The Dallas Morning News
DATE:10/01/93
BYLINE:Victoria Loe

Report plays star role at court hearing

WACO - The Treasury Department's censure of the failed raid at Mount Carmel was music to the ears of the Branch Davidians' defense attorneys. But the judge who will try the case wasn't singing along.

During a daylong hearing Thursday on various pretrial motions, the lawyers repeatedly cited the critique as evidence that the Bureau of Alcohol Tobacco and Firearms should bear the responsibility for the deaths of four agents and several sect members Feb. 28.

The raid's planners "engaged in a conspiracy to use excessive force" against the Branch Davidians, then mounted "a cover-up" after the raid failed, said Joe Turner, attorney for sect member Ruth Riddle.

Ms. Riddle and 10 other Branch Davidians have been indicted for allegedly conspiring to murder the four agents. A 12th defendant, Kathryn Schroeder, pleaded guilty to a lesser charge and will testify as a witness for the prosecution.

Mr. Turner and other defense attorneys are seeking access to an array of government documents pertaining to the raid, including the ATF's operational plan, which Treasury Department investigators found inadequate and which they said was altered after the failed operation.

U.S. District Judge Walter Smith took those and a number of other defense motions under advisement Thursday, but he served notice that he does not intend to let the defense put the ATF on trial.

"We're not going to try whether the government made a correct decision in this case," he warned Mr. Turner.

"We might as well fold up our tent and go away, if the judge won't let us attack the government," Steven Rosen joked after the hearing. Mr. Rosen is representing defendant Kevin Whitecliff.

Judge Smith showed little patience with the defense's more sweeping requests for information from prosecutors, chiding attorneys for going on "fishing expeditions."

In one of the few issues he ruled on Thursday, the judge postponed the trial from November to January. Discussing motions for a change of venue, he noted that Austin, which is favored by the defense, does not have a spare federal courtroom, while San Antonio, favored by the prosecution, does.

The 11 defendants looked on attentively, arrayed behind the defense table in identical orange prison-issue jumpsuits.

Their lawyers ranged themselves around a large, L-shaped table piled high with documents, a visible testament to the case's staggering complexity. The proceedings were punctuated by rueful references to the difficulty of coordinating the work of dozens of lawyers - few of them happy to play second fiddle.

"There are lots of egos," said Mr. Turner.

Defense attorneys argued that the ATF raid was illegal because the agents failed to clearly announce their identity and their intention to serve a search warrant.

The first agent to reach the front door testified that as he ran toward the porch, he saw sect leader David Koresh standing at the open door and yelled to him, "Police, search warrant, lay down." He said Mr. Koresh, who did not appear to be armed, asked, "What's going on?"

The agent, Roland Ballesteros, said he then yelled again, "Search warrant, lay down."

Questioned by Jeff Kearney, attorney for defendant Jaime Castillo, Agent Ballesteros said he had "no doubt that (Mr. Koresh) knew who we were." However, he also said his assignment was not to announce the raiders' identity and request entrance but to enter the compound "by any means necessary."

Mr. Kearney argued that, because no specific provision was made in the raid plan for announcing the agents' identities and purpose, the government had always intended to storm the compound and take it by force.

He and others suggested that the agents may also have been quick to take the offensive because they knew they had lost the element of surprise.

"Would they have waited to be fired on?" asked Mr. Turner. He said the Treasury Department's finding that raid commanders rammed through a compromised operation "illustrates how much pressure the agents were under."

Mr. Turner also focused attention on Agent Ballesteros' statement to Texas Rangers, in which he said he heard gunfire before he reached the porch and assumed it was coming from ATF agents assigned to neutralize the sect's dogs.

Agent Ballesteros and prosecutor Ray Jahn declined Thursday to discuss any aspect of the case, including the Treasury Department analysis of the raid.

Several defense attorneys said they could not fully assess the usefulness of the Treasury Department report until they have studied it. But they said it will almost certainly prove useful in painting the raiders as trigger-happy and impeaching any testimony by the operation's planners.

