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Context of 'December 29, 2003: Justice Department Spokesman Says US Has Become ‘a Battlefield’'

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The FBI’s Hostage Rescue Team (HRT) leader Richard Rogers urges senior FBI and Justice Department officials to use tear gas to bring the Branch Davidian siege (see 5:00 A.M. - 9:30 A.M. February 28, 1993 and March 1, 1993) to a close. According to a memo written by Deputy Assistant Director Danny Coulson, the FBI’s top expert on tactical matters, “A lot of pressure is coming from Rogers.” Coulson writes that Rogers urged similar tactics in the 1992 Ruby Ridge debacle (see August 31, 1992): “We had similar problems in Idaho with him [Rogers] and he argued and convinced the SACs [special agents in charge of local FBI offices involved in the incident] that [Randy] Weaver would not come out. That proved to be wrong. I believe he is a significant part of the problem here.” Rogers’s advice, that only extreme and violent action could force Weaver to emerge, sparked the death of Weaver’s wife and son. In 1992, Rogers relaxed FBI rules of engagement and tried to force an all-out assault on the Weaver cabin using tanks and tear gas. Weaver eventually surrendered. Coulson believes that Davidian leader David Koresh will also surrender, if given enough time. “All of their intelligence indicates that David [Koresh] does not intend suicide and that he will come out eventually,” Coulson’s memo concludes. [Dallas Morning News, 2/28/2000] The day after Coulson’s memo is circulated, the FBI begins bombarding the compound with sound and light (see March 23-24, 1993).

Entity Tags: Federal Bureau of Investigation, Branch Davidians, Danny Coulson, FBI Hostage Rescue Team, Richard Rogers, Randy Weaver, David Koresh

Timeline Tags: 1993 Branch Davidian Crisis

A variety of military-grade CS gas canisters. A ruler lies between them as a size reference. It is unclear if the FBI plans to use canisters similar to these in the Davidian assault.A variety of military-grade CS gas canisters. A ruler lies between them as a size reference. It is unclear if the FBI plans to use canisters similar to these in the Davidian assault. [Source: British Ordnance Collectors]Attorney General Janet Reno approves a modified version of the FBI’s original plan to flush the Branch Davidian compound, Mt. Carmel, with tear gas and force the departure of the 80-odd members (see 5:00 A.M. - 9:30 A.M. February 28, 1993, March 1, 1993, and April 7, 1993). Reno rejected an earlier plan, instead asking for further review (see April 14-15, 1993). According to a later Justice Department report, she gives the prepared material “only a cursory review, leaving tactical decisions to those at Waco,” and begins discussing rules of engagement with FBI Director William Sessions and his top aides. She briefs President Clinton, who concurs with the plan after asking questions about measures designed to ensure the safety of the children in the compound (see March 28, 1993). According to Reno, who will later discuss her conversation with Clinton: “He said: ‘Have you carefully considered it? Have you looked at everything? Do you feel like this is the best way to go?’ And I said: ‘Yes, sir. It’s my responsibility, and I think it’s the best way to go.’” Ultimately, Clinton says, “it is your decision.” The plan has been under discussion since March 22 (see March 22, 1993); Reno will acknowledge that she has been appraised of such a plan since “around March 27th or sometime near the very end of March.” [New York Times, 4/20/1993; PBS Frontline, 10/1995]
Parameters of Plan - The stated mission of the plan is to “secure the surrender/arrest of all adult occupants of the residence while providing the maximum possible security for the children within the compound.” The plan spans some 48 hours, or until all the Davidians have left the building and surrendered. The raid will start with the first “insertion” of CS gas into the front left portion of the residence, the main building of the compound. After a period of time dependent on the Davidians’ response to the CS gas and any negotiations that might take place, more CS will be inserted into the back right portion of the residence. A third insertion will be made at an unspecified point in the residence. After that, all subsequent insertions will be made through the upper and lower windows of the building. The first three insertions will be made by two combat engineering vehicles (CEVs), military vehicles similar to Bradley fighting vehicles but lacking armaments. The CEVs to be used have been outfitted with boom-like arms capable of punching through the walls of the residence. On the booms are mechanical sprayers for the CS. After the third insertion, agents will fire “ferret” round projectiles through the windows; these are small, non-explosive grenade-like projectiles containing CS gas which break apart upon impact and deliver the gas. In addition, more CS will be inserted by the CEVs. HRT (hostage rescue team) and SWAT (special weapons and tactics) units have specific assignments. Maneuvers for the two CEVs, nine Bradleys, and one M-88 tank retrieval vehicle are also specified. FBI snipers are carefully positioned. A “medical annex” is placed to treat what the plan calls “the potentially large number of casualties which could exceed the current medical capabilities of any single agency present,” and there are procedures to be followed to arrest persons exposed to CS. The annex is prepared to evacuate seriously injured agents or Davidians to local and secondary hospitals, as well as the mass surrender of the Davidians if that occurs. The plan also provides for the possibility that the Davidians might not surrender. In that case, the plan states that “if all subjects failed to surrender after 48 hours of tear gas, then a CEV with a modified blade will commence a systematic opening up/disassembly of the structure until all subjects are located.” If Davidians are observed in the compound’s guard tower, agents will fire ferret rounds into the tower. Also: “If during any tear gas delivery operations, subjects open fire with a weapon, then the FBI rules of engagement will apply and appropriate deadly force will be used. Additionally, tear gas will immediately be inserted into all windows of the compound utilizing the four Bradley vehicles as well as the CEVs.”
No Frontal Assault - The plan has no provision for any sort of frontal assault by armed FBI agents; the planners feel that any such assault would almost certainly result in “significant casualties” among the agents, and might well trigger a mass suicide among the Davidians. [House Committee on Government Reform and Oversight, 8/2/1996]
Reno Deliberately Misinformed - Later investigations will show that Reno is being actively misinformed by the FBI in order to secure her approval for the tear gas plan. The FBI procured documentation from the on-site commanders in Waco that supports only the Washington officials’ desire for an aggressive assault using a heavy bombardment of tear gas, and omits material from FBI profiler Pete Smerick and FBI negotiators that warns against such a plan (see April 12, 1993 and 1995). The FBI information presented to Reno does not contain Smerick’s behavioral memos, omits complaints from Smerick and an array of negotiators that negotiations had been progressing until derailed by more aggressive FBI tactics, and omits warnings that using tanks or other force against the Davidians would cause violence and death. The report concludes, “Since negotiations began on Feb. 28, 1993, despite 51 days of efforts, the negotiators have concluded that they have not been able to successfully negotiate a single item with [Davidian leader David] Koresh.” [New Yorker, 5/15/1995; Wall Street Journal, 10/17/1995; Dallas Morning News, 3/6/2000]
Allegations of Child Abuse - A later Justice Department study will show that Reno changes her mind about the plan primarily because she fears the children in the compound are being abused. The FBI’s briefing book notes allegations of child abuse by Davidian leader David Koresh, both sexual and physical. Although the FBI has no evidence of current abuse taking place, someone in the FBI tells Reno that children in the compound are being raped and beaten. According to the Justice Department report, “someone had made a comment in one of the meetings that Koresh was beating babies.” Reno, who came to Washington with the reputation of being a child advocate, later says she “double-checked” the allegation and got “the clear impression that, at some point since the FBI had assumed command and control for the situation, they had learned that the Branch Davidians were beating babies.” However, it is highly unlikely that Koresh is abusing children, largely because the wounds he suffered in the February 28 shootout sharply limit his mobility. Dr. Bruce Perry, chief of psychiatry at Texas Children’s Hospital, has closely examined the children already released from the compound, and concluded that none of them had been subjected to sexual or physical abuse. Perry will later say of the child-abuse allegations, “The FBI maximized things they knew would ring a bell with her.” [New Yorker, 5/15/1995; Wall Street Journal, 10/17/1995] FBI Director William Sessions says on April 19 that no direct evidence exists of current sexual or physical abuse going on among the Davidians. Reno will later state that she possessed “no contemporary evidence” of such abuse. [PBS Frontline, 10/1995] Additionally, some FBI officials worry that Koresh and the other adults may try to break out of the compound using the children as human shields, though no evidence supports this fear. [House Committee on Government Reform and Oversight, 8/2/1996]
Reno Not Told CS Gas Can Be Flammable - The CS gas to be used is also flammable under certain conditions, a fact of which Reno may not be aware. [Dick J. Reavis, 7/19/1995; Wall Street Journal, 10/17/1995]
Exaggerated Warnings of Militia Members En Route - Reno will later state that she receives warnings during the briefings about the possibility that armed militia members may be preparing to converge on Waco to join Koresh in resisting the law enforcement forces gathered around the Mt. Carmel compound (see April 3, 1993). Later investigation shows that the “threat” of “armed militias” consists of one Indianapolis lawyer, Linda Thompson, who has promised to load people into a van, drive to Waco, and protest for the right to bear arms. Thompson says she is part of an organization called the Unorganized Militia of the United States, an organization of which few Justice Department officials are aware. [Wall Street Journal, 10/17/1995]
'Highly Irresponsible' - A House committee investigation in 1996 will find Reno’s decision to approve the assault “highly irresponsible,” and will find, “The final assault put the children at the greatest risk” (see August 2, 1996). [House Committee on Government Reform and Oversight, 8/2/1996]

