Flashes on infrared video won't mean government liability, U.S. attorney says

Waco Tribune-Herald, February 18, 2000
By Mark England

Showing that infrared video can detect weapons fire won't constitute a smoking gun proving that government agents shot at the Branch Davidians on April 19, 1993, said U.S. Attorney Michael Bradford of Beaumont. If shots were fired, where are the shooters?

That's the question asked Friday by Bradford, who attended the St. Louis meeting where protocol was adopted for a test to determine whether an infrared video taken on the final day at Mount Carmel picked up evidence of FBI agents firing at the Davidians.

Plaintiffs in the wrongful-death lawsuit filed by surviving Davidians argue that gunfire prevented many in the group from fleeing Mount Carmel after it erupted in flames. Only nine Davidians survived.

The Forward-Looking Infrared (FLIR) video from Mount Carmel shows repeated flashes, but no people are visible.

"If there's a flash in the testing, you can't just conclude that means there was gunfire on April 19th," Bradford said. "To me, that would mean the opposite. It would indicate it's not a gun flash because you can't see a person there. There's more to be analyzed than just the flashes." Plaintiffs have argued there are several reasons why people aren't visible on the FLIR video taken at Mount Carmel.

Since a FLIR camera creates video images by registering temperature differences between objects, Houston attorney Mike Caddell contends that a person lying on the ground would gradually disappear from a FLIR video as his body temperature adjusted to the environment.

"No one has suggested the FBI was so stupid as to run around Mount Carmel firing weapons in an exposed, standing position," said Caddell, lead attorney for the plaintiffs. "The protocol will start out with guys in a prone position on the ground. If those people disappear from the thermal imaging after a few minutes, I think the government's got no case. What's Michael Bradford going to say then?"

Caddell also has questioned whether the clothing worn by government agents shielded them from detection.

That's why the protocol for the test calls for those firing weapons to wear Nomex flight suits, fire retardant suits and camouflage sniper garb - clothing worn by government agents on the final day at Mount Carmel. "As I understand the plaintiffs' position, the reason we don't see a person holding a gun is that the people were wearing FLIR-resistant clothing," Bradford said. "During the test, we'll have people moving around wearing clothing that the plaintiffs requested, clothing they contend is FLIR-resistant. If we can see them walking around, that will be significant. We will clearly have a different situation from one tape to another." Caddell said he's confident the testing will validate the plaintiffs' case. "I think the test results will be clear to any objective observer," Caddell said. "Everyone but the FBI will be convinced of what happened at Mount Carmel. The only reason the FBI won't be convinced is because they're in denial. I don't think this is going to be a close call."

The re-enactment of the final day at Mount Carmel - ordered by U.S. District Judge Walter S. Smith Jr. of Waco, acting on a request from the Office of Special Counsel - will start at Fort Hood on about March 18. It is scheduled for six days. At least six people will fire weapons ranging from a 9mm pistol to an M60 machine gun while a helicopter and airplane equipped with FLIR cameras fly overhead.

Special Counsel John Danforth filed a motion in Waco Friday asking that the media be barred from the re-enactment, arguing that the "piecemeal disclosure of facts is not in the public interest." After the St. Louis meeting, Bradford said he thinks it's possible for a FLIR camera to record gunfire, though he called it a "side issue." His position doesn't represent a switch in the government's stance, Bradford said.

"People questioned by Mr. Caddell during depositions were asked about it," B radford said. "They said they had never seen it. That's different from scientists saying under no circumstances can a FLIR pick up gunfire. People have characterized that as the government's position. I think that's a little unfair."

Caddell countered that the government filed a motion last December stating laboratory tests should be conducted to determine if a FLIR camera can pick up gunfire.

"They're the ones who raised the issue, who made the claim that the FLIR couldn't see gunfire," Caddell said.

Vector Data Systems, a British firm, will interpret the test results for Danforth - charged by Attorney General Janet Reno with deciding whether the FBI committed any "bad acts" at Mount Carmel. Both the government and the plaintiffs will have their own FLIR experts.

Bradford said Vector's determination probably won't be a factor in the trial, set for May 15 in Waco.

"It won't play any role in the lawsuit," Bradford said. "They will render their opinion when Sen. Danforth's report comes out. That likely will be after the lawsuit. It will not be given as an opinion to be used in the lawsuit."