"FBI's team leader at Waco a 'problem,' agency papers say - Insisted on using tear gas: Commander also led deadly standoff with supremacist in '92"

(Associated Press, February 29, 2000)

DALLAS - Documents obtained by a Dallas newspaper show the Federal Bureau of Investigation was concerned about its on-scene commander at the 1993 Waco siege, which turned into a fiery disaster in which dozens died.
The Dallas Morning News obtained documents that show senior FBI officials at first were skeptical of the insistence by Richard Rogers, the hostage rescue-team commander, that tear gas was the only safe way to end the siege.
A March, 1993, memo from the FBI's most experienced tactical expert said Mr. Rogers had prompted similar concerns in the deadly 1992 standoff at Ruby Ridge, Idaho. In that incident, an FBI sniper, under the command of Mr. Rogers, killed the wife of white supremacist Randy Weaver after Mr. Rogers relaxed bureau rules of engagement and pushed for an all-out tank and tear-gas assault on the Weavers' cabin.
"A lot of pressure is coming from Rogers," Danny Coulson, deputy assistant FBI director, wrote in an internal FBI memo during the Waco siege on March 23, 1993.
"We had similar problems in Idaho with him and he argued and convinced the SACs [local FBI special agents in charge of the incident] that Weaver would not come out. That proved to be wrong. I believe he is a significant part of the problem here."
He added that he feared bureau officials were lobbying to gas the Branch Davidians who were barricaded at Waco because the officials were tired, frustrated and under pressure from Mr. Rogers.
Congressional officials said the memo is particularly disturbing because they have never seen it or other internal FBI records detailing the contentious decision-making process that led to the tear-gassing of the Branch Davidian compound.
"We've had a subpoena out there for all relevant documents -- all documents -- since Sept. 7, 1999," said Mark Corallo, spokesman for the House Government Reform Committee.
"Is the Department of Justice withholding only embarrassing documents from us? It makes you wonder."
Mr. Coulson did not comment yesterday, while Mr. Rogers and Jeffrey Jamar, the FBI's special agent in charge of the Waco operation, have declined interview requests.
The memo and other records obtained by the Dallas paper provide new details of the FBI's internal struggles as Waco commanders pushed to use gas against the embattled sect after a 51-day standoff.
Janet Reno, the U.S. attorney-general, approved a plan to gas the compound on April 19, 1993.
The action began with a gradual tear-gas insertion, but escalated immediately to an all-out tear-gas assault after the Davidians started to shoot at FBI tanks.
Six hours later, after agents increased pressure by sending tanks deep into the building, the compound burned with sect leader David Koresh and more than 80 followers inside.
Some died from fire, others from gunshots.
The government has maintained the Davidians were responsible for their own deaths. But several of the religious group's survivors and their relatives have filed a wrongful death lawsuit against the government, claiming members of the FBI and the Bureau of Alcohol, Tobacco & Firearms fired into the compound.
The trial is set for May 14 in Waco federal court.

"Memos show a divided FBI on how to handle Waco"

by Terry Ganey and William H. Freivogel ("The St. Louis Post-Dispatch", February 29, 2000)

