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FRIDAY,
SEPTEMBER 22, 1995 The subcommittee met, pursuant to notice, at 10:06 a.m., in room SH-2 16, Hart Senate Office Building, Hon. Arlen Specter (chairman of the subcommittee), presiding. Senator SPECTER. The subcommittee will proceed. Our first witness today will be Mr. George Terwilliger, former Deputy Attorney General of the Department of Justice. Mr. Terwilhiger, if you would raise your right hand and take the oath? Do you solemnly swear that the testimony you will give before this Senate subcommittee will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. TERWILLIGER. I do. Senator SPECTER. Thank you very much, Mr. Terwilliger. We very much appreciate your coming in, and the floor is yours. TESTIMONY OF GEORGE TERWILLIGER, FORMER DEPUTY Mr. TERWILLIGER. Thank you very much, Senator. Good morning to you and the members of the subcommittee. I do have a brief opening statement, Mr. Chairman. Senator SPECTER. That is fine, Mr. Terwilliger. Proceed as you like. Mr. TERWILLIGER. Thank you. Mr. Chairman and members of the subcommittee, it was my honor and privilege to serve as Deputy Attorney General of the Previously, I had served as the Over the course of my career at the Department of Justice, I was responsible for many grand jury investigations, conducted numerous trials, and briefed and argued many appeals. During the course of these matters, I interacted on a daily basis with law enforcement officers at the Federal, State, and local levels on matters of law, policy, and strategy. I am now an attorney in private practice serving as the partner in charge of the At approximately 5:30 a.m. on August 22, 1992, my wife and I and our three children departed our home in To the best of my recollection, it was several days after the events of August 22 at Ruby Ridge that I learned what had basically transpired. Indeed, as best I can reconstruct these events from the information available to me, I believe it was not until the following weekend—that is, August 29-30, 1992—that I was informed of the events at Ruby Ridge when I called into the Department from For the record, I did not return to While I was not involved in the August incident or in the formulation of the so-called rules of engagement in connection with the Ruby Ridge incident, I would like to take the opportunity to offer a few observations for the consideration of the subcommittee. I hope I can offer my thoughts from the perspective of one with knowledge and experience concerning the handling of crisis situations at the Department of Justice and the involvement of the FBI in its Hostage Rescue Team therein. By way of background, deployment of the HRT is not necessarily an indication that a matter is of severe crisis proportions. HRT deployments occur with some regularity, often as a prophylactic measure in circumstances where there is a risk of violence to law enforcement officers conducting lawful operations. Likewise, the formulation of so-called rules of engagement during a deployment of the HRT was not a matter, to the best of my knowledge and recollection, that would involve the leadership of the Department of Justice or the highest level review at FBI headquarters. I would also like to briefly explain why I believe the Ruby Ridge rules of engagement were not intended to be a deviation from standard deadly force policy I became familiar with the procedures and operations of the Hostage Rescue Team as a result of being briefed regarding them, observing exercises of the HRT at the FBI's I would also like to note that I have known and worked with hundreds of FBI agents at both the field and headquarters level. The capabilities of many have impressed me greatly, but I recognize that some are more capable than others. I would rate Larry Potts' capabilities as among the highest and best that I have known. I have never had any reason to question Mr. Potts' integrity and credibility From my knowledge and experience dealing with both the FBI generally and with Mr. Potts specifically, I feel quite comfortable drawing the inference from available facts that, if Mr. Potts knew or believed that any proposed rules of engagement represented a deviation from the FBI standard deadly force policy, he would have taken steps to correct that. After reviewing the public version of the DOJ task force report and listening to some of the testimony at this hearing, I believe I understand how the Ruby Ridge rules of engagement came about and what they were meant to convey. In most hostage or barricade situations, a period ensues where the intent of the subjects is assessed. If the situation is stable, negotiation and surrender is the preferred method to resolve the situation. If law enforcement officers, hostages, or other innocents are subject to attack or vio1ence, then more proactive means are required. The threat from the subjects at Ruby Ridge was greater at the outset than the significant threat faced by the HRT in barricade or hostage situations generally. The subjects' intent to do bodily harm to law enforcement personnel had already been made manifest. The rules of engagement, in my my judgement, told the HRT personnel that they need not wait to take fire before using deadly force but, rather, to utilize the standard existing deadly force policy upon an indication of a threat by the subjects to again utilize deadly force themselves. Inclusion of the standard deadly force policy was implicit. In the clarity of hindsight, the rules may have been inartfully drafted in the haste of the circumstances at Ruby Ridge. I do not believe they were intended to constitute an unlawful license to kill the subjects. The rules of engagement were reasonable in the fourth amendment sense in the totality of the circumstances as the circumstances There may well be a legitimate question as to whether it was an exercise in good judgment to express these considerations in the manner in which they were formulated in the rules of engagement at Ruby Ridge. It is relatively easy, especially with the benefits of time and expertise in drafting documents, to second-guess on that point. But whatever one’s judgment on the level of articulation contained in the draft of the rules, I believe there was no intention to counsel the use of excessive force. I am endeavoring to provide what I hope is an objective analysis, Mr. Chairman, so I should state what I believe should be a premise fundamental to the analysis of this situation overall. I believe it would be most unfortunate to, even unwittingly, in any way lend justification for taking up arms against the rule of law or against those responsible for enforcing the rule of law. Both governments and government personnel sometimes make mistakes. Our constitutional