Justice Department Disclosed Use of Flammable Canisters, New Documents Show

New York Times, September 14, 1999
By David Johnston And Neil A. Lewis

WASHINGTON -- Internal F.B.I. documents disclosed on Monday by a Democratic lawmaker show that information about the use of combustible tear-gas canisters at the 1993 Branch Davidian siege near Waco, Tex., has sat in the Justice Department's files for years and was even sent to Congress no later than 1995.

The documents cast new light on when different parts of the Government first had information about the use of the tear gas cannisters and may alter the dynamics of the renewed outcry over events surrounding the Federal Bureau of Investigation tear-gas attack at the Branch Davidian compound, which burned to the ground on April 19, 1993.

The documents show that even though the Justice Department sent United States marshals to the F.B.I.'s headquarters two weeks ago to seize infrared videotapes that contained references to the use of the tear gas rounds, the department had for years possessed F.B.I. records in its own files that showed such devices were used at the cult's compound. The seizure was ordered by Attorney General Janet Reno, who was angry because she had maintained for six years that the F.B.I. had done nothing that could have caused the fire.

In addition, the documents provide evidence that the Federal Bureau of Investigation, which has been accused by some in Congress, the Clinton Administration and the public of misleading the Justice Department about the issue, did provide information about the use of the rounds to Ms. Reno's subordinates on several occasions. Ms. Reno has said she did not see any documents on the subject until two weeks ago.

Even so, there is no indication in the documents made public on Monday that F.B.I. officials clearly explained to civilian counterparts at the Justice Department the implications of using the rounds. While F.B.I. officials have denied any role in starting the fire, they never said publicly that they had used the rounds until last month, when they said that a "very limited number" of such canisters had been fired at a concrete bunker hours before a deadly fire swept through another structure on the compound. Investigators later found the bodies of about 80 people, among them a number of children. In the documents made public on Monday, references to the canisters do not clearly state that they were combustible but refer to them as "military" rounds, a type using a pyrotechnic device to pump out tear gas. The vast majority of tear gas at Waco was in nonflammable canisters.

The documents had been requested by Congress in preparation for hearings held in July of 1995.

Justice Department officials would not discuss the issue on the record. A senior Justice official said the documents was likely to be a subject of inquiry by former Senator John C. Danforth, who is leading an investigation into the events. "Certainly one thing Danforth will want to consider is whether anyone at the Justice Department was aware of the significance of the words on those pages," the official said.

In a separate development, the Texas Rangers released a report to Congress today that said the Rangers, who collected evidence after the tear gas assault, had found spent cartridges from two different types of sniper rifles carried by F.B.I. agents during the 51-day siege. The long-held position of the F.B.I. is that agents did not fire a single shot.

Later, officials at the Bureau of Alcohol, Tobacco and Firearms said its agents had fired the two types of weapons in question during an early, ill-fated raid on the compound in February 1993. But the officials said they had never determined whether the shell casings came from the A.T.F.'s weapons. Federal law enforcement officials said today that the shell casings were collected by F.B.I. agents after they arrived in Waco in March 1993.

In the Rangers' report, which had been subpoenaed by the House Government Reform and Oversight Committee, the Texas law enforcement agency also released a letter by a Federal prosecutor who had advised Ms. Reno that unidentified Justice Department officials may have withheld facts from her regarding the F.B.I.'s use of flammable tear-gas canisters.

"I have formed the belief that facts may have been kept from you -- and quite possibly are being kept from you even now, by components of the department," Assistant United States Attorney Bill Johnston in Waco wrote in an Aug. 30 letter.

In June, the Rangers began re-examining material from the 24,000 pounds of evidence they collected in a homicide investigation that followed the F.B.I. assault. The report said that a casing had been found for 40 millimeter projectile that "burns at 500 to 700 degrees Fahrenheit, and is capable of igniting flammable items." The contents of the Rangers report was first disclosed on Monday by the Dallas Morning News.

The F.B.I. documents were disclosed today by Representative Henry A. Waxman, a California Democrat and member of the House Government reform committee. Waxman said he released the documents because the committee's chairman, Representative Dan Burton, an Indiana Republican, had said Ms. Reno failed to inform Congress about the combustible weapons.

Burton's assertion came after it was disclosed on Friday that an incomplete version of a 1993 F.B.I. lab report had been sent to the Government reform panel as the committee was preparing for Waco hearings in 1995. The F.B.I. had sent the full 49-page report to the Justice Department, but the Justice Department supplied only the first 48 pages of the document to the committee. The final page of the inventory of evidence collected at Waco was the only one that contained a reference to a flammable tear-gas canister. Burton has said that he would expand Congressional hearings into Waco, and his aides said today that they were still trying to determine exactly what documents were sent to the panel by the Justice Department before the 1995 hearings.

On Monday, Waxman acknowledged that the three documents, two of them provided to the Justice Department by the F.B.I., refer explicitly to the use of military tear-gas canisters.

One document found in the Justice Department's files that was sent to the committee in 1995 is an interview report of an F.B.I. agent dated June 6, 1993. In it the agent, Wayne Smith, recalled hearing a conversation about "some sort of military round" being used.

The second document was a summary of testimony of members of the Hostage Rescue Team, the F.B.I. unit that carried out the tear-gas assault. The summary said that there had been an "attempt to penetrate bunker w/1 military round and two ferret rounds. Military round was grey bubblehead w/green base."

The third document was comprised of undated, handwritten notes that appear to have been taken close to the date of the assault. It said, "smoke from bunker came when these guys tried to shoot gas into bunker (military gas round)."

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