Tucson lawyer presses for truth about Waco

'Peons' ran Waco operation, lawyer says

The Arizona Republic Sept. 20, 1999
By William Hermann

TUCSON - David Hardy says he's no far-right fanatic - just because he helped force the FBI to admit it used incendiary tear gas during the 1993 Branch Davidian siege in Waco, Texas.

Hardy also insists he's no gun nut - just because he believes the Constitution gives citizens the right to bear arms.

Instead, Hardy says, he's a civil libertarian with a healthy distrust of government - and part of an old Arizona family so classic that it included a Cave Creek judge who was actually a fugitive from justice. As for Waco, Tucson attorney Hardy said his own experience as a federal bureaucrat helped him conclude that the real villains at Waco were what he calls the "Omnipotent Peons."

"In the end, it'll be the OPs who are to blame for screwing up the first violent encounter and for the cover-up after the fire," said Hardy, 48, sitting in the weapon-bedecked office of his northeast Tucson home. "There was a whole cadre of OPs at work at Waco.

"The government isn't run by Cabinet members or department heads," he said with a laugh. "The government is run by middle-level and lower-level peons who do what they damned well please.

"I doubt that (U.S. Attorney General) Janet Reno or (FBI Director) Louis Freeh had any idea of the cover-up we've been discovering," he said. "But I believe subordinates of theirs did. And the people who were on the scene certainly did." Fiery finish Branch Davidian cult leader David Koresh and about 80 of his followers were killed April 19, 1993, when fire consumed their compound near Waco. Government officials insisted that Koresh's followers started the fire - not the government agents who had surrounded the area after a Feb. 28, 1993, shootout that left four federal agents and five Branch Davidians dead.

The Waco conflagration is back again on the national stage. Hardy was instrumental in prompting the recent reopening of the case by the Justice Department and the independent investigation headed by former Sen. John Danforth.

The controversial case returned to haunt federal officials after disclosures that FBI agents used tear gas canisters with the potential for starting a blaze shortly before the fire.

Since a few months after the Branch Davidian compound fire, Hardy has demanded government documents, sued the government and harried government officials, all in an effort "to get at the truth of what happened there."

Since 1995, Hardy has filed eight freedom of information act requests with federal officials seeking material relating to the Waco incident. His persistence has resulted in the government turning over to him hundreds of documents and stacks of audiotapes and videotapes.

Hardy has worked closely with Michael McNulty, a one-time Colorado insurance agent turned documentary filmmaker. The two have forced the government to admit that potentially flammable tear gas canisters were indeed used at Waco and that elite Delta Force soldiers were on the scene of the siege advising government agents.

After Hardy unearthed the Delta Force information, McNulty convinced an assistant U.S. attorney in Waco to let him search the lockers holding evidence gathered at the siege. There, McNulty found the potentially flammable tear gas canisters that the government had denied using.

"They all along had maintained they'd used about 400 projectiles very much like this one, only a little bigger," said Hardy, holding up a non-flammable type of tear gas device. "McNulty found flammable ones, canisters that easily could have got a fire started."

Since Hardy began receiving national notice for his part in revealing irregularities in the government's version of Waco - he has appeared on radio and television news programs and was the subject of a New York Times article - many have asked if he is a right-wing ideologue.

"I'm more a 1960s liberal on civil liberties," he said. "I think we need to protect our civil liberties. I think we need to watch very carefully what government officials and employees are doing."

Former Assistant U.S. Attorney for Arizona and state Attorney General Warner Lee said it shouldn't matter what Hardy's politics are "as long as he has solid evidence."

"If he comes up with evidence that public officials have misled the American public, more power to him," Phoenix attorney Lee said. "If a citizen is willing to spend the time and effort to come up with something solid instead of just soapboxing about his political views, then he is to be paid attention to." Both sides of law Hardy traces his Arizona lineage back to Charles W. Hardy, who became the first justice of the peace for Cave Creek, north of Phoenix, in 1890.

But he laughs when he talks about the JP.

"Actually, his real name was Nathaniel Hickman, and he was a fugitive felon at the time, though I've never been able to discover just what crime he committed," he said. "He came from southern Illinois, and I have his Civil War pension application."

Hardy's family left Phoenix in 1958 and moved to Tucson. Hardy got a bachelor's degree and law degree from the University of Arizona.

And when it comes to OPs in the government, Hardy says he knows whereof he speaks.

"I worked with dozens when I was in Washington, D.C., in the late '80s and early '90s, working for the Department of Interior," he said. "We were under orders from our bosses not to report anything to the head of our department. He was supposed to be kept completely in the dark."

Hardy returned to private practice in Tucson in 1992. He also wrote articles for the Harvard Journal of Law and Public Policy and the Journal of Law and Politics. He has written extensively about militias in U.S. history, particularly during the time of the framing of the Constitution.

The Second Amendment is of special interest to gun enthusiast Hardy.

"Some framers, such as George Mason, were concerned about preserving the militia as a state-run institution," Hardy said. "But Jefferson was concerned about the rights of individual citizens to bear arms. "We can't really understand what's going on with the Second Amendment unless we understand that it has two different objects," he said. "Mason wants to preserve militias, Jefferson wants to protect the individual's right to bear arms and Madison tried to appease both men when he wrote the amendment. It has two purposes."

Hardy said he hopes that his research into the Waco incident will do more than cause government officials some embarrassment.

"I have for some time been trying to show that law enforcement is becoming increasingly militaristic," Hardy said.

"The military attacks, shoots, kills, destroys," he said. "Law officers are supposed to talk to people and perhaps make arrests. We're seeing too many law officers in black suits, calling themselves SWAT teams, with submachine guns, sniper rifles and an attack mentality."

Hardy paused and looked around his office a moment.

"Which is exactly what we saw at Waco," he said.