Entity Tags: US Department of Justice, Janet Reno, Linda Thompson, David Koresh, Federal Bureau of Investigation, Branch Davidians, William Jefferson (“Bill”) Clinton, Bruce Perry, Peter Smerick, William S. Sessions

Timeline Tags: 1993 Branch Davidian Crisis

Combat engineering vehicles (CEVs) lined up outside the blazing Branch Davidian compound.Combat engineering vehicles (CEVs) lined up outside the blazing Branch Davidian compound. [Source: PBS]The FBI and local law enforcement officials begin their planned assault on the besieged Branch Davidian compound near Waco, Texas (see 5:00 A.M. - 9:30 A.M. February 28, 1993, March 1, 1993, and April 17-18, 1993), despite indications that the Davidians inside the compound will retaliate either by firing on the gathered law enforcement officials, by torching the main residential building, or perhaps both (see April 18, 1993). [PBS Frontline, 10/1995]
Warning - At 5:55 a.m., Richard Rogers, the commander of the FBI’s Hostage Rescue Team (HRT), orders two combat engineering vehicles (CEVs, unarmed modifications of Bradley fighting vehicles and the primary means for deplying CS “riot control agent” into the main building) deployed to the main building. One minute later, senior negotiator Byron Sage telephones the residence and speaks with Davidian Steve Schneider. At 5:59, Schneider comes to the phone. Sage tells him: “We are in the process of putting tear gas into the building. This is not an assault. We will not enter the building.” Schneider replies, “You are going to spray tear gas into the building?” Sage says, “In the building… no, we are not entering the building.” At the conclusion of the conversation, Schneider or another Davidian throws the telephone out of the building. [PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996; House Committee on Government Reform and Oversight, 8/2/1996] Minutes later, Schneider slips out, retrieves the phone, and ducks back inside. [Time, 5/3/1993]
Combat Vehicles Begin Deploying Gas, Davidians Open Fire - At 6:02 a.m., the two CEVs begin inserting CS gas into the compound, using spray nozzles attached to booms. The booms punch holes through the exterior walls of the building. The FBI uses unarmed Bradley Fighting Vehicles to deploy “ferret rounds,” military ammunition designed to release CS after penetrating a barricade such as a wall or window. As the CEVs and the Bradleys punch holes into the buildings for the deployment of the gas, Sage makes the following statement over the loudspeakers: “We are in the process of placing tear gas into the building. This is not an assault. We are not entering the building. This is not an assault. Do not fire your weapons. If you fire, fire will be returned. Do not shoot. This is not an assault. The gas you smell is a non-lethal tear gas. This gas will temporarily render the building uninhabitable. Exit the residence now and follow instructions. You are not to have anyone in the tower. The [guard] tower is off limits. No one is to be in the tower. Anyone observed to be in the tower will be considered to be an act of aggression [sic] and will be dealt with accordingly. If you come out now, you will not be harmed. Follow all instructions. Come out with your hands up. Carry nothing. Come out of the building and walk up the driveway toward the Double-E Ranch Road. Walk toward the large Red Cross flag. Follow all instructions of the FBI agents in the Bradleys. Follow all instructions. You are under arrest. This standoff is over. We do not want to hurt anyone. Follow all instructions. This is not an assault. Do not fire any weapons. We do not want anyone hurt. Gas will continue to be delivered until everyone is out of the building.” Two minutes later, Davidians begin firing on the vehicles from the windows. The gunfire from the Davidians prompts Rogers and FBI commander Jeffrey Jamar to decide to change tactics; at 6:07 a.m., the assault forces begin deploying all of the gas at once instead of dispersing it in a controlled manner over the course of 48-72 hours as originally envisioned. [Dean M. Kelley, 5/1995; PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996; House Committee on Government Reform and Oversight, 8/2/1996; USMC Weapons, 2002] (Jamar will later testify that before the assault even began, he was “99 percent certain” that the FBI would have to escalate its assault because the Davidians would open fire.) [House Committee on Government Reform and Oversight, 8/2/1996] As a CEV demolishes the back wall of the gymnasium area of the compound, negotiators broadcast: “David, we are facilitating you leaving the compound by enlarging the door.… Leave the building now.” [Cox News Service, 1/30/2000] Jamar will later explain that the Bradleys do not carry military weaponry. “Of course we had all the firepower removed,” he will say in a 1995 interview. “There were no cannons or anything on them. We used them for transportation. And they’re more than a personnel carrier—they’re a track vehicle. I mean it’s mud, just thick mud there the whole time. And the agents learned how to drive ‘em. But the idea was to protect them as best we could. And we didn’t know—they talked about blowing a 50—did they have rockets? Who knows? Did they have explosives buried in various vicinities? Are they prepared to run out with Molatov cocktails? What’s in their mind?” Jamar is referring to threats made by Koresh and other Davidians to blow up FBI vehicles. As for the CEVs, they are tanks modified for construction and engineering purposes, and are often used as bulldozers. Observers watching the events live on television or later on videotape will sometimes mistake the CEVs for actual tanks, though two M1A1 Abrams tanks are actually on site and take part in the assault. [PBS Frontline, 10/1995; PBS Frontline, 10/1995]
House Report: Davidians Would Certainly Consider FBI's Actions an Assault - A 1996 report by a House of Representatives investigative committee (see August 2, 1996) will note that it is almost impossible for the Davidians not to consider themselves under assault, with tank-like vehicles tearing holes in the building, CS being sprayed everywhere, grenade-like projectiles crashing through windows, men in body armor swarming around the compound, and the sounds of what seems like combat all around them. “Most people would consider this to be an attack on them—an ‘assault’ in the simplest terms,” the report will find. “If they then saw other military vehicles approaching, from which projectiles were fired through the windows of their home, most people are even more likely to believe that they were under an assault. If those vehicles then began to tear down their home there would be little doubt that they were being attacked. These events are what the Davidians inside the residence experienced on April 19, yet the FBI did not consider their actions an assault.” Moreover, the FBI did not consider the close-knit, home-centered community the Davidians have long since formed. “Their religious leader led them to believe that one day a group of outsiders, non-believers, most likely in the form of government agents, would come for them,” the report will state. “Indeed, they believed that this destiny had been predicted 2,000 years before in Biblical prophecy. Given this mindset, it can hardly be disputed that the Davidians thought they were under assault at 6 a.m. on April 19.” [House Committee on Government Reform and Oversight, 8/2/1996]
