(Associated Press, February 7, 2000)
AUSTIN, Texas (AP) -- Attorney General Janet Reno fought off angry questions Monday night from a small group of Branch Davidian supporters who labeled her the ``Butcher of Waco.''
Reno was visiting the University of Texas to lecture about community problem solving.
Led by Austin talk show host Alex Jones, fewer than a dozen protesters carried signs bashing Reno and the Clinton administration outside the Lyndon B. Johnson Presidential Library and Museum before Reno's speech. Jones labeled Reno the ``Butcher of Waco'' and the ``Supreme Obstructer of Justice.''
Reno never mentioned the Waco raid during her 45-minute speech, which touched on topics ranging from crime and education to technology and volunteerism.
During the question and answer session, Jones and others were heckled by the audience of several hundred as they asked Reno about the April 19, 1993, fire at the Davidian compound.
The blaze ended a 51-day standoff between Davidian leader David Koresh and the federal Bureau of Alcohol, Tobacco and Firearms and the FBI. Some 80 followers died, some from the fire, others from gunshot wounds. ``Janet Reno has systematically suppressed evidence, covered up her wrongdoings, and engaged in dozens of other Byzantine practices,'' Jones said.
Reno refused to comment about most of the Waco-related questions, citing the investigation by former Sen. John Danforth, the independent counsel who is looking into whether federal personnel fired into the retreat as it burned to the ground.
Congress also continues to investigate.
``Yes, I owe an explanation to the American people and I have given it once, twice, a third time and I will continue to give it, but at the time now with Senator Danforth investigating I think I owe it to him to make sure that he can conduct this investigation in the appropriate way,'' Reno said.
Last week, the Justice Department asked a federal judge to throw out key parts of the wrongful-death lawsuit against the government over the Waco raid. The case, brought by surviving Davidians and relatives of those who died, is scheduled for trial in mid-May.
by William H. Freivogel andTerry Ganey ("The St. Louis Post-Dispatch", February 7, 2000)
Last October, an investigator for Waco special counsel John C. Danforth visited a federal prison in Louisiana to interview Graeme Craddock, one of nine survivors of the government's siege on the Branch Davidian complex near Waco, Texas, in 1993.
What the two men talked about is secret. But Craddock gave another sworn statement later that month that provided new evidence that the Branch Davidians started a fire that killed dozens of people on the last day of the siege, April 19, 1993.
"It looked to me like they were pouring fuel on the floor," Craddock said in a deposition. A short time later, he said, he heard Mark Wendel, another Branch Davidian, say, "Light the fire." Craddock said he looked up at the sky. "I could see black bits of debris falling, like snow, black snow," he said.
Craddock's testimony seems to support the government's contention that the Branch Davidians started the fire. His recollections are among hundreds of pages of recently released depositions from a score of witnesses, including many government agents, that give a rough idea of how Danforth's investigation is progressing. Although the depositions were taken in a separate court case, the testimony is from many of the same agents Danforth has interviewed.
So far, the case against the government does not appear much stronger than it was five months ago, when Danforth began looking into what he called the four dark questions surrounding the tragedy.
No proof of illegal military involvement has turned up. No new evidence of a government cover-up has emerged. And the weight of the evidence indicates that the Branch Davidians started the fire.
That would leave only one question: Did government agents fire weapons during their final assault on the complex? And that question appears to have become the focus of Danforth's inquiry.
In depositions taken by Branch Davidian lawyers and in interviews on Capitol Hill, no witness reported government gunfire. That is why next month's test of flashes on an infrared tape of the incident looms large.
Danforth clearly considers the flashes to be important information, and several reputable experts say the flashes are gunfire. If Danforth can prove that government gunfire trapped the Branch Davidians in the complex, then there would have to have been a cover-up as well because the government has consistently maintained that no agent fired a weapon.
In September, when Danforth got the Waco assignment from Attorney General Janet Reno, he said he would focus on bad acts, not bad judgment. But where to draw that line is not always clear, and the fire is a good example.
Behind the question of who started the fire are more complex issues, such as whether FBI commanders suspected that their tear gas attack could prompt some of the group's members to start a suicide fire.
As originally approved by Reno, the plan called for tanks to gas the complex for 48 hours before the tanks would start breaking into the wooden building.
But within a few hours of the gassing, as Branch Davidians fired on them, the tanks began ramming the front and back walls.
Attorneys for the Branch Davidian survivors who have sued the government in a wrongful death claim say that deviation from the plan led to fatal consequences and justifies naming as individual defendants the FBI's on-scene commanders: Jeffrey Jamar and Richard Rogers.
In court documents filed last week, the lawyers quoted Gary Noesner, an FBI hostage negotiator, as saying, "Any negotiator would have told them (Jamar and Rogers) that dismantling the building would provoke a violent response." Also quoted in the documents was Peter Smerick, an FBI criminal profiler. According to a Department of Justice internal review, Smerick said he told Jamar they could not send in the tanks because "children would die and the FBI would be blamed even if they were not responsible." The documents said deviating from the approved plan to tear down the building contributed to the tragic outcome at the Branch Davidian's Mount Carmel complex, 12 miles northeast of Waco.
