1995 Congressional HearingsIntelligence and Security
1995 Congressional HearingsI welcome the opportunity to appear before the Subcommitteetoday. Only through a public discussion of these issues can weassure the public's confidence in law enforcement.
Ruby Ridge has become synonymous with tragedy, given thedeaths there of a decorated Deputy United States Marshal, a youngboy, and the boy's mother. It has also become synonymous with theexaggerated application of federal law enforcement. Bothconclusions seem justified.
At Ruby Ridge, the FBI did not perform at the level which theAmerican people expect or deserve from the FBI. Indeed, for theFBI, Ruby Ridge was a series of terribly flawed law enforcementoperations with tragic consequences.
We know today that law enforcement overreacted at Ruby Ridge. FBI officials promulgated rules of engagement that were reasonablysubject to interpretation that would permit a violation of FBIpolicy and the Constitution -- rules that could have caused evenworse consequences than actually occurred. Rules of engagementthat I will never allow the FBI to use again.
There was a trail of serious operational mistakes that wentfrom the mountains of Northern Idaho to FBI Headquarters and backout to a federal courtroom in Boise, Idaho. Today, there areallegations that a coverup occurred -- allegations that, if proven,shake the very foundation of integrity upon which the FBI is built.
Although I was not FBI Director when the Ruby Ridge crisisoccurred, I am sincerely disappointed with the FBI's performanceduring the crisis and especially in its aftermath. These hearingshave only served to confirm that belief. The FBI has, however,learned from its mistakes there. I have changed almost everyaspect of the FBI's crisis response structure and modified orpromulgated new policies and procedures to address the flaws andshortcomings apparent from the FBI's response. I am committed toensuring that the tragedies of Ruby Ridge never happen again.
It is important to keep these facts in mind. Deputy MarshalDegan's murder, as well as additional information provided by otherlaw enforcement agencies -- which other witnesses have described --formed the basis upon which the FBI responded to Idaho in August 1992.
On April 5, 1995, after reviewing the Department of Justice'sperformance at Ruby Ridge, the Deputy Attorney General determinedthat the threat posed by Randy Weaver was exaggerated. She alsodetermined that repetition of those exaggerations to the FBI led toa higher threat assessment than otherwise might have been made.
It is important to understand, however, that, in August, 1992,the FBI acted upon information that had been provided by other lawenforcement agencies. Based upon that information, the FBIbelieved that it was facing a very grave threat in Idaho -- athreat that required a prompt response. Now, with all of thebenefits of hindsight, the FBI's response clearly was anoverreaction. In future situations, I will make a more independentassessment of such threats before the FBI acts.
I also want to express my heartfelt condolences to Mrs. Degan. This Country asked her husband to make the ultimate sacrifice. What happened at Ruby Ridge and its aftermath fails to honor theprice paid by this dedicated public servant. We, as a Nation,should never forget those left behind when an officer dies in theline of duty.
At Ruby Ridge, the Hostage Rescue Team ("HRT") was operatingin accordance with rules of engagement that were reasonably subjectto interpretation that would permit a violation of FBI policy andthe Constitution. Those rules said that, under certaincircumstances, certain persons "can and should" be the subject ofdeadly force. Those rules of engagement were contrary to law andFBI policy. Moreover, some FBI SWAT personnel on-scene interpretedthe rules as a "shoot-on-sight" policy -- which they knew wasinconsistent with the FBI's deadly force policy. Such confusion isentirely unacceptable.
According to Special Agent Lon Horiuchi, the HRT sniper whoaccidentally shot Mrs. Weaver, he fired two shots on August 22,1992, both pursuant to the FBI's deadly force policy. He hastestified that he did not shoot pursuant to the rules of engagementthat I just mentioned.
The shot that killed Mrs. Weaver was the second that SpecialAgent Horiuchi fired. He testified that it was not intended forMrs. Weaver and was not fired at her.
In discussing Special Agent Horiuchi's second shot, I am notsaying that I approve of it. I am not trying to justify it. I amnot saying that I would have taken it. I am not saying that othersshould do what he did. I am certainly not saying that in a futuresimilar set of circumstances FBI Agents or law enforcement officersshould take such a shot. The FBI will strive and train to avoidsuch tragic results, whenever humanly possible.
Indeed, the constitutionality of Special Agent Horiuchi'ssecond shot is a very close and very difficult question. It is nota matter that can be addressed in "black and white" terms. Itcannot be answered categorically or with a high degree ofcertainty.
On careful balance, however, I believe that Special AgentHoriuchi's second shot was constitutional. Under all of thecircumstances that Special Agent Horiuchi faced on August 22, 1992,and based on all of the evidence, I do not believe that it wasunlawful in that time and place for him to take the second shot.
