. Paladin Press: Publishers of the Action Library, vol. 23, no. 4.

Pate, James L.1993a. Gun Gestapo's Day of Infamy. Soldier of Fortune, 48-53 and 62-64 (June).

Pate, James L.1993b.Waco Standoff Ends in Disaster. Soldier of Fortune, 38-41 and 73 (July).

Pate, James L. 1993c.Waco's Defective Warrants: No Probable Cause For Raid on Ranch Apocalypse. Soldier of Fortune, 46-49 and 93 (August).

Pate, James L.1993d.What the Feds Don't Want You to Know about Waco. Soldier of Fortune, 72-75 and 100-103 (October).

Pate, James L.1993e Waco: Behind the Cover-Up. Soldier of Fortune, 36-41 and 71- 72 (November).

Pendleton, Scott 1993. Waco Siege Prompts Scrutiny of Agency. Christian Science Monitor, 8 (March 8).

Potok, Mark, and Robert Davis 1993. Time is the best weapon. USA Today, 2A (March 11).

Powell, William 1971. The Anarchist Cookbook. Secaucus, N.J.: Barricade Books.

Reese, Charley1993. Waco mess is reason to Ax Alcohol, Tobacco and Firearms bureau. Orlando Sentinel, A8 (March 16).

Reno, Janet 1993. Statement Before Committee on the Judiciary, U.S. House of Representatives concerning The Events Surrounding the Branch Davidian Cult Standoff in Waco, Texas, April 28.

Rimer, Sara, and Sam Howe Verhovek 1993. Growing Up Under Koresh: Cult Children Tell of Abuses. New York Times, A1 and B11 (May 4).

Ruth, Henry 1993. Cops and Cults_Preordained Disaster. Los Angeles Times, October 15.

Sahagan, Louis, and Doug Conner 1993. Pair Acquitted of Murder In Idaho Mountain Shootout. Washington Post, July 9.

Schmidt, Wayne W. 1993. AELE [Americans for Effective Law Enforcement] Recommends Study Of Discretionary Procedures for High Risk Warrants. Crime Control Digest 27(19):1, 4-5 (May 20).

Seper, Jerry 1993a. The shootout on Ruby Ridge. Washington Times, A6-A7 (September 22).

Seper, Jerry 1993b. FBI agents waged war on minds. Washington Times, A7 (September 22).

Seper, Jerry 1993c. FBI sniper testifies he didn't mean to shoot suspect's wife. Washington Times, A7 (September 22).

Sessions, William S. 1993. Statement of Director, FBI, before the Committee on the Judiciary, U.S. House of Representatives, April 28.

Sherrill, Robert 1975. The Saturday Night Special. New York: Penguin Books.

Skorneck, Carolyn 1993. Waco Charges. Associated Press wire service. May 6.

Spence, Gerry 1993. A Tragic Abdication of Power. National Law Journal, March 22.

Spokesman-Review 1993. Feds Lose Big. The Spokesman Review A1-A10, Spokane, Washington, July 9.

Thomas, Pierre 1993. Koresh Called '911' When Raid Began. Washington Post, June 10.

U.S. Department of the Army 1975. Civil Disturbances, FM 19-15. October.

U.S. Department of Justice 1993a. Recommendations of Experts for Improvements in Federal Law Enforcement After Waco. Washington, D.C.

U.S. Department of Justice 1993b. Report on the Events at Waco, Texas, February 28 to April 19, 1993, Redacted Version. Washington, D.C.: October 8.

U.S. Department of the Treasury 1993. Report on the Bureau of Alcohol, Tobacco, and Firearms Investigation of Vernon Wayne Howell also known as David Koresh. Washington, D.C.: Government Printing Office, September.

Verhovek, Sam Howe 1994a. Murder Case Against 11 Cult Members Goes to Jury. New York Times. A-14 (Feb. 24).

Verhovkek, Sam Howe 1994. 11 in Texas Sect are Acquitted of Key Charges. New York Times. A-1 (Feb. 27).

Wattenberg, Daniel 1993. Gunning for Koresh. American Spectator, 31-40 (August).