system functions, unfortunately, with imperfections at all levels—in the processes of making laws, executing them, and adjudicating legal disputes. Sometimes these are the product of inadequate or erroneous information; sometimes they are the product of poor or erroneous judgment. Sometimes they are simply the product of decisions forced in haste which might have been diffferent given time for reflection or the benefit of hindsight. Our system of law, however, provides ample opportunity to address and redress governmental errors. This opportunity is available to all who would avail themselves of it. Part of the value of these very proceedings can be a demonstration of the Government's effort to examine closely its own conduct. I am sure that we all agree that we want to accomplish that review without doing unnecessary damage to the institutions of Government that are necessary and important to securing public safety and justice. That is my statement, Mr. Chairman. I would be happy to answer questions. Senator SPECTER. The subcommittee will now proceed with 5-minute rounds. Mr. Terwilliger, thank you very much for that very thoughtful statement. You say that the could and should language was an error. Do you believe that the language "could and should exercise deadly force" was unconstitutional? Mr. TERWILLIGER. Senator, I do not, and I realize that is a closed question. And I am not sure that the issue of whether the language is constitutional is really the focal point of the most important inquiry here. In the Graham v. Connor case, the Supreme Court makes clear that the test of a challenged police shooting, the use of allegedly excessive force, is a test that is objective in nature, and it's based on a standard of reasonableness from the perspective of a reasonable police officer, a law enforcement agent on the scene at the time. But what the Court goes on to make clear in that decision is that the intent of the officer is not determinative, and, in fact—I am not quoting directly, but I believe I'm paraphrasing closely—what the Court says is that an objectively unreasonable shoot will not be Now, I'm sure your next question is what about the shooting itself. Senator SPECTER. Well, don't take up my next question until I ask, if you will. Let’s proceed on this round to 10 minutes. We are not going to get very far, because Mr. Terwilliger has some understandably elaborate statements. Before getting into the details of the issue, let me ask you as to your participation. I know you have communicated to the staff that you had nothing to do with the rules of engagement. But I think for the record we need to ask you about that specifically. Mr. TERWILLIGER. Yes, air Senator SPECTER. U.S. Marshal Johnson testified that he overheard a conversation where FBI agents were apparently talking to the FBI in Washington, and your name was mentioned to the effect that now the Deputy Attorney General Terwilliger is involved in it. So would you please state for the record whether you had anything at all to do with the formulation of the rules of engagement? Mr. TERWILLGER. I did not, and I could not have, as I understand the time that those conversations were occurring, because from 5:30 a.m. to at least 12:30 local time in Senator SPECTER. Mr. Terwilliger, back to the specifics on the rules of engagement. How can you possibly justify this rule, "If any adult male is observed with a weapon prior to the announcement, deadly force can and should be employed, if the shot can be taken without endangering any children. How can you square that with the Supreme Court holding in Tennessee v. Garner, "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so~? Mr. TERWILLIGER. Well, first of all, Mr. Chairman, I'm not, trying to justify the rules of engagement. I was trying to give the committee the benefit of my observation that I do not believe the rules of engagement were constitutionally unreasonable. That is different, in my mind at least, from trying to justify them. Senator SPECTER . Constitutionally unreasonable? The question is whether they comport with the Supreme Court decision which requires immediacy and requires a threat, imperiling life or grievous bodily harm. And here the rules says that all you need to do is observe an adult male with a weapon and deadly force can and should be employed, which removes it on its face from even a discretionary judgment with the use of the word "should." Mr. TERWILLIGER. Well, Mr. Chairman, I guess— Senator SPECTER. The Director of the FBI, who defends the second shot, which was fatal to Ms. Weaver, says that the rules of engagement were unconstitutional. So my question to you is: How can you square them with the Supreme Court decision? Mr. TERWILLIGER. Well, as I tried to explain before, I do not— after reading the public version of the task force report and listen ing to the testimony here, I believe the can and should language, perhaps even the can language, would be unconstitutional if it were interpreted to be a direction to shoot on sight. I do not believe, media conclusions to the contrary at this point, that those rules were intended to be a shoot-on-sight. However, Senator, I recognize that that's my judgment, and others may disagree. Senator SPECTER. Well, whatever the intent is, don't they say that on their face? Mr. TERWILLIGER. I do not believe that they do. I also—permit me an observation, if I may, Mr. Chairman. I do not necessarily believe that the can and should language is necessarily determinative in these kinds of situations. I was involved in the hostage rescue at I have no idea to this day what the rules of engagement were for that particular operation, but if they were instructions to the effect, to the members of the HRT going in, if you see one of the subjects taking a hostage into physical custody at the time that we make the entrance, thus someone that could be a shield, deadly force can and should be used, I would not think that that would be a constitutionally inappropriate instruction. Now, I might not in my judgment want to see it expressed that way, but I do not necessarily think that the language is determinative. I think we have to look at the totality of the circumstances to try to understand what was being conveyed. Senator SPECTER. Are you familiar with the task force report in this matter which came to the conclusion that the second shot that was fired at the person fleeing into the house or moving into the house was unconstitutionally fired? Do you disagree with that? Mr. TERWILLIGER. I don't know which report I’ve actually seen or whether we're looking at the same one, Mr. Chairman. And I do not—that is a judgment, as the Supreme Court teaches, that has to be made in the totality of the circumstances. The Garner case was about