Monitoring from Washington - At 7:00 a.m., Attorney General Janet Reno and senior Justice Department and FBI officials go to the FBI situation room to monitor the assault. [PBS Frontline, 10/1995]
Buildings Breached - At 7:30 a.m., a CEV breaches the side of one of the main buildings and injects large amounts of tear gas into the interior of the compound. At 7:58 a.m., gas is fired into the second floor of the back-right corner of the building. The FBI asks for more ferret rounds, and by 9:30 a.m., 48 more ferret rounds arrive from Houston. The assault is hampered by the FBI’s dwindling supply of ferret rounds, a CEV with mechanical difficulties, and high winds dispersing the gas. Another CEV enlarges the opening in the center-front of the building, with the idea of providing an escape route for the trapped Davidians. A third CEV breaches the rear of the building, according to a later Justice Department report, “to create openings near the gymnasium.” [PBS Frontline, 10/1995]
Clinton Told Assault Progressing Well - At about 11 a.m., Reno briefs President Clinton, tells him that the assault seems to be going well, and leaves for a judicial conference in Baltimore. During this time, a CEV breaches the back side of the compound. At 11:40 a.m., the FBI fires the last of the ferret rounds into the building. At 11:45 a.m., one wall of the compound collapses. [PBS Frontline, 10/1995]
Transcriptionist Escapes - Ruth Riddle, the typist and transcriptionist sent inside the compound by the FBI to help Koresh finish his “Seven Seals” manuscript (see April 18, 1993), escapes the compound before the fire. She brings out a computer disk containing the unfinished manuscript. [Dean M. Kelley, 5/1995]
Davidians Set Fires throughout Compound - At 12:07 p.m., according to the Justice Department and House reports, the Davidians start “simultaneous fires at three or more different locations within the compound.” An FBI Hostage Rescue Team member reports seeing “a male starting a fire” in the front of the building. Later analyses show that the first fire begins in a second-floor bedroom, the second in the first floor dining room, and the third in the first floor chapel. Evidence also shows that the fires spread according to “accelerant trails,” such as a trail of flammable liquid being poured on the floor. Some of the Davidians’ clothing found in the rubble also shows traces of gasoline, kerosene, Coleman fuel (liquid petroleum, sometimes called “white gas”), and lighter fluid, further suggesting that the Davidians use accelerants to start and spread the fires. [PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996] Within eight minutes, the main building is engulfed in flames. One explosion, probably from a propane gas tank, is observed. Later investigation will find a propane tank with its top blown off in the debris. [House Committee on Government Reform and Oversight, 8/2/1996; House Committee on Government Reform and Oversight, 8/2/1996] After the compound burns to the ground, FBI agent Bob Ricks tells reporters, “David Koresh, we believe, gave the order to commit suicide and they all willingly followed.” [New York Times, 4/20/1993] Some of the Davidians who survive the conflagration later claim that the Davidians did not start the fires, but arson investigators with the Justice Department and the Texas Rangers, as well as an independent investigator, will conclude that Davidians did indeed start the fires in at least three different areas of the main building. [PBS Frontline, 10/1995] A 1993 Treasury Department report (see Late September - October 1993) will produce audiotapes of Davidians inside the compound and transcripts of conversations, secured via electronic surveillance, discussing the means of setting the fires. Voices on the tapes and in the transcripts say such things as: “The fuel has to go all around to get started.” “Got to put enough fuel in there.” “So, we only light ‘em as they come in,” or as a slightly different version has it, “So, we only light ‘em as soon as they tell me.” Once the fires begin, high winds and the breaches in the walls cause the flames to almost immediately begin consuming the compound. [Dean M. Kelley, 5/1995] In 1999, Colonel Rodney Rawlings, the senior military liaison to the HRT, will tell reporters that he heard Koresh give the orders to start the fires over FBI surveillance “bugs” (see October 8, 1999). Sage later describes the horror that goes through him and his fellow agents when they realize that the Davidians have torched the compound. He will recall “pleading” with the Davidians to leave the compound, and say: “I can’t express the emotions that goes through you. I had to physically turn around away from the monitor to keep my mind focused on what I was trying to broadcast to those people.” He will recall being horrified by the failure of people to flee the compound. “I fully anticipated those people would come pouring out of there,” he says. “I’d been through CS teargas on numerous occasions [in training exercises]. And I would move heaven and earth to get my kids out of that kind of an environment. And that’s frankly what we were banking on. That at least the parents would remove their children from that kind of situation.” Of Koresh, he will say: “By him intentionally lighting that place afire and consuming the lives of 78 people, including over 20 young children, was just inconceivable to me. In 25 years of law enforcement I’ve never been faced with someone that was capable of doing that.” [PBS Frontline, 10/1995] Six years later, the FBI will admit to releasing two pyrotechnic grenades into the compound, but insists the grenades did not start the fires (see August 25, 1999 and After).
Plea for Release - At 12:12 p.m., Sage calls on Koresh to lead the Davidians to safety. Nine Davidians flee the compound and are arrested [PBS Frontline, 10/1995] , including one woman who leaves, attempts to return to the burning building, and tries unsuccessfully to fight off a federal agent who comes to her aid. [New York Times, 4/20/1993] One of the nine runs out of the building at around 12:28 p.m., indicating that even 21 minutes after the fire, it is possible for some of the inhabitants to make their escape. However, most of the Davidians retreat to areas in the center of the building and do not attempt to get out. [House Committee on Government Reform and Oversight, 8/2/1996]
'Systematic Gunfire' - At 12:25 p.m., FBI agents hear “systematic gunfire” coming from inside of the building; some agents believe that the Davidians are either killing themselves or each other. The House committee investigation later finds that FBI agents hear rapid-fire gunshots coming from the compound; while many of the gunshots are probably caused by exploding ammunition, “other sounds were methodical and evenly-spaced, indicating the deliberate firing of weapons.”
Fire Department Responds; Search for Survivors - At 12:41 p.m., fire trucks and firefighters begin attempting to put out the flames. HRT agents enter tunnels to search for survivors, particularly children. [Dean M. Kelley, 5/1995; PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996] No fire trucks are at the scene when the assault begins, and it takes around 25 minutes for the first fire department vehicles to respond to emergency calls from their stations in Waco. Bob Sheehy, mayor of Waco, later says the city fire department “first got a call after the fire had already started.” Ricks explains that fire engines were not brought to the compound earlier for fear that firefighters might have been exposed to gunfire from the compound, and because FBI officials did not expect a fire. “We did not introduce fire to this compound, and it was not our intention that this compound be burned down. I can’t tell you the shock and the horror that all of us felt when we saw those flames coming out of there. It was, ‘Oh, my God, they’re killing themselves.’” [New York Times, 4/20/1993]
