Whoa....another one
http://www.startelegram.com/news/doc/1047/1:FRONT73/1:FRONT73091299.html
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR> |
Updated: Sunday, Sep. 12, 1999 at 00:13 CDT
Military forces' role in Waco challenged
By Jennifer Autrey
Star-Telegram Staff Writer
The images of Bradley fighting vehicles punching holes in the
wooden compound of the Branch Davidian sect and of helicopters
hovering overhead as the structure burned have become etched in
America's collective psyche.
The extent and legality of the military involvement in the 51- day
siege at the Mount Carmel compound near Waco six years ago is
expected to be a focus of upcoming investigations into the fiery end
of the siege on April 19, 1993. The bodies of sect leader David
Koresh and about 80 of his followers were recovered in the fire's
remains. Among questions surrounding the operation is how military
personnel, equipment and munitions were used and whether the
government had a role in setting the blaze that consumed the
compound. At the heart of the questions about military involvement
is the Posse Comitatus Act, which prohibits the armed forces from
participating in civilian law enforcement operations.
Some issues expected to be examined are:
* The involvement of the Delta Force, an elite, top-secret Army
unit established to combat terrorism. Some former government
officials say the Delta Force had a greater role in the operation than
the FBI acknowledges and, as a result, violated the Posse
Comitatus Act.
In a sworn affidavit, a former sergeant first class in Army Special
Forces said a noncommissioned officer told him that the Delta
Force's "B" Squadron had been ordered to "take down" the Branch
Davidians at Mount Carmel.
* Whether federal officials used a 1990 change in the Posse
Comitatus Act -- allowing the use of the military in anti-drug
operations -- to assist the Bureau of Alcohol, Tobacco and Firearms
and the FBI in the Waco siege and assault.
When the ATF asked the military for help in staging its initial raid of
the compound on Feb. 28, 1993, military officers said the ATF would
have to reimburse the Army for any assistance because there was
"no known drug nexus," according to Lt. Col. Lon Walker, an Army
liaison to the ATF.
Less than a month later, the ATF added "drug activity" to the
matters it was investigating in regard to the Branch Davidians, a
move that a congressional report called "deliberately misleading."
* Possible violations of Texas and Alabama state laws prohibiting
the use of National Guard personnel and equipment against the
Branch Davidians.
Texas law prohibits the use of the Texas National Guard in civilian
law enforcement unless there is a clear drug connection. Alabama
law says its National Guard force has no authority outside state
boundaries.
National Guard personnel and equipment from both states were used
at Mount Carmel. A congressional report has determined that those
actions were taken without proper authority.
Delta Force
Recent revelations indicate that the Delta Force had a greater
presence and a more active role in the final assault on the Branch
Davidians than FBI officials have acknowledged. According to at
least one account, the Delta Force was there not to advise, but to
kill.
Steven Barry, a retired Special Forces sergeant who sometimes
trained members of the Delta Force, gave a sworn affidavit to
plaintiffs' attorneys in a civil suit brought by families of dead Branch
Davidians. The case is scheduled to go to trial in Waco on Oct. 18.
In the affidavit, Barry quoted a friend in the Delta Force as saying
the unit set up a tactical operations center during the siege that
was staffed by 10 to 20 soldiers.
Barry said another friend in the Delta Force told him that the unit's
"B" Squadron had been ordered to "take down" Branch Davidians.
Barry said he understood from his experience in the Special Forces
that "take down" meant to kill people identified as terrorists.
Barry isn't alone in these allegations.
Former CIA officer Gene Cullen has said in several recent interviews
that he learned through casual conversations with Delta Force
members that 10 of the unit's commandos were present during the
April 19, 1993, assault and may have participated.
Similarly, James B. Francis, commissioner of the Texas Department
of Public Safety, said "it is clear" that members of the Delta Force
were on the scene. Initial reports indicated that three members
were present, but Francis said he is now being told that as many as
10 were there.
"There is some evidence that might indicate that they were more
than observers," Francis said. "It is fuzzy as to what their role was."
Francis said law enforcement officials and civilians have provided
first- and second-hand reports on Delta Force activities. He
declined to elaborate further.
Evidence gathered after the Mount Carmel fire was in the hands of
Texas law enforcement officials until U.S. District Judge Walter
Smith Jr. ordered all evidence surrendered to the federal clerk in
Waco.