Special Agent Horiuchi testified he took the first shot whenhe observed a man later determined to be Randy Weaver, who was nextto the birthing shed, raise his rifle. At that time, Special AgentHoriuchi perceived that Weaver "was trying to get a shot off" at alaw enforcement helicopter that was flying overhead. Special AgentHoriuchi said he took the first shot for only one reason: hebelieved he was protecting fellow law enforcement officers who werein the helicopter.
Special Agent Horiuchi said he took the first shot only whenhe observed Randy Weaver raise his rifle in the direction of thehelicopter. Although FBI Agents in sniper positions had observedthree armed people run from the cabin and head toward the rockoutcroppings, they did not shoot as those three persons moved fromthe cabin -- because their actions were not judged to pose a threatto the safety of the agents on the scene.
The bullet that struck Mrs. Weaver was fired seconds after thefirst shot. It was intended for a man who Special Agent Horiuchimistakenly believed was the one he had just shot in the vicinity ofthe birthing shed. Special Agent Horiuchi fired at his intendedtarget while he was running toward the cabin andbefore he reachedthe cabin door.
Tragically, Mrs. Weaver was struck by that shot while shestood behind the open front door of the cabin.
Special Agent Horiuchi said he could not see Mrs. Weaver whenhe took the second shot and that he had no reason to believe thatshe was standing there. The shot that killed Mrs. Weaver was noteven fired at or into the cabin; it travelled on a path parallel tothe cabin.
Special Agent Horiuchi made one thing abundantly clear duringhis testimony at the trial of Randy Weaver and Kevin Harris: hedid notsee Vicki Weaver or anyone else behind the cabin door whenhe fired the second shot. Special Agent Horiuchi has testifiedthat he was aiming at a moving target -- Kevin Harris -- at thattime.
It is important to remember that two different components ofthe Department of Justice have reviewed the circumstances leadingto Vicki Weaver's unfortunate death. Both of those components --the Office of Professional Responsibility and the Civil RightsDivision -- independently determined that there was no basis uponwhich to conclude that she had been shot intentionally orunlawfully. Both determined by their analysis that the second shotwas not unconstitutional.
Special Agent Horiuchi's second shot was not criminal. Nor doI believe that a court -- applying qualified immunity principles --would find any civil liability. Further, based on all of theevidence, I do not believe it was unconstitutional.
I too determined that the twelve FBI employees did not commitany crimes or intentional misconduct. Nevertheless, I concludedthat those employees had demonstrated inadequate performance,improper judgment, neglect of duty, and failure to exert propermanagerial oversight. Accordingly, I imposed or proposeddiscipline ranging from an oral reprimand or written censure towritten censure with suspension from duty. At that time, Ibelieved the discipline imposed or proposed was commensurate withthe factual basis for the imposition of that discipline.
The discipline imposed was, as I said, based upon facts thathad been determined at that time. Discipline was not imposed onthe basis of showing favor to one person or another, or on thebasis of speculation, or in order for me to render a "popular"decision. Indeed, discipline was imposed on the basis of therecord before me and precedent, which is a fundamental component ofthe FBI's Administrative Summary process. The reliance uponprecedent is a basic matter of due process and fairness. Thatreliance ensures that people who commit similar offenses arepunished in a similar manner. In imposing and proposing disciplinethis past January, that is what I was trying to accomplish.
In January, I imposed and proposed discipline on the basis ofwhat I believed was a complete report. Ongoing investigations,which I obviously cannot discuss, may prove that report was not ascomplete as I had believed.
If this, in fact, occurred, then it is much like being a judge-- if the judge does not have all of the facts, or does not havefacts that have an impact upon credibility or honesty, the judge'sfindings will not withstand later scrutiny. That judge will makean incorrect and, thus, invalid decision that he must readdress.
I intend to be fair about this matter, but any final actionmust be based upon a full and accurate reporting of the facts.
At the time I disciplined Larry Potts, he was the ActingDeputy Director. Shortly thereafter, I sought to promote him to beDeputy Director of the FBI.
In pressing for Mr. Potts's appointment as Deputy Director, Iwas not trying to minimize or downplay the significance of thepunishment that I had imposed upon him. I did not appoint himDeputy Director simply because he is a friend.
In determining whether to appoint Larry Potts to be the DeputyDirector, I considered his many years of public service to theNation and to law enforcement. I considered the esteem in whichsubordinates, superiors, counterparts, and colleagues hold him. Iconsidered his vast accomplishments in the FBI, including our worktogether during the VANPAC investigation for which President Bushpersonally awarded Mr. Potts an Exceptional Leadership Award in theRose Garden.