Death Toll - In all, 78 Branch Davidians, including over 20 children, two pregnant women, and Koresh himself, die in the fire. Nineteen of the dead are killed by close-range gunshot wounds. Almost all of the others either die from smoke inhalation, burns, or both. [PBS Frontline, 10/1995; House Committee on Government Reform and Oversight, 8/2/1996] The number is improperly reported in a number of media sources, and varies from 75 to 81. Even the House committee report does not cite a definitive total. [House Committee on Government Reform and Oversight, 8/2/1996] Some of the FBI negotiators involved in the siege later say that they feel continued negotiations might have saved many, perhaps all, of the lives of those inside the compound. In an interview later in the year, one negotiator tells a reporter, “I’ll always, in my own mind, feel like maybe we could have gotten some more people out.” [New Yorker, 5/15/1995] But HRT member Barry Higginbotham, one of the snipers who observes the Davidians throughout the siege, will later state that neither he nor anyone on his team believed the Davidians would ever willingly surrender. Higginbotham will say: “We just felt that if you make them suffer a little more, deny them perhaps a little more food, lighting, power, things like that inside, that would cause more pressure on their leadership inside. And perhaps their leadership would go to Koresh and pressure him to start negotiating in good faith. It was hard to believe that Koresh was ever negotiating in good faith.” [PBS Frontline, 10/1995] In the hours after the conflagration, Ricks tells reporters: “We had hoped the women would grab their children and flee. That did not occur and they bunkered down the children and allowed them to go up in flames with them.… It was truly an inferno of flames.” Ricks says that authorities receive reports, perhaps from some of the survivors, that the children had been injected with some kind of poison to ease their pain. This claim is never confirmed. [New York Times, 4/20/1993]
In the Bunker - FBI investigators combing the building after the conflagration find an enormous amount of guns and other weaponry inside. Dr. Rodney Crow, the FBI’s chief of identification services and one of the officials who examine the bodies of the Davidians, spends much of his time in the compound’s underground bunker, where many of the bodies are found. Crow later says: “There were weapons everywhere. I don’t remember moving a body that didn’t have a gun melted to it, intertwined with it, between the legs, under the arm, or in close proximity. And I’d say 18 inches to 20 inches would be close proximity.… The women were probably more immersed in the weapons than anyone else, because there was so much weaponry inside the bunker. It was like sea shells on a beach, but they were spent casings and spent bullets. If you had rubber gloves and tried to smooth it away, you’d tear your gloves away from the bullet points that are unexploded, or unspent ammunition. Then as you went through layer after layer, you came upon weapons that were totally burned. Until we got down to the floor, and it was mint condition ammunition there. Ammunition boxes not even singed.” The most powerful weapon Crow finds is a .50-caliber machine gun. Some of the bodies have gunshot wounds. Crow will say: “My theory is there was a lot of euthanasia and mercy killing. That group probably were just about as active as anywhere in the compound, mercifully putting each other out of misery in the last moments.” In total, 33 bodies are found inside the bunker; almost all the women and children found inside the compound are in the bunker. Many are found to have died from suffocation or smoke inhalation (two died from falling debris), but some died from gunshot wounds, and one woman was stabbed to death. [PBS Frontline, 10/1995; PBS Frontline, 10/1995] Local medical examiner Nizam Peerwani later says he does not believe the people in the bunker committed suicide, saying: “There has been a lot of speculation if this is a mass suicide or not. And—did they all go there to die? Ah, we don’t really think so. What I feel personally is that they tried to escape. A bunker was perhaps the safest area in the compound.” [PBS Frontline, 10/1995] Sage will say that he knew the children were dead sometime around 12:30 p.m. He recalls terminating the negotiations at that time, “because I didn’t want the loudspeaker bank to interfere with instructions being given on the ground. At that point in time, I walked over to the site in shock, basically. And, uh, the first thing I asked is, ‘Where are the kids?’” He is told, “Nowhere.” Sage will say: “They had not come out. They had been consumed.” [PBS Frontline, 10/1995]
Koresh's Fate - Koresh and Schneider are found in a small room the authorities call “the communication room.” Koresh is dead of a single gunshot wound to the forehead. Schneider is dead from a gunshot wound in the mouth. Peerwani later says: “Did David Koresh shoot himself and Schneider shoot himself? Or did Schneider shoot David Koresh and then turn around and shoot himself? Certainly both are possible. We cannot be certain as to what really transpired.” [PBS Frontline, 10/1995]
No Ill Effects from Gas - Peerwani and his colleagues examine the bodies for damage caused by the CS gas used in the assault, and find none. While many of the Davidians were exposed to the gas, according to tissue and blood studies, none inhaled enough of it to cause anything more than short-term discomfort. Concurrently, Peerwani and his colleagues find no damage from the propellant used in the ferret rounds. A fire report later written by Texas-based investigators will call the tear gas operation a failure at dispersing the Davidians. [PBS Frontline, 10/1995; PBS Frontline, 10/1995] Medical examinations show that some of the children may well have been overcome by the gas, and rendered unable to escape, but the compound had not been gassed for an hour before the fires began, and CS has a persistence factor of only 10 minutes—in other words, the effects should have worn off by the time the fires broke out. The gas proves ineffective against the adults, because the adult Davidians are equipped with gas masks. [PBS Frontline, 10/1995]
Wrongly Executed Plan - The plan as signed by Reno called on law enforcement forces to deploy tear gas into the compound at stated intervals, then have agents retreat to await evacuees before approaching again. This “passive,” “restrained” approach was to have been followed for up to 72 hours before using assault vehicles to force entry. Instead, the agents wait only 12 minutes before beginning a motorized vehicle assault. [New Yorker, 5/15/1995]
Taking Responsibility - One of the unlikely “heroes” of the debacle is Reno. She signed off on the attack (see April 17-18, 1993), and within hours of the attacks, she holds a televised press conference where she says: “I made the decision. I am accountable . The buck stops here” (see April 19, 1993). She repeats this statement over and over again on national television. [New Yorker, 5/15/1995]

