Testing ordered to see if agents fired on Davidian compound

Judge's move is rebuff to Justice Department

November 16, 1999, The Dallas Morning News
By Lee Hancock and David Jackson

Turning aside prolonged federal objections, a U.S. district judge on Monday ordered independent field testing to help determine whether government agents fired at the Branch Davidian compound in the last hours of a 1993 siege.

U.S. District Judge Walter S. Smith Jr. of Waco issued a three-page order late Monday saying that he was "persuaded" by arguments from Branch Davidian lawyers and the office of special counsel John Danforth that the tests are needed to resolve whether flashes of light recorded by FBI infrared cameras came from government gunfire.

FBI officials say none of their agents fired a gunshot during the 51-day standoff, and flashes recorded by an airborne FBI infrared camera just before the Branch Davidian compound burned were inexplicable electronic "anomalies."

But FBI officials secretly offered to conduct private tests for Mr. Danforth and his investigators, even as Justice Department lawyers last month rejected a proposal by the Branch Davidians' lawyers for a joint public test, according a Nov. 5 letter to the court from Mr. Danforth's office.

Those actions and a warning from Justice Department lawyers that they planned to use national security exemptions to withhold data needed to ensure accurate public tests prompted Mr. Danforth's office on Nov. 5 to seek a court-supervised test.

The special counsel's office also has asked the FBI to turn over its hundreds of guns deployed at Waco for ballistics comparisons and other testing. Officials said they are still working out the logistics to ensure that the "precise" weapons are surrendered but expect to comply. Those weapons could be used in the court-supervised infrared tests.

Testing FBI guns also could resolve the origin of a dozen .308-shell casings found in a house used by FBI snipers during the siege. Agents of the federal Bureau of Alcohol, Tobacco and Firearms also used the house during a gunfight, which broke out as the ATF tried to search the compound and arrest sect leader David Koresh on weapons violations. Four ATF agents died in the battle that began the 51-day standoff.

All of the ATF's guns used at Waco were sent in 1993 for testing by the FBI laboratory, but records indicate there was no effort to tie any of the guns to the shell casings.

In Monday's order, Judge Smith echoed the special counsel's concern that federal actions set the stage for dueling public and private infrared field tests.

"The court is persuaded that one FLIR [infrared] test should be conducted, with participation and observation by the parties and the OSC [office of special counsel]," he wrote. Backing the judge Mike Caddell, the Branch Davidians' lead lawyer, said the decision could prove key to the sect's efforts to prove the government should be held at least partially to blame for the tragedy.

"It again demonstrates that Judge Smith wants to get at the truth," he said. "If they really believe that's not gunfire on that video, then the government's lawyers should embrace this test with open arms."

A wrongful-death lawsuit scheduled for May trial in Judge Smith's court alleges that government agents fired into the Branch Davidian compound, cutting off escape for 17 children and other innocents as the compound caught fire. The fire erupted six hours after FBI agents began ramming the compound with tanks and spraying tear gas to force a surrender on April 19, 1993.

Justice Department lawyers have said the allegations are baseless. They have noted that arson investigators ruled that a fire that consumed the compound along with Mr. Koresh and more than 80 followers was deliberately set by the sect.

Justice Department spokesman Myron Marlin said the order is under review. He declined to comment further . The special counsel's office could not be reached.

The ruling could help resolve a long public debate about the source of the dozens of blips of light captured on the FBI's April 19 infrared video - flashes that appear to emanate from both government and Branch Davidian positions.

Experts hired by the Branch Davidians' lawyers say the flashes came from gunfire. Some independent experts - including an analyst for the House Government Reform Committee - have echoed that conclusion.

But experts retained by the government say that the FBI infrared camera was too far away, and the flashes lasted too long to be gunfire. Experts needed Judge Smith's order gave both sides and Mr. Danforth 10 days to propose an expert to oversee the test. The judge set a Nov. 22 deadline for objections to a plan for experts from each side and one representing Mr. Danforth to help develop test protocols.

Also Monday, federal lawyers told the court that they have surrendered to the Waco court all government siege records.

More than a million pages of government materials have been turned over, including 7,000 pages of classified Defense Department documents, more than 3,000 pages of White House records and secret records from the CIA and the U.S. Commerce Department, government filings indicate.

Judge Smith ordered the action in August. But government lawyers spent months fighting it, prompting the judge to warn earlier this month that he would tolerate no more stalling and was "suspect of the government's desire to comply with [his] orders."

Previous government pleadings stated that the White House might try to withhold some records under executive privilege. Monday's filing said that the president's lawyers had sent all relevant records.

But Monday's pleading indicated that Justice Department lawyers still may try to invoke executive privilege or other legal exemptions to block Branch Davidian lawyers and even Judge Smith from examining some documents.

They may include records detailing the presence of secret military units and equipment and information about sensitive law enforcement equipment, including the FBI's infrared video cameras, earlier government filings indicated.

Monday's government pleading offered few new details concerning what has been surrendered to the court. Classified document It made no mention of a classified White House document described in earlier pleadings, which the president's lawyers had earlier suggested officials would withhold "until further notice."

The Clinton administration said that document detailed a secret foreign policy briefing that included a passing comparison of the Branch Davidian standoff to the rebellion in Chechnya.

The officials, speaking on the condition of anonymity, said the reference to Waco was declassified for submission to the court. The officials said the reference was "oblique" and did not come from a White House official.

The officials added that White House records relating to the siege were not controversial. The Administration has long maintained that President Clinton played a minimal role in the incident.

But records from other agencies hint of more White House involvement than previously acknowledged. Notes from the FBI's hostage rescue team indicate that its commander went to Washington to brief the White House along with two senior Army special forces commanders during the final days of the standoff.

Justice and Defense Department officials have said the officers, veterans of the Army's secret anti-terrorist Delta Force unit, visited Waco and then briefed Attorney General Janet Reno about the FBI's plans for a tank-and-tear-gas assault on the compound.

But notes found this fall at the hostage rescue team's headquarters in Quantico, Va., offered a different account. The notes, dated April 13, 1993, stated that the FBI's chief tactical commander and the Army officers were summoned to Washington to "brief White House - liaison Mr. Hubble [sic]," adding "Hubble want [sic] military expert's opinion of the operation."

Webster Hubbell was then an assistant attorney general and chief liaison between the president and the attorney general's office.

Other notes found at Quantico indicate that a formal plan for a tear-gas assault on the Branch Davidian compound was sent by fax to the White House in early March as FBI commanders sought a "green light" to take action against the sect.



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