1995 Congressional Hearings
Intelligence and Security

Opening Statement of
Louis J. Freeh, Director
Federal Bureau of Investigation

Before the
Subcommittee on Terrorism, Technology, and Government Information
Committee on the Judiciary
United States Senate
Washington, D.C.

October 19, 1995

Ruby Ridge Hearing

TABLE OF CONTENTS:

Introduction

Good morning, Mr. Chairman and distinguished Members of the Subcommittee. I am pleased to testify before you concerning the role of the Federal Bureau of Investigation in the events at Ruby Ridge and the substantial reforms I have made as a result of the serious deficiencies in the FBI's performance during the crisis.

I welcome the opportunity to appear before the Subcommittee today. Only through a public discussion of these issues can we assure the public's confidence in law enforcement.

Ruby Ridge has become synonymous with tragedy, given the deaths there of a decorated Deputy United States Marshal, a young boy, and the boy's mother. It has also become synonymous with the exaggerated application of federal law enforcement. Both conclusions seem justified.

At Ruby Ridge, the FBI did not perform at the level which the American people expect or deserve from the FBI. Indeed, for the FBI, Ruby Ridge was a series of terribly flawed law enforcement operations with tragic consequences.

We know today that law enforcement overreacted at Ruby Ridge. FBI officials promulgated rules of engagement that were reasonably subject to interpretation that would permit a violation of FBI policy and the Constitution -- rules that could have caused even worse consequences than actually occurred. Rules of engagement that I will never allow the FBI to use again.

There was a trail of serious operational mistakes that went from the mountains of Northern Idaho to FBI Headquarters and back out to a federal courtroom in Boise, Idaho. Today, there are allegations 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 crisis occurred, I am sincerely disappointed with the FBI's performance during the crisis and especially in its aftermath. These hearings have only served to confirm that belief. The FBI has, however, learned from its mistakes there. I have changed almost every aspect of the FBI's crisis response structure and modified or promulgated new policies and procedures to address the flaws and shortcomings apparent from the FBI's response. I am committed to ensuring that the tragedies of Ruby Ridge never happen again.

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Circumstances Surrounding the
Deployment of FBI Resources to Idaho

As you are aware, the FBI responded to Ruby Ridge subsequent to the Bureau of Alcohol, Tobacco, and Firearms investigation of Randy Weaver. The FBI response came after the United States Marshals Service had conducted an 18-month investigation and surveillance of Weaver. The FBI responded to Ruby Ridge on August 21, 1992, after the tragic murder of Deputy United States Marshal William Degan.

It is important to keep these facts in mind. Deputy Marshal Degan's murder, as well as additional information provided by other law 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's performance at Ruby Ridge, the Deputy Attorney General determined that the threat posed by Randy Weaver was exaggerated. She also determined that repetition of those exaggerations to the FBI led to a 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 law enforcement agencies. Based upon that information, the FBI believed that it was facing a very grave threat in Idaho -- a threat that required a prompt response. Now, with all of the benefits of hindsight, the FBI's response clearly was an overreaction. In future situations, I will make a more independent assessment of such threats before the FBI acts.

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Rules of Engagement and
The Death of Vicki Weaver

As I have stated many times before, Vicki Weaver's death was tragic but accidental. I fully appreciate the fact that three children have been left without their mother as a result of what occurred at Ruby Ridge. On behalf of the FBI, I wish to express my regret and sorrow for Mrs. Weaver's death. Moreover, the FBI fully supports the settlement with the Weaver family that the Department of Justice negotiated. For the FBI, the settlement does not bring any sense of closure to the stark tragedy of Vicki Weaver's death. Rather, her death will always be a haunting reminder to the FBI to take every possible step to avoid tragedy, even in the most dangerous situations.

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 the price paid by this dedicated public servant. We, as a Nation, should never forget those left behind when an officer dies in the line of duty.

At Ruby Ridge, the Hostage Rescue Team ("HRT") was operating in accordance with rules of engagement that were reasonably subject to interpretation that would permit a violation of FBI policy and the Constitution. Those rules said that, under certain circumstances, certain persons "can and should" be the subject of deadly force. Those rules of engagement were contrary to law and FBI policy. Moreover, some FBI SWAT personnel on-scene interpreted the rules as a "shoot-on-sight" policy -- which they knew was inconsistent with the FBI's deadly force policy. Such confusion is entirely unacceptable.

