Waco report says earlier Justice inquiry incorrect, incomplete

Special counsel's inquiry alleges 'substantial resistance' in Branch Davidian

The Dallas Morning News / July 23, 2000
By Lee Hancock

ST. LOUIS - The Waco special counsel's report emphatically clears Attorney General Janet Reno of wrongdoing in the Branch Davidian siege and its aftermath, but it doesn't extend that finding to her Department of Justice. The preliminary report released Friday by special counsel John Danforth reserved some of its strongest criticism for the Justice Department's actions in seven years of inquiries that have followed the 1993 Waco tragedy.

Although it found no evidence of a massive or deliberate cover up, the report details repeated instances of nondisclosure and resistance to thorough examination of government actions in Waco - a pattern that began with the agency's own 1993 post-siege review and continued in Mr. Danforth's ongoing investigation.

Justice Department officials initially tried to impose "a certain degree of control" over the Danforth probe, the preliminary report states. There was then "substantial resistance," within the agency to Mr. Danforth and his investigators' requests for access to internal agency documents, despite Ms. Reno's vigorous, public promise of "total openness and independence" for her Waco special counsel, the report says.

In some cases, it took direct intervention from FBI Director Louis Freeh or the acting attorney general named to oversee the agency's response to the Waco probe to force officials to surrender some of the estimated 2 million documents so far turned over to the special counsel's office, the report states.

The special counsel's preliminary report concludes that problems have been resolved, and the Justice Department is complying with requests for access to about 300,000 remaining Waco documents. But some congressional sources say they fear that cooperation has not extended to Capitol Hill. A Senate subcommittee headed by Sen. Arlen Specter, R.-Pa, has asked Mr. Danforth for a formal briefing on his preliminary report.

One official on Capitol Hill said, "We'd like to hear directly from Senator Danforth as to whether he's met the same fate as the Senate, and as well as the House committee investigating this matter. We'd like his thoughts on why the Department of Justice in July 2000 has yet to turn over thousands of documents on Waco."

"We know that the Department of Justice has had some relevant FBI documents, including significant documents, for months. Yet they have sat on them despite congressional subpoenas and repeated requests from the office of special counsel," said the official. "This does not bode well for Janet Reno's Department of Justice, and it deserves a lot more critical look than it has received to date."

Mr. Danforth said Friday that the "lack of openness" is partly rooted in the country's current inquisitorial and often highly partisan mindset. "If something happens, you need to investigate it," he said. "And people who are under investigation get scared. ... They hunker down." But he said he found odd the agency's aversion to disclosure of information, especially when his 10-month examination - like past congressional and agency inquiries - conclusively cleared the government of any blame for the standoff's tragic end.

About 80 Davidians died when a fire leveled their compound on April 19, 1993, some six hours after the FBI began trying to force them out with tanks and tear gas. The Danforth report released Friday said all blame for the deaths lays with leader David Koresh and his followers. It also found no basis for charges that government agents might have set or spread the compound blaze or machine-gunned the burning building.

"The only antidote to ... public distrust is government openness and candor," the former Missouri senator wrote in the preface to his interim report. "Instead, and tragically, just the opposite occurred after Waco. Although the government did nothing evil on April 19, 1993, its failure to fully and openly disclose to the American public all that it did has fueled speculation that it actually committed bad acts that day. Even in their dealings with this investigation. Some government officials have struggled to keep a close hold on information."

Justice Department officials in Washington could not be reached Saturday. They have maintained that they are cooperating fully with all ongoing Waco inquiries.

A Texas federal prosecutor assigned to coordinate collection of government records on the incident for the federal court in Waco said Saturday that there was initial wrangling between Justice officials and Mr. Danforth's office over the breadth of access to internal agency computers and records considered attorney-client privileged.

But the prosecutor, U.S. Attorney Mike Bradford of Beaumont, said those disputes centered on valid concerns about setting precedents for future outside inquiries and fears of inadvertent disclosure of case information unrelated to Waco that is strictly protected by federal law. Mr. Bradford, whose cooperation with the Danforth probe was praised in the special counsel's report, said he was not directly involved in most discussions between Justice and the special counsel.

But he said he helped resolve some problems after being asked to oversee the turnover of documents to the court and then asked in January to lead the government trial team that successfully defended a recent Branch Davidian wrongful death lawsuit.