Entity Tags: Bob Ricks, Bob Sheehy, Branch Davidians, David Koresh, FBI Hostage Rescue Team, Barry Higginbotham, Federal Bureau of Investigation, Janet Reno, Jeffrey Jamar, Byron Sage, US Department of Justice, Nizam Peerwani, William Jefferson (“Bill”) Clinton, Richard Rogers, Rodney Rawlings, Rodney Crow, Ruth Riddle, Texas Rangers, Steve Schneider

Timeline Tags: 1993 Branch Davidian Crisis

The House of Representatives concludes a 10-day series of hearings on the series of events that concluded with the fiery deaths of scores of Branch Davidian members near Waco, Texas (see April 19, 1993 and Late July 1995). The hearings do not find evidence of a White House-driven conspiracy to either destroy the Davidians or cover up the truth of the matter, as some Republican House members had predicted. An Orlando Sentinel article says that many of the questions from those House Republicans “seemed fueled more by politics than any true desire to ensure that the government avoid future fiascos a la Waco.” The hearings determined that President Clinton did not micro-manage the events of the siege and ultimate assault, nor did they find evidence that Clinton ordered the assault to prove, as some House members alleged, that his administration is “tough on crime.” Committee co-chair Bill McCollum (R-FL) acknowledged at the end of the hearings that the raid, siege, and final conflagration were caused by a string of blunders by federal law enforcement agencies. Attorney General Janet Reno testified as to why the FBI’s final assault seemed at the time to be the best approach; her overriding concern was to remove Davidian leader David Koresh without harming the children inside the compound. A Davidian who survived the fire testified that the fires that devastated the compound were started under orders from Koresh. [Orlando Sentinel, 8/4/1995] In emotional testimony before the House, former Bureau of Alcohol, Tobacco and Firearms (BATF) agent Robert Rodriguez, who served as an informant for the BATF inside the Davidian compound, said he was angered and dismayed by his superiors’ decision to raid the compound even though the Davidians knew they were coming (see 5:00 A.M. - 9:30 A.M. February 28, 1993). Rodriguez testified that two of his then-superiors, Philip Chojnacki and Charles Sarabyn, lied to the committee when they said they did not know that the Davidians had been alerted to the February raid. Chojnacki and Sarabyn were fired for their mismanagement of the BATF raid and for covering up evidence of their malfeasance (see Late September - October 1993), but were subsequently rehired (see December 23, 1994). Rodriguez said: “Two years I’ve waited for this.… It let me get everything out.” The events of that raid and the subsequent actions, he said, were “tearing me up inside.” [Chicago Tribune, 7/25/1995] In 1999, the FBI will admit to lobbing two pyrotechnic grenades into the compound during the April assault, though the bureau will deny that the grenades started the fires (see August 25, 1999 and After).

Entity Tags: Philip Chojnacki, Charles Sarabyn, Branch Davidians, Bill McCollum, David Koresh, Janet Reno, William Jefferson (“Bill”) Clinton, US House of Representatives, Robert Rodriguez, US Bureau of Alcohol, Tobacco, Firearms and Explosives, Federal Bureau of Investigation

Timeline Tags: 1993 Branch Davidian Crisis

Pyrotechnic CS gas canisters.Pyrotechnic CS gas canisters. [Source: Law Enforcement Equipment Distribution]According to newly presented documents, the FBI used two or three pyrotechnic tear gas canisters during the raid on the Branch Davidian compound near Waco, Texas (see April 19, 1993). The documents contradict earlier FBI and Justice Department claims that law enforcement officials did nothing that could have contributed to the fire that killed over 80 sect members. Former senior FBI official Danny Coulson begins the revelations by admitting to the Dallas Morning News that the FBI had indeed used pyrotechnic grenades, though he says the grenades did not start the fires that consumed the building. Texas Department of Public Safety Commission Chairman James Francis says the Texas Rangers have “overwhelming evidence” supporting Coulson’s statement. “There are written reports by Rangers, there is photographic evidence, there is physical evidence, all three of which are problematic,” Francis says. Coulson, the founder of the FBI’s Hostage Rescue Team and a former assistant deputy director, says that two M651 CS tear gas grenades were fired into the building, but they were fired hours before the blazes erupted. Attorney General Janet Reno, who tells reporters she knew nothing of the grenade usage and is “very, very frustrated” at the knowledge, appoints former Senator John C. Danforth (R-MO) as the head of an investigatory commission (see September 7-8, 1999); Danforth will find that, regardless of the use of the pyrotechnic gas canisters, law enforcement officials were not responsible for the fire, and neither the FBI nor the Justice Department tried to cover up any actions (see July 21, 2000). [PBS Frontline, 10/1995; Dallas Morning News, 8/25/1999; Salon, 9/9/1999] The military M651 canisters, which burn for about 30 seconds to heat and release the solidified tear gas inside, were fired from a Bradley fighting vehicle at a bunker near the main building (see September 3, 1999). After the assault, a Texas Ranger found a spent 40mm gas canister shell lying on the ground and asked a nearby FBI agent, “What’s this?” The agent promised to find out, but never returned with an answer; the shell went into evidence containers (see August 10, 1999 and After). Two weeks after the FBI acknowledges the use of incendiary gas canisters at the Waco assault, Reno testifies on the matter to the House Judiciary Committee. She says that, based on the briefings she had been given (see April 17-18, 1993), “It was my understanding that the tear gas produced no risk of fire.… That fire was set by David Koresh and the people in that building.” After her testimony, Senate Majority Leader Trent Lott (R-MS) calls on Reno to resign. [Newsweek, 9/6/1999; Associated Press, 9/10/1999] FBI agent Byron Sage, the chief negotiator during the Davidian standoff, will say in 2003 that the incendiary gas canisters could not have set the fires. “This is the critical point, the M651 rounds were never directed towards the wooden structure,” he will say. “They were used in an area yards away from the building. Also, they were used earlier in the day. The fire didn’t start until four hours later. They had absolutely nothing to do with that fire.” Sage will say that the canisters were fired only at a construction pit near the compound where other gas-discharging devices had been smothered in mud. The pit was targeted because some Davidian gunfire during the ATF raid had come from that area, he will say. [Waco Tribune-Herald, 3/16/2003] Charles Cutshaw, an editor of Jane’s Defense Information and an expert on this kind of weapon, says these military tear gas cartridges are not intended to start fires. He says he knows of no studies or reports on how often such cartridges may have caused fires. [Washington Post, 9/4/1999] Shortly after the admission, federal prosecutor Bill Johnston, one of the lawyers for the government in the wrongful-death lawsuit filed by surviving Davidians (see April 1995), informs Reno that government lawyers had known for years about the use of pyrotechnic tear-gas rounds (see August 30, 1999). Johnston will be removed from the lawsuit and replaced by US Attorney Michael Bradford. [Fort Worth Star-Telegram, 7/21/2000] He will also plead guilty to concealing evidence from investigators concerning the canisters (see November 9, 2000).

Entity Tags: FBI Hostage Rescue Team, Bill Johnston, Danny Coulson, Byron Sage, Branch Davidians, Federal Bureau of Investigation, James B. Francis Jr, Trent Lott, Janet Reno, US Department of Justice, John C. Danforth, Texas Rangers, Charles Cutshaw, Michael Bradford

Timeline Tags: 1993 Branch Davidian Crisis

Memos withheld from Congressional investigators (see August 4, 1995) by the FBI show that the FBI was riven by dissension during the Branch Davidian siege, which culminated in a fiery conflagration that killed scores of sect members (see April 19, 1993). The memos are released by the Dallas Morning News. Many senior FBI officials were pressing to use tear gas to bring the siege to a close, some as early as three weeks after its start. According to a March 23, 1993 memo (see March 23, 1993) written by then-Deputy Assistant Director Danny Coulson, the FBI’s top expert on tactics, the Hostage Rescue Team leader, Richard Rogers, was pressuring FBI officials to terminate the siege by using gas as part of an assault. Coulson disagreed with Rogers’s recommendations. Coulson is the former agent who recently revealed that the FBI had used pyrotechnic grenades during the final assault (see August 25, 1999 and After). Some House members are angry about the withheld memo, and note that they have consistently been denied documents even after subpoenas were issued. “We’ve had a subpoena out there for all relevant documents—all documents—since September 7, 1999,” says Mark Corallo, the spokesman for the House Government Reform Committee. “Is the Department of Justice withholding only embarrassing documents from us? It makes you wonder.” Other FBI documents released by the Dallas Morning News show that Attorney General Janet Reno gave her approval to use tear gas on the compound (see April 17-18, 1993). [Dallas Morning News, 2/28/2000]