Government attorneys have indicated in some court documents that
as many as 10 "classified" military personnel were present, said
Houston attorney Mike Caddell, who filed the wrongful death lawsuit
on behalf of about 100 people, mostly relatives of dead Branch
Davidians.
"We've been told that there were 10 military personnel, but they
won't tell us who they were," he said.
Caddell said government attorneys were asked to answer questions
in connection with the lawsuit. One of the questions asked for a list
of all military personnel who were at Mount Carmel.
Government officials listed Army medical personnel, the Texas
National Guard and 10 others whose identity they said is classified
information, Caddell said.
Army Col. Bill Darley, a Defense Department spokesman, said the
Pentagon has stated that it had only three Special Operations
personnel at Mount Carmel and he has seen nothing to refute that
statement. Two soldiers were present during most of the siege to
maintain high-tech equipment, he said. Another was there when the
compound burned, but only as an observer, he said.
"We had a presence there for support only," Darley said. "All other
allegations appear to us to be unfounded and without basis in fact."
That distinction is crucial, according to federal law.
If what Barry and Cullen say is true, military personnel may have
violated the Posse Comitatus Act, which forbids use of military
personnel in civilian law enforcement except in special cases
approved by Congress.
The prohibition applies only to direct participation by soldiers in an
arrest, search or seizure. Soldiers may train civilian law enforcement
agents or provide military vehicles and munitions.
A congressional report determined that all members of the military
were present only as observers and that no violation of the act had
occurred. The report, "Investigation into the Activities of Federal
Law Enforcement Agencies Toward the Branch Davidians," was
issued in August 1996 by the House Government Reform and
Oversight Committee and the House Judiciary Committee after their
1995 hearings.
Darley said Pentagon policy prevented him from discussing further
any of its "special missions units" such as Delta Force.
Drug ruse?
Some evidence suggests that the ATF created a ruse about the
possibility of illegal drug manufacturing at Mount Carmel to obtain
free military assistance for its Feb. 28, 1993, raid, which left four
ATF agents dead and more than 20 wounded.
As early as November 1992, ATF agents were discussing the need
for military support with Walker, the agency's Defense Department
liaison, according to Treasury Department documents. The ATF is
part of the Treasury Department.
But there was a problem.
In a meeting with the ATF on Dec. 4, 1992, Walker informed the
agency that it would have to pay the military for the use of its
equipment because the military could waive the charges only in
anti-drug operations.
At the meeting, Walker jotted a handwritten note that said: "There
was no known drug nexus," according to the Treasury Department
documents.
The bill would have been considerable. The military assistance at
Waco cost about $1 million, according to a General Accounting
Office report released Aug. 26. About 90 percent of the cost was
incurred by the Texas National Guard and U.S. Army, the report
said.
That military personnel can play a greater role assisting civilian law
enforcement in drug investigations is a significant exception to the
Posse Comitatus Act, passed as part of the 1990 Department of
Defense Authorization Act to help fight illegal drug importation.
Before the end of December 1992, the ATF was investigating
"suspicion of drug activity" at the Branch Davidian compound,
according to the Treasury Department report.
That addition to the points of investigation apparently was based
on a Dec. 16, 1992, facsimile from Marc Breault in Australia, who
suggested that a methamphetamine lab had once been seen on
Branch Davidian premises. Congressional investigators later
determined that Breault was a former Branch Davidian who had left
the sect on bad terms.
Former Branch Davidians said Koresh had discovered the lab when
he arrived at Mount Carmel and had telephoned the McLennan
County Sheriff's Department to report it and to ask that deputies
confiscate it, but no one ever came, the congressional report said.
The building Breault said the lab was in burned down three years
before the ATF raid, the report also said.
David Kopel, a former Colorado assistant attorney general and now
a researcher for the Independence Institute, a conservative think
tank in Colorado, said he was not surprised by the ATF's decision to
add "drug activity" component to the investigation.
"All the military wants is the word `drugs,"' Kopel said. "Nobody
cares if it's true."
However, the initial application for a warrant to search the
compound included nothing about suspected drug violations. After
agents failed to serve the warrant on Feb. 28, 1993, the day of the
aborted first assault, they applied for another warrant and
expanded its scope. That warrant also made no mention of drugs.