I consulted with numerous people inside and outside the FBI,including judges, a former Attorney General, prosecutors,investigators in other agencies, and leaders of federal, state, andlocal law enforcement associations. It was their consensus thatLarry Potts was an excellent and progressive leader, highlyqualified to be Deputy Director. Like them, I placed great trustand confidence in Mr. Potts.
Looking back, I recognize that I was not sufficientlysensitive to the appearance created by my decision to disciplineand then promote Mr. Potts. Thus, I made a mistake in promotingMr. Potts. I take full responsibility for that decision and Ialone should be held accountable for it.
I do not wish to prejudice either investigation. I also donot wish to prejudge anyone who may be a subject of thoseinvestigations. I must stress, however, that the coverupallegations are quite serious and go to the very heart of what FBISpecial Agents do -- seek the truth. There is nothing moregrievous and shocking than an allegation that an FBI Agent hascommitted perjury or obstruction of justice.
The Subcommittee and the American people should have no doubtthat I will swiftly and decisively address any misconduct which wascommitted by any FBI employees. In that regard, my actions will beconsistent with the "bright line ethical and legal standard" thatI established for FBI employees on January 3, 1994.
Any such actions, however, cannot occur until theinvestigation is complete and all of the facts are known.
Rules of Engagement
First, I have ended forever the use of rules of engagement bythe FBI. The FBI will govern its use of deadly force by theDepartment of Justice deadly force policy, which permits the use ofdeadly force only in the face of imminent death or serious physicalinjury to the officer or another person. In a moment, I willdescribe this policy in greater detail.
Never again will rules of engagement be open to aninterpretation which expands the deadly force policy. In futurecrises, there will be no confusion -- as there was at Ruby Ridge --about the interplay between deadly force policy and rules ofengagement. The standard deadly force policy will be the solestandard, although on-scene commanders will be permitted to furtherrestrict the use of deadly force as necessary. In addition, if itis necessary to communicate to agents an especially heightenedrisk, that will be done through separate threat advisories.
Shooting Incident Review Policy
In the aftermath of Ruby Ridge, there were problems relatingto the shooting incident review conducted by the FBI in 1992. Thatreview inaccurately and incompletely analyzed the accidentalshooting death of Vicki Weaver. The person in charge of thatreview had participated in FBI Headquarters oversight of the RubyRidge response and was then asked to assess the validity of theshootings that occurred there.
Shooting investigations must be full and fair. They must beconducted by persons who do not have even the appearance of aconflict-of-interest.
Thus, on April 3, 1995, I announced revisions to the FBI'sshooting review policy in order to ensure the complete and accurateinvestigation of shooting incidents. Among other things, I:
Without question, Ruby Ridge demonstrated that the FBI'scrisis management structure was inadequate and terribly flawed. The new CIRG ensures the FBI's experienced senior leadership'sresponsibility and directly establishes accountability on specificindividuals, including myself, for crisis management. CIRG fullyintegrates crisis negotiators and the HRT and joins them at thesame level under a unified command. The structure which I haveestablished ensures an equal tension between our tactical and non-tactical components, with a Special Agent in Charge and myselfoverseeing the process. As a part of that integration, I haveordered that, whenever HRT deploys on a mission, CIRG negotiatorswill deploy with them.
The members of the HRT are not commandos. They are SpecialAgents of the FBI. Their goal has always been to save lives. Likeany FBI Special Agent, the members of the HRT carry badges andhandcuffs. Their objective is identical to that of law enforcementofficers around the country -- to arrest safely those responsiblefor crimes and assist in their prosecution. The members of HRT,however, perform these tasks in crisis situations.
The HRT is a unique and necessary law enforcement responsecapability. Nevertheless, the simple fact that HRT exists does notmean that it must be used, especially if we do not have to use it.
The HRT should not be used reflexively. I approach the use ofHRT conservatively and seek independent FBI assessments before itsuse. Indeed, I cannot envision utilizing the HRT unless I ampersonally satisfied that it is necessary and appropriate to useit.
Through the integrated response that CIRG provides, I amconfident that the FBI will better perform its duties to resolvefuture crisis situations without loss of life.
Crisis Management Training
Finally, I have increased the crisis management trainingprovided to FBI executives who will serve as on-scene commanders incrisis situations. Attorney General Reno, the Deputy AttorneyGeneral, and I have received this training. It has also beenprovided to other senior Department of Justice officials and acadre of FBI field commanders. I believe that this training effortwill help ensure the peaceful resolution of future crises.