Entity Tags: Federal Bureau of Investigation, Branch Davidians, Dallas Morning News, FBI Hostage Rescue Team, Mark Corallo, Richard Rogers, Janet Reno, Danny Coulson

Timeline Tags: 1993 Branch Davidian Crisis

White House lawyers have become impatient with the interagency group’s (see Shortly Before September 23, 2001) less than full endorsement of the use of military commissions to try suspected terrorists. By late October, Timothy E. Flanigan takes the task of designing a strategy for prosecuting terrorists away from the group and proceeds to focus on military commissions as the only preferable option. The White House lawyers now work more in secret, excluding many agencies and most of the government’s experts in military and international law, but together with the lawyers of the Office of Legal Counsel (OLC), with the intention of drafting a presidential military order. [New York Times, 10/24/2004] There is a remarkable secrecy surrounding the drafting process (see November 11-13, 2001). Both Attorney General John D. Ashcroft and his deputy, Larry D. Thompson, are closely consulted. But the head of the Justice Department’s Criminal Division, Michael Chertoff is kept out of the loop. Secretary of Defense Donald H. Rumsfeld is informed through his general counsel, William J. Haynes. Other Pentagon experts, however, are excluded. [New York Times, 10/24/2004] When the order is signed (see November 13, 2001), many express surprise. “That came like a bolt from the blue,” a former Pentagon official says. “Neither I nor anyone I knew had any insight, any advance knowledge, or any opportunity to comment on the president’s military order.” [Guardian, 6/9/2004] “I can’t tell you how compartmented things were,” retired Rear Adm. Donald J. Guter, the Navy’s Judge Advocate General, later recalls. “This was a closed administration.” [New York Times, 10/24/2004]

Entity Tags: Larry D. Thompson, John Ashcroft, Michael Chertoff, Donald J. Guter, Donald Rumsfeld, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

President Bush issues a three-page executive order authorizing the creation of military commissions to try non-citizens alleged to be involved in international terrorism (see November 10, 2001). The president will decide which defendants will be tried by military commissions. Defense Secretary Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. A two-thirds vote is needed to convict a defendant and impose a sentence, including life imprisonment or death. Only the president or the secretary of defense has the authority to overturn a decision. There is no provision for an appeal to US civil courts, foreign courts, or international tribunals. Nor does the order specify how many judges are to preside on a tribunal or what qualifications they must have. [US Department of Defense, 11/13/2001; Washington Post, 11/14/2001; New York Times, 10/24/2004]
Questionable Rule of Evidence Adopted - The order also adopts a rule of evidence stemming from the 1942 Supreme Court case of United States v. Quirin that says evidence shall be admitted “as would… have probative value to a reasonable person.” This rule, according to Judge Evan J. Wallach, “was repeatedly used [in World War II and in the post-war tribunals] to admit evidence of a quality or obtained in a manner which would make it inadmissible under the rules of evidence in both courts of the United States or courts-martial conducted by the armed forces of the United States.” [Wallach, 9/29/2004] Evidence derived from torture, for example, could theoretically be admitted. It should be noted that the order is unprecedented among presidential directives in that it takes away some individuals’ most basic rights, while claiming to have the power of law, with the US Congress not having been so much as consulted.
Specifics Left to Rumsfeld - Bush’s executive order contains few specifics about how the commissions will actually function. Bush will delegate that task to Rumsfeld, although, as with the order itself, White House lawyers will actually make the decision to put Rumsfeld in charge, and Bush will merely sign off on the decision (see March 21, 2002). [Savage, 2007, pp. 138]
Dispute over Trial Procedures - During the next few years, lawyers will battle over the exact proceedings of the trials before military commissions, with many of the military lawyers arguing for more rights for the defendants and with Defense Department chief counsel William J. Haynes, and Justice Department and White House lawyers (including White House counsel Alberto Gonzales, vice presidential counsel David Addington, and Gonzales’ deputy Timothy Flanigan) taking a more restrictive line. [New York Times, 10/24/2004]
Out of the Loop - Both National Security Adviser Condoleezza Rice and Secretary of State Colin Powell were left outside of the circle during the drafting of this directive (see November 6, 2001 and November 9, 2001). Rice is reportedly angry about not being informed. [New York Times, 10/24/2004]
Serious 'Process Failure' - National Security Council legal adviser John Bellinger will later call the authorization a “process failure” with serious long-term consequences (see February 2009).

Entity Tags: George W. Bush, John Bellinger, Donald Rumsfeld, Colin Powell, Condoleezza Rice, David S. Addington, Alberto R. Gonzales, William J. Haynes, Timothy E. Flanigan

Timeline Tags: Torture of US Captives, Civil Liberties

Salim Hamdan is captured in Afghanistan. [Guantanamo Military Commissions, 11/20/2007 pdf file] Hamdan is an Arab who has lived in Afghanistan for some time and has some knowledge about al-Qaeda and its operations there. He will later become well known after he is transferred to Guantanamo and engages in a series of legal battles to gain his freedom (see November 8, 2004 and June 30, 2006). [USA Today, 7/24/2008; Reuters, 7/24/2008] At some point, he is handed over to the FBI. However, agents for the bureau do not read him his Miranda rights. “Our policy at the time was not to read Miranda rights,” FBI special agent Robert Fuller will say in testimony at a US military commission hearing for Hamdan. Reuters will later write, “Similar warnings must be given to suspects in US military custody, and suspects overseas who may face US charges commonly receive warnings.” FBI special agent Stewart Kelley will say, “If they are a suspect, and they are detained, a Miranda is usually given.” [Reuters, 7/24/2008]

Entity Tags: Federal Bureau of Investigation, Salim Ahmed Hamdan, Stewart Kelley, Robert Fuller

Timeline Tags: Torture of US Captives

The White House declares that the United States will apply the Geneva Conventions to the conflict in Afghanistan, but will not grant prisoner-of-war status to captured Taliban and al-Qaeda fighters. Though Afghanistan was party to the 1949 treaty, Taliban fighters are not protected by the Conventions, the directive states, because the Taliban is not recognized by the US as Afghanistan’s legitimate government. Likewise, al-Qaeda fighters are not eligible to be protected under the treaty’s provisions because they do not represent a state that is party to the Conventions either.
Administration Will Treat Detainees Humanely 'Consistent' with Geneva - In the memo, President Bush writes that even though al-Qaeda detainees do not qualify as prisoners of war under Geneva, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The presidential directive is apparently based on Alberto Gonzales’s January 25 memo (see January 25, 2002) and a memo from Vice President Cheney’s chief of staff, David Addington (see January 25, 2002).
Bush Chooses Not to Suspend Geneva between US and Afghanistan - The directive also concludes that Bush, as commander in chief of the United States, has the authority to suspend the Geneva Conventions regarding the conflict in Afghanistan, should he feel necessary: Bush writes, “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.” Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq. [George W. Bush, 2/7/2002 pdf file; CNN, 2/7/2002; Newsweek, 5/24/2004; Truthout (.org), 1/19/2005; Dubose and Bernstein, 2006, pp. 191]
Overriding State Department Objections - Bush apparently ignores or overrides objections from the State Department, including Secretary of State Colin Powell (see January 25, 2002) and the department’s chief legal counsel, William Howard Taft IV (see January 25, 2002). Both Powell and Taft strenuously objected to the new policy. [Savage, 2007, pp. 147]
Ignoring Promises of Humane Treatment - The reality will be somewhat different. Gonzales laid out the arguments for and against complying with Geneva in an earlier memo (see January 18-25, 2002), and argued that if the administration dispensed with Geneva, no one could later be charged with war crimes. Yet, according to Colin Powell’s chief of staff, Lawrence Wilkerson, sometime after the Bush memo is issued, Vice President Cheney and Defense Secretary Rumsfeld decide to ignore the portions promising humane treatment for prisoners. “In going back and looking at the deliberations,” Wilkerson later recalls, “it was clear to me that what the president had decided was one thing and what was implemented was quite another thing.” [Dubose and Bernstein, 2006, pp. 190-191]