Memos just now becoming public show that a debate raged within the FBI about how to end the siege on the Branch Davidians' complex in Waco, Texas, in 1993.
As on-the-scene commanders recommended aggressive tactics, officials in headquarters in Washington suggested an approach that combined pressure with negotiations. One top Washington official blamed a commander at Waco for aggravating the situation.
The memos included predictions that eventually came true. One memo raised the specter of "suicide by cop."
In the end, Attorney General Janet Reno approved a plan to gradually insert tear gas into the complex over a 48-hour period beginning April 19. However, after six hours of the gas attack, converted tanks driven by FBI agents began dismantling the complex. The structure caught fire, and about 80 people died - some from the effects of the fire and others from gunshots.
The memos became public recently as part of the evidence in the Branch Davidians' wrongful death suit against the government.
About a month before the final assault, a top FBI official in Washington was concerned that the FBI's hostage rescue team and its leaders had grown impatient with the standoff.
Danny Coulson, a deputy assistant FBI director, wrote a memo to his supervisor on March 23 criticizing a plan advanced by Jeff Jamar, the special agent in charge of the siege. Jamar had requested permission to use gas to force the Branch Davidians out of the complex. At the time, the government had been negotiating for about three weeks with David Koresh, the Branch Davidians' leader.
"I believe one of the things driving this request to use gas is fatigue of all those involved in Waco," Coulson wrote. "They are not only tired physically, but tired of the situation and frustrated by their perceived lack of success."
Coulson's memo said Richard Rogers, the on-the-scene commander of the FBI's hostage rescue team, was "a significant part of the problem here."
"A lot of pressure is coming from Rogers," Coulson said. In 1992, Rogers was the commander of the FBI's siege on the family of Randy Weaver in Ruby Ridge, Idaho. An FBI sniper killed Weaver's wife and son in that standoff.
"We had similar problems in Idaho with him, and he argued and convinced the (special agents in charge) that Weaver would not come out. That proved to be wrong."
Coulson's memo was written to Larry Potts, then the FBI's deputy director. Investigators have said Rogers' conduct at Waco is a key focus of their examination.
Another memo about the tear gas plan is unsigned and undated. It raised the possibility of mass suicide by Branch Davidians or a gunbattle between federal agents and members of the sect. The memo said that if the Branch Davidians responded to the tear gas with "massive gunfire," then "that would result in return fire by us."
The memo continues: "It seems to me we play into his (Koresh's) hands - re suicide by cop - I would rather have them commit suicide than have us in a gun battle with them."
The unsigned memo also raised the question about how the Branch Davidians would leave the complex if the all-out gas plan were followed.
One source knowledgeable about the internal FBI debate said Monday that "those memos were written when there were heated discussions going on at headquarters. The siege had been going on sufficiently long that it had become a strain on the resources. There were obviously factions that were somewhat aggressive and others more reserved. But ultimately everybody signed on to a plan that was implemented."

"Two Branch Davidians withdraw from lawsuit"

by Tommy Witherspoon and Mark England ("Waco Tribune-Herald", February 28, 2000)

Houston attorney Mike Caddell asked U.S. District Judge Walter S. Smith Jr. of Waco Monday to dismiss two prominent Branch Davidians from the group's wrongful-death lawsuit against the government.
Caddell, lead plaintiffs' attorney, filed a motion stating that Kathryn Schroeder and Rita Riddle do not wish to pursue the lawsuit.
Also asking out were three of Schroeder's children: Scott and Christyn Mabb and Bryan Michael Schroeder, her son by Michael Schroeder, who died in the raid on Mount Carmel. He was shot by ATF agents while trying to get back to his family inside the residence.
"He (Smith) has ruled that unless you have suffered significant physical injury, you have no claim for simply being there," Caddell said. "I think the other thing is that these are people who do not want to undergo the burden of some of the pretrial discovery that they would have to go through: depositions and making appearances at the trial."
Schroeder, who left Mount Carmel after the siege began to be with her children, testified at the 1994 criminal trial against fellow Davidians.
"Judge Smith already has dismissed the claims relating to the death of Michael Schroeder," Caddell said. "And the bottom line is we advised them that there would be little point in appealing that decision. We looked into it. I wouldn't say that we agreed with the court, but I wouldn't say that the judge didn't have a legitimate basis for the decision he made."
Riddle left about a month before the Mount Carmel fire. She lost a brother, Jimmy, and her daughter, Misty Ferguson, was severely burned.
"In her case, it was a decision to just not have to go through the hassle of a lawsuit," Caddell said.
Ferguson remains in the lawsuit, along with more than 100 other plaintiffs.
"There's no way we're getting out," said Kirk Lyons, the Black Mountain, N.C., attorney who represents Ferguson.
Ferguson, then 16 years old, suffered serious burns on the last day of the siege. Lyons said Ferguson now lives in North Carolina and recently had a baby.
"She was burned so badly that all her fingers had to be amputated," Lyons said. "It's taken a long time for her to recover, although you never really recover from a fire."
No one restrained Ferguson, but Lyons said she was scared to leave Mount Carmel on April 19, 1993.
"She had seen what had happened to people like Catherine Matteson, who was thrown in jail," Lyons said. "She didn't trust the people she was dealing with. Her mother had come out. She was supposed to call and say she was all right, and they wouldn't let her. What was she supposed to think?"
Caddell said there may be more dismissal filings ahead for the plaintiffs.
"You have to realize that for six years in this case we didn't have any discovery," Caddell said. ". . . It has only been the last few months that we have had the opportunity to look at the evidence and get a handle on what issues are exactly going to trial. So I would expect that there will be more reorganization of the plaintiffs and the parties in this litigation."