Is deviating from the plan a bad act or bad judgment? Lawyers for the Justice Department say it's a judgment call. The commanders must make decisions, the lawyers said, based on the conditions at Mount Carmel, the weapons inside and the prior use of deadly force during an initial raid on the complex Feb. 28.
Using a converted tank to clear a path through the building for tear gas was based on law enforcement policy, including considerations of resources, risk, danger and the urgency of their mission, government lawyers said in court documents last week. The move was within the FBI's discretion and couldn't be second-guessed, the government lawyers added, even if the commanders knew the Branch Davidians might shoot at the tanks or would view the assault as an attack and refuse to surrender.
After a test in March of the infrared information, Judge Walter S. Smith Jr.
will convene the wrongful death trial in May. Smith was once criticized as a hanging judge who had given excessive sentences to the surviving Branch Davidians. But recently, he has been tough on the government, forcing a massive turnover of documents. Danforth undoubtedly will wait until after the trial to report.
The plans of congressional committees investigating Waco are uncertain. Political considerations seem to militate against high-profile hearings. Democrats are playing defense because they don't want President Bill Clinton's administration to look bad, and the Republicans who control Congress count law enforcement in its core constituency.
In the Senate, a spokesman for Sen. Arlen Specter, R-Pa., said last week that Waco is neither on the front burner or back burner.
"It's sort of a side-burner issue," he said.
by Tommy Witherspoon ("Waco Tribune-Herald", February 5, 2000)
Government attorneys in the Branch Davidian wrongful-death lawsuit asked a federal judge in Waco on Friday to dismiss portions of the suit relating to how the FBI brought the 51-day standoff with David Koresh and his followers to an end.
The lawyers claimed sovereign immunity for actions relating to government law enforcement duties. Attorneys asked U.S. District Judge Walter S. Smith Jr. to dismiss negligence claims arising from the way agents dealt with the fire at Mount Carmel and the manner in which they pumped tear gas into the structure before the fire started.
Government attorneys assert that agents acted reasonably when they held back Waco-area firefighting units, including volunteers. They say Branch Davidians were shooting at the military vehicles during the insertion of the tear gas, and might have also targeted firefighters.
"The grounds for this motion are that there is no genuine issue as to the material fact that the Branch Davidians were directing gunfire at vehicles that approached their compound and, therefore, it was reasonable as a matter of law to hold the fire trucks and civilian firefighting personnel away from the compound until the gunfire ceased," the government motion states.
Also, the government attorneys allege, testimony from Branch Davidian Graeme Craddock confirms that fuel was spread intentionally inside the compound and the fire was lit by one or more of the Branch Davidians. Because sect members started the fire, the government is not responsible for the fire and is entitled to a partial summary judgment in the case, according to the motion.
The three issues to be decided at trial, which is scheduled for May 15, are whether the Bureau of Alcohol, Tobacco and Firearms used excessive force during the Feb. 28, 1993, raid on Koresh's compound; whether the FBI used excessive force during the insertion of the tear gas; and whether the FBI was negligent in how it handled the fire.
Koresh and 75 of his followers died on April 19, 1993, after a wind-swept fire consumed their home 12 miles east of Waco.
Branch Davidian survivors claim that FBI aerial infrared surveillance tapes show that FBI agents fired into the compound as it burned, cutting off Davidians' escape routes.
The FBI has denied that it fired on the final day.
Lead plaintiff attorney Mike Caddell of Houston said he might be willing to concede that it was proper to hold back the civilian volunteer firefighters once the fire started. Besides shots being fired, ammunition was "cooking off" in the fire, he said.
However, the government should have been more prepared for the tragedy before it started its tear gas assault, he said.
"We have to look long and hard at that, but the point is that the people on the scene failed to implement the attorney general's instructions," Caddell said. "She (Janet Reno) had told them to have adequate firefighting equipment on the scene, and in fact, they had even contacted the Department of Defense to inquire into having armored firefighting equipment there.
"But what do they end up doing? The firefighting equipment was the Bellmead volunteer firefighters who only had two paid employees during the day. That is not acceptable," Caddell said.
by Mark England ("Waco Tribune-Herald", January 5, 2000)
The new church being built outside Waco for the Branch Davidians is nearing completion, awaiting a few final touches - such as a fire-retardant treatment.
"It makes it hard to burn the wood," said Alex Jones, the right-wing radio host who used his talk show to organize volunteers for the project. "Just in case there's any arson problem ever again from vandals and others, like our friends in the federal government." Jones said the church, a 40-by-65 foot building smack on the spot where the Davidians' old chapel sat, will be ready by April 19, the seventh anniversary of the fire that ended the government's 51-day siege of Mount Carmel and led to the deaths of David Koresh and 75 followers.
"It's been historic and it's been enjoyable," said Jones, who lives in Austin and whose radio program is syndicated by Genesis Communication Network in 60 cities nationally. "We'll easily have it done by the 19th. We're going to plant some shrubs and trees, just like there were before the tanks ran over them, and we'll have the Davidian flag back flapping high on a new flagpole." Davidian Sheila Martin, who lost her husband, Wayne, a Waco attorney, and four children in the 1993 fire, praised the volunteers building the church.
"They're the kind of people who believe if you lose your home, you should have a place to live," Martin said, "if you lose your church, you should have a place to worship. Hopefully, thanks to them, I won't have to always think of this as a sad place, but as a place where people showed their love." The only fighting at Mount Carmel recently has been over ownership of the property.