using deadly force to capture an unarmed fleeing felon. I think the Graham v. Connor case is much more instructive in terms of excessive force, which is what I believe we are dealing with here. But I really do not, in all honesty, Senator, feel that I am in the position and in possession of sufficient facts to make a judgment about the constitutionality of the second shot. Senator SPECTER. Mr. Terwilliger, my time, some time still remains, but Senator Kohl has a commitment on the floor. So I am going to yield to him at this time. Senator KOHL. I thank you very much, Mr. Chairman. Mr. Terwilliger, it is good to see you here today. The only other Terwilliger I have ever known has been my favorite all-time Cubs second baseman, Wayne Terwilliger. Is he related to you? Senator KOHL. Allright. As you know, there was an article in the Post this morning which indicates that your then-assistant, Jeffrey Howard, is relatively certain that FBI officials knew before they say they knew on Sunday night, the 23d, that the young Weaver lad had been hit. There is a log of a conversation that Jeffrey Howard had on Saturday, the 22d, with either Potts or Coulson, and Jeffrey Howard says at that time, "8:10 that morning would have been probably either Potts or Coulson that I spoke to, and what they would have informed me was their belief [that] one of the Weaver family members or one of the people from the cabin had been hit because the mother was wailing about it." So there is a clear indication, at least from Jeffrey Howard, that FBI officials knew before Sunday night, in fact, that they knew by Saturday morning that the young lad had probably been hit. Can you tell us about Jeffrey Howard and whether he is a person that you would have confidence in? Mr. TERWILLIGER. I have a great deal of confidence in Mr. Howard, who is currently the attorney general of the State of Senator KOHL. All right. Mr. Terwilliger, there is an entry in your own August 21 phone log that says that you had a 10-minute conversation with Marshal Toomey. That was the day of the fire-fight at Ruby Ridge before the ascendance to the top of the mountain. Do you recall what you discussed that day? Mr. TERWILLIGER. What time was that, Senator? Senator KOHL. It was a 10-minute conversation with Marshal Toomey on August 21. Mr. TERWILLIGER. I don't recall discussing anything with him. I have tried to reconstruct the events of August 21 as best I can. I knew I had a doctor's appointment out in I don't recall whether I had those lunches, whether I had those meetings, but I feel quite comfortable—and I realize I'm under oath here, Senator Kohl—in saying that I did not know about Ruby Ridge, anything occurring at Ruby Ridge before I left because I can't imagine that I would not have at least called in on Saturday to see what was going on, and I didn't do that. Senator KOHL. All right. Final question, sir. You now have some considerable distance from the Justice Department and the FBI, and you have seen this situation unfold in all its complexities. Do you think that the FBI is the right entity to be investigating itself'? Mr. TERWILLIGER. I listened to that testimony—I guess it was yesterday—the discussion of that with Mr. Potts and Mr. Coulson, I think the short answer is: In some cases, no. I think that it would be a very good idea for the Attorney General, if it is not explicit now, to have the authority to appoint the head of the Justice Department's Office of Professional Responsibility to conduct any inquiry as she sees fit into alleged FBI wrongdoing, or to direct some other officials as she may see fit to do so. On the other hand, having dealt with matters of internal misconduct at some length and in some very difficult circumstances when I was the Deputy Attorney General, I do believe it is important for the head of any organization to have an ability to internally police the affairs of that organization. There may be some times, however, when it is best to take it outside, and I think if that authority isn't there, it should be. Senator KOHL. I thank you, and I thank you, Mr. Chairman. Senator SPECTER. Thank you very much, Senator Kohl. We are in the middle of a vote, so we will recess briefly and return in a few moments. Mr. TERWILLIGER. Thank you, Senator. (Recess.] Senator SPECTER. The subcommittee will resume. Senator LEAHY. Thank you, Mr. Chairman. I have been going back and reading the transcripts from yesterday. As the chairman knows, I spent the day on the floor with the foreign aid bill, so if some of these questions are a bit repetitious, I want to make sure we get them. Yesterday, Douglas Gow, who is the former Deputy Director of the FBI whom you know, Mr. Terwilliger, told this subcommittee that he spoke with you about the Ruby Ridge matter on August 21, 1992. Is that accurate? Mr. TERWILLIGER. No. Senator LEAHY. He did not speak with you about the Ruby Ridge matter on August 21, 1992? Mr. TERWILLIGER. Senator Leahy, I don't doubt the accuracy of what Mr. Gow testified to as you are repeating it. That's not what I understood that he said. I’m not— Senator LEAHY. Well, did he speak with you about the Ruby Ridge matter on August 21, 1992? Mr. TERWILLIGER. Not to my recollection, and I would be extremely surprised if that were the case, Senator Leahy. Senator LEAHY. Did you have any conversation with him on the 2 1st? Mr. TERWILLIGER. Not to my recollection. Senator LEAHY. Well, Mr. Gow had said that he spoke to Attorney General Barr about the situation at Ruby Ridge the night of August 21, 1992, and that the Attorney General seemed familiar with the situation. Had you spoken with the Attorney General Mr. TERWILLIGER. Senator, I don't recall knowing about any situation at Ruby Ridge on August 21 prior to the time that I left on August 22. I don't have any recollection of talking to anyone about it, therefore, including the Attorney General. Senator LEAHY. So you did not have any conversation with Attorney General Barr about Ruby Ridge on the 21st. Mr. TERWILLIGER. To the best of my recollection, no, Senator, and I’m not—I mean, I'm under oath here and I am giving you my best recall. Senator LEAHY. I understand. Mr. TERWILLIGER. I have tried to reconstruct that day and I don't remember knowing anything that there was an incident at Ruby Ridge on the 21st. Senator LEAHY. Mr. Gow was also under oath when he said he did talk with you about it on August 21, 1992, and that is why I just wanted to make sure I understand the discrepancy. Mr. TERWILLIGER. I understood Mr. Cow to say that he had talked to the deputy's office. I did not understand him to say he had talked to me, but if he did, I don't have any recollection of that. Senator LEAHY. OK, and you have no recollection of talking with Attorney General Barr on either the 