Reno testimony used in bid to halt part of Waco suit

FBI officials' actions are defended during questioning by Branch Davidian lawyers

The Dallas Morning News, April 6, 2000
By Lee Hancock

Armed with new testimony from Attorney General Janet Reno defending the FBI's actions at the end of the Branch Davidian siege, Justice Department lawyers again asked a federal judge Wednesday to dismiss most of the sect's lawsuit against the government.

The Justice Department also released a full transcript of Ms. Reno's March 28 deposition for the Branch Davidians' wrongful-death lawsuit Wednesday as its lawyers filed the latest dismissal motion in U.S. District Court in Waco.

The transcript detailed an often intense two hours of questioning in which Ms. Reno sparred with the sect's lawyers and insisted that the FBI's Waco commanders acted properly in ordering tanks to drive deep into the sect's building on April 19, 1993.

Lawyers for the sect have alleged that order touched off a disaster, prompting a gunbattle between government agents and the sect and possibly sparking some of the fires that consumed the compound. More than 80 Branch Davidians died.

Government lawyers and officials contend that none of their agents fired a shot that day and argue that sect members set fire to their own building. In Wednesday's motion, they again argued that strict federal limits on lawsuits against the government and its employees should force dismissal of allegations that authorities:

Helped cause the final tragedy by ordering tanks to demolish the sect's building;

Escalated the massive loss of life by failing to develop a plan to fight a fire or obtain armored, remote-controlled firefighting equipment that one company offered to loan the FBI for use in Waco; Caused or contributed to the fire that ended the tragedy.

Ms. Reno's deposition provided the backbone of the motion seeking the dismissal of those central issues in the lawsuit as well as a denial of the sect's bid to include the FBI's Waco commanders as individual defendants. The two now-retired FBI agents, Jeffrey Jamar and Richard Rogers, were dismissed from the lawsuit last year. But sect lawyers have argued that they should be reinstated because their decisions and actions on April 19 violated the tear gas plan that Ms. Reno and senior FBI officials in Washington had approved for trying to end the 51-day siege.

Broad control

Citing the attorney general's statements as well as testimony of senior FBI officials, government lawyers told U.S. District Judge Walter Smith that the plan approved in Washington allowed the FBI commanders broad discretion in how to try to force the sect out on April 19.

"There was a recognition that the people who were on the scene could see what was happening where we could not see what was happening in Washington, that they should be in operational control," Ms. Reno testified. "Any time you effect an arrest. . . . and try to ensure the safety of everyone, there are going to be variables, and the on-scene commanders would be responsible for dealing with those variables as they developed."

Under federal law, the government's motion argued, officials given such discretion cannot be challenged or held liable in civil litigation "even where such discretion has been abused."

The motion added that even "negligent or wrongful acts" are protected, as well as any failure to consider alternatives - even those that lawyers for the sect have argued might have saved lives.

"Thus, even if the on-scene commanders were negligent or abused their discretion by deciding not to have armored firetrucks - or any other specific equipment - available, those decisions would fall within the exception," the government's motion argued.

The motion contended that the same legal protections would extend to the FBI commanders' decisions about how to use tanks on April 19, including their orders sending tanks deep into the sect's building.

Escape routes

Like the FBI's commanders sent to Waco to resolve the deadly 1993 standoff, Ms. Reno maintained in her deposition that FBI tanks went into the building at midmorning on April 19 not to begin dismantling it but to open escape routes for sect members and for more effective gas insertion.

Mike Caddell of Houston, lead lawyer in the Branch Davidians' lawsuit, pressed Ms. Reno on that issue, citing lengthy proposals by Mr. Rogers and Mr. Jamar for plaques, medals and cash awards for the hostage rescue team's work in Waco. FBI documents show those proposals described the tanks' actions as a demolition mission.

He noted that former FBI Director William Sessions testified earlier this year that any such demolition effort "wouldn't be compatible with the plan" approved in Washington. He also reminded Ms. Reno that another senior FBI official, Larry Potts, testified that the Waco commanders "would have been required" to ask permission from FBI headquarters for taking such action "for other than . . . [urgent] circumstances."

But Ms. Reno said, "Based on what I know to date, this was not an effort to tear down the building. If it had been, there may have been situations at the scene that suggested that it should be done and it could be done consistent with the plan."

"I can tell you that the plan said an effort should be made to open/demolish the building at the end of 48 hours. But there is no prohibition against doing it earlier," she said.

She conceded that she "would have liked for them to have communicated it if they had made such a decision." And she acknowledged that she was not aware of any circumstance that would have prevented Mr. Rogers and Mr. Jamar from consulting with Washington before sending tanks in.

Before using tanks on such a mission, Ms. Reno said the commanders' discretion at one point extended to including pyrotechnic tear-gas grenades in their arsenal on April 19, and even to ordering their use - as long as they were not fired directly into the compound.

"It will depend upon where they use them," Ms. Reno testified, adding that she was not told when she was asked to approve the gas operation that such pyrotechnic rounds would be part of the FBI's arsenal.

"They did not have implied authority to use pyrotechnic devices to insert gas into the compound," she said.

She and other government officials had previously said that such devices were banned that day because of fears that they might spark a fire. The revelation that at least two such devices were used by the FBI after more than six years of flat government denials prompted Ms. Reno to bring in former Missouri Sen. John C. Danforth last September to head an independent counsel's inquiry into government actions during the Waco siege.

Tense moments

Ms. Reno's deposition grew particularly contentious when Mr. Caddell asked Ms. Reno whether sending tanks into the building contradicted the FBI's announcements to the sect that their operation was not an assault and they were not entering the Branch Davidians' home.

After the attorney general hedged, saying she was having difficulty responding to his "hypotheticals," Mr. Caddell retorted, "You grew up in America, correct? You have used the English language all your life?" Mr. Caddell said Wednesday that he will file a motion next week outlining testimony from FBI officials that he contends will support his claims that sending tanks into the building violated the approved gas plan. Wednesday's government motion contends that those FBI officials' statements mirror Ms. Reno's testimony.

If the judge accepts the government's arguments, the sect will be allowed to go to trial in mid-June only on the issue of whether government agents used excessive force when they engaged in a gunbattle with the sect as the standoff began and whether they shot again on April 19.

"There is a clear conflict with their testimony," Mr. Caddell said. "Are these four ex-FBI directors and assistant directors telling the truth or is Janet Reno, who's still trying to cover up and still trying to put a bigger spin on the biggest disaster of her tenure? Is Janet Reno being honest and truthful and straightforward? No. She's being evasive."