Besides the surviving Davidians, Amo Roden Bishop (the ex-wife of the late George Roden, who lost a power struggle to Koresh) and Douglas Mitchell, who was a Davidian before Koresh became the group's leader, have staked claims to Mount Carmel.
The surviving Davidians, about 20 of whom live in the Waco area, have won the most recent court skirmishes. They also pay the taxes on the property.
Construction started on a church for them last September. Early on a Sunday morning, Jones led a convoy of about 50 vehicles from Austin to Mount Carmel, which is about 10 miles east of Waco. About 100 men, women and children began work on the church's pier-and-beam foundation. "God Bless the Renegades" blasted from stereo speakers and several people wore buttons proclaiming, "You burn it, We build it." Most weekends since, work has continued on the Davidian church.
Jones - who can quickly launch into a diatribe, then, just as quickly, apologize politely for rambling - admits the project began half-way as a political statement.
"It can't help but be one, when you think about it," Jones said. "But I was also disgusted no one was helping these people. These people were abused, left out there with their whole community destroyed. I'm about action. I don't like to watch bad things going on. I said, 'Let's try to heal some of the wounds.'" About $60,000 has been spent so far building the Davidian church, Jones said. Much of the outside of the building is complete. The inside, however, is largely unfinished. Materials like insulation, sheetrock, electrical supplies and paint are needed for that. Concrete is also needed to build an outside wheelchair ramp.
Information on the materials needed can be found on Jones' Web site (http://www.infowars.com ).
"The only satisfaction these people are going to get is from the community," Jones said. "They're not going to get it from the federal government or that judge, who keeps restricting the case any way he can, or the state, which was derelict in its duty in allowing the feds in there in the first place. The only ones who are going to help are those sick of hearing all the propaganda and know these are kind, decent people barely able to eke out a living. Maybe this will give them hope." There's been talk of rebuilding Mount Carmel to more closely resemble what it used to look like, a rambling two-story structure with a tower that dominated the horizon for miles.
But Martin said those days are gone forever.
Like the group's informal leader, Clive Doyle, Martin would rather see a series of homes built at Mount Carmel for the remaining Davidians.
"I think we've all enjoyed our privacy," Martin said. "We know it can't be the way it was. The families, the people, the different nationalities, all the things that made up Mount Carmel won't come back until God brings us back to one place."
by Mark England ("The Waco Tribune-Herald", January 3, 2000)
Attorneys for FBI sharpshooter Lon Horiuchi, the lone individual defendant in wrongful-death lawsuit filed by surviving Branch Davidians against the government, asked U.S. District Judge Walter S. Smith Jr. of Waco Wednesday to dismiss him from the suit.
The motion, filed by Department of Justice attorneys, argues there is no evidence that Horiuchi - who in 1992 shot and killed the wife of Randy Weaver at Ruby Ridge - fired a shot at Mount Carmel on the day of the fire that led to the deaths of David Koresh and 75 followers.
"SA (Special Agent) Horiuchi did not fire a weapon at the Branch Davidian compound on April 19, 1993," the motion asserts.
The plaintiffs claim the FBI's aerial infrared surveillance tapes offer proof that FBI agents fired into Mount Carmel as it burned, cutting off the Davidians' only route of escape.
Horiuchi, however, submitted a sworn statement denying firing a shot. He wrote that he saw a combat engineering vehicle (CEV) begin punching holes in Mount Carmel to insert tear gas at 6 a.m. on April 19. At that time, he heard popping noises, which he recognized as gunfire, coming from the residence, Horiuchi wrote. But he denied firing back.
"Through my binoculars, I saw green tracer rounds bouncing off the CEV from an unknown location," Horiuchi said. "I did not see any muzzle flashes. Shortly thereafter, I radioed to the Tactical Operation Center the codeword 'compromise' indicating that FBI personnel had been subjected to hostile gunfire. I was unable to locate a specific target and did not fire my weapon." A sworn statement from FBI Special Agent Charles Riley, included in the motion, disputes a 1993 FBI after-action report quoting him as reporting that he heard gunshots coming from the sniper position manned by Horiuchi.
Smith noted Riley's report in leaving Horiuchi in the lawsuit as a defendant. But Riley contends in his sworn statement that his report was written by an agent who interviewed him over the telephone and incorrectly wrote down his recollections. He didn't read the report for accuracy, Riley wrote.
"I never told the interviewing agent that I heard "shots being fired from position number 1," wrote Riley, who was at a sniper post in front of Sierra-1. "I told the interviewing agent I heard gunshots fired from the compound and also reports from Sierra-1 (also known as sniper position No. 1) that shots had been fired from the compound." Sworn statements from several FBI snipers are included in the motion. All but Riley were at Sierra-1, a house approximately 330 yards from the front of Mount Carmel.
"All of the witnesses in close proximity to SA Horiuchi on April 19, 1993 testified that he did not fire his weapon," the motion said.
Christopher Curran, now a supervisor for the FBI's Critical Incident Response Group, was at Sierra-1 with Horiuchi. In his sworn statement, Curran said he was stationed about five feet to the right of Horiuchi, who was visible to him throughout the operation.