ENDNOTES

1. Initial press reports put the figure at "more than 100" (e.g., Associated Press, 1993), which were not revised downward until recently. (Labaton, 1993d) Although there were 76 agents involved in the raid, over 130 were involved in the overall operation in and around Waco. (U.S. Dept. of Treasury, 1993:173) Interestingly, as soon as the raid began, the Branch Davidians telephoned "911" to complain about the attack on their house, saying there were about 75 attackers. (Thomas, 1993)

2. A schismatic branch of the Seventh Day Adventists envisioning establishment of a Davidic kingdom in Palestine. (Melton, 1978:467)

3. "The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."

4. A third reason for purchasing firearms was protection. Koresh received enough hate mail to cause some concern, and George Roden, the person with whom Koresh and a few of his followers were involved in a shootout in 1987 regarding who had lawful control over the Center after the death of its previous owner, had reportedly threatened to come back, saying, "I'm not going to come back with BB guns," and he was a concern to Koresh. (McMahon and Kilpatrick, 1993:105-106)

5. As with much of the BATF operation, it was poorly done. Compliance inspections are ordinarily preceded by telephone calls; this one was not. Aguilera was sloppily dressed, had no identification, and, although introduced as an inspector trainee, not a special agent, made the decision not to visit Koresh's house. McMahon and his partner did not believe it to be a normal compliance inspection.

6. The Treasury report said the gunpowder and igniter cord "were themselves explosives requiring proper registration and storage_neither of which Koresh provided." How he could provide the registration or demonstrate the proper storage without being asked is unclear. In fact, the small amount of gun powder is expressly exempt from the law, and no registration is required for igniter cord. U.S. Code, Title 18, ºº841 et seq.; Title 26, paragraph 5845(f). Treasury's comprehension of the laws it enforces is flawed.

7. BATF would reinterpret that episode, suggesting a tie between the child refusing to touch a gun and her being "allowed to leave" the compound. (Dunagan, 1993c:3n)

8. The date of the assault was moved from a weekday to a Sunday, February 28, because the Waco newspaper began an expose earlier than BATF had expected, or wanted. The result was that many more men, and some additional children, were at Mount Carmel Center when the warrant was served than would otherwise have been the case.

9. There are unsubstantiated rumors_subject to substantiation only if the matter comes up in judicial proceedings flowing from the Waco incidents _floating around federal law enforcement circles, that there was some judge-shopping necessary to find a judge willing to issue warrants based upon Aguilera's affidavit. Since he was assisted by the U.S. Attorney's office, it would seem more likely that the attorneys simply knew which magistrate would be most willing to rubber-stamp the application for search and arrest warrants.

10. The text of the Treasury report called the materials Koresh ordered "conversion kits" and said: "The parts in the kit can be used with an AR-15 rifle or lower receiver to assemble a machinegun....The parts in the E-2 kit also can be used to convert an AR-15 into a machinegun." (U.S. Dept. of Treasury, 1993:23-24) The statements are false.

11. The authors of Treasury's review of the BATF investigation mention only a single receiver on the AK-47 before falsely asserting that "a semiautomatic AK-47 can be converted into an illegal machinegun by making modifications to the receiver of the weapon and replacing certain internal parts with commonly available selective fire AK-47 parts." (U.S. Dept. of Treasury, 1993:22n) Such modifications are virtually impossible to make and the internal parts are not available.

12. Statements made by Koresh's gun dealer, Henry McMahon, suggest that Gun List, a publication similar to Shotgun News, was also used by Koresh and might be the, or one of the, other "Clandestine" publications seen in Koresh"s house.

13. The Anarchist Cookbook includes recipes for growing, harvesting, and cooking with marijuana" (Powell, 1971:39), information on various drugs (including the admonition: "When going to make a deal for dope, do not take a weapon with you. This is provoking violence and legal hassles. If you don't trust the guy, then don't deal with him" [Powell, 1971:40]), and information on firearms at a time when the prices were significantly lower. There is mention of the AR-15, but no mention of the AK-47, and no information on converting semi-automatic firearms to fire full auto. There is extensive information on making explosives, but (a) with many admonitions against doing so for safety reasons unless one knows more than are in the pages of the book, and (b) generally not with the materials Aguilera established that Koresh owned. (Aguilera, 1993; Powell, 1971:ch.4)