21st or the 22d about Ruby Ridge? Mr. TERWILILIGER. No, sir. Senator LEAHY. Did you have any conversation with Jack Toomey of the Marshals Service on August 21? Mr. TERWILLIGER. Not to my recollection, and during the break while the committee was out for the vote, staff for Senator Kohl informed me that that call may be in error. I'm not sure exactly what the facts are, but I don't believe that there was— Senator LEAHY. So if there is a phone log showing a call from him to you on the 21st, that is inaccurate? Mr. TERWILLIGER. I'm not saying the log is inaccurate. He may have called, but the phone logs, I don't believe, Senator Leahy, are dispositive in terms of whether or not there was contact. Senator LEAHY. I am not asking whether they are dispositive or not. I am trying to ask you what happened. Did he talk with you on the 21st, to your recollection? Mr. TERWILLIGER. No, sir, but that's 3 years ago. I'm not saying that he didn't. I also see about four other individuals there. I don't recall talking to them either, but I may have. Senator LEAHY. This would have been a 10-minute call, 3:15 to 3:25. Mr. TERWILLIGER. Senator, I'm not-I see the document we're looking at here. I am not certain. Senator LEAHY. But what you are certain about is that you did not talk about Ruby Ridge on the 21st with anyone, is that correct? Mr. TERWILLIGER. To the best of my recollection, that is correct. Senator LEAHY. Nor on the 22d? Mr. TERWILLIGER. To the best of my recollection, that is correct, sir. 697 about the situation at Ruby Ridge on the evening of August 21, 1992? Mr. TERWILLIGER. Senator, I don't recall knowing about any situation at Ruby Ridge on August 21 prior to the time that I left on August 22. I don't have any recollection of talking to anyone about it, therefore, including the Attorney General. Senator LEAHY. So you did not have any conversation with Attorney General Barr about Ruby Ridge on the 21st. Mr. TERWILLIGER. To the best of my recollection, no, Senator, and I’m not—I mean, I'm under oath here and I am giving you my best recall. Senator LEAHY. I understand. Mr. TERWILLIGER. I have tried to reconstruct that day and I don't remember knowing anything that there was an incident at Ruby Ridge on the 21st. Senator LEAHY. Mr. Gow was also under oath when he said he did talk with you about it on August 21, 1992, and that is why I just wanted to make sure I understand the discrepancy. Mr. TERWILLIGER. I understood Mr. Cow to say that he had talked to the deputy's office. I did not understand him to say he had talked to me, but if he did, I don't have any recollection of that. Senator LEAHY. OK, and you have no recollection of talking with Attorney General Barr on either the 21st or the 22d about Ruby Ridge? Mr. TERWILILIGER. No, sir. Senator LEAHY. Did you have any conversation with Jack Toomey of the Marshals Service on August 21? Mr. TERWILLIGER. Not to my recollection, and during the break while the committee was out for the vote, staff for Senator Kohl informed me that that call may be in error. I'm not sure exactly what the facts are, but I don't believe that there was— Senator LEAHY. So if there is a phone log showing a call from him to you on the 21st, that is inaccurate? Mr. TERWILLIGER. I'm not saying the log is inaccurate. He may have called, but the phone logs, I don't believe, Senator Leahy, are dispositive in terms of whether or not there was contact. Senator LEAHY. I am not asking whether they are dispositive or not. I am trying to ask you what happened. Did he talk with you on the 21st, to your recollection? Mr. TERWILLIGER. No, sir, but that's 3 years ago. I'm not saying that he didn't. I also see about four other individuals there. I don't recall talking to them either, but I may have. Senator LEAHY. This would have been a 10-minute call, 3:15 to 3:25. Mr. TERWILLIGER. Senator, I'm not-I see the document we're looking at here. I am not certain. Senator LEAHY. But what you are certain about is that you did not talk about Ruby Ridge on the 21st with anyone, is that correct? Mr. TERWILLIGER. To the best of my recollection, that is correct. Senator LEAHY. Nor on the 22d? Mr. TERWILLIGER. To the best of my recollection, that is correct, sir. You went on the 22d, as I understand your testimony, to Mr. TERWILLIGER. The flight to Jackson Hole required either a stop or a change of planes in Senator LEAHY. In any event, you went to Mr. TERWILLIGER. Yes, sir. Senator LEAHY. All right. Actually, interestingly enough, that same day the Hostage Rescue Team also went to Mr. TERWILLIGER. I'm sure they weren't flying commercial, and I didn't see them, Senator Leahy. Senator LEAHY. When did you next communicate with your office or anybody in the Department? Mr. TERWILLIGER. 1 have no independent recollection of that, except that I know I talked to them the next weekend, Senator Leahy, but the Department supplied me with phone logs from the command center and, as I say, without an independent recollection, I can't tell you. The phone logs show that I called in on Tuesday, Aug 25, for Mr. Howard and left a phone number where he could reach me. There's a later entry in the log that Mr. Howard called into the Justice command center and was advised that I was going to—that I had tried to contact him, but apparently there was no contact. On Thursday, August 27, Mr. Howard asks the command center to attempt to contact me and according to the log, they leave a message where they thought I was staying. That's at about 7:15 eastern time, and about 10 eastern time or a little thereafter, there's a log of a phone call in, but it doesn't say "patch completed." So I don't know whether I actually got in touch with Mr. Howard on the 27th or not. I don't—as I say, I don't have any independent recollection of that. On Saturday, August 29, it shows me calling in to Dan Levin and says "patch completed." So while I don't recall talking to Mr. Levin, I assume that I did. I also apparently talked to Tom Rhinehart, who was on my staff, on Sunday, the 30th, but my best recollection is that that was about matters concerning the trip I was about to go on to Texas. Senator LEAHY. Well, thank you. Mr. Chairman, I will want to go back to this because the sworn testimony of Mr. Gow answering you is in contradiction to Mr. Terwilliger's and I just want to make sure we clear that up. Senator SPECTER. Senator Leahy, why don't you proceed to do that? It is my hope that we will have a single round, so when you are in the midst of it, I think it would be appropriate to give you a little extra time here to finish the train of questioning you have. Senator LEAHY. I appreciate that, Mr. Chairman. Mr. Gow, in answering you, said "Earlier in the evening, I believe—and I say I again I believe that I notified Mr. Terwilliger of