"I neither observed nor heard SA Horiuchi fire any shots on April 19, 1993," Curran wrote. "I also observed no armed subjects during the operation and consequently fired no shots." Justice Department attorneys noted that in leaving Horiuchi in the lawsuit, Smith mentioned the controversy over the infrared tapes and whether they show flashes that appear to be gunfire. Even if the flashes are gunfire, the motion stated, they aren't evidence that Horiuchi fired any shots at Mount Carmel.
"Horiuchi was ... approximately 330 yards away from the front of the compound," the motion said. "Even plaintiffs do not contend that the 'flashes' come from that direction. Rather, if anything, the 'flashes' on the videotape appear to be coming from the backside of the compound and near the CEVs adjacent to the compound."
by Lee Hancock ("The Dallas Morning News", February 3, 2000)
The FBI's two lead Waco commanders violated a Washington-approved plan by ordering tanks to begin demolishing the Branch Davidian compound in 1993, and thus should be liable for the horrific tragedy that ensued, the sect's lawyers argued Wednesday.
Their Wednesday plea in a Waco federal court lays out a detailed case for how FBI commanders Jeffrey Jamar and Richard Rogers within hours diverted from the plan authorized by top FBI officials and approved by Attorney General Janet Reno. That written plan allowed for demolition of the sect's embattled building only after tear gas had been sprayed into it for 48 hours, but FBI tanks began demolishing the rear of the building less than five hours after the gassing began.
"The decisions made by Rogers and Jamar were unauthorized, outside the scope of their authority, unjustified by the circumstances, and caused or contributed to the deaths of countless innocent children and some adults," the plaintiff's motion argued.
The plaintiff's pleading came one day after the Justice Department argued that legal limits on lawsuits against federal agencies and officials should prevent the Branch Davidians from putting the government on trial for its handling of the 1993 gassing operation, including its use of tanks. The government argued that federal law prohibits using lawsuits to "second-guess" the judgment calls of federal officials, even if those decisions have tragic results.
The motions from both sides come as Judge Smith prepares to make final decisions about the size and scope of the sect's wrongful-death case.
He has set a trial for mid-May on three major questions: Did federal agents use excessive force in the raid that began the 1993 standoff, a botched operation that disintegrated into a gunbattle that left four agents and several sect members dead? Did federal agents shoot at the Branch Davidians and prevent their escape when the compound caught fire during the FBI's gas assault? And was the FBI negligent in failing to prepare for the threat of a fire and for refusing to let local firetrucks approach when a fire did erupt? More than 80 Branch Davidians died in the fire, which began less than an hour after FBI tanks rolled deep into the building on April 19, 1993. Government officials have argued that the sect was solely to blame, noting that government arson investigators ruled that Branch Davidians deliberately set the blaze.
In his decision last July to allow the Branch Davidians' case to go to trial, Judge Smith dismissed Agent Jamar, Agent Rogers and most other federal officials from the lawsuit.
He left one defendant in the case: a hostage rescue team sniper accused by the sect of firing at the compound during the April 19, 1993, tear-gas assault. The judge based that decision largely on the statement of another FBI agent, who told investigators after the siege that he heard shots fired from the position where the sniper was assigned that day. The agent has since said he was misquoted, and other agents in the area have said that the only gunfire they heard came from the sect.
The sniper, FBI Agent Lon Horiuchi, has denied firing a shot. Earlier this week, lawyers for the agent asked the judge to dismiss him from the case for a lack of evidence.
Lawyers for the sect have conceded that the agent will probably be dismissed, despite recent revelations about evidence that could support the gunfire claim. Texas Rangers issued a report last fall that described how a dozen spent .308 shell casings had been found after the incident in the house where Agent Horiuchi was stationed.
The house had been used earlier by snipers from the Bureau of Alcohol, Tobacco and Firearms during the raid that began the standoff, and federal officials have argued that the shell casings came from ATF guns. The office of special counsel John Danforth is performing forensic tests to determine which agency's guns were used.
The two FBI commanders were among the large number of federal officials dismissed from the lawsuit last summer.
If the judge decides to reinstate them as defendants, it would be the first time that either Agent Jamar, the FBI's on-scene Waco commander, or Agent Rogers, head of the FBI's hostage rescue team, have testified at a trial arising from the tragedy. Neither FBI nor ATF commanders involved in the initial raid were called to testify at the 1994 criminal trial of surviving Branch Davidians, in part because prosecutors feared that defense lawyers would use them to put the government on trial.
In Wednesday's pleading, the sect's lawyers contended that Agents Jamar and Rogers should be reinstated as defendants because they not only violated federal policy but the sect's constitutional rights. The plaintiff's brief argued those violations stripped the two men of normal federal legal protections that severely limit civil lawsuits against federal officials and agencies.
"The problem that the FBI has with calling use of the tanks to destroy the building a judgment call: Those commanders didn't have the authority to make that call. The attorney general of the United States approved a plan, and that plan could not have been clearer: Don't even consider demolishing the building until you've gassed for 48 hours," lead sect lawyer Mike Caddell said.
"Instead, these two cowboys Jamar and Rogers, went off on their own without authorization, thumbed their noses at the AG's plan and said, 'We know better than you,' " he said.
Asked about the matter Wednesday, a spokesman for Ms. Reno declined to comment. Agents Jamar and Rogers could not be reached for comment.