14. The witness not only did not see a copy, but the assertion does not expressly state that the talk involved the book's presence at the compound, only its existence. It does exist. (Powell, 1971)

15. Hedging their bets, the Treasury Department review said the gun was "either a .50-caliber rifle mounted on a bi-pod or a 'British Boys' .52-caliber antitank rifle." (1993:33)

16. Treasury goes on to note that the raid planners determined that Koresh never left the compound, but the source for that information was Joyce Sparks, who investigated the allegations of child abuse, and Treasury "was unable to identify a reliable source for this common assumption...." (U.S. Dept. of Treasury, 1993:53, 136) After the fact, then, Treasury has undermined the credibility of Aguilera's key witness on the violence Koresh intended for the Waco area.

17. Although a small group of BATF agents was sent toward the Mag Bag on the morning of the raid on Mount Carmel Center, it was not until just before the assault began, and they were almost immediately called back to the compound before reaching the Mag Bag. (U.S. Dept. of Treasury, 1993:111, Appendix D-16, D-17) Following the botched raid, Aguilera supplemented his previous affidavit with one adding the assertion that while "I and others have attempted to execute the warrant both on the main compound location and at the 'Mag-Bag', we have been unable to search the premises...," and seeking permission to serve the warrants at night. Although the owner offered to open the building to the agents with a key, BATF preferred to destroy part of the Mag Bag structure in their entrance and search. (Private communication; U.S. Dept. of Treasury, 1993:22) Had BATF raided the Mag Bag simultaneously with the raid on Mount Carmel Center, a few Branch Davidians might have been caught off guard, rather than returning to assist Koresh, where one was killed and the others arrested. (Dunagan, 1993a)

18.Several weeks after the initial BATF assault on Mount Carmel, it was alleged that handgrenades were used by Koresh's people (Reno, 1993:2), although Koresh, through his attorney, had denied the allegation (U.S. News & World Report, June 7, 1993:44). It was later asserted that some of the injuries to BATF agents may either have been from bullet fragments or from shrapnel. (Dunagan, 1993c:6, 11) And the list of injuries to BATF agents includes several allegedly involving shrapnel. (U.S. Dept. of Treasury, 1993:102)

19. The witness stands by her statement that Koresh made the threat, if that is what it was. She apparently disapproved of her agency's decision to close the case and continued to have telephone contacts with Koresh. (Wattenberg, 1993:37) The Treasury Department explanation is that the statement was made on April 30, the day after the riots began and the day the investigation was closed despite the social worker's objection. (U.S. Dept. of Treasury, 1993:126) One other allegation regarding Koresh's preparation for violence asserted that he once told his followers they would soon go out into the world and kill non-believing members of the public. This apparently was said only as a test of their loyalty, although Treasury expected more on the topic in the trials of surviving Davidians. (U.S. Dept. of Treasury, 1993:127)

20. Koresh was apparently correct in that belief and expectation.

21. Perhaps the ultimate in stale information was used by BATF to persuade the Texas National Guard to allow the use of their helicopters, something which can only be done if there is a drug nexus. Among the justifications offered was that, due to the previous head of the Branch Davidians, "parts of an illegal methamphetamine laboratory had been at the Compound when Koresh took control" around 1987-88, and that the Sheriff's office had planned to collect the equipment but found no records it had done so, "raising the possibility that the illegal equipment might still have been at the Compound." (U.S. Dept. of Treasury, 1993:212) Not mentioned at that point was the fact that construction at the compound by Koresh involved the destruction of over a dozen buildings and their replacement by one large structure. (U.S. Dept. of Treasury, 1993:39-42)

22. This statement is not completely consistent with the statement elsewhere in the affidavit: "In 1987, the property was taken over by Howell and his cult group. The taxes owed on the Mt. Carmel Center have been paid by Howell's group. His cult has grown to about seventy (70) to eighty (80) people which includes men, women and children who now live on the Mount Carmel Center property." (Aguilera, 1993:3) The Treasury review criticized the fact that BATF assaulted the compound expecting about 75 persons in the compound, while the actual number of persons was two-thirds higher. (U.S. Dept. of Treasury, 1993:146, App.B-130)

23. Note that Koresh, who owned AR-15s, did not acknowledge to Agent Rodriguez that he owned a sear, and checks with the various companies BATF identified as having done business with Koresh indicate no purchase by Koresh of a sear (private communications).