The Dallas Morning News
DATE:10/01/93
BYLINE:Lee Hancock

5 ATF officials suspended after cult raid review
They are accused of deception

WASHINGTON - Treasury Secretary Lloyd Bentsen swept out the architects of the Branch Davidian raid Thursday, saying they ignored evidence that it should have been stopped and lied to cover up its failure.

Two Texas-based officials of the Bureau of Alcohol, Tobacco and Firearms who commanded the Feb. 28 raid and three senior ATF officials in Washington were suspended with pay Thursday morning. A five-month Treasury Department review found that they misled the public, their superiors in Washington and investigators about the raid.

Asked whether the suspended officials' actions amounted to criminal wrongdoing, such as obstruction of justice, Mr. Bentsen said the cases would be turned over to the Treasury Department's inspector general for possible referral to the Justice Department.

Mr. Bentsen also announced that Secret Service Director John Magaw will immediately replace outgoing ATF Director Stephen Higgins, who announced his retirement this week.

He also named a veteran ATF agent to head the agency's law enforcement operations. Charles Thomson, chief of the agency's New York division, replaces Dan Hartnett, who was among the five men suspended pending further personnel action Thursday.

"Corrective steps are necessary," Mr. Bentsen said, later adding that further action would be taken in a number of personnel cases.

Others suspended besides Mr. Hartnett were raid commanders Phil Chojnacki, ATF Houston division chief; his assistant, Chuck Sarabyn; Deputy Associate Director for Law Enforcement Dan Conroy; and Intelligence Chief David Troy.

Although the review said that Mr. Higgins did not "adequately question" his subordinates about key controversies until a month after the raid, it cleared him of knowingly misleading anyone.

Assistant Treasury Secretary Ron Noble, who oversaw the five-month review, said the former ATF director "relied on people who he knew for years. Those people showed a conscious avoidance of the truth."

Mr. Higgins declined to comment.

Mr. Bentsen said the commanders' decision to proceed was "in absolute violation of the instructions" from Treasury Department officials to abort if there was any indication that the raid had been compromised.

The 500-page report released Thursday criticized faulty raid planning, flawed intelligence, lack of guidance from ATF headquarters in Washington, miscommunication and poor pre-raid dealings with the Waco news media. It said the raid's secrecy was endangered by the behavior of area journalists who staked out the raid and inadvertently tipped off the cult.

Although the news media and law enforcement "generally accommodate each other," the report stated, "no such accommodation was reached at Waco. During their parallel investigations, both ATF and the media missed opportunities to take actions that might have averted the tragedy."

Officials at the Waco Tribune-Herald and KWTX-TV have maintained that employees who witnessed the raid acted properly.

The review stressed that the commanders' decision was "tragically wrong, and not just in retrospect, but because of what the decision makers knew at the time."

Throughout the firefight, the review stated, "ATF agents demonstrated extraordinary discipline and courage."

Four ATF agents were killed along with six cultists - only two by ATF raiders - and 20 ATF agents were wounded in the firefight, the review stated. An ensuing 51-day standoff ended with a fire that left Branch Davidian leader David Koresh and more than 80 followers dead.

But reviewers focused their most scathing condemnation on Agents Chojnacki and Sarabyn, concluding that they lied, altered documents and tried to shift blame to an undercover agent in an apparent "concerted effort" to hide their knowledge that the raid's secrecy had been compromised.

An undercover agent inside the compound before the raid warned Agent Sarabyn, the deputy raid commander, that Mr. Koresh had been alerted. The agent had witnessed the cult leader so nervous that he was barely able to hold his Bible and was saying that the ATF and the National Guard were coming to get him, the review stated.

Although Agent Sarabyn repeatedly denied that the undercover agent had reported that the raid's secrecy was compromised, 61 agents reported that the agent yelled just before the raid: "We've got to go. He knows we're coming."