Mr. Caddell's filing and a separate motion filed by another attorney for the sect, former U.S. Attorney Ramsey Clark, also argued that the two men should be put on trial because they were commanders at the time that sect members allege gunfire was directed at the compound.
Officials have denied for years that any FBI agents fired a shot during the 51-day siege. But the sect's lawyers have argued that infrared videotape shot by the FBI on April 19 captured repeated rhythmic flashes that could have only come from gunfire.
Judge Smith has authorized a court-supervised field test next month to try to resolve the issue.
Mr. Caddell's motion focused on the commanders' decision to send in tanks to demolish the rear of the Branch Davidian compound.
He cited statements by senior FBI negotiators and other behavioral experts who had explicitly warned prior to the assault that sending in tanks guaranteed a violent response and massive loss of life.
He also cited detailed internal agency reports and congressional testimony in which senior FBI and Justice Department officials said demolishing the building was thought too risky to consider in the early stages of the tear-gas operation.
He noted that Deputy FBI Director Floyd Clark told Congress a month after the fire that officials had ruled out the idea of using tanks to "systematically dismantle the building."
"That didn't have a very good likelihood, because on a number of occasions when we were maneuvering around the building, removing the obstacles, the Davidians would appear in the windows and hold the children up, refer to them as the Kevlar kids," Mr. Clark testified in 1993. "So we had to dismiss that."
The motion alleges that Agent Rogers later tried to "cover up" violating the decision of his superiors in Washington by telling Congress and the public that the tanks had only tried "to clear a pathway" for spraying in more gas. But internal FBI documents show that Agent Rogers and his lieutenants told bureau leaders that the tanks were on a demolition operation. A proposal in which he and his lieutenants unsuccessfully lobbied for plaques, medals and cash awards for the hostage rescue team specifically praised two tank drivers for courage in carrying out their "mission of slowly and methodically beginning the dismantling" of the rear area of the compound.
by Michelle Mittelstadt (Associated Press, February 2, 2000)
WASHINGTON (AP) - The Justice Department wants a federal judge to throw out a key part of the wrongful-death lawsuit against the government over the 1993 raid on the Branch Davidian complex near Waco, Texas.
Meantime, Davidian lawyers are seeking to reinstate as defendants two of the FBI's on-scene commanders. And FBI sharpshooter Lon Horiuchi, who is the only named defendant remaining in the civil lawsuit filed by Davidian survivors and relatives, sought Wednesday to be removed from the case, which heads to trial in mid-May.
In their filing in federal court in Waco, lawyers for Horiuchi, who was in charge of a sniper post outside the Davidians' compound, said there is not a ``shred of evidence'' that he fired his weapon during the siege's final hours on April 19, 1993.
The question of whether federal personnel fired into the Davidians' compound as it burned is a central issue in the lawsuit.
The Davidians contend FBI infrared surveillance footage taken April 19 shows federal personnel fired into the building as it burned, cutting off the Davidians' only route of escape. Davidian leader David Koresh and some 80 followers died that day, some from the fire, others from gunshot wounds that federal authorities say were inflicted by the Davidians.
Federal officials insist no government personnel, civilian or military, fired any shots in the waning hours of the 51-day siege. They say the bursts of light captured on the infrared tapes represent ``glint.'' They also deny any responsibility for the inferno that consumed the compound.
In a pivotal ruling last July, U.S. District Judge Walter Smith limited the plaintiffs' case to three main areas: whether the Bureau of Alcohol, Tobacco and Firearms acted with excessive force during the botched Feb. 28, 1993, raid that triggered the siege; and whether the FBI fired into the compound 51 days later or was negligent with regard to the fire that destroyed the compound.
On-scene commander Jeff Jamar has said he kept local firetrucks away as the fire raged out of concern that the Davidians would shoot at the firefighters.
If Smith rules in the government's favor, the plaintiffs would find their case limited to the question of excessive force during the initial raid and whether federal agents fired into the compound on April 19.
In their motion Wednesday, the Davidians sought to reinstate as defendants two FBI supervisors at Waco - Jamar and Richard Rogers - saying their orders to use military tanks to crash into the compound weren't in the operations plan approved by Reno.
``These two cowboys went out on their own because they were frustrated and angry at David Koresh and they decided they were going to punish him,'' Davidians lawyer Michael Caddell said.
The Justice Department did not return calls seeking comment.
by Terry Ganey and William H. Freivogel ("The St. Louis Post-Dispatch", February 2, 2000)
Lawyers for the Branch Davidians say the two top FBI commanders of the government's siege at Waco violated their superior's orders by allowing converted tanks to destroy the complex April 19, 1993.
In a motion filed in federal court Tuesday, the lawyers want the two commanders, Jeffrey Jamar and Richard Rogers, to be named as individual defendants in the wrongful death suit filed against the government. U.S. District Judge Walter Smith Jr. removed their names in July, saying there had been "no credible showing" that the FBI agents were acting outside the scope of their employment.
But the Branch Davidians' lawyers say new evidence and testimony is enough to reinstate Jamar and Rogers because the government's excessive use of force violated their superiors' orders. Jamar was the special FBI agent in charge of the siege, and Rogers led the FBI's hostage rescue team, which had surrounded the Mount Carmel complex.