Entity Tags: Geneva Conventions, George W. Bush, Colin Powell, Lawrence Wilkerson, William Howard Taft IV, Richard (“Dick”) Cheney, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

Justice Department spokesman Mark Corallo says: “This country has become a battlefield, and [terrorists] will kill us anywhere they can. All you have to do is go to lower Manhattan and see the hole in the ground.” [Knight Ridder, 12/29/2003]

Entity Tags: US Department of Justice, Mark Corallo

Timeline Tags: Torture of US Captives, Domestic Propaganda

Jack Goldsmith, the embattled head of the Justice Department’s Office of Legal Counsel (OLC) (see October 6, 2003), finds himself again mired in a conflict with Vice President Dick Cheney’s hardline chief aide, David Addington. Goldsmith has already fought with Addington over Goldsmith’s decision to withdraw the OLC’s support for the administration’s memos justifying torture (see December 2003-June 2004). Now Goldsmith and Addington are at odds over the policies governing the detention and trial of suspected terrorists. The spark for this conflict is the January 2004 Supreme Court decision to review the detention of US citizen and suspected “enemy combatant” Yaser Esam Hamdi (see January 9, 2004). Goldsmith suggests going to Congress to have that body pass legislation declaring such detention legal, reasoning that the Supreme Court would be less likely to rule against the administration if Congress had authorized such detention policies. Addington, who like his boss does not accept the idea that Congress has any business interfering in such policy decisions, refuses to countenance the idea, and Goldsmith’s proposal goes nowhere. In June 2004, the Supreme Court approves the detention policies but put modest legal restrictions on the administration’s ability to detain citizens without trial. Goldsmith, this time with deputy solicitor general Paul Clement, again suggests going to Congress; once again, Addington refuses. The White House, Goldsmith later says, continues to operate as if it could avoid any adverse decisions from the Supreme Court. When the Court issues its decision in the Hamdan case (see November 8, 2004), rejecting the administration’s policy of trying terror suspects in military tribunals without Congressional approval, and upholding the preeminence of the Third Geneva Convention in protecting the rights of accused terror detainees—including al-Qaeda suspects—the decision has a shattering effect on the Bush administration’s legal arguments towards detaining and trying those suspects. Goldsmith believes the Court’s decision is “legally erroneous” but has huge political consequences. Now detainees at Guantanamo Bay have more legal rights than ever before, and for the first time, the specter of war-crimes charges against Bush officials becomes a real possibility. Goldsmith later says that it is in these arguments, more than in the battles over domestic wiretapping or interrogation techniques, that Addington’s attempts to expand presidential power actually backfires. Goldsmith is later vindicated when, in September 2006, one of the last acts of the Republican-led Congress will give the administration every power the administration had asked for, authorizing the military commissions that the Court had rejected. The Bush administration could have avoided a damaging Court decision by working with Congress beforehand. “I’m not a civil libertarian, and what I did wasn’t driven by concerns about civil liberties per se,” he says in a 2007 interview. “It was a disagreement about means, not ends, driven by a desire to make sure that the administration’s counterterrorism policies had a firm legal foundation.” [New York Times Magazine, 9/9/2007]

Entity Tags: US Department of Justice, Yaser Esam Hamdi, US Supreme Court, Paul Clement, Al-Qaeda, Bush administration (43), David S. Addington, Jack Goldsmith, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

David Hicks.David Hicks. [Source: Associated Press]In the case of Rasul v. Bush, involving Guantanamo detainees Shafiq Rasul, Mamdouh Habib, David Hicks, and Asif Iqbal, the Supreme Court holds in a 6-3 ruling that the US exercises “complete jurisdiction and control” over Guantanamo Bay, and thus, that the Guantanamo prisoners have the right to challenge their detentions before a judge. Under the habeas corpus statute, Justice John Paul Stevens writes for the majority that “aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] It is unclear whether the court’s ruling is intended to extend to detainees held in other parts of the world, but given the court’s reasoning, it appears that decision applies to detainees both in Guantanamo and elsewhere. [New York Times, 6/29/2004]
Conservative Dissent - The three dissenting justices are conservatives William Rehnquist, Antonin Scalia, and Clarence Thomas. Scalia says the decision is “an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.” He acknowledges that the location of Guantanamo has in fact been intended to keep detainees outside of the reach of the judiciary. “Today, the court springs a trap on the executive, subjecting Guantanamo Bay to the oversight of federal courts even though it has never before been thought to be within their jurisdiction, and thus making it a foolish place to have housed alien wartime detainees,” Scalia writes. Stevens writes that it does not matter what status the Guantanamo inmates have regarding the question of whether they should have access to a US court. “What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And this, he writes, they do. The case is subsequently sent back to a lower court to consider the prisoners’ claims. [Guardian, 6/28/2004]
Side-Stepping the Ruling - The media characterizes the decision as a rebuke for the Bush administration, which had argued that the courts have no right to interfere in the commander in chief’s decisions involving wartime policies. However, the decision says nothing about what rights the detainees might have once they get inside a courtroom, and therefore actually places little real restraint on the government. White House officials will decide that the detainees have no rights in the courtroom whatsoever—although the Court has ruled that they can file lawsuits, those lawsuits must be dismissed out of hand because the detainees have no right to actually present a case. The Republican-led Congress will later pass a law stripping courts of jurisdiction over Guantanamo lawsuits. [Savage, 2007, pp. 192]

Entity Tags: William Rehnquist, Shafiq Rasul, Mamdouh Habib, Antonin Scalia, David Hicks, Asif Iqbal, John Paul Stevens, Clarence Thomas