According to Special Agent Lon Horiuchi, the HRT sniper who accidentally shot Mrs. Weaver, he fired two shots on August 22, 1992, both pursuant to the FBI's deadly force policy. He has testified that he did not shoot pursuant to the rules of engagement that I just mentioned.

The shot that killed Mrs. Weaver was the second that Special Agent Horiuchi fired. He testified that it was not intended for Mrs. Weaver and was not fired at her.

In discussing Special Agent Horiuchi's second shot, I am not saying that I approve of it. I am not trying to justify it. I am not saying that I would have taken it. I am not saying that others should do what he did. I am certainly not saying that in a future similar set of circumstances FBI Agents or law enforcement officers should take such a shot. The FBI will strive and train to avoid such tragic results, whenever humanly possible.

Indeed, the constitutionality of Special Agent Horiuchi's second shot is a very close and very difficult question. It is not a matter that can be addressed in "black and white" terms. It cannot be answered categorically or with a high degree of certainty.

On careful balance, however, I believe that Special Agent Horiuchi's second shot was constitutional. Under all of the circumstances that Special Agent Horiuchi faced on August 22, 1992, and based on all of the evidence, I do not believe that it was unlawful in that time and place for him to take the second shot.

Special Agent Horiuchi testified he took the first shot when he observed a man later determined to be Randy Weaver, who was next to the birthing shed, raise his rifle. At that time, Special Agent Horiuchi perceived that Weaver "was trying to get a shot off" at a law enforcement helicopter that was flying overhead. Special Agent Horiuchi said he took the first shot for only one reason: he believed he was protecting fellow law enforcement officers who were in the helicopter.

Special Agent Horiuchi said he took the first shot only when he observed Randy Weaver raise his rifle in the direction of the helicopter. Although FBI Agents in sniper positions had observed three armed people run from the cabin and head toward the rock outcroppings, they did not shoot as those three persons moved from the cabin -- because their actions were not judged to pose a threat to the safety of the agents on the scene.

The bullet that struck Mrs. Weaver was fired seconds after the first shot. It was intended for a man who Special Agent Horiuchi mistakenly believed was the one he had just shot in the vicinity of the birthing shed. Special Agent Horiuchi fired at his intended target while he was running toward the cabin and before he reached the cabin door.

Tragically, Mrs. Weaver was struck by that shot while she stood behind the open front door of the cabin.

Special Agent Horiuchi said he could not see Mrs. Weaver when he took the second shot and that he had no reason to believe that she was standing there. The shot that killed Mrs. Weaver was not even fired at or into the cabin; it travelled on a path parallel to the cabin.

Special Agent Horiuchi made one thing abundantly clear during his testimony at the trial of Randy Weaver and Kevin Harris: he did not see Vicki Weaver or anyone else behind the cabin door when he fired the second shot. Special Agent Horiuchi has testified that he was aiming at a moving target -- Kevin Harris -- at that time.

It is important to remember that two different components of the Department of Justice have reviewed the circumstances leading to Vicki Weaver's unfortunate death. Both of those components -- the Office of Professional Responsibility and the Civil Rights Division -- independently determined that there was no basis upon which to conclude that she had been shot intentionally or unlawfully. Both determined by their analysis that the second shot was not unconstitutional.

Special Agent Horiuchi's second shot was not criminal. Nor do I believe that a court -- applying qualified immunity principles -- would find any civil liability. Further, based on all of the evidence, I do not believe it was unconstitutional.

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Punishment Administered to FBI Employees

In January of this year, I disciplined or proposed discipline for twelve FBI employees for their conduct related to the incident at Ruby Ridge and the subsequent prosecution of Randy Weaver and Kevin Harris. My disciplinary action followed an FBI administrative review of the conduct of those employees. My action also followed reviews by the Department of Justice Office of Professional Responsibility and the Civil Rights Division, which independently determined that criminal prosecution was not warranted. All of these actions, including my own, relied upon a Task Force investigation that was directly supervised by the Department of Justice and a report that was written by Department of Justice attorneys -- not FBI Special Agents.

I too determined that the twelve FBI employees did not commit any crimes or intentional misconduct. Nevertheless, I concluded that those employees had demonstrated inadequate performance, improper judgment, neglect of duty, and failure to exert proper managerial oversight. Accordingly, I imposed or proposed discipline ranging from an oral reprimand or written censure to written censure with suspension from duty. At that time, I believed the discipline imposed or proposed was commensurate with the factual basis for the imposition of that discipline.