Meanwhile, the Justice Department filed its own motion asking the judge to throw out the allegations against FBI sniper Lon Horiuchi, the only individual defendant in the case. The Justice Department motion relies on the statements of Horiuchi and seven others at his sniper post who swear he did not fire his rifle.
The department denies there was any government gunfire. But it said Tuesday that even if the Branch Davidians proved their claim, "such gunfire would not be unprovoked" because the Branch Davidians were firing at the FBI. The government also says the gunfire claimed by the Branch Davidians was from the back of the complex, far away from Horiuchi, who faced the front of the building.
The Branch Davidians' motion claims that Rogers and Jamar abandoned Attorney General Janet Reno's plan to use converted tanks to gradually insert tear gas into the complex over a 48-hour period. The plan was changed in response to gunfire coming from within the complex. The tanks began ripping the building apart. After about six hours, the complex caught fire and about 80 people died.
"The use of 50-ton tanks to systematically demolish the church complex in violation of the approved plan, endangering and perhaps taking the lives of persons inside, has been revealed ... as has evidence indicating a high probability that the tanks smashing the building and the firing of projectiles and gas into the building started and accelerated the fire," the motion says. "This was a major deviation from the plan that was undoubtedly ordered by superiors at the site, which would have included at least Rogers and Jamar." The two FBI commanders would also have "known" and "ordered" government gunfire, the motion claims.
The Justice Department argued Tuesday that the government could not be held liable for the way agents decided to insert the tear gas or for the decision to hold back fire engines when the complex caught fire. The government maintains the gunfire from the Branch Davidians would have endangered the firefighters.
The government also presented additional evidence that the Branch Davidians started the fire. It cited a deposition in October by Branch Davidian Graeme Craddock, who said he saw others in the complex pouring fuel oil and heard Mark Wendel, who died in the complex, say, "Light the fire."
by Lee Hancock ("The Dallas Morning News", Febryary 2, 2000)
Arguing that the U.S. government can't be sued even if its agents' judgment calls prove negligent, Justice Department lawyers asked a Waco federal judge Tuesday to throw out two key charges in the Branch Davidians' wrongful-death lawsuit.
The Justice Department's pleading argues that strict federal limits on how and when the government can be sued should prevent the court from considering whether authorities contributed to the 1993 tragedy by ordering tanks to demolish the sect's building and refusing to let fire trucks approach after it caught fire.
If successful, the bid would leave only two major issues for trial: Did federal agents use excessive force when they shot at sect members during the raid that began the standoff near Waco? And did agents fire again, trapping Branch Davidians inside their burning building, as the siege came to an end? The motion was made just before a court deadline for arguments from both sides on the final size and scope of the case, which is set for trial in Waco in mid-May.
The federal law limits how and when citizens can sue the government, broadly restricting actions against federal agencies and employees.
Despite those restrictions, U.S. District Judge Walter Smith ruled in July that the case could go to trial on several allegations: the sect's charges of excessive force in the Feb. 28, 1993, raid by the Federal Bureau of Alcohol, Tobacco and Firearms and negligent or deadly conduct by the FBI during the tear-gas assault and final fire.
Government lawyers argued Tuesday that most of the FBI's actions during the April 19, 1993, tear-gas assault are immune because they involve judgment calls protected under a legal doctrine known as the "discretionary function." Even if the FBI "abused its discretion," Branch Davidians can't put the government on trial, the lawyers argued.
"This is so . . . even if, as plaintiffs claim, the FBI knew that Branch Davidians might 'view it as an attack and at least some Davidians would shoot at the tanks,' the assault 'was not inducing any Davidian to surrender,' and the Branch Davidians believed they had been 'double-crossed' and the operation 'was a sneak attack to kill them,' " their brief stated.
More than 80 Branch Davidians died when a fire engulfed their compound. It broke out six hours after the FBI tried to end the 51-day siege by bashing the building with tanks and spraying in tear gas.
Officials have alleged that the Branch Davidians caused the tragedy, and they have denied that anyone from the government's side fired guns during the April 19 assault.
Officials cite a government arson investigation that ruled that sect members set the fires, and recordings from government bugs that captured voices of sect members discussing their preparations to torch their building.
In Tuesday's brief, the Justice Department lawyers argued that all questions about the fire should be thrown out of the case, in part because of recent testimony obtained from a jailed sect member.
Graeme Craddock, an Australian serving 20 years for convictions arising from the standoff, recounted in a December deposition that he saw and heard other sect members talking about pouring fuel.
Drawn by shouts of "Wait, wait. Not inside. Outside," he said, he saw another sect member with a fuel can. "It looked to me like they were pouring fuel on the floor." "It was a few minutes later I heard a call from upstairs . . . 'The building's on fire," Mr. Craddock said.
He added that he looked out the window for smoke and then heard the same voice. "He said this time, 'Light the fire.' " The fires broke out just after FBI tanks demolished the entire rear area of the building and then drove deep into the structure.
The FBI's senior negotiators in Waco told the Justice Department afterward that they thought the decision to go in was flawed and resulted from the loss of patience among FBI commanders, internal memos show.
FBI and Justice Department officials involved in approving the use of gas said afterward that they were surprised at the rapid escalation of FBI actions that day, FBI documents indicate. The approved plan called for gradually inserting tear gas over a period of 48 hours, but commanders were authorized to spray gas on all sides of the building if they encountered gunfire.