"I don't think any of it was in bad faith. ... Sometimes, I think they were being overly cautious," he said. "And frankly, it's like any large organization. It's like any bureaucracy. Things move slowly. Things have to be done by committee.

"I think in general, we did not do as good a job as we should have from the beginning of paying attention to the public perception of things." Mr. Danforth's criticism of Justice and FBI officials centered largely on the long failure to disclose the use of three military pyrotechnic tear gas grenades on April 19. A senior FBI official acknowledged the use of the devices for the first time last August.

Ms. Reno had expressly banned the use of anything that might spark fires in the April 19 tear gas operation, and the furor over the revelation prompted her appointment of Mr. Danforth to examine the government's actions at the end of the siege.

Mr. Danforth's preliminary report faulted a 1993 Justice Review of the incident for not identifying and disclosing the use of the devices. It concluded that the department's failure was grounded in the "assumption that the FBI had done nothing wrong." As a result of that "clearly negligent" assumption, the report stated, the review that the Justice Department presented to the public in September 1993 as a x complete assessment of FBI actions was neither thorough nor complete.

But when two House subcommittees opened a lengthy inquiry into the Davidian siege, Ms. Reno's special assistant Richard Scruggs and his chief assistant from the 1993 Justice Review were asked to lead the Justice Department's preparations for the congressional hearings.

The department's prevailing attitude was that the 1995 hearings would be aimed at partisan bashing of Ms. Reno, the report states. Internal Justice documents generated for the hearings and FBI and Justice Department briefings of congressional investigators erroneously insisted that nothing pyrotechnic was used on April 19, the report states. The special counsel is still investigating whether the misstatements in the documents were product of intentional wrongdoing.

After the Waco controversy resurfaced and Mr. Danforth was brought in to investigate, some Justice officials improperly tried to assert control over the inquiry, the report states. Some officials tried to deny access to any records on Waco generated after Mr. Danforth's September appointment, and they "resisted" efforts to obtain access to departmental e-mail.

Justice officials also claimed that some information was protected by attorney-client privilege. "The office of special counsel encountered substantial resistance from some federal agencies to the production of some of these records," the report states.

In some cases, the report states, the resistance continued even after Justice acknowledged that "it had no right to withhold privileged communications from the office of special counsel (because the office is technically part of the Department of Justice)."

Mr. Danforth's investigators also learned from some witnesses that records had not been divulged even after "repeated assurances from the Department of Justice" that they had been turned over. There were repeated instances in which witnesses arrived for interviews with notes, videos and diaries that the Justice Department had never told them to turn over to the Danforth inquiry, the report states.

At one point, the special counsel's office had to ask FBI Director Louis Freeh to intervene after it learned of possible "similar omissions in the FBI's production of documents." In response, the report stated, Mr. Freeh dispatched 11 agents and three attorneys to search offices of FBI lawyers, and they "obtained important records in the process," the report states. By last week, the special counsel's office was "satisfied" that it had all Justice documents except for some departmental e-mails, which the department has promised to produce, the report stated.

Justice officials also tried unsuccessfully to demand the right to be consulted in actions that might impact the Davidian wrongful-death lawsuit. That demand came after Mr. Danforth's office endorsed a call by a lawyer in the wrongful death lawsuit for a field test to resolve whether government gunfire caused flashes on an FBI infrared video recorded just before the April 19 fire, the report says.

Government lawyers initially fought the proposal but ultimately acquiesced after intense negotiations. After the March test, a British infrared expert who supervised it for the special counsel and the Waco federal court reported in May that the flashes came not from gunfire but from sunlight glints.

Plaintiffs' lawyers in the wrongful death lawsuit have challenged that finding, which has yet to be ruled on by U.S. District Judge Walter S. Smith Jr. But government lawyers have said they are confident that Judge Smith will reject the gunfire theory, just as an advisory jury recently rejected all other claims of government wrongdoing.

After Mr. Danforth's appointment, the preliminary report states, Justice officials also tried to convince Mr. Danforth to ask Judge Smith to delay the wrongful death trial. The judge had already rejected repeated government bids to delay the trial until at least late this year, but some Justice officials argued that Mr. Danforth should seek a delay until his inquiry was completed.

The report states Mr. Danforth rejected that, adding, that he "did not want to delay or deprive the Davidians of their day in court and [considered] the legal precedent for such a stay ... weak since the investigation was not initially criminal in nature."