The discipline imposed was, as I said, based upon facts that had been determined at that time. Discipline was not imposed on the basis of showing favor to one person or another, or on the basis of speculation, or in order for me to render a "popular" decision. Indeed, discipline was imposed on the basis of the record before me and precedent, which is a fundamental component of the FBI's Administrative Summary process. The reliance upon precedent is a basic matter of due process and fairness. That reliance ensures that people who commit similar offenses are punished in a similar manner. In imposing and proposing discipline this past January, that is what I was trying to accomplish.

In January, I imposed and proposed discipline on the basis of what I believed was a complete report. Ongoing investigations, which I obviously cannot discuss, may prove that report was not as complete 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 have facts that have an impact upon credibility or honesty, the judge's findings will not withstand later scrutiny. That judge will make an incorrect and, thus, invalid decision that he must readdress.

I intend to be fair about this matter, but any final action must be based upon a full and accurate reporting of the facts.

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The Promotion of Larry Potts

Larry Potts was one of the twelve FBI employees included in my disciplinary decisions this past January. He received a letter of censure for failure to provide proper oversight with regard to the rules of engagement employed at Ruby Ridge. It should be noted that the Administrative Summary report recommended that neither Mr. Potts nor Mr. Coulson be disciplined. I disagreed with that conclusion based upon the facts as I found them.

At the time I disciplined Larry Potts, he was the Acting Deputy Director. Shortly thereafter, I sought to promote him to be Deputy Director of the FBI.

In pressing for Mr. Potts's appointment as Deputy Director, I was not trying to minimize or downplay the significance of the punishment that I had imposed upon him. I did not appoint him Deputy Director simply because he is a friend.

In determining whether to appoint Larry Potts to be the Deputy Director, I considered his many years of public service to the Nation and to law enforcement. I considered the esteem in which subordinates, superiors, counterparts, and colleagues hold him. I considered his vast accomplishments in the FBI, including our work together during the VANPAC investigation for which President Bush personally awarded Mr. Potts an Exceptional Leadership Award in the Rose 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, and local law enforcement associations. It was their consensus that Larry Potts was an excellent and progressive leader, highly qualified to be Deputy Director. Like them, I placed great trust and confidence in Mr. Potts.

Looking back, I recognize that I was not sufficiently sensitive to the appearance created by my decision to discipline and then promote Mr. Potts. Thus, I made a mistake in promoting Mr. Potts. I take full responsibility for that decision and I alone should be held accountable for it.

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The Ongoing Inquiries

As the Subcommittee is aware, two criminal investigations relating to Ruby Ridge and its aftermath are currently pending. One is in Boundary County, Idaho, where prosecutor Randall Day is investigating the deaths of Vicki Weaver, Sammy Weaver, and Deputy Marshal Degan. The other is a federal investigation here in Washington, D.C. It focuses upon actions allegedly taken by FBI employees during and after the Ruby Ridge crisis.

I do not wish to prejudice either investigation. I also do not wish to prejudge anyone who may be a subject of those investigations. I must stress, however, that the coverup allegations are quite serious and go to the very heart of what FBI Special Agents do -- seek the truth. There is nothing more grievous and shocking than an allegation that an FBI Agent has committed perjury or obstruction of justice.

The Subcommittee and the American people should have no doubt that I will swiftly and decisively address any misconduct which was committed by any FBI employees. In that regard, my actions will be consistent with the "bright line ethical and legal standard" that I established for FBI employees on January 3, 1994.

Any such actions, however, cannot occur until the investigation is complete and all of the facts are known.

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FBI Crisis Management Reforms
Subsequent to the Events at Ruby Ridge

The FBI has learned the lessons of Ruby Ridge. As the Subcommittee has already heard, we have changed policies and procedures to prevent similar, tragic mistakes in the future. I have prepared a handout describing these reforms. I request that it be made part of the record. I would like to review four of the reforms with you.

Rules of Engagement
First, I have ended forever the use of rules of engagement by the FBI. The FBI will govern its use of deadly force by the Department of Justice deadly force policy, which permits the use of deadly force only in the face of imminent death or serious physical injury to the officer or another person. In a moment, I will describe this policy in greater detail.

