Court asked to supervise Waco tests

Counsel wants to see if video shows gunfire

The Dallas Morning News, Nov 10, 1999
By David Jackson and Lee Hancock

Throwing its weight behind lawyers for the Branch Davidians, the Waco special counsel's office is asking for court-supervised tests to determine if flashes recorded by FBI infrared cameras in the last hours of the 1993 siege came from government gunfire.

The request came less than two weeks after the Justice Department flatly rejected a proposal by the Branch Davidians' lawyers for joint field tests. Justice warned that such testing would be hopelessly flawed without key data that the government is withholding as national security secrets.

But resolving the issue is significant to the special counsel's investigation and to the pending wrongful-death lawsuit filed by surviving Branch Davidians against the government, deputy special counsel Edward L. Dowd wrote U.S. District Judge Walter S. Smith Jr.

"Both the trust of the public and the truth-seeking process are not best served by the course of events as they are unfolding," Mr. Dowd wrote Friday. "We propose therefore that the court supervise a neutral FLIR (forward-looking infrared) re-creation."

The letter from the office of special counsel John Danforth increases pressure on the government's lawyers. The Justice Department has faced growing criticism from Judge Smith and congressional investigators for its slowness in handing over government documents and other evidence relating to the 1993 incident.

Even some FBI officials have privately complained that the Justice Department's handling of the case has further battered the credibility of an agency already damaged by recent revelations about its conduct in the Branch Davidian case.

FBI officials declined to comment on the matter Tuesday, and officials with the special counsel's office also declined to comment. Department of Justice spokesman Myron Marlin said, "We're actively considering various ways that a re-creation could be done."

He declined further comment.

Judge Smith had issued no formal response by late Tuesday. But the special counsel's letter stated that a written proposal followed a telephone conference with the judge, an indication that he had signaled his interest in a court-supervised test.

FBI officials have insisted that none of their agents fired a single gunshot at the Branch Davidians. Leader David Koresh and more than 80 followers died in a fire that consumed the Branch Davidian compound on April 19, 1993, the day that the FBI launched a tank and tear-gas assault to try to force an end to the 51-day siege.

FBI and Justice Department officials have long insisted that government actions played no role in the fire, which government investigators ruled was deliberately set by the Branch Davidians.

But the government's actions came under renewed scrutiny after government officials were forced to admit in August that the FBI on April 19 had fired tear-gas grenades capable of sparking fires. That reversed six years of adamant government contentions that no pyrotechnic devices were used that day because they had been expressly banned by Attorney General Janet Reno. The admission led to new congressional investigations and the appointment of Mr. Danforth, a former Missouri Republican senator, as special counsel. The admission also drew new attention to the pending wrongful-death lawsuit, in which lawyers for surviving Branch Davidians and the families of the dead have alleged that the government caused the final tragedy. A cornerstone of that lawsuit is the allegation that an FBI airplane equipped with an infrared camera captured repeated flashes of gunfire and other ordnance being fired by government agents during the last hour before the compound burned.

FBI denials

FBI officials have repeatedly insisted that the flashes could not have been gunfire.

Late last month, lawyers for the Branch Davidians announced that they would conduct a public field test recording shots from guns similar to those used by the FBI and the Branch Davidians at a Dallas-area firing range. Bureau officials then began inviting reporters into the FBI laboratory in Washington to view snippets of digitized footage from the Waco infrared video. They also presented arguments from FBI video experts that flashes on the tape were electrical anomalies or "unexplained FLIR phenomena." In those presentations, FBI officials have argued that the flashes cannot be gunfire because no gunmen are visible in any of the areas where they occur. Infrared experts

They also have disputed assertions from some infrared experts that gunmen might not have been detected by a heat-sensing camera because their body temperatures were close to ground temperatures or because their clothing masked human body temperatures.

In contrast to the lack of people visible at times when the gunfire occurs, FBI officials point out that fuzzy outlines of people can be seen moving around the compound wreckage later on the April 19 infrared tape. The officials displayed a fire-retardant flight suit worn by a member of the FBI's hostage rescue team on April 19, suggesting the garment's thin fabric could not have masked body heat.

But some independent infrared experts who have viewed copies of the April 19 infrared film have echoed the assessment of experts hired by the Branch Davidians, saying that the flashes it captured could have only come from gunfire. Among those are an independent infrared specialist retained by the House Government Reform Committee recently allowed to conduct a frame-by-frame study of the FBI's original infrared tape.

Some experts also have noted that humans might have been hard to detect on the video because they wore heavy body armor or because of the limited ability of infrared cameras to detect stationary people.

"The only way to resolve this is experimentally," said one expert with more than 30 years experience using and designing similar infrared technology. "Only an experiment makes sense. But the key is an experiment that takes into account the low probability of intercept: The way these cameras work, if 50 flashes were captured on film, there must have been a far higher number of gunshots that actually occurred."

FBI officials have repeatedly said it would be impossible to re-create the conditions under which the April 19 infrared video was recorded. "We can only say what it isn't - not what it is," one FBI official said. "I don't think that any one will ever prove conclusively what those flashes were, but we are confident that they are not gunfire."

Both the FBI and the Justice Department have asserted that the capabilities, and even the model and make of their infrared cameras used at Waco are classified national security secrets that cannot be made public and do not have to be shared with lawyers for the Branch Davidians.

But Friday's letter to Judge Smith indicated that the FBI has offered to conduct private demonstrations of its infrared cameras - "an accurate recreation of the FLIR activity" - for Mr. Danforth and his investigators.

Classified data

The special counsel's office can obtain the classified information being withheld from the Branch Davidians' lawyers because Mr. Danforth's staff was issued the required clearances through their appointment as special Department of Justice personnel, the letter indicated.

But Mr. Danforth's office is "uncomfortable with the idea" of the FBI conducting a secret test while the Department of Justice first withheld needed information and then criticized the Davidians' public test for lacking it, Mr. Dowd's letter stated.

"The DOJ's [Department of Justice's] ability to withhold information appears to be the basis for challenging the accurancy of any conclusions reached," Mr. Dowd wrote.

A neutral test overseen by a court-appointed expert would allow both sides to participate and contribute to scientific protocols "that would best approximate the conditions of April 19, 1993," the special counsel's letter stated. "The protocol would include the make or model of the FLIR equipment, the type of aircraft, altitude, weather conditions, angle of the sun, types of weapons, rapidity of firing of the weapons."

Having both sides help set standards for the test would ensure "that it would not be challenged later," Mr. Dowd wrote.

Mike Caddell of Houston, lead lawyer for the Branch Davidians, said the special counsel's proposal "forces the issue."

"The procedure that's been proposed is clearly designed to protect any legitimate security concerns by the FBI and the Department of Justice," he said. "They've taken away the one legitimate reason that they could have for refusing. Any refusal now is because they already know what the answer is going to be. I think that would be the most damning admission of liability they could possibly make.

"It's clear now that the office of special counsel, the courts and the plaintiffs are all interested in getting to the truth of what happened on April 19. The question that's lingering out there is, is the government interested in getting at the truth?" Mr. Caddell said.

On Capitol Hill, investigators involved in ongoing investigations of the government's actions in Waco also welcomed the special counsel's proposal. "It would be unwise for the Justice Department not to participate. The attorney general appointed Sen. Danforth, and the attorney general pledged complete cooperation with Sen. Danforth's probe," said Mark Corallo, spokesman for the House Government Reform Committee. "We think it's a good idea."