The wrangling with Justice officials - particularly fights over access to evidence - ultimately were all resolved, the report states. But it adds that the efforts were often "contentious" and took "an unnecessarily large amount of time and resources."

"The office of special counsel did not allow these problems to affect the integrity of its investigation, and ultimately obtained all the information that it requested," the report states. "However, the office of special counsel strongly recommends that the Department of Justice draft more specific guidelines outlining the relationship between a special counsel and the Department of Justice in situations where the Department ... is the subject of an investigation."

Addressing such problems fully with not only the current special counsel's probe but with all legitimate oversight inquiries could prevent a repeat of the seven-year controversy arising from the Waco tragedy, the Capitol Hill official said.

"No one short of the 40 conspiracy nuts on the Internet who are still obsessing about Waco take issue with Danforth's findings of no serious wrongdoing by the government. But the embers weren't even cool in Waco before the Justice Department began stonewalling and blocking legitimate congressional oversight, legitimate discovery requests from both civil and criminal lawyers, and even a legitimate review by their own agency," the official said.

"The American public would not be at the point of learning about these things only seven years after the fact if the Department of Justice had been open from day one," the official said. "Millions of dollars have been spent to answer questions that should have been readily and fully answered immediately after the fire."

Ongoing Issues

The Siege

After a 10-month independent inquiry, former Missouri Sen. John Danforth issued a 152-page report Friday clearing the government of wrongdoing during the Branch Davidian siege. He found that:

• Federal agents did not start the fire at the Branch Davidian compound near Waco on April 19, 1993.
• Federal agents did not shoot at Branch Davidians as the compound burned, killing about 80 people inside.
• Pyrotechnic tear-gas devices fired on the last day could not have set off the compound fire because they were used four hours before the blaze in an area 75 feet from the compound.
• Government officials in Washington, D.C., and Waco did not act wrongfully during the siege.

The Investigations

Mr. Danforth said the government did not engage in a "massive conspiracy and cover-up" in the years after the siege, but he did find irregularities that he has said to date do not merit criminal prosecutions. Among those findings:

• He found no wrongdoing by Attorney General Janet Reno or former FBI Director William Sessions.
• On-scene Hostage Rescue Team commander Richard Rogers - who authorized the use of the pyrotechnic tear-gas devices - failed to inform superiors about their use, even when sitting directly behind Ms. Reno as she testified to Congress in 1993 that they were not used. His failures to say the grenades were used "contributed to a public perception of a cover-up," the report said.
• Some other members of the hostage rescue team had openly admitted using the pyrotechnic grenades at various times since 1993.
• Investigators led by Richard Scruggs in the 1993 Justice Department review of the siege were negligent and failed to conduct a thorough investigation because they proceeded "with the assumption that the FBI had done nothing wrong."
• FBI attorney Lynn Brown made "inconsistent, self-serving, misleading and false" statements about the use of the pyrotechnic grenades. The report says she knew about the use of pyrotechnic tear-gas grenades as far back as 1996. Still being studied Mr. Danforth said his report later this year will seek to answer these questions:
• Did Justice Department attorneys "intentionally" conceal the use of pyrotechnic tear-gas rounds when they failed to inform defense attorneys about them during the 1994 criminal trial in which eight Branch Davidians were convicted on weapons and other charges relating to the siege?
• Did the FBI or Justice Department intentionally make "misstatements" in internal documents generated in connection with the 1995 congressional hearings that detail use of gas grenades in Waco and that say none of the gas was pyrotechnic?
• What happened to the pyrotechnic tear-gas grenade shells?
• Why did the FBI not reveal until 1999 the existence of infrared tapes from the last day of the siege that contain audio tracks showing Mr. Rogers authorizing use of the pyrotechnic tear-gas rounds? U.S. District Judge Walter S. Smith will make final rulings within a few weeks in the lawsuit by surviving Branch Davidians and their relatives. An advisory jury on July 14 found federal agents not guilty of using excess force at the beginning of the siege and not guilty of starting the fire at the end of the siege or being negligent for not having firefighting equipment nearby. The judge will also rule on whether FBI agents shot into the burning compound, thereby preventing sect members from escaping.
• Mr. Danforth is expected to be asked to appear as soon as next week before a Senate Judiciary subcommittee to discuss his findings and how he conducted his investigation.
• The House Government Reform Committee, which also has been examining issues arising from the siege, has yet to determine whether it will hold hearings.
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