Never again will rules of engagement be open to an interpretation which expands the deadly force policy. In future crises, there will be no confusion -- as there was at Ruby Ridge -- about the interplay between deadly force policy and rules of engagement. The standard deadly force policy will be the sole standard, although on-scene commanders will be permitted to further restrict the use of deadly force as necessary. In addition, if it is necessary to communicate to agents an especially heightened risk, that will be done through separate threat advisories.

Shooting Incident Review Policy
In the aftermath of Ruby Ridge, there were problems relating to the shooting incident review conducted by the FBI in 1992. That review inaccurately and incompletely analyzed the accidental shooting death of Vicki Weaver. The person in charge of that review had participated in FBI Headquarters oversight of the Ruby Ridge response and was then asked to assess the validity of the shootings that occurred there.

Shooting investigations must be full and fair. They must be conducted by persons who do not have even the appearance of a conflict-of-interest.

Thus, on April 3, 1995, I announced revisions to the FBI's shooting review policy in order to ensure the complete and accurate investigation of shooting incidents. Among other things, I:

Critical Incident Response Group
The third and most significant major change I made is the creation of the Critical Incident Response Group ("CIRG"), which I established in 1994. I have provided to the Subcommittee a handout describing CIRG and its responsibilities. I request that it be made part of the record.

Without question, Ruby Ridge demonstrated that the FBI's crisis management structure was inadequate and terribly flawed. The new CIRG ensures the FBI's experienced senior leadership's responsibility and directly establishes accountability on specific individuals, including myself, for crisis management. CIRG fully integrates crisis negotiators and the HRT and joins them at the same level under a unified command. The structure which I have established ensures an equal tension between our tactical and non- tactical components, with a Special Agent in Charge and myself overseeing the process. As a part of that integration, I have ordered that, whenever HRT deploys on a mission, CIRG negotiators will deploy with them.

The members of the HRT are not commandos. They are Special Agents of the FBI. Their goal has always been to save lives. Like any FBI Special Agent, the members of the HRT carry badges and handcuffs. Their objective is identical to that of law enforcement officers around the country -- to arrest safely those responsible for 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 response capability. Nevertheless, the simple fact that HRT exists does not mean 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 of HRT conservatively and seek independent FBI assessments before its use. Indeed, I cannot envision utilizing the HRT unless I am personally satisfied that it is necessary and appropriate to use it.

Through the integrated response that CIRG provides, I am confident that the FBI will better perform its duties to resolve future crisis situations without loss of life.

Crisis Management Training
Finally, I have increased the crisis management training provided to FBI executives who will serve as on-scene commanders in crisis situations. Attorney General Reno, the Deputy Attorney General, and I have received this training. It has also been provided to other senior Department of Justice officials and a cadre of FBI field commanders. I believe that this training effort will help ensure the peaceful resolution of future crises.

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Department of Justice
Crisis Management Reforms

Some crisis management reforms have been established throughout the Department of Justice. In my capacity as Director of Investigative Agency Policies, I have issued Resolutions 12, 13 and 14, which resulted from consensus recommendations of the investigative agencies of the Department of Justice. These resolutions were created at the request of Attorney General Reno and she has approved them.

Resolution 12 established policy to govern agencies' use of the FBI's crisis management resources in the field, as well as components of CIRG. I believe that Resolution 12 clearly establishes lines of authority during crises and will avert confusion when a crisis occurs. Additionally, Resolution 12 requires other Department of Justice investigative agencies to consult and coordinate with the FBI when the degree of threat in one of their cases requires and allows for preplanning.

Resolution 13 established a general policy concerning the conduct of post-shooting incident reviews. I previously described changes to FBI policy governing this matter. Resolution 13 ensures that Department of Justice agencies will conduct thorough and objective shooting incident reviews, which subsequently are reviewed further in order to ensure fairness and accuracy.

Many months ago, the Attorney General tasked the Office of Investigative Agency Policies to draft a uniform deadly force policy for her consideration. After months of research, discussion and analysis between the agencies comprising the Office of Investigative Agency Policies and various components of the Department of Justice -- especially the Office of Legal Counsel -- Resolution 14, which established a uniform deadly force policy, was issued and the Attorney General has approved it.