Ms. Reno and her assistants were assured that "the goal of the plan was to introduce the tear gas one step at a time to avoid confusing the people in the compound and thereby maintain the impression that the individuals in the compound were by no means trapped," Mary Incontro, a senior Justice Department official, told FBI investigators in 1993, documents indicate.
Mark Richards, another senior Justice Department official, said Ms. Reno decided to leave the FBI's command post in Washington to make a speech at midmorning April 19 because of "anticipation that the process of ending the siege would take days." FBI commanders in Waco concluded shortly afterward that the gassing was not working, federal records indicate. Saying he had expected complete surrender within an hour, hostage rescue team commander Dick Rogers persuaded FBI commander Jeff Jamar to allow tanks to penetrate the building's interior, Justice Department records indicate.
But even that decision can't be challenged under federal law, Justice Department lawyers argued Tuesday.
Nor can the failure to obtain adequate fire equipment before the tear-gas operation or the decision by Mr. Jamar to keep local fire trucks away for more than 40 minutes after the fire began, government lawyers argued.
Mr. Jamar later said that the Branch Davidians had been firing that day at the FBI's tanks and that he feared that fire trucks would be shot at, too.
Some officials had warned of the risk of fire, noting the sect's repeated references to it, including a sign hung just before April 19 that read "flames await." Federal records indicate that one official in Waco explicitly voiced those fears in mid-April.
After the blaze began, Army records indicate, officials in Waco frantically called Fort Hood to ask how quickly airborne water scoops used to dump water on forest fires could be flown in. A military log indicated those calls were quickly followed by grim casualty reports.
"Nine people have been found alive. Four of which are in the hospitals. They have found 17 or 18 bodies. The youngest person gotten out is a 16-year-old girl. No children's bodies have been found. There are about 70 people unaccounted for," the log stated.
"They have heard some cries for help, but not many. They are still trying to get the rubble cooled down so they can rescue any survivors."
by Mark England ("Waco Tribune-Herald", February 2, 2000)
FBI employees dispute the government's official explanation for ripping apart the Branch Davidians' gym as detailed in the Department of Justice's 1993 report on Mount Carmel, according to depositions taken for the wrongful-death lawsuit filed by surviving members of the group.
In its report, the Justice Department gave two reasons why a Combat Engineering Vehicle (CEV) - described as a modified Patton tank - tore through the back of the Davidian compound, causing the gym to partially collapse.
Escape routes were being opened for Davidians to flee Mount Carmel and the gym was being opened for the eventual insertion of tear gas, according to the "Report to the Deputy Attorney General on the Events at Waco, Texas: February 28 to April 19, 1993." But an FBI agent riding in the CEV that plowed through the gym said in a recent deposition the crew was ordered to try to find a way to get to a tower at the back of the compound, where supervisors apparently believed the Davidians had retreated to escape the tear gas attack.
"You were not ordered to breach the rear side of the building to create escape openings," plaintiffs' attorney Mike Caddell of Houston asked in the deposition. "You were ordered to clear this path to the tower, correct?" "Correct," said the CEV passenger, identified only as FBI witness No. 7 to comply with the order by U.S. District Judge Walter S. Smith Jr. of Waco not to divulge the identities of government witnesses.
"What was the purpose of this path if it was cleared, or when it was cleared?" Caddell asked.
"To effectively deliver gas to that tower area of the building where it was believed we were not getting gas," the CEV passenger said.
The Justice Department did not answer the Tribune-Herald's request for an explanation of the discrepancy between the testimony of FBI agents and its report.
In the 1993 report on Mount Carmel, the Justice Department emphasized the purported forging of escape routes on the compound's backside. In one instance, the report noted that after the CEV toppled a wall in the gym, FBI negotiators broadcast: "David, we are facilitating you leaving the compound by enlarging the door. David, you have had your 15 minutes of fame. Vernon is no longer the Messiah. Leave the building now." Vernon Howell was David Koresh's name before he legally changed it.
An FBI agent piloting a surveillance plane over Mount Carmel testified in his deposition that the people flying with him remarked that the Davidians would have to flee their compound because it was being demolished.
"I recall some remarks that were made while, you know, 'People were going to have to get out pretty soon because it's going to, you know, the things are being kind of, during the penetrations, being taken away from them...,'" the FBI pilot said.
Caddell accused the FBI of speeding up its plan to demolish the Davidian compound.
The Justice Department report stated that if after 48 hours the FBI's tear-gas assault failed to drive the Davidians out of Mount Carmel, a modified CEV was to begin demolishing the building. The demolition would continue until all the Branch Davidians had been located, the report stated.
"You were systematically demolishing the gym bit by bit," Caddell said to the CEV passenger. "You were tearing it down, weren't you?" "No, we were not destroying the building," the CEV passenger said. "We were very..." "You don't call that building destroyed?" Caddell asked.
"Portions of it," the CEV passenger said.
FBI witness No. 13, who drove the CEV, testified in his deposition about the modified CEV that he said the FBI had rigged up to demolish Mount Carmel.
"It was another CEV that had basically, what had been done was a railroad, a stanchion of railroad was welded to the blade itself, extending three feet on either side of the blade, and it was going to be used to drive along the side of the building, basically cutting the studs away and the sheetrock away, so we could actually see into the front sides of the building in hopes that they would come out when they were in plain view at that point," the CEV driver said.
