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