Timeline Tags: Torture of US Captives, Civil Liberties

Salim Ahmed Hamdan.Salim Ahmed Hamdan. [Source: Public domain]US District Judge James Robertson rules that the Combatant Status Review Tribunal being held at the Guantanamo base in Cuba to determine the status of detainee Salim Ahmed Hamdan is unlawful and cannot continue. At the time of the decision, Hamdan is before the Guantanamo military commission. [Washington Post, 11/9/2004; USA Today, 11/9/2004] The commission system, as set up by White House lawyers David Addington and Timothy Flanigan three years before (see Late October 2001), gives accused terrorists such as Hamdan virtually no rights; in author and reporter Charlie Savage’s words, “the [Bush] administration had crafted rules that would make it easy for prosecutors to win cases.” [Savage, 2007, pp. 195-196]
Violation of Geneva Conventions - Robertson, in his 45-page opinion, says the government should have conducted special hearings to determine whether detainees qualified for prisoner-of-war protections under the Geneva Conventions at the time of capture. [USA Today, 11/9/2004] He says that the Bush administration violated the Geneva Conventions when it designated prisoners as enemy combatants, denied them POW protections, and sent them to Guantanamo. [Boston Globe, 11/9/2004] The Combatant Status Review Tribunals that are currently being held in response to a recent Supreme Court decision (see June 28, 2004) are inadequate, Robertson says, because their purpose is to determine whether detainees are enemy combatants, not POWs, as required by the Third Geneva Convention. [USA Today, 11/9/2004]
Rejects Claims of Presidential Power - Robertson also rejects the administration’s claim that the courts must defer to the president in a time of war. “The president is not a ‘tribunal,’” the judge says. [USA Today, 11/9/2004] Robertson, a Clinton appointee, thus squarely opposes both the president’s military order of November 13, 2001 (see November 13, 2001) establishing the possibility of trial by military tribunal, and his executive order of February 7, 2002 (see February 7, 2002) declaring that the Geneva Conventions do not to apply to Taliban and al-Qaeda prisoners. “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts,” Robertson writes, “one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.” [USA Today, 11/9/2004; Washington Post, 11/9/2004; Boston Globe, 11/9/2004]
Orders Military Courts-Martial - Robertson orders that until the government conducts a hearing for Hamdan before a competent tribunal in accordance with the Third Geneva Conventions, he can only be tried in courts-martial, according to the same long-established military rules that apply to trials for US soldiers. [Washington Post, 11/9/2004; Boston Globe, 11/9/2004] Robertson’s ruling is the first by a federal judge to assert that the commissions are illegal. [Washington Post, 11/9/2004]
Hearings Immediately Recessed - When word of Robertson’s ruling comes to Guantanamo, Colonel Peter Brownback, presiding over a pretrial hearing for Hamdan, immediately gavels the hearing closed, declaring an “indefinite recess” for the tribunal. [Savage, 2007, pp. 195-196]
Ruling Applauded by Civil Libertarians, Rejected by Bush Lawyers - Anthony Romero, director of the American Civil Liberties Union; Eugene Fidell, president of the National Institute of Military Justice; and Michael Ratner, president of the Center for Constitutional Rights, all applaud Robertson’s ruling. [Boston Globe, 11/9/2004] The Bush administration rejects the court’s ruling and announces its intention to submit a request to a higher court for an emergency stay and reversal of the decision. “We vigorously disagree.… The judge has put terrorism on the same legal footing as legitimate methods of waging war,” Justice Department spokesman Mark Corallo says. “The Constitution entrusts to the president the responsibility to safeguard the nation’s security. The Department of Justice will continue to defend the president’s ability and authority under the Constitution to fulfill that duty.” [Washington Post, 11/9/2004; Boston Globe, 11/9/2004] He also says that the commission rules were “carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process.” [Boston Globe, 11/9/2004]
Ruling May Affect Other Detainees - Though the ruling technically only applies to Hamdan, his civilian attorney, Neal Katyal, says it could affect other detainees. “The judge’s order is designed only to deal with Mr. Hamdan’s case,” Katyal says. “But the spirit of it… extends more broadly to potentially everything that is going on here at Guantanamo.” [USA Today, 11/9/2004]

Entity Tags: Mark Corallo, Neal Katyal, James Robertson, George W. Bush, Anthony D. Romero, Peter Brownback, Charlie Savage, US Supreme Court, American Civil Liberties Union, Salim Ahmed Hamdan

Timeline Tags: Torture of US Captives, Civil Liberties

Judge James Robertson.Judge James Robertson. [Source: US Courts.gov]US District Judge James Robertson resigns from the Foreign Intelligence Surveillance Court (FISC), a special, secret court set up to oversee government surveillance operations. Robertson refuses to comment on his resignation from FISC, but two of Robertson’s associates say that Robertson’s resignation stems from his deep concerns that the NSA’s warrantless domestic wiretapping program (see Early 2002) is not legal, and has tainted the work of the court. Robertson, formerly one of ten “revolving” members of FISC who periodically rotate in and out of duty on the court, continues to serve as a Washington, DC district judge. Colleagues of Robertson say that he is concerned that information gained from the warrantless surveillance under Bush’s program subsequently could have been used to obtain warrants under the FISA program, a practice specifically prohibited by the court. Robertson, a Clinton appointee selected for FISC by Chief Justice William Rehnquist, has also been critical of the Bush administration’s treatment of detainees at the Guantanamo Bay prison camp, and recently issued a decision that sidetracked Bush’s use of military tribunals for some Guantanamo detainees (see November 8, 2004). Even though Robertson was hand-picked for FISC by the deeply conservative Rehnquist, who expressly selected judges who took an expansive view of wiretapping and other surveillance programs, [Associated Press, 12/21/2005] some conservative critics such as Jim Kouri, a vice-president of the National Association of Chiefs of Police, call Robertson a “left-leaning, liberal” “Clintonista” jurist with ties to “ultra-liberal” civil rights associations and a desire for media attention (though Robertson has refused to speak to the press about his resignation). Critics also demand that less attention be directed at the NSA wiretapping program and more on finding out who leaked the information that led to the New York Times’s recent revelatory articles on the program (see Early 2002). GOP strategist Mike Baker says in response to Robertson’s resignation, “Only the Democrats make confirmations and appointments of people by Republican President [sic] a question of ideology. The news media try to portray [Robertson] as non-partisan. He’s as liberal as they come and as partisan as they come.” [Men's News, 12/23/2005] Presiding judge Colleen Kollar-Kotelly is arranging for a classified briefing of all the remaining FISC judges on the wiretapping program, partly in order to bring any doubts harbored by other justices into the open. Sources say Kollar-Kotelly expects top NSA and Justice Department officials to outline the program for the judges. No one on FISC except for Kollar-Kotelly and her predecessor, Judge Royce Lambeth, have ever been briefed on the program. If the judges are not satisfied with the information provided in this briefing, they could take action, which could include anything from demanding proof from the Justice Department that previous wiretaps were not tainted, could refuse to issue warrants based on secretly-obtained evidence, or, conceivably, could disband the entire court, especially in light of Bush’s recent suggestions that he has the power to bypass the court if he so desires. [Washington Post, 12/22/2005]

Entity Tags: US Department of Justice, Royce Lambeth, William Rehnquist, National Security Agency, Jim Kouri, Mike Baker, Foreign Intelligence Surveillance Court, George W. Bush, James Robertson, Colleen Kollar-Kotelly

Timeline Tags: Civil Liberties

Salim Ahmed Hamdan in 1999.Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. [New York Times, 6/30/2006] During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” [Savage, 2007, pp. 274-275]
Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” [New York Times, 6/30/2006] In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” [Savage, 2007, pp. 275]
Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004).
Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. [New York Times, 6/30/2006]

Entity Tags: Samuel Alito, US Supreme Court, Salim Ahmed Hamdan, Stephen Breyer, Ruth Bader Ginsburg, John G. Roberts, Jr, Al-Qaeda, Antonin Scalia, Bush administration (43), Center for Constitutional Rights, Anthony Kennedy, John Paul Stevens, David Souter, International Commission of Jurists, Gerald Staberock, Geneva Conventions, Clarence Thomas

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

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