24. Actually, G.O.A. stands for Gun Owners of America.

25. He meant "destructive devices," Should the Gun Owners of America ever revise and update their video on BATF, Aguilera's affidavit might well be used to support the allegation that some BATF agents lie.

26. The initial warrants were reportedly released to Koresh on March 19th, but not to the media or the general public until after Mount Carmel Center was destroyed, although the reason for their suppression_"evidence may be altered or destroyed should the direction of the investigation become evident"_ended with Koresh's access to them. (Dennis, 1993:15)

27. The initial reports indicated 15 (Dunagan, 1993c:11) or 16 (Reno, 1993:1) injured, the former of which would describe the number treated in a hospital, the latter adding cervical disk problems treated by a private physician. The Treasury review lists 20 gunshot or shrapnel wounds, six of which did not require hospital care, two "serious" non-gunshot-related injuries, one of which required some hospital care, and six minor non-gunshot-related injuries, including chipped teeth and heel irritation from "ATF boots." (U.S. Dept. of Treasury, 1993:102-103)

28. Unless the magistrate had expressly authorized a nighttime raid, the warrant had to be served in daytime. [Federal Rules of Criminal Procedure, Rule 41(c)] A motion to supplement the warrant, filed on the night of February 28th, essentially repeated Aguilera's earlier affidavit verbatim adding a paragraph, with the request for a nighttime warrant, claiming that although BATF had "attempted to execute the warrant both on the main compound location and at the 'Mag-Bag', we have been unable to search the premises and retrieve evidence because of heavy armed resistance...." With no resistance at the Mag-Bag_indeed, the men there on the morning of the raid at Mount Carmel Center attempted to return to assist Koresh (Dunagan, 1993a), and one was killed trying to get back into the compound, in what the Justice Department curiously described as an "ambush" by the Davidians_it is unclear why a nighttime search was needed there. The destructive search of the Mag Bag was eventually conducted at 7:30 a.m. on March 3. (U.S. Dept. of Justice, 1993:25, 37)

29. Although there have been reports that BATF agents were known to be in local hotels, and that the activity was the talk of local radio scanners, only 16 BATF personnel were in Waco the night before the raid, in a town of over 100,000. (U.S. Dept. of Treasury, 1993:185, App. B-71 and C-32-33)

30.They were not even alerted to the possibility of return fire by alleged firing on helicopters which BATF reported had been fired upon before the raid really began. (Labaton and Verhovek, 1993:20; Pate, 1993b:41)

31. The question of who fired first was never definitively answered at the trial, even though BATF had announced to reporters in the spring of 1993 that the Bureau had videotape which would conclusively show that the Davidians had fired first and ambushed the federal agents. The tape, if it exists, has never been shown publicly. (Verhovek, 1994b).

32. Who also insisted that the BATF raid involved over 100 agents, while the Branch Davidians' initial estimate was the eventually confirmed figure of about 75.

33.Koresh then allowed a known undercover agent to leave the compound, wishing him good luck, rather than holding him as a possible hostage. During the stand-off with the FBI, Koresh asked to be allowed to speak to Rodriguez on the telephone, in exchange for releasing a six-year-old girl. The offer was refused and the girl is presumed dead. (U.S. Dept. of Justice, 1993:54)

34. The BATF agent who was to serve the warrant testified that he yelled: "Police search warrant, lay down," and, in response to Koresh's asking, "What's going on?", repeated, "Search warrant, lay down," It was further reported that he testified that BATF had "a plan to ram the door down, but there 'was not a plan to knock on the door and serve the warrant, in other words, the plan was to use force.'" (UPI, September 30, 1993)

35. Or, at least, as murder by BATF agents. Since BATF agents reportedly were using some distinctive ammunition, an armor-piercing round known as the 9mm Cyclone (Pate, 1993a:62), the lack of public reports on the ballistic analyses of the wounds of the four killed agents leads to some suspicion that "friendly fire" might have been involved in at least one of the deaths, and some of the non-fatal wounds. The Treasury report goes in to some detail on the ballistics involved in the deaths of Davidians killed in the initial shootout, including caliber and distance, but the four agents are identified merely as having been killed by "Gunshot." (U.S. Dept. of Treasury, 1993:102,104) If Branch Davidians had no excuse for shooting, they would still be responsible for the deaths of BATF agents, by whomever shot, under the felony-murder rule.