The congressional report states that the Feb. 28 raid should have
been conducted differently if there was a real concern about the
prospect of a clandestine methamphetamine lab on the premises.
Because such labs usually contain explosive and toxic chemicals,
standard procedure calls for the arrest of lab operators away from
their laboratories. Koresh was regularly seen in Waco and could
easily have been apprehended, officials have said.
"All those justifying stories have kind of gone up in smoke: drug use,
machine guns, child abuse," said Daniel Polsby, a professor at
George Mason University's law school who specializes in
constitutional law.
The congressional committees eventually determined that the "ATF
misled the Defense Department as to the existence of a drug nexus
in order to obtain non-reimbursable support."
Darley, the Pentagon spokesman, said he wouldn't comment on any
conclusions reached by Congress. But he said the Pentagon concurs
with an Aug. 26 General Accounting Office report, which determined
that the approval of military counterdrug support was reasonable
and authorized.
National Guard involvement
The use of Texas and Alabama National Guard units at Mount Carmel
may have violated laws in both states and perhaps the U.S.
Constitution.
Convincing state officials that drugs were involved in the Branch
Davidian investigation was crucial to involvement of the Texas
National Guard.
The Posse Comitatus Act does not prohibit use of state National
Guard personnel for local law enforcement, but Texas law does.
State law allows the use of its National Guard helicopters for law
enforcement only if there is a evidence of drug violations.
On Dec. 11, 1992, ATF Special Agent Jose Viegra met with
representatives of Gov. Ann Richards' office to discuss the role of
the military in any potential ATF action against the Branch
Davidians, Treasury Department documents show.
Viegra was told he could not make use of Operation Alliance, which
serves as a clearinghouse for several agencies involved in drug
investigations along the Southwest border, unless there was a drug
component.
Three days later, according to a Treasury Department memorandum,
Operation Alliance officials received a facsimile from the ATF
requesting assistance from the Texas Counterdrug Program, which
included the National Guard.
Lt. Col. William Pettit, Texas National Guard coordinator of the
Texas Counterdrug Task Force, signed off on the request. The ATF
fax made no reference to suspected drug violations in the
compound, casting Pettit's approval in doubt, according to the
congressional report.
After the Feb. 28 raid, ATF Deputy Director Daniel Hartnett wrote
Gov. Richards a letter on March 27, 1993, denying allegations that
Mount Carmel did not have the necessary drug activity to justify
the Texas National Guard's involvement.
"Please let me assure you that nothing could be further from the
truth," Hartnett wrote.
Hartnett wrote that 11 sect members "have some prior drug
involvement, some with arrests for possession and trafficking."
However, when ATF agents were interviewed by Treasury
Department officials in a post-siege review, they said that only one
Branch Davidian had a drug conviction, the congressional report
said.
The use of the Texas National Guard isn't the only questionable
Guard involvement.
The ATF also used the Alabama National Guard for aerial
photography on Jan. 14, 1993. That task was authorized by a
"memorandum of agreement" between the adjutants general of the
Texas National Guard and the Alabama National Guard.
According to Texas law, the National Guard from another state
cannot be used without approval of the Texas governor. Alabama
state law says that its National Guard has no authority to conduct
operations outside the state.
National Guard personnel said in a post-raid Guard investigation that
Gov. Richards did not approve the use of the Alabama National
Guard. Military documents released to Congress during its 1995
hearings indicated that Richards was unaware of the extent of the
Texas National Guard's involvement until after the Feb. 28 raid, the
congressional report said. Neither Richards nor members of her staff
at the time could not be reached to comment last week.
Use of the Alabama National Guard may also have violated the U.S.
Constitution, the congressional report said, although that issue was
outside the scope of the congressional investigation.
The Constitution specifically prohibits states from entering into
treaties without congressional consent. The National Guard Bureau
takes the position that use of the National Guard for law
enforcement purposes across state lines is therefore strictly
prohibited.
"Thus, it appears that the Alabama National Guard entered and
conducted military operations in Texas without the proper authority
to do so," the congressional report said.
Staff writer Gabrielle Crist contributed to this report.
Jennifer Autrey, (817) 548-5476
Send comments to jautrey@star-telegram.com
Tomorrow: Despite government denials, one agent's statement says
that the FBI fired shots on April 19, 1993, court records show.[/quote]
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"Quis custodiet ipsos custodes" RKBA!