"Memo reveals FBI's debate on Waco plan: Congress says it never saw key documents"

by Lee Hancock ("The Dallas Morning News", February 28, 2000)

A key FBI decision-maker wrote in late March 1993 that he feared bureau officials in Waco were lobbying to gas the Branch Davidians because the officials were tired, frustrated and under pressure from the FBI's hostage rescue team commander, documents show.
Congressional officials said that memo is particularly disturbing because they have never seen it or other internal FBI records detailing the contentious decision-making process that lead to the tear-gassing of the Branch Davidian compound. Some of those documents, which The Dallas Morning News recently obtained, show that senior FBI officials were initially deeply skeptical of their on-scene commander's insistence that tear gas was the only safe way to end the Waco standoff.
The memo, by the bureau's most experienced tactical expert, said that hostage rescue team commander Richard Rogers had been the cause of similar concerns in the deadly 1992 standoff at Ruby Ridge, Idaho. In that incident, the wife of white supremacist Randy Weaver was killed by an FBI sniper under Mr. Rogers' command after he relaxed bureau rules of engagement and pushed for an all-out tank and tear-gas assault on the Weavers' cabin.
"A lot of pressure is coming from Rogers," deputy assistant FBI director Danny O. Coulson wrote in an internal FBI memo during the Waco siege on March 23, 1993. "We had similar problems in Idaho with him and he argued and convinced the SACs [local FBI special agents in charge of the incident] that Weaver would not come out. That proved to be wrong. I believe he is a significant part of the problem here."
Mr. Coulson declined to comment, and both Mr. Rogers and Jeffrey Jamar, the FBI's special agent in charge of the Waco operation, have declined interview requests.

Seeking records

Tens of thousands of pages of documents on Waco have been turned over to U.S. House and Senate investigating committees. But investigators say they've received far less than half of the records requested. Senate staffers said last week that their efforts to obtain what may be key FBI records from the Branch Davidian siege, including files of the bureau's senior leaders, have been stymied.
House officials say that even their sweeping subpoena for Waco records in September has failed to force full cooperation by the FBI and the Department of Justice. More than five months after the subpoena was issued, House officials say, they have also been told that thousands of pages of records have been withheld because they are still under review.
"We've had a subpoena out there for all relevant documents - all documents - since Sept. 7, 1999," said Mark Corallo, spokesman for the House Government Reform Committee. "Is the Department of Justice withholding only embarrassing documents from us? It makes you wonder."
Justice Department officials could not be reached for comment, but have previously said they are cooperating as fully as possible with congressional inquiries.

New details

The Coulson memo and other records obtained by The News give new details of the FBI's internal struggles as Waco commanders pushed to use gas against the embattled sect.
Attorney General Janet Reno approved a plan to gas the compound on April 19, 1993. They began with a gradual tear-gas insertion but escalated immediately to an all-out tear gas assault after the sect began shooting at FBI tanks.
Six hours later, after agents increased pressure by sending tanks deep into the building, the compound burned with sect leader David Koresh and more than 80 followers inside.
Government officials have said the sect was solely responsible, noting that government investigators found that Branch Davidians set the fire. But lawyers for the sect have blamed FBI missteps in a federal wrongful-death lawsuit.
The suit, set for trial in Waco in May, also alleges that government gunfire kept women and children from escaping the blaze. The government says none of its agents fired a shot on April 19.

Internal conflict

FBI officials in Waco started pushing to use tear gas to end the standoff soon after it began, records indicate. And on March 22, three weeks into the siege, FBI negotiators recommended that in writing.
Senior FBI negotiators told Justice Department investigators after the standoff that they endorsed gas because their efforts to talk the sect out were hamstrung by the aggressive tactics of Mr. Rogers and his hostage rescue team, Justice Department records show.
The day after the negotiators' recommendation went to Washington, Mr. Coulson wrote superiors saying that he believed the request was driven by fatigue and frustration of Waco personnel and by pressure from Mr. Rogers.
"All of their intelligence indicates that [sect leader] David [Koresh] does not intend suicide and that he will come out eventually," stated Mr. Coulson's memo, which congressional investigators said they have never been given by Justice or FBI officials.