The Treasury Department also participated in the negotiations leading to the deadly force policy. Through the efforts of Treasury Undersecretary Noble and his staff, there is now a uniform deadly force policy that governs the actions of Treasury Department and Justice Department law enforcement officers. That policy permits deadly force to be used "when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person."

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The FBI Investigating Itself

Several times, during these hearings, the issue of whether the FBI should investigate itself has arisen. In assessing this issue, the Subcommittee should consider the FBI's history in this regard. Unlike most police forces, the FBI has not one, but two, independent watchdogs that provide oversight of the FBI's employees and activities.

In coordination with the Department of Justice Office of Professional Responsibility since 1976, the FBI has had a long and distinguished record of successfully investigating alleged misconduct by FBI employees. This record of success includes matters of great significance to the FBI and the American people. For example:

The Attorney General issued an order on November 8, 1994, which makes clear that, in addition to the Department of Justice Office of Professional Responsibility, the Office of the Inspector General also performs oversight of the FBI. That oversight is occurring in connection with the FBI's performance in the Ames internal security investigation. Indeed, the Office of the Inspector General may request authority from the Deputy Attorney General to take responsibility for investigating a particular allegation under investigation by the FBI's Office of Professional Responsibility. Further, the FBI can recuse itself from a particular investigation, if appropriate, and has done so recently in a high-profile case.

The success of the FBI's internal investigations is due, in large part, to the support and participation of FBI employees. Experience has shown that thorough, effective internal investigations require the expertise of agents who are intimately familiar with the FBI's structure and procedures. Furthermore, an internal policing function is necessary for me to manage the agency successfully, to establish investigative and ethical priorities, and to demonstrate to the agency, the Congress, and the American people that improper conduct by FBI employees will be dealt with effectively.

In partnership with the Department of Justice Office of Professional Responsibility and the Office of the Inspector General, the FBI has been and remains committed to an effective internal integrity program. Based upon my twenty years of experience inside and out of the FBI, I have reached two conclusions: first, the FBI is the best investigative agency in the world; and second, the FBI has enjoyed extraordinary success in policing itself with independent oversight. I do not intend to diminish that record.

The Subcommittee should also consider the experience and uniformity of major police departments around the United States. They have learned from hard experience that police integrity is absolutely dependent on police being responsible and accountable to investigate themselves with independent oversight -- exactly like the FBI. I have prepared a chart which notes some of the major police forces that investigate themselves. I request that it be made part of the record.

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Conclusion

Serious mistakes occurred with regard to the Ruby Ridge incident. Some of those mistakes should have been avoided and were not. For those, the FBI offers not excuses, but rather the facts and significant reforms.

Intentional misconduct is a different matter altogether. As I stated before, I assure the Subcommittee and the American people that I will swiftly and decisively deal with anyone who the facts show committed misconduct.

With the arsenals at the disposal of criminals in our Nation today, everyone must understand that law enforcement officers have a very dangerous job to do. Since becoming Director of the FBI in September, 1993, I have attended the funerals of three FBI Special Agents and numerous state and local law enforcement officers who were murdered in the line of duty by criminals with guns. Again, last Friday, I attended the funeral for a young Washington Metropolitan Police Department officer killed without provocation in the line of duty. I have witnessed first-hand the devastation these weapons inflict upon the agents and officers, their families, and loved ones. Every week, I speak with Chiefs of Police and Sheriffs from around the country who suffer casualties in their ranks at the hands of criminals with guns.

We take our responsibility seriously when we ask the men and women of law enforcement to put themselves in harm's way -- people like Deputy United States Marshal Bill Degan. As law enforcement leaders and managers, we owe them our complete support and must strive to give them the best guidance possible.

We rely upon the men and women of law enforcement to do their best job under very difficult circumstances. In return for protecting us, we vest them with a measure of discretion and ask them to use their best judgment. Sometimes, as human nature tells us, that judgment may be imperfect and mistakes will happen.

As long as we ask them to be in the arena, to be ready in the middle of the night to take cover behind a tree or a mailbox, to put their lives and the well-being of their families in the line of fire, we must show some empathy and compassion for their human fallibility. This is particularly true as we judge with the calm, well-lighted knowledge of hindsight, far from what the Supreme Court calls "split-second judgments -- in circumstances that are tense, uncertain and rapidly evolving.1

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1Graham v. Connor, 490 U.S. 386, 397 (1989).