Resolution 12 established policy to govern agencies' use ofthe FBI's crisis management resources in the field, as well ascomponents of CIRG. I believe that Resolution 12 clearlyestablishes lines of authority during crises and will avertconfusion when a crisis occurs. Additionally, Resolution 12requires other Department of Justice investigative agencies toconsult and coordinate with the FBI when the degree of threat inone of their cases requires and allows for preplanning.
Resolution 13 established a general policy concerning theconduct of post-shooting incident reviews. I previously describedchanges to FBI policy governing this matter. Resolution 13 ensuresthat Department of Justice agencies will conduct thorough andobjective shooting incident reviews, which subsequently arereviewed further in order to ensure fairness and accuracy.
Many months ago, the Attorney General tasked the Office ofInvestigative Agency Policies to draft a uniform deadly forcepolicy for her consideration. After months of research, discussionand analysis between the agencies comprising the Office ofInvestigative Agency Policies and various components of theDepartment of Justice -- especially the Office of Legal Counsel --Resolution 14, which established a uniform deadly force policy, wasissued and the Attorney General has approved it.
The Treasury Department also participated in the negotiationsleading to the deadly force policy. Through the efforts ofTreasury Undersecretary Noble and his staff, there is now a uniformdeadly force policy that governs the actions of Treasury Departmentand Justice Department law enforcement officers. That policypermits deadly force to be used "when the officer has a reasonablebelief that the subject of such force poses an imminent danger ofdeath or serious physical injury to the officer or to anotherperson."
In coordination with the Department of Justice Office ofProfessional Responsibility since 1976, the FBI has had a long anddistinguished record of successfully investigating allegedmisconduct by FBI employees. This record of success includesmatters of great significance to the FBI and the American people. For example:
The success of the FBI's internal investigations is due, inlarge part, to the support and participation of FBI employees. Experience has shown that thorough, effective internalinvestigations require the expertise of agents who are intimatelyfamiliar with the FBI's structure and procedures. Furthermore, aninternal policing function is necessary for me to manage the agencysuccessfully, to establish investigative and ethical priorities,and to demonstrate to the agency, the Congress, and the Americanpeople that improper conduct by FBI employees will be dealt witheffectively.
In partnership with the Department of Justice Office ofProfessional Responsibility and the Office of the InspectorGeneral, the FBI has been and remains committed to an effectiveinternal integrity program. Based upon my twenty years ofexperience inside and out of the FBI, I have reached twoconclusions: first, the FBI is the best investigative agency inthe world; and second, the FBI has enjoyed extraordinary success inpolicing itself with independent oversight. I do not intend todiminish that record.
The Subcommittee should also consider the experience anduniformity of major police departments around the United States. They have learned from hard experience that police integrity isabsolutely dependent on police being responsible and accountable toinvestigate themselves with independent oversight -- exactly likethe FBI. I have prepared a chart which notes some of the majorpolice forces that investigate themselves. I request that it bemade part of the record.
Intentional misconduct is a different matter altogether. AsI stated before, I assure the Subcommittee and the American peoplethat I will swiftly and decisively deal with anyone who the factsshow committed misconduct.
With the arsenals at the disposal of criminals in our Nationtoday, everyone must understand that law enforcement officers havea very dangerous job to do. Since becoming Director of the FBI inSeptember, 1993, I have attended the funerals of three FBI SpecialAgents and numerous state and local law enforcement officers whowere murdered in the line of duty by criminals with guns. Again,last Friday, I attended the funeral for a young WashingtonMetropolitan Police Department officer killed without provocationin the line of duty. I have witnessed first-hand the devastationthese weapons inflict upon the agents and officers, their families,and loved ones. Every week, I speak with Chiefs of Police andSheriffs from around the country who suffer casualties in theirranks at the hands of criminals with guns.
We take our responsibility seriously when we ask the men andwomen of law enforcement to put themselves in harm's way -- peoplelike Deputy United States Marshal Bill Degan. As law enforcementleaders and managers, we owe them our complete support and muststrive to give them the best guidance possible.
We rely upon the men and women of law enforcement to do theirbest job under very difficult circumstances. In return forprotecting us, we vest them with a measure of discretion and askthem to use their best judgment. Sometimes, as human nature tellsus, that judgment may be imperfect and mistakes will happen.
As long as we ask them to be in the arena, to be ready in themiddle of the night to take cover behind a tree or a mailbox, toput their lives and the well-being of their families in the line offire, we must show some empathy and compassion for their humanfallibility. This is particularly true as we judge with the calm,well-lighted knowledge of hindsight, far from what the SupremeCourt calls "split-second judgments -- in circumstances that aretense, uncertain and rapidly evolving.1
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1Graham v.Connor, 490 U.S. 386, 397(1989).