Strategy complaint

Mr. Coulson, founder of the FBI's hostage rescue team, wrote that negotiations were being hurt by an inconsistent tactical strategy, including repeated punishment of the sect just when they appeared to be cooperating.
Mr. Coulson wrote that the bureau's lead negotiators had told him personally that "in the short term we will continue to get out very small numbers, [but] in the long term we will get them all out.
"Bottom line, I suggest that it is not time to ask the AG or the president for permission to assault the compound with gas," he wrote. "Progress is still being made." Three days later, Mr. Jamar told FBI headquarters that he wanted to bash the compound with 60-ton tanks. That operation and related efforts to bulldoze the sect's cars away from the area just outside the building would be part of an escalating effort to punish the Branch Davidians for not meeting surrender demands, a March 26 outline of Mr. Jamar's proposal indicated.
Mr. Coulson responded with another memo, addressed to deputy FBI director Larry Potts. "Jeff wasn't sure that we had to go outside the FBI to get approval to 'nick' the building. Ha, Ha," Mr. Coulson wrote.
Although the Branch Davidians' cars were moved by FBI tanks in late March, plans to cut away siding on the front and bash two feet into the compound's gym were not carried out.

Citing safety

Despite the statements in internal FBI memos that the cars were moved to punish the Branch Davidians, Mr. Jamar told the public, FBI negotiators and other law enforcement agencies that it was done for his agents' safety.
Texas Rangers investigating the shootout that began the standoff were irate. They believed that moving the cars ruined evidence that might prove who killed four agents from the federal Bureau of Alcohol, Tobacco and Firearms during their initial Feb. 28 raid on the compound.
"The Rangers thought. . . . that this had become a training exercise for the FBI and they would try almost anything that came to mind," Ranger Capt. David Byrnes said in a July 1993 FBI interview.
Justice Department records show that negotiators were also outraged. The bureau's lead negotiator later characterized it as "the worst decision he's seen in 21 years with the FBI." FBI records show that on March 28, Mr. Jamar sent a more aggressive proposal to FBI Deputy Director Potts: He wanted full "discretion" to carry out a "mass" tear-gas assault any time in the next week because of the approach of Easter and Passover - key dates to Mr. Koresh's doomsday prophecies.
But Mr. Jamar included an explicit warning: Any effort to introduce tear gas would be met by the same kind of massive gunfire that started the standoff.
"It is almost certain that we will be met with violent retaliation," he wrote.
Mr. Jamar apparently expected controversy. When he faxed his proposal to Washington, he included a personal note to Mr. Potts stating that some of bureau officials already "had a problem with this total approach because it doesn't give much room for the bad guys to do anything else besides 'fight.' "

Plan questioned

Senior FBI officials responded with another critical memo. The unsigned memo, attached to the gas proposal faxed to Mr. Potts, questioned Mr. Jamar's assertion that further negotiations would be fruitless.
"Our experience with hostage situations will lead you to believe that after a significant time frame, with lack of sleep, water and food, Koresh and his followers will begin to change their stance," that memo stated.
It also challenged Mr. Jamar's argument that an all-out gassing was needed because of the danger of Branch Davidian gunfire. The memo noted that the tanks that would gas the compound could withstand even the sect's ..50-caliber rifles.
FBI leaders said after the siege that they had to escalate the gas assault because of sect gunfire.
Other FBI records also show bureau leaders were skeptical of Mr. Jamar's gas plan. One set of unsigned notes from FBI headquarters stated, "We cannot go forward believing we will receive massive gunfire."
That "would play into . . . [Mr. Koresh's] hands," the notes stated, adding that many FBI officials believed the sect leader wanted a confrontation to end the standoff with a massive "suicide by cop."
In an apparent response to Mr. Jamar's request for full discretion on carrying out the plan, the notes stated that the FBI's Waco command had authority to launch an emergency operation - using gas and tanks - only if the FBI got wind that the sect was about to commit mass suicide.
"[The] only thing left to the discretion of on-scene commander is the emergency response," the notes stated.

Defending actions

FBI leaders, including Mr. Potts, told Congress in 1995 that Mr. Jamar acted properly when he ordered tanks to tear into the building on April 19 - even though the tear-gas plan approved by Ms. Reno called for starting the demolition of the compound only after 48 hours of gassing.
Mr. Potts, who could not be reached for comment, also told Congress that he had no idea that Mr. Jamar felt certain that any use of tear gas would provoke Branch Davidian gunfire. Under the operational plan, Waco FBI commanders were allowed to escalate from a gradual gassing to an all-out gas attack only if they detected compound gunfire.
Mr. Jamar testified in 1995 that he was always "99 percent certain" that any gassing would provoke gunfire, making escalation of the FBI's assault inevitable.
But Mr. Potts told Congress that he "certainly didn't understand" that.
"If you'd known Mr. Jamar felt that way, would you have had different advice for the attorney general?" one congressman demanded. The deputy FBI director responded: "I would've conveyed it up the line, and I think the decision-makers would have - would have had to significantly consider that."
Quote for the day: Progress in life, business or any project comes through taking initiative and continuing to press on with new strategies, concepts and plans. The original momentum isn't enough to keep you moving forward. Your progress will grind to a halt unless you refill your engine of inspiration with the fuel of fresh ideas.