36. The Treasury report does not discuss the type of ammunition used, although it attempts to refute most negative reports on BATF's investigation and assault, except for those criticizing the ineffectiveness of the raid, but fails to refute the widespread allegation of Cyclone ammunition being used. Although 76 agents may be using a variety of ammunition, Treasury reports that the Davidians killed by BATF agents were struck with 9mm hydrashock rounds, not the Cyclone. (U.S. Dept. of Treasury, 1993:104)

37. During the standoff in Idaho, microphones were attached to the Weaver cabin, and: "The psychological warfare techniques...continued for several days after Weaver's son, Samuel, 13, and his wife, Vicki, 42, were killed. Court records show that while the woman's body lay in the cabin for eight days, the FBI used the microphones to taunt the family. 'Good Morning Mrs. Weaver. We had pancakes for breakfast. What did you have?' asked the agents in at least one exchange. Weaver's daughter, Sara, 16, said the baby, Elisheba, often was crying for its mother's milk when the FBI's messages were heard." (Seper, 1993b)

38.For example, to law enforcement, Koresh's calling Mount Carmel Center "Ranch Apocalypse" indicated that he "might soon have been inspired to turn his arsenal against the community of nonbelievers." (U.S. Dept. of Treasury, 1993:127) Theologians might have thought the name related to the Book of Revelations.

39. There is a claim, from a clearly biased source, that the FBI checked shortly before the assault, and several hours before the fire, on the number of burn beds available at Parkland Memorial Hospital in Dallas. (Campbell, 1993:1) Certainly, there was some concern about harm to the Davidians or to the FBI. The Attorney General ruled out executing the plan on the weekend because of concern about the availability of emergency rooms. (U.S. Dept. of Justice, 1993:272)

40. At the Branch Davidians' trial, the FBI testified that listening devices indicated to them that mass suicide by fire would occur. If the FBI's testimony is true, the FBI violated the Attorney General's explicit orders to cease the assault if the children were threatened. In addition, the tapes apparently indicated (although the relevant parts of the tapes were not presented to the jury), that the Branch Davidians were pleading for negotiations to end the teargassing. (Verhovek, 1994a), and the FBI's express orders were to cease the assault if serious negotiations would result.

41. Sample federal law enforcement comment: "Have you seen the affidavit? There was no probable cause! And all those children...."

42. Silencers were not among the two-dozen items specified in the initial search warrant application (Aguilera, 1993:Attachment D) or the roughly 30 items mentioned in the expanded follow-up search warrant (Dunagan, 1993b:1). There was no indication in the initial interviews that Koresh had, or had expressed any interest in, silencers. They are referred to in follow-up affidavits where making of two or three silencers for AR-15s is reported (Dunagan, 1993c:6) and following a statement that "Everything that we suspected to be in there was in there." (Dunagan and Aguilera, 1993:15) Aguilera then went on to assert the reliability of a witness whose information was "independently corroborate[d]" and consistent with other evidence known to investigators_except, of course_not mentioned by Aguilera_being the first assertion of silencers. (Dunagan and Aguilera, 1993:16) Even so, they were not added to the list of items to be searched for and seized. In a sense, the serendipitous discovery of unregistered silencers would confirm the incompetency of the investigation conducted between June 1992 and February 1993.

43. A Pensacola television station thought an interview with Koresh's gun dealer, in which he repeated over and over that Koresh would have let BATF visit the compound peacefully and without a warrant, was headline-making news. And so the show, "Lawline," announced that there were other media filming the show behind their regular cameras, and that the station was planning to send tapes of the show to major media outlets around the nation, certain that the media and Congress would be interested in pursuing the investigation. The April 21, 1993, segmentùentitled "Fiasco in Waco"_has remained unknown to most of the American public. If the news media received copies of a tape asserting with some veracity that no raid was needed, no lives had to be lost, they ignored them.