Findings of Waco re-enactment will be subject to interpretation

St. Louis Post-Dispatch, February 18, 2000
By William H. Freivogel and Terry Ganey

Everyone agrees now how to re-enact the conditions of the 1993 Waco siege, but the test next month may not conclusively determine if the FBI fired at the Branch Davidians.

"It will still be subject to expert interpretation," said J. Michael Bradford, the U.S. attorney from Beaumont, Texas.

And the lawyers' spin.

That was evident during a news conference Wednesday outside the St. Louis offices of special counsel John C. Danforth. Lawyers for the Branch Davidians and the Justice Department announced that they had agreed on a plan for the test. They also agreed that it might provide useful information.

The harmony ended there. Both sides starting spinning the findings of a test yet to be conducted.

After five months of mostly secret work, the field-test agreement is the biggest public development so far in Danforth's investigation. Without the involvement of his office, it's doubtful that a joint test involving the Branch Davidians and the government would be conducted.

But the data may not be clear-cut.

The Branch Davidians and the government will likely have different interpretations of the test results when the two sides face each other in a trial in May on a wrongful death suit. U.S. District Judge Walter Smith Jr., who will preside over the trial, could rule for the government or the Branch Davidians based on the evidence he hears.

Later, Danforth could reach a different conclusion in his final report, to be released sometime after the trial. That's because the independent expert -- Vector Data Systems -- will make a separate report to Danforth.

"Grassy knoll"

Vector Data is the British company that Danforth recommended and Smith appointed to conduct the tests. While Vector will provide data from the tests to both sides, its analysis and conclusions to Danforth won't be made until after the trial. The results will become public when Danforth reports on his findings, probably later this year.

Mike Caddell, the lead lawyer for the Branch Davidian survivors, is optimistic that the test will be definitive and that there won't be conflicting findings. He and other lawyers for the Branch Davidians and their experts have begun to think about what will come after the test.

Caddell says that if the flashes are gunfire, Danforth probably would want to call back FBI agents who have been questioned before and ask them more questions, this time under oath. Some may be given a lie-detector test. Edward Allard, the Branch Davidians' expert on infrared systems, suggested

that Danforth might use his power to call a grand jury to deepen his Waco investigation.

"Some people could be facing the loss of their pensions -- and prison," Allard said.

But Justice Department officials, who never wanted Danforth to conduct the test, worry that inconclusive results would provide conspiracy theorists fodder for a "grassy knoll" version of what happened at Waco. The grassy knoll refers to a theory that an assassin other than Lee Harvey Oswald killed President John F. Kennedy in Dallas in 1963.

Changing position?

Bradford, the Justice Department lawyer, said the appearance of gunfire as flashes on the infrared tape during the test will not prove that the flashes on the April 19, 1993, tape were from guns. He said it was "more complicated" than that because flashes that might be caused by gunfire on the test tape may have a different character from the flashes on the 1993 tape.

"I have read that it is the government's position that gunfire would not be able to be detected" by an infrared camera, he said during Wednesday's news conference. "That is not our position and it never has been." Bradford went on to say that the government continues to believe that the flashes on the 1993 tape are not from guns and that no government agents fired at Waco.

Caddell, the Branch Davidians' lawyer, said the government has changed its position from earlier statements by FBI agents that an airborne infrared camera could not detect groundfire. Caddell said Thursday that when the Justice Department resisted the plaintiffs' request for the test, the government said it had not determined whether gunfire shows up on infrared video.

Caddell also cited statements that the operators of the FBI's infrared camera at Waco made during depositions he took from them. Asked if the infrared camera could pick up gunshots, one operator replied, "By its nature, it was not suited to pick them up."

Bradford countered that the FBI operators were appearing as witnesses, not spokesmen, and had begun their answers by saying they were not expert on whether gunfire shows up on infrared tape.

Nonetheless, the lawyers for the Branch Davidians say that a spokesman for the FBI has said for some time that the airborne infrared camera could not detect groundfire.

Last-minute change

In conversations with the Post-Dispatch last year, FBI officials said it is unlikely that an infrared camera flying at the altitude of the one at Waco in 1993 could detect groundfire. The officials cited a 1986 shootout at

Horseshoe Bay, Texas, where an airborne infrared camera did not detect muzzle flashes.

Justice Department officials said Thursday that they do not know of any airborne infrared surveillance tape shot that has picked up groundfire as flashes.

But the department has long conceded that an infrared camera that is closer to a muzzle flash can detect it. And it thinks that the test next month at Fort Hood, Texas, could pick up muzzle flashes from the test firings.

A last-minute change in plans for the Fort Hood test makes it more likely a flash will turn up on the tape. Allard, the Branch Davidians' expert, persuaded Danforth's infrared expert to include an exotic gun that emits a big flash -- the Mark-19 grenade launcher.

Allard wanted the gun included because it can fire 375 repetitions a minute. He believes he sees flashes on the 1993 tape that repeat at that rate and he thinks grenades from the launcher started the fire that destroyed the complex. The draft plan for the test, drawn up by the British firm Vector Data Systems, did not include the Mark-19.

The government at first objected to its inclusion because there is no record that any government agents had been issued the weapon at Waco, although FBI agents have trained with it. Pentagon officials also questioned whether the Mark-19 could safely fire the 40 mm flashbangs that Allard wants to test.

Allard dismissed this question, citing the government's own specifications. In the end, it was included in the test plan.

Flashes may differ

Justice Department lawyers say that what worries them is that the Fort Hood test will pick up a flash from the Mark-19 and that the Branch Davidians will immediately broadcast to the world that the test picked up gunfire as a flash.

That will be widely interpreted as proving that the FBI fired at Waco, even if a later, more sophisticated analysis, shows otherwise. A flash could turn up that does not have the properties of the flashes on the 1993 tape.

In addition, the Fort Hood test could show that the shooters firing the test weapons are visible on the tape and that their gun barrels heat up during firing -- findings that would indicate the 1993 flashes were not gunfire because shooters are not visible and there is no sign of hot barrels.

Publicly and privately, the lawyers for the Branch Davidians exude confidence that the test will prove their case. This confidence is based partly on their cast of three reputable infrared experts who say they believe the flashes are gunfire, a cast that includes Allard.

In addition, Allard believes that the former Royal Air Force men at Vector

The Justice Department is uneasy with Vector Data's role in the test. The people from Vector Data are experts at interpreting infrared tape but are not scientists. For this reason, the Justice Department sought at Wednesday's meeting to have its own scientists sign off on the scientific validity of the test when it is conducted.

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