"FBI agent says tank razed gym at Waco by accident"

by William H. Freivogel and Terry Ganey ("The St. Louis Post-Dispatch", February 26, 2000)

The top FBI commander on the scene at Waco says that a government tank unintentionally knocked down the gymnasium of the complex as agents tried to inject tear gas into a room where about 20 Branch Davidians were hiding.
That account by Jeff Jamar, the special agent in charge of the 1993 siege, is at odds with the evidence that the Branch Davidians' lawyers are compiling. They are trying to show that the FBI commanders scrapped an assault plan approved by Attorney General Janet Reno and rushed the destruction of the complex.
The tank knocked down the gym six hours after the tear gas was administered, rather than the 48 hours called for in the Reno plan.
Mike Caddell, the lead lawyer for the Branch Davidians, says Jamar is lying. "Every person who has looked at the pictures of the tank destroying the gym has characterized it as demolition," he said. "Jamar and Dick Rogers are trying to keep themselves out of prison." Rogers was head of the hostage rescue team at Waco, and directed most of the assault.
The issue of whether the government intended to knock down the complex is important both to the wrongful death suit that the Branch Davidians have filed against the government and to the investigation of special counsel John C. Danforth.
A major deviation from the Reno-approved plan could help Caddell prove that the government agents negligently caused the death of some of the approximately 80 people who died at Waco. In addition, Danforth would have to determine if a reckless deviation from Reno's plan would amount to a bad act by the government.
Jamar told his story to investigators for the House Government Reform Committee in Austin, Texas, on Feb. 16. A spokesman for the committee declined to comment. Rogers is to testify next week.
Justice Department sources say that Jamar told this story: By 9:30 a.m., more than three hours after the government began squirting tear gas into the complex, listening devices had picked up conversations from a large group of women and children who had gathered in the kitchen, which remained free of tear gas.
Rogers and Jamar decided to breach the gym walls so that one of the converted tanks could shoot tear gas into the kitchen.
Around 11:20 a.m., the converted tank began knocking into the gym. The idea, Jamar said, was to make a path for the tank equipped with a boom for the tear gas.
Jamar said he believed that the successful gassing of the kitchen had led the Branch Davidians to ignite fuel they had spread on the floor of the complex. The fire was the cause of most of the deaths.
But Caddell lists these objections: * At the time he ordered the attack on the gym, Jamar said it was time to go "all out." That account was given by a senior member of the hostage rescue team after the incident.
* Senior FBI officials monitoring from Washington concluded that Jamar and Rogers had deviated from a plan to end the siege when the tanks began ramming the gym. Danny Coulson, the first leader of the hostage rescue team, testified in a deposition last week that the siege plan he helped draft did not provide for knocking into the gym. He said he was surprised when the tank did so.
* An FBI briefing paper prepared before the assault said the gym side of the complex "is not of good quality" - so Jamar had notice that the gym would fall easily.
* After a pass into the gym and toward the kitchen, the first tank moved away from the kitchen and knocked into other portions of the gym wall five or six times.
* The tank with tear gas sent the fumes into the kitchen from the front of the complex, rather than the back, where the first tank had knocked down the gym. So the destruction of the gym was not needed.
Other sources add two other reasons to question Jamar's account. One is that there was room for the tank to approach the kitchen without touching the gym.
More important, at 11:31 a.m., an agent is heard on the radio traffic of the incident to report, "It's coming down." There was no response from Jamar. If Jamar was warned that the gym was coming down and didn't intend for it to collapse, then he should have taken some action, sources said.
In rebutting Jamar, Caddell stresses a deposition he took last week from Coulson, a former deputy assistant FBI director. Coulson helped draft initial versions of the assault plan that Reno approved.
Caddell said drafts of the plan included provisions for creating holes in the structure with tanks. Those tactics were removed from the final plan approved by Reno.
"I think once people see his (Coulson's) testimony they will appreciate that senior FBI officials at the time knew that what Jamar and Rogers were doing was a deviation from the plan," Caddell said.
Coulson had watched the final siege on the Branch Davidian complex on television at FBI headquarters in Washington. According to Caddell, Coulson and others at the FBI were shocked to see the tanks demolishing the building.
But other sources say that Caddell left out important parts of Coulson's testimony. Coulson said that he did not consider the tank ramming of the gym to be a speed-up in the destruction of the building. The plan for destroying the building after 48 hours of gassing did not involve the tanks penetrating the building. Instead, one tank was to attach a rail and peel away siding. This operation was to begin in the front of the building.
Coulson testified that the reason he was concerned about the tanks ramming into the gym was that he was afraid the Branch Davidians could attack them or that the tanks would drop through the floor. He was not concerned that the Branch Davidians would be hurt.
In another Waco development, a House committee investigating Waco wants to know why the Justice Department tried to examine the computer of a committee witness. Rep. Dan Burton, R-Ind., chairman of the House Government Reform Committee, wrote Reno this week asking what the government wanted from the computer of former U.S. Attorney William Johnston.
Johnston, who resigned this year, helped prosecute the Branch Davidians. He's considered a whistle-blower by some because he went public last summer with complaints that information about the siege had been kept from Reno.
A committee spokesman, Mark Corallo, said that two days after committee investigators questioned Johnston, a computer technician hired by the Justice Department was examining the computer hard drive in Johnston's former government office in Waco.
There was no comment Friday from the Justice Department.