Agent Sarabyn recently recanted, but Agent Chojnacki has maintained that he did not hear anything indicating "that Koresh had been tipped," it stated.

After the raid, the commanders also lied about altering written pre-raid operational outlines after changing them in an apparent effort to make them appear to support their flawed decisions, the report stated.

The commanders declined to comment, citing orders from Treasury Department officials.

"We have specific instructions prohibiting us from comment," Agent Chojnacki said.

The report found that the three Washington officials now on administrative leave - Mr. Hartnett, Mr. Conroy and Mr. Troy - knew within less than a week after the raid that the commanders' stories conflicted with that of the undercover agent. Even so, they misled the public about what had happened, insisting that no one knew until after the raid had failed that the cult had been tipped, the review concluded.

Mr. Troy and Mr. Conroy could not be reached. Mr. Hartnett declined to comment. Mr. Hartnett and Mr. Conroy had announced plans to retire by year's end before the Waco raid.

Among the review's major findings:

• ATF's decision to investigate the Branch Davidians for weapons violations was valid, as was the evidence used to obtain search and arrest warrants. The review also disputes assertions by some ATF critics that Mr. Koresh would have turned himself in if asked.

  It concludes that Mr. Koresh was clearly dangerous, citing evidence that he tested his followers' loyalty before Feb. 28 by saying "that soon they would go out into the world, turn their weapons on individual members of the public and kill those who did not say they were believers."

• Raid planning was hamstrung by reliance on unsupported assumptions and a systemic agency failure in intelligence gathering and assessment.

  ATF didn't try hard enough to arrest Mr. Koresh outside the compound, accepting incorrect assumptions that he never left. In fact, he did leave at least twice in the two months before the raid.

  Agents also based plans on incorrect surmises that the cult had abandoned a practice of posting sentries, that weapons were always locked away and that men always went to an outdoor pit to work at 10 a.m., the original raid time. Reviewers found all to be incorrect.

• Although raid planners said they rejected a siege plan because of information that cult members might commit mass suicide, they failed to consult behavioral experts for advice on how the Branch Davidians might react to a raid.

  In an hourlong live TV broadcast to all ATF offices before the review was released, Mr. Noble also emphasized, however, that agents "were right about two key points: their belief that Mr. Koresh had enough food and supplies to hold out a year and their fear that suicide was a `real fear.'

  "I know the FBI decided it was not," he told the agents, referring to repeated statements by FBI officials who managed the ensuing siege that they did not believe that Mr. Koresh would lead a mass suicide. "ATF was right."

  But the review found that ATF planners did not develop adequate alternatives to the raid plan and lacked contingencies for resistance.

  For example, the need for a negotiation plan was ignored despite repeated requests from ATF Agent Jim Cavanaugh, a trained negotiator. Raid commanders didn't arrange to get the compound's phone number on raid day, but Agent Cavanaugh, who was acting as a surveillance house observer and ultimately helped negotiate a cease-fire, found it written on a calendar in the surveillance house during the gunbattle.

• The sect was ultimately tipped as a result of a chance conversation between KWTX cameraman Jim Peeler and a cultist just before the raid. Even so, the report notes, Mr. Peeler "should not be made a scapegoat. . . . Given the extent of other obvious media activity in the area, had Koresh not learned of the raid from Peeler, he might just as easily been placed on guard by that other activity."

  The conversation was observed by an agent who recognized the postal car that the cultist was driving and suspected that Mr. Peeler was a reporter.

• Raid day was plagued by bad decisions and overlooked signals of potential trouble.

  After hearing the undercover agent's warning, Agent Sarabyn told a colleague that he thought "They could still execute the raid if they moved quickly." It ultimately took more than 40 minutes to begin the action, giving Mr. Koresh more than enough time to prepare a devastating ambush, the report concluded.

  Two nearby residents picked up radio transmissions that they believe came from cultists sying that approaching ATF agents looked "like a covey of quail."