the situation and called him and put him on notice that we were activating the team. We had this situation occurring up in Your testimony, Mr. Terwilliger, is that you have no recollection of that? Mr. TERWILLIGER. I don't, Senator, and in the early evening I was at home. Senator LEAHY. Yes. Now, once you got out to Mr. TERWILIJGER. I don't think so the first day . I don't— Senator LEAHY. Where did you stay? Mr. TERWILLIGER I don't remember exactly where we stayed. Senator LEAHY. Did you stay at a place with a telephone? Mr. TERWILLIGER. I’m sure there were telephones in the area. Most of the rooms we stayed in did not have phones in the room, as I recall, but I don't know about particular ones. We stayed at about five or six different places through the course of the week. Senator LEAHY. Did you hear any news, read a newspaper, or anything like that? Mr. TERWILLIGER. I studiously avoided it. Senator LEAHY. So you are saying that you had no knowledge even that this was taking place? Mr. TERWILLIGER. I don't recollect having any knowledge, and one of the reasons that I feel— Senator LEAHY. There was a fair amount of national news about it—radio, television, newspapers. You had no knowledge of it? Mr. TERWILLIGER. I don't recollect having any knowledge of it, Senator, and one of the reasons that I feel that way is because I remember distinctly either that Saturday or Sunday when I heard about it being somewhat shocked and surprised about what had occurred; that is, the following weekend. Senator LEAHY. Did you say anything to anybody in your office, why didn't you notify me of this? Mr. TERWILLIGER. I don't recall saying that. Senator LEAHY. Would that have been your natural reaction? Mr. TERWILLIGER. Not necessarily, Senator. I mean, I had taken a vacation. I knew that my office was in capable hands. The Justice Department is a much greater institution than any one person. Senator LEAHY. We all understand that and I appreciate the modesty, but you were Deputy Attorney General and this was one of the most significant at least public things happening within the Department of Justice. You did not feel that you should have been notified, that you may want to pass on your ideas to the Attorney General or anybody under you? Mr. TERWILLIGER. First of all, I do not—I really believe that this situation takes on much greater import in hindsight and review than was probably ascribed to it at the time. Senator LEAHY. A Mr. TERWILLIGER. That's not what I said, Senator. I said that it takes on a greater sense of importance in hindsight than it had at the time. Senator LEAHY. When you say a greater sense, I would think it would take on a fairly significant sense of importance at the tine. Mr. TERWILLIGER. I’m not saying that it's insignificant. I’m just—all I’m saying is that, in fact, in reviewing the phone logs, I notice that there is a great deal of phone traffic about the hurricane in Senator LEAHY. Were you called about any of those? Mr. TERWILLIGER. Pardon me? Senator LEAHY. Were you called about any of those issues? Mr. TERWILLIGER. No, sure. I don't—again, I don't recall being aware of that until later. The Attorney General, for whom I have an extremely high regard and am pleased that he would seek my counsel on things regularly—if he wanted to get a hold of me, I am sure he would have, as could have other people from my office, but people are capable of dealing with this. Second, this was largely an FBI matter. I don't say that to try to shift blame, assuming that there is blame to be had, to the FBI, but this was an operational matter in which the FBI had the lead role and was in charge. I would expect that what would have been happening at the Justice Department was largely limited to seeking assistance initially in getting the HRT out there and— Senator LEAHY. But we understand that on August 25—you said that the AG could reach you if he wanted to, but on August 25 the Attorney General tried to sky- page you. Mr. TERWILLIGER. Yes, and I believe the log shows, Senator, that a minute later the Attorney General's secretary canceled that call. Senator LEAKY. OK. The page would have gone out, however, by that time. Mr. TERWILLIGER. I don't know that, Senator. Senator LEAHY. You never got it? Mr. TERWILLIGER. My pager was not operable in the mountains. Senator LEAHY. OK. Now, you had testified that you did not have contact with your office on August 29. The logs of the DOJ command show that you spoke on August 27. Did you have— Mr. TERWILLIGER. I didn't say that I didn't have contact on August 29, Senator Leahy. Senator LEAKY. What did you say? Mr. TERWILLIGER. I thought I said that on August 29 at 11:51 a.m. eastern time, according to the logs—and I don t have any independent recollection of this, but I'm testifying as to what I see in the review of the logs—that I contacted Dan Levin, who was the Attorney General's chief of staff and the logs show "patch completed." Presumably, we did make contact. Senator LEAHY. Did you contact anybody at DOJ before that? Mr. TERWILLIGER. According to the logs, on Thursday, August 27, I called in for Jeff Howard in response to a message that he had asked the command center to leave for me, but it's unclear to me from the log whether or not that call was completed. Most of the people keeping the logs will write ~”patch completed" where it's that kind of call. Senator LEAHY. To your recollection, was that the first time you had called in? Mr. TERWILLIGER. No. According to the logs-to my recollection, I have no recollection. According to the logs, on August 25 at 8:50, I called for Mr. Howard—8:50 p.m.—left a phone number, but apparently there was no contact between us. Senator LEAHY. So I will make sure—and let me complete this and I appreciate, again, the chairman's time on this. On August 21, to the best of your recollection, YOU had no discussion with anyone regarding any aspects of the situation at Ruby Ridge? Mr. TERWILLIGER. That's correct, to the best of my recollection. Mr. TERWILLIGER. Yes, Senator LEAHY. You had no conversation with anybody about Ruby Ridge, or knowledge of it, on August 22? Mr. TERWILLIC ER. To the best of my knowledge and recollection, that is correct. Senator LEAHY. You did not call your office during that day? Mr. TERWILLIGER. I don't believe I did. Senator LEAHY. Nor on the next day, the 23d? Mr. TERWILLIGER. I don't have any recollection of doing so and the logs don't indicate that I called in. Senator LEAHY. Nor on the 24th? Mr. TERWILLIGER. Same answer. Senator LEAHY. The 25th? Mr. TERWILLIGER. On the 25th, I called for Mr. Howard, left a phone number where he could reach me, but apparently from the logs one would conclude there was no contact. Senator LEAHY. The 26th? Mr. TERWILLIGER. I don't recall any contact and the logs