"Computer search angers House panel: Prosecutors look into files of Waco whistle-blower"

by Lee Hancock ("The Dallas Morning News", February 25, 2000)

Efforts by federal prosecutors to access files from the government computer once used by a Waco whistle-blower prompted angry complaints to the Justice Department this week from a congressional committee investigating the Branch Davidian siege.
House Government Reform Committee Chairman Dan Burton sent a letter to Attorney General Janet Reno late Tuesday demanding a full explanation for the search, which occurred days after that committee's investigators conducted lengthy interviews with the whistle-blower, former federal prosecutor Bill Johnston.
A spokesman for U.S. Attorney Bill Blagg of San Antonio, Mr. Johnston's former supervisor, said he was "familiar with" the matter but could not comment. A Justice Department official also declined to comment, saying the agency had not yet received the congressman's complaint but planned to cooperate "as fully as possible." Mr. Johnston left the U.S. attorney's office in Waco in early February, five months after warning the attorney general of a possible cover-up of key information about government actions during the 1993 Branch Davidian standoff. The warning made national headlines because it came from a career federal prosecutor who had worked longer on the Branch Davidian case than anyone else in the Justice Department.
After going public with his concerns last August, Mr. Johnston says he was largely ostracized by others in the U.S. attorney's office for the Western District of Texas, which includes Waco.
Mr. Johnston said he learned about the effort to search his computer after going to his old office late last week to fill out paperwork and being met by nervous staff and an Austin-based computer technician.
He said a staffer from the Waco office told him on Tuesday that the computer technician had been sent by Mr. Blagg, the U.S. attorney, to remove the hard drive of the computer he had used.
"The staffer told me that they've had a number of meetings in San Antonio about how to get into my computer and have tried to access it remotely to access information from it. They pulled what they could out of it that way, and then had to come up and get the hard drive," Mr. Johnston said. "The computer person told the Waco staff that she needed to do it in response to congressional subpoenas." He said the staffer who contacted him was particularly concerned because the computer technician did not want to tell Mr. Johnston what she was doing and even ran hurriedly from his former office to hide what she was doing after he unexpectedly dropped by.
Mr. Johnston said he contacted Mr. Burton's committee on Tuesday to question why he had not been told about such a subpoena when both Republican and Democratic committee investigators interviewed him in Austin early last week. He had previously turned over information from his files after the committee issued an exhaustive subpoena seeking Justice Department records on the Branch Davidian case last September.
"I wouldn't expect to get a straight answer from the people who ordered this search, so I decided to go straight to the horse's mouth. I called and asked if the congressional committees had issued a new subpoena. They hadn't," Mr. Johnston said. "That's just their [the U.S. attorney's] excuse. It's juvenile. If it weren't the government behaving this way, it would almost be comical." The letter from Mr. Burton, R-Ind., asked for a complete explanation for the search by next Thursday. He wants to know who authorized the computer search, why it was undertaken and whether anyone else involved in the Branch Davidian case was being subjected to similar scrutiny.
"It was my understanding that the Justice Department had already identified all documents responsive to our subpoena," Mr. Burton wrote. "Is the Department searching or reconstructing the hard drives of other Department employees in this matter? If so, please provide a list." Mark Corallo, a spokesman for the House Government Reform Committee, said Wednesday that the chairman lodged the formal demand because of Mr. Johnston's high profile and the "perception" that Justice Department officials might be seeking information to discredit or retaliate against him.
"Bill Johnston is someone we've spoken to who has cooperated with Congress," Mr. Corallo said. "We'd love an explanation as to why they felt it necessary to go through his computer.
"The committee has had great concern with retaliation. . .. .. We even held a hearing about retaliation against whistle-blowers," Mr. Corallo said. "While a witness with the Department of Defense was testifying before the committee that day, his superior was trying to gain access to his computer illegally. So we do have a great concern when things like this happen." One federal official in Washington familiar with the matter said the search conducted last week "is not unique" to Mr. Johnston. "There are lots of people asking questions, so steps are being taken to preserve records." Mr. Johnston said the search was puzzling because it was not conducted until after he left, and his former office knew of no similar searches in the Davidian case.
"It's a government computer, so they're probably perfectly entitled under the law," he said. "But why didn't they search or ask for the information they wanted while I was there? What is irritating, [is] they're so sneaky. Just do it, and don't try to use Congress as an excuse." Mr. Johnston has been criticized by some within the Justice Department since last August, when he went public with his fear that Justice lawyers had intentionally withheld evidence from Ms. Reno and the public about the use of pyrotechnic tear gas canisters on the last day of the siege. Ms. Reno had banned the use of anything capable of sparking a fire that day.
The compound burned about six hours after the start of the tear-gas assault. Sect leader David Koresh and more than 80 followers died.
Mr. Johnston said he felt compelled to speak out after being shown 6-year-old documents detailing the FBI's use of military gas grenades capable of sparking fires during the April 19, 1993, assault.
Those documents surfaced after a former FBI official told The Dallas Morning News that pyrotechnic tear gas canisters had been used. That revelation prompted the new congressional investigations, including Mr. Burton's inquiry, and the appointment of Waco special counsel John C. Danforth .
Even before that, however, Mr. Johnston had drawn criticism for his efforts to allow public access to government evidence from the Branch Davidian case. Last June, after a documentary filmmaker raised questions about evidence from the siege stored since 1993 by the Texas Rangers, Mr. Johnston began helping the state law enforcement agency investigate.
As that inquiry progressed, Mr. Johnston sent increasingly alarmed e-mails to his boss, U.S. Attorney Blagg. Those messages warned that the Rangers were developing compelling evidence that challenged the federal government's long claim that no pyrotechnic gas canisters or devices of any kind were used on April 19.
Mr. Johnston said he learned Tuesday that his e-mail traffic had been downloaded from the computer earlier this month, and his remaining old files had somehow been removed last week. "The staffer tried to log on, just out of curiosity, and all my stuff was gone," he said.