Caddell asked, "How would the gym have looked any different if you had attacked it with the railroad CEV as opposed to the CEV you had?" "I have no idea," the CEV driver said. "We never got to that part of the plan. I mean, in hindsight, it could have very well been the exact same result. But my plan at that point was not to destroy the gymnasium." The agent riding in the CEV said the FBI could have quickly destroyed the entire compound if that was its plan.
"I think in no time at all the collateral destruction that you see on the empty gymnasium area would be the entire compound," the CEV passenger. "I mean these are large powerful vehicles." Caddell asked the agent if he remembered advising the FBI's Hostage Rescue Team, "CEV working black (or back) side. It's coming down." The CEV passenger said no.
Caddell asked if that transmission wasn't more consistent with "disassembling" the building rather than clearing a path to the tower.
"I would say if somebody was talking about a structure that was in their path, the fact that it was coming down would indicate that it was no longer being an obstacle to the forward movement, so I don't think it necessarily follows what you are saying," the CEV passenger said.
Caddell asked the agents why the CEV eventually backed off trying to muscle its way to the tower.
The CEV driver said he could see the tops of 55-gallon drums at the end of the gym, indicating a drop-off to him. He testified that he didn't approach the drums for fear of getting stuck. Saying there was no drop-off, Caddell asked if the CEV driver had not known that.
"I don't know that for a fact because I never got back there," the CEV driver said.
He denied Caddell's assertion that the holes made by the CEVs could have served as openings for agents on foot to enter the compound.
"They had told them we weren't going to make entry into the building, and we didn't," the CEV driver said.
Caddell asked if the CEV entered the building.
"The vehicle did," the CEV driver said. "Absolutely." "Well, you were inside the vehicle, weren't you?" Caddell asked.
The passenger in the CEV told Caddell that he didn't think the Davidians would see the FBI's actions as hostile and start firing weapons °X which led to the FBI escalating its insertion of tear gas into Mount Carmel.
"I was actually very surprised when we were shot at," the CEV passenger said. "I mean, you've got to keep in mind we were here 50 some days and there had been no exchanges and no shooting. And I especially felt with the notification and the negotiators talking to them and explaining what was going on, that they would not shoot. Didn't see where that would be the logical step."
by William Freivogel and Terry Ganey ("The St. Louis Post-Dispatch", February 1, 2000)
Two new developments in John C. Danforth's investigation of the Waco siege reflect the inquiry's increasing focus on one of the four questions Danforth set out to investigate - whether government agents fired into the Branch Davidians' complex during the April 19, 1993, assault on the compound.
Last week an Army commando passed a lie detector test administered by Danforth's office in which the commando said he didn't shoot or see any other government agents shoot at the complex, sources say.
Meanwhile, Danforth and the FBI have asked the British military for use of a specially equipped helicopter to conduct next month's test to determine if flashes on infrared tape of the Waco siege are from government guns.
A Danforth spokesman declined to comment. When Danforth was appointed last summer he said he would investigate four main areas - cover-up, military involvement, government gunfire and government involvement in the fire that left about 80 Branch Davidians dead.
The Army weapons expert who passed the lie detector test was one of three members of the secretive Delta Force at Waco on April 19. He was asked to submit to the test after his account of the day differed from that of a Delta Force technician. The technician had said the weapons expert got drunk the night before the assault on the compound and didn't show up until after the fire. The weapons expert said he had a few beers the night before and arrived at the complex around 8 a.m., sources say.
According to the polygraph test, the weapons expert answered truthfully when he said he neither saw nor directed gunfire at the complex and did not approach it. He repeated his testimony last Friday to House investigators and Sen. Arlen Specter, R-Pa. Specter is overseeing the Senate's inquiry of Waco.
Michael Caddell, the Houston lawyer for the Branch Davidians, said the testimony did not answer all questions, but "generally closed the door" on the investigation of military involvement.
Increasingly, the attention of investigators is turning to next month's test to determine if gunfire shows up as flashes on infrared tape. Johnny Hodgkins, a spokesman for the British Ministry of Defense, said Monday that the ministry was reviewing Danforth's request for the use of a Lynx helicopter equipped with a forward-looking infrared (FLIR) system. The helicopter, which normally flies off the back of Royal Navy ships, is equipped with a GEC Marconi system similar to that used by the FBI in a surveillance airplane that flew over the Branch Davidian complex.
Paul Beaver, an analyst for Jane's Information Group in London, said he believed the government would be willing to lend the system if transportation could be arranged. Beaver, who appeared on a CBS "60 Minutes II" program last week, said the flashes on the FBI tapes looked like gunfire to him.
The Justice Department has said that its tests show the flashes are not gunfire. It is bolstering that view by pointing to a 1986 incident where an earlier version of the FLIR system did not detect gunfire during a gunfight at Horseshoe Bay, Texas.
But Caddell says that government tests used M-16 rifles instead of the shorter-barreled CAR-15 guns used by the FBI at Waco, which have larger muzzle flashes.
Waco, FBI and the Branch Davidians: Updates
CESNUR reproduces or quotes documents from the media and different sources on a number of religious issues. Unless otherwise indicated, the opinions expressed are those of the document's author(s), not of CESNUR or its directors.
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