don't appear to show any. Senator LEAHY. The 27th? Mr. TERWILLIGER. On the 27th, at 10:08 p.m. eastern time, according to the logs, I called Mr. Howard, but it is unclear to me, at least, from the logs whether or not that call was completed. Senator LEAHY. And on what day, to the best of your recollection, did you first hear about the situation at Ruby Ridge? Mr. TERWILLIGER. It was either the next Saturday or Sunday. The reason I recall it, Senator, is because I had gone fishing that day, caught some cutthroat trout, and they were going to cook them up in the hotel dining room for us for dinner, and I remember associating the contact, learning of the events at Ruby Ridge with the contact that I had at that time. Senator LEAHY. And what did you do then? Mr. TERWILLIGER. I took the information and went on with my business. Senator LEAHY. Didn't call anybody? Mr. TERWILLIGER. Well, I didn't see the necessity to call anybody. Senator LEAHY. I am not asking whether you saw the necessity. I am just asking you what you did. Mr. TERWILLIGER. I’m sorry, Senator. I don't recall calling anybody. Senator LEAHY. OK, and throughout that whole week you heard nothing about Ruby Ridge? Mr. TERWILLIGER. To the best of my recollection, I did not, sir. Senator LEAHY. And anybody who testified that they discussed it with you during that time must be in error? Mr. TERWILLIGER. Not necessarily, Senator. I mean, recollections are faulty, and one of the things that has become clear to me in both listening to this testimony and trying to reconstruct my own activities that week is recollections can be very faulty. Senator LEAHY. The Justice Department logs show that the FBI situation reports were periodically received by the command center. Did you ever receive these situation reports or hear about them? Mr. TERWILLIGER. I don't recall that, no. Senator LEAHY. Mr. Chairman, I just might ask if we could inquire of the Justice Department and see if we could get the production of these situational reports. Senator SPECTER. Thank you very much, Senator Leahy. Senator LEAHY. Can we do that? Senator SPECTER. Yes, by all means. Senator Thompson. Senator THOMPSON. Thank you, Mr. Chairman. Mr. Terwilliger, I want to ask you some questions concerning the role of the Department in situations like this. In the first place, how would you describe your role in the Department of Justice during this period of time? What were your areas of organizational responsibility? Mr. TERWILLIGER. You mean generally, Senator? Senator THOMPSON. Yes. Mr. TERWILLIGER. The Deputy Attorney General, at least under Mr. Barr and really in my experience generally in the Department, more or less functions as the equivalent of the chief operating officer of the Department. On the organization chart, the AG and the Deputy share a box. The Deputy shares almost all of the authorities of the Attorney General and it's really the Deputy's job to more or less run the place on a daily basis. Senator THOMPSON. Well, you have had time, I am sure, to reflect on this entire situation. It seems to me from looking at the documents that we have that when you were first briefed on this, you did not attach to it the level of, I don't want to say seriousness, perhaps immediacy that others maybe did within the Bureau, the Marshals Service, and so forth. Is that accurate? How did you look at it? I read where you said you thought it was basically a standoff, complicated by the fact that a marshal had been killed. What did you mean by that? How did you assess it in terms of seriousness? Mr. TERWILLIGER. You're referring to as of August or— Senator THOMPSON. Yes. Mr. TERWILLIGER [continuing]. Or earlier? As of August? Senator THOMPSON. Let's say the first time you had a briefing, after you knew the marshal had been killed. Mr. TERWILLIGER. I don't ever recall getting a briefing, per se, about the Ruby Ridge situation after Mr. Degan was killed. I was gone that entire week. I came back to Going back to the months prior to the shooting of Marshal Degan, I did receive an informal briefing when I happened to be over at the Marshals Service headquarters one day. I don't recall exactly when that was, but it was basically apprising me of the fact that Mr. Weaver was a fugitive, he was considered a danger to some extent, and the Marshals Service was at that point informing me, really sort of giving me a heads-up, Senator, that this situation was out there and they were formulating some options to deal with it. Now, again, I mean perhaps going back to the point I made with Senator Leahy about faulty recollections, the Justice Department report that I've seen says that somebody brought up the issue of lethal force at that briefing and I termed it unacceptable because of the presence of children. I really don't recall saying that. If other people said I did, I assume I did. I do recall basically saying we need to be very cautious about this and I would like to be advised before you formulate any kinds of plans that might involve forcibly apprehending Weaver. Senator THOMPSON. Well, as we know now, there was a proposed plan anyway that involved just that. Were you apprised of that? Mr. TERWILLIGER. I don't think so, and my understanding is, but again I'm going on what I've read in the report, is that at was considered an option, but I don't believe that it ever reached the point that this was a plan that the marshals were prepared to carry out. I think the marshals showed exceptional restraint and caution in how they handled this. Senator THOMPSON. How long had you been Deputy Attorney General as of August? Mr. TERWILLIGER. I had been Acting Deputy Attorney General from the end of August 1991. I was confirmed to the position by the Senate in April 1992. Senator THOMPSON. Had you ever been briefed before on a similar situation involving a siege or a hostage-type situation? Mr. TERWILLIGER. I was very involed in Mr. Barr had first become the Acting Attorney General in I believe it was August 1991, we had to deal with the hostage-taking at the Talladega Federal Prison Facility in which the HRT deployed and successfully rescued the hostages. Senator THOMPSON. So you are kind of in the chain there of relevance when these type things occur. One final question, and it is kind of an encompassing one. You have the Marshals Service that is part of Justice, you have the FBI that is a part of Justice, you have the BATF which is not, and they were all involved in this process. In looking back over this, as I am sure you have, do you have any thoughts as to improvements that could be made in situations like this in terms of areas of responsibility, lines of authority, and the role of the Justice Department—I say central Justice—in all of this? Mr. TERWILLIGER. I do and, in fact, I have a list of about 10, but I won't take your time to read them all. Senator THOMPSON. Will you make those a part of the record? Mr. TERWILLIGER. I will be glad to make them part of the record. [The information referred to follows:] TEN