"Sect gives details of ex-FBI official's deposition about assault: Ex-official thinks assault violated plan, sect says"

by Lee Hancock ("The Dallas Morning News", February 24, 2000)

A former top FBI official has acknowledged that sending tanks into the Branch Davidian compound was inconsistent with the Washington-approved plan for ending the 51-day siege, the sect's lead lawyer said Wednesday.
Former deputy assistant FBI director Danny Coulson also testified in a deposition on Tuesday that he and other senior FBI leaders were stunned when they saw live network TV images of FBI tanks ramming deep into the sect's compound on April 19, 1993, said Houston attorney Michael Caddell.
Mr. Coulson is the first top FBI official involved in the 1993 incident to be questioned under oath in the Branch Davidians' wrongful-death lawsuit. The founding commander of the FBI's hostage rescue team and one of its most experienced tactical experts, Mr. Coulson was one of the bureau's key decision-makers in drafting the detailed gassing-operation plan that Attorney General Janet Reno ultimately approved.
That plan called for demolition of the sect's building only after tear gas had been sprayed in for 48 hours. If Branch Davidians began firing guns at the tanks, the plan allowed FBI agents to begin a large-scale insertion of tear gas.
But early proposals that called for using tanks in the initial stages of the operation to demolish the building were removed from the final plan approved in Washington, FBI and Justice Department records show.
On April 19, however, FBI tanks began demolishing the rear of the building less than five hours after the gas operation began. A fire consumed the compound less than an hour later.
"Mr. Coulson made it clear that the penetrations of the tanks into the building were deviations, were inconsistent with the plan approved by the attorney general," Mr. Caddell said.
Mr. Coulson, now retired and living in the Dallas area, declined to comment Wednesday.
Mr. Caddell said the former official's testimony will bolster his argument that the two former FBI officials who led the Waco operation, Jeffrey Jamar and hostage rescue team commander Dick Rogers, should be held legally liable for the tragedy. U.S. District Judge Walter Smith dismissed the two men as defendants last summer, but lawyers for the sect filed a motion earlier this month arguing that they should be reinstated.
"It's completely understandable from Mr. Coulson's testimony that on April 19, Rogers and Jamar decided to jettison the plans that had been approved in Washington," Mr. Caddell said.
Lawyers for the government declined to comment on Wednesday. Both Mr. Rogers and Mr. Jamar have declined interview requests.
FBI stance The FBI's lawyers have contended in legal pleadings that the two FBI officials did nothing that would justify lifting the strict legal restrictions on bringing civil lawsuits against federal officials or agencies.
One Justice Department official said that Mr. Coulson's testimony may be of limited importance because he acknowledged that he was not in the FBI command center that kept direct communications with FBI leaders in Waco.
"He wasn't in a position to know if there were authorized modifications to the plan," the official said. "He also said that it was his experience that the people on the ground have some discretion." FBI lawyers also have argued that federal law prohibits using lawsuits to "second-guess" judgment calls of federal officials, even if they have tragic results.
In a Feb. 10 pleading, they also contended that federal law would prohibit suing the bureau's Waco commanders even if the plaintiffs prove that agents under the commanders' supervision fired guns at the compound on April 19.
The FBI pleading stated that the Branch Davidians have offered no evidence that either commander ordered agents to shoot. But it added that "if government officials were to have fired into the compound, such gunfire would not be 'unprovoked,' nor inconsistent with the FBI's deadly force policy." Alleging a retreat Mr. Caddell said the government's latest argument appears to be a retreat from the FBI's long-standing assertion that none of its agents fired during the standoff.
"Government lawyers are moving away from an absolute position that there was no government gunfire on April 19," he said. "Those are the first cracks in the stone wall." Questions about government gunfire and the way the FBI used tanks on April 19 are central issues in the Branch Davidians' lawsuit. Judge Smith has set a trial for mid-May on several major questions: Did federal agents use excessive force in the raid that began the 1993 standoff, which left four agents and several Branch Davidians dead? Did federal agents shoot at the sect and prevent members' escape when the compound burned during the FBI's gas assault? Did the FBI's use of tanks contribute to the fire that consumed the compound? And was the FBI negligent in failing to prepare for a fire? More than 80 sect members died about six hours after the tear-gas assault began.
Government officials have noted that government arson investigators ruled that Branch Davidians deliberately set the blaze. They have also contended that it would have been impossible to fight the fire without jeopardizing the lives of FBI agents and firefighters.
Local firefighters were kept away for almost 45 minutes after they responded to the blaze. Mr. Jamar later said he could not let them near the compound sooner for fear that sect members could have shot them.
But Mr. Caddell said Wednesday that Mr. Coulson's testimony could strengthen the sect's claims about government negligence in failing to prepare adequately for a fire.
"He acknowledged that the attorney general had instructed them to ensure that adequate firefighting equipment was there and told them that cost was not an issue," Mr. Caddell said. "The FBI had acknowledged investigating the use of armored firefighting equipment, but for reasons unknown to Mr. Coulson, they didn't have any." Instead, draft plans for the tear-gassing indicate, FBI officials decided to rely on the closest nearby civilian fire department. That largely volunteer department then had only three paid employees, FBI records indicate.
Tank concerns Other internal FBI and Justice Department records show that top officials in both agencies were concerned about the danger of using tanks to demolish the compound.
Some of those concerns were outlined in an annotated statement that Justice and FBI officials prepared at Ms. Reno's request before she approved the gas plan.
"While it is conceivable to demolish the compound through the use of tanks . . . such an effort would necessarily pose great risk of harming children within the compound. The presence of these innocent children and our ability to minimize the risk of harm to them continues to be a major influence on all tactical considerations," the Attorney General's document stated.
Other FBI documents show that senior bureau negotiators and behavioral experts warned that sending in tanks guaranteed violence and loss of life.
Mr. Coulson has previously said that he did not know of another FBI operation in which armored vehicles were used to assault a barricaded building. He vetoed use of tanks in the 1992 standoff at Ruby Ridge, Idaho, when Mr. Rogers asked to use