ATF, military deny shots in final Waco siege

Sworn court statements filed after months of legal disputes

The Dallas Morning News, January 26, 1999
By Lee Hancock

Government lawyers formally denied Tuesday that anyone in federal law enforcement or the U.S. military shot at the Branch Davidian compound at the end of the deadly 1993 siege.

Their four-page federal court filing, including sworn statements by Defense Department and U.S. Treasury Department lawyers, came a week after lawyers for the Branch Davidians complained to a federal judge in Waco about the government's refusal to answer that key question.

Treasury lawyers, writing on behalf of the federal Bureau of Alcohol, Tobacco and Firearms, stated that no one under the agency's supervision or control shot at the sect's building on the last day of the 51-day standoff. A separate Department of Defense statement said that no one from the military or under its control fired that day "based on currently available information."

The issue is central to an ongoing wrongful-death lawsuit filed in Waco by surviving members of the sect and families of Branch Davidians who died on April 19.

Leader David Koresh and more than 80 followers died when their rural home burned on April 19, about six hours after FBI agents began bashing the building with tanks and spraying in tear gas. Government arson investigators have said that the sect set the fire. But lawyers for the Branch Davidians have alleged that someone from the government fired repeatedly into the building in the final hours of the assault.

They allege that and other government actions kept innocent women and children from escaping - charges that the government has denied. Under federal civil court rules, government lawyers were supposed to respond under oath months ago to questions about gunfire and other issues raised by lawyers to the sect.

But while the government filed a pleading in September stating that no one from the FBI or under its control shot guns at the compound, its lawyers failed to produce similar sworn statements from the Defense Department and Treasury until sect lawyers complained to the court last week. ATF agents helped man a large law-enforcement perimeter around the compound April 19. But officials with that agency and the FBI have said that no ATF agents were directly involved in the tear-gas assault. Soldiers from the U.S. Army's secret anti-terrorism unit, Delta Force, were also in Waco that day. But Defense Department officials have said that no military personnel were actively involved in the April 19 operation. Two Delta soldiers questioned last month in depositions swore that they got no closer than a kilometer from the compound. But they acknowledged that they could not account for the whereabouts of a third Delta Force soldier. That soldier, a combat specialist, told his colleagues that he got drunk the night before, slept late and missed the entire FBI assault, one soldier testified.

He is scheduled to be questioned later this week in Washington by lawyers for the sect.

Mike Caddell, lead lawyer for the Branch Davidians, said he is glad government lawyers finally made good on repeated promises to produce sworn statements about gunfire from Defense and Treasury officials. But he noted that the issue is still in serious dispute, citing infrared FBI videotapes recorded that day that contain what some experts say are flashes of government gunfire.

U.S. District Judge Walter Smith has ordered a field test using cameras like the one deployed by the FBI that day and test-shots of weapons similar to those carried by the government and the sect.

Mr. Caddell also said Tuesday that he plans to seek fines and other sanctions against government lawyers for their continuing failure to meet deadlines for production of documents in the case. The two sides were to have exchanged documents by Jan. 15.

Government lawyers filed a pleading Monday arguing that fines were unwarranted because they were doing everything possible to produce records for the plaintiffs and their lawyers.

In Monday's argument, Justice Department lawyers said Branch Davidian lawyers were partially to blame for delays because they insisted on scheduling 24 depositions last month.

They noted that 51 boxes of materials were sent last weekend, before the deadline, and they contended that more would have been produced if Justice officials had not been distracted by the plaintiffs' other demands. But Mr. Caddell said he plans to tell the court that the "three-quarters" of the government documents sent to his office arrived late. He had filed an earlier motion seeking sanctions and $50,000 in fines, telling Judge Smith that even before the Jan. 15 deadline, he feared a last-minute "dump" of records.

"I think that the arguments that our depositions interfered is also a significant misrepresentation to the court," he said. "That didn't have anything to do with their failure to produce. They continue to lie to the court."