INITIATIVES CONCERNING CRISIS RESPONSE AT DOJ/FBI
Require each federal law enforcement agency headquarters to identify and report to the FBI in advance regarding operations that the agency has reason to believe may result in a significant violent confrontation with criminal subjects or which may pose a risk of death or serious bodily injury to innocent third parties. FBI expertise should be made available to any federal law enforcement agency for consultation regarding such operations. Provide the FBI Hostage Rescue Team with dedicated and immediately available airlift support. Equip the FBI with state-of-the-art field-headquarters communications, including the most advanced available mobile video communication and conferencing capabilities. For HRT deployment, establish a clear delineation in prescribed procedures between briefing information concerning a crisis and “rules of engagement," or tactical procedure, to used in responding to a particular circumstance. Provide all FBI SAC's with training on HRT procedures as well as on Bureau command and control policies governing use of HRT and SWAT resources. Expand instruction for both new agents and in-service agents regarding the law and policy concerning deadly force. Establish or expand firearm training initiatives regarding deadly force decisions using state-of-the-art training devices, including interactive video and virtual reality. Provide federal prosecutors and, if they are wiling, federal judges with briefings and materials on the capabilities and basic procedures of various federal law enforcement units trained to address hostage and barricade incidents and similar violent confrontations. DOJ should undertake a survey of available non-lethal devices and methods that could be utilized in lieu of deadly force to neutralize threats to cause death or serious bodily injury. If not currently explicit, provide the Attorney General with the discretionary authority to direct that any post-shooting investigation involving FBI personnel be undertaken by the DOJ Office of Professional Responsibility or by such other DOJ officials as the Attorney General may direct. Senator THOMPSON. Summarize them, perhaps, now. Mr. TERWILLIGER. On that particular point, though, Senator, 1 of the 10 things that occurred to me—and I don't believe I’m all-encompassing or an expert here, but one of the things that I think would be a very good idea, particularly as long as we have law enforcement agencies in two different Cabinet departments, which might be a subject for another day, is that the FBI should be given notice by other law enforcement agencies of any situation in which another agency believes from an operation or a situation a threat to law enforcement officers or civilians, a nonroutine threat— there's lots of threatening situations—should develop. And I hope that the expertise that the FBI has developed in dealing with these situations would be used on a consulting basis by other agencies. Much better communications, I think, would help avoid a lot of problems. Senator THOMPSON. Thank you. Mr. TERWILLIGER. Thank you, Senator. Senator SPECTER. Thank you very much, Senator Thompson. Senator Feinstein. Senator FEINSTEIN. Thank you very much, Mr. Chairman. Mr. Terwilliger, just to continue along the line of Senator Thompson's questions in terms of how to improve for the future, let me ask you this question and let me set a predicate for it. Everything we have heard from marshals, from FBI, those that did testify, indicated that they truly believed that this was one of the most serious, major incidents that they would experience or had experienced in their professional law enforcement career, and although the in One of the things I am finding in the 2-5 years I have been back in Washington—this may well be my first exposure to the syndrome of plausible deniability, that things are setup to really separate people who should be in command from being in command. You have an Attorney General, a Deputy Attorney General, and you have a huge department of which the FBI is a part and you have a major incident going on, and what you are setting the predicate for is neither the Attorney General nor the Deputy Attorney General knew anything about it. Mr. TERWILLIGER. Well, I don't—I guess the Attorney General can speak for himself. I am sure—I would be very surprised if the Attorney General was not being provided with the information from the situation reps, or situation reports, as they came in. But I think it's important to understand, Senator, and I hope— if I may be so bold, there's a certain amount of cynicism expressed in the concept of plausible deniability. It's not my experience that people in the FBI or the Justice Department, and certainly not my posture, to engage in plausible deniability. I've received a lot of criticism for things that occurred while I was Deputy Attorney General, some justified, some not, but the fact of the matter is that this is an operational situation and the FBI is in charge of operations. I have not tried, do not pretend to be able to substitute my judgment for somebody like Danny Coulson, for example. I would like to know what's going on. I trust that they will bring to us any issue that requires resolution or requires the authority of the Attorney General, such as the authorization for listening devices, logistical problems in terms of moving people out there, or any other issue that they think we ought to give to— Senator FEINSTEIN. Let me stop you here just because of the way testimony on the field level that operation plans, that rules of engagement, conversations took place in one person from Mr. TERWILLIGER. Senator, I take your point and I think you're right, but not in the sense that it was for reasons of plausible deniability. I think the things that Louis Freeh has done to address how crises are managed in the FBI and the Justice Department during his tenure as Director are excellent ideas, excellent improvements. I wish I had thought of them myself, but I'm glad they're underway. Senator FEINSTEIN. Well, I have read those seven points that the OPR report recommends. As a matter of fact, I have them right here, and I think they are very consequential points. But what you are saying is when this incident took place, essentially, there was no role in it for Justice. I mean, it wouldn't have mattered. We know now Agent Glenn came forward. He was an agent in charge. He didn't take the fifth. We had two major people who have taken the fifth, Richard Rogers and Stephen McGavin, so we will never know, really, what actually transpired. But what Mr. TERWILLIGER. Well, A, I don't think—it’s not my testimony or my belief that there was no role for Justice in this. There was a role. Senator FEINSTEIN. What should be the role for Justice in a major incident of this type? Mr. TERWILLIGER. I think that it is important that the Justice Department leadership be informed as to what is going on, and if the circumstances of communications have been improved—among the 10 points that have occurred to me is a need for much improved communications between a field situation and FBI headquarters, and thus the Department. I believe that it should be incumbent upon the leadership of the FBI to bring to the attention of the Attorney General or the Deputy or perhaps other appropriate officials in the Justice Department certain kinds of issues, and perhaps legal issues. For example, I understand that the FBI legal counsel's office is now to review rules of engagement. I think that it would at least be worth discussing whether the rules of engagement, given all that has transpired, ought to be reviewed by somebody over at the Justice Department, say the Assistant Attorney General in charge of the Criminal Division or the head of the terrorism and violent crime section in that division. But I guess I do not agree that the Attorney General or the Deputy Attorney General should assume operational control over these kinds of matters because we don't have the training, the experience and the knowledge to do it as well as the people who do. Senator FEINSTEIN. Just one last comment. So you are saying have information, but no responsibility? Mr. TERWILLIGER. No; there's always responsibility, Senator, and the level of command and control, if you will, that is given to the Attorney General or any other Department official doesn't absolve anybody from responsibility. The responsibility is there. I certainly bear some responsibility for what occurred at this incident because I was there; it was on my watch. I regret very much that both Marshal Degan and Ms. Weaver are dead. I don't like to even discuss the use of deadly force, let alone be forced to face a situation where it either had to be used or was used, but that's a fact. But responsibility is a different issue and to put people in Washington in command of something they're really not equipped to do just for the sake of being able to say that they're responsible, in my judgment—but I mean I think you have excellent points and I saw your testimony—your comments yesterday on this matter. Senator SPECTER. Mr. Terwilliger, I think you have given a complete answer. Mr. TERWILLIGER. OK, thank you. Senator SPECTER. We have to move on. Senator FEINSTEIN. Thank you. Senator SPECTER. Thank you, Senator Feinstein. Senator Craig. Senator CRAIG. Thank you very much, Mr. Chairman. Mr. Terwilliger, we do appreciate you being here today to help fill in and build the public record we are attempting to build, and hopefully from it make some decisions as to these kinds of situations and the kinds of improvements that might be made with some of your suggestions and hopefully others. We have phone logs, and an article appeared in the Associated Press last night that at least 20 contacts concerning Ruby Ridge were made in a 24-hour period between—or contacts with the Bush Justice Department, and that was a period of time in which you were either leaving for or on vacation according to your testimony today. A Many of the questions this morning have been around your involvement, or not your involvement, but your Department or your level of authority and Justice's involvement in these kinds of situations. You said you were involved in the Mr. TERWILLIGER. Yes, sir. Senator CRAIG [continuing]. Riot and hostage-taking. How much were you involved in that? Mr. TERWILLIGER. Initially involved to the extent of receiving some fairly detailed situation on an— Senator CRAIG. Did you ask to be involved or did it come to you as a normal course of FBI and— Mr. TERWILLIGER. It came in the normal course. Senator CRAIG. I see. Mr. TERWILLIGER. I mean, situation reps followed up by some meetings. As the situation appeared to be deteriorating, both the Attorney General and I got involved in discussing directly with the leadership of the FBI what the options were for dealing with it. Senator CRAIG. So in these kinds of high-prose situations, it is not unusual for FBI to contact your office in Justice? Mr. TERWILLIGER. No. Senator CRAIG. Not at all? Mr. TERWILLIGER. No. sir Senator CRAIG. I understand vacations, and I understand sometimes when you leave the office, you say don't you do dare call me unless the bomb is dropped or something equivalent in magnitude. Did you leave instructions with Jeffrey Howard accordingly? Mr. TERWILLIGER. I don't believe so, and I actually would, I guess, draw an inference, Senator Craig, from the fact that at least on one of those nights the command center apparently had a lodging place for me. I probably left some kind of an itinerary as to where we expected to be staying, and so forth. Senator CRAIG. I wonder about that because I understand how vacations are and I understand how they can be in Four hundred people had assembled at the base of this small mountain or outcroppings or rocks, or ridge or however it has been characterized. It was catching the attention of a nation for a period of some days, and yet you heard nothing about it? Mr. TERWILLIGER. Senator, I spent days and hours away from my family over those 2-year period. I was intending to spend that time with my family, to the exclusion of anything other than a severe national crisis, which, to my knowledge, this was not. So I did not seek out television, the newspapers, or other sources of information. Senator CRAIG. OK You mentioned in some questions a moment ago talking about agencies involved and more than one department, and you mentioned ATF, FBI, and that maybe that was a discussion for another day. ATF was involved at the beginning. You might even suggest the created the environment of the crisis by creating the situation of Randy Weaver or causing it to happen. Interestingly enough, they were at the beginning of Mr. TERWILLIGER. Senator Craig, I think all the domestic law enforcement function should be under the authority of one Cabinet member. I think that Cabinet member should be the Attorney General, who we designate as the chief law enforcement officer of the Senator CRAIG. Thank you very much. Thank you, Mr. Chairman. Senator SPECTER. Thank you, Senator Craig. Mr. Terwilliger, we very much appreciate your coming in. Thank you. Mr. TERWILLIGER. Thank you very much, Senator Specter. I hope I have been helpful to your important inquiry. Senator SPECTER. Yes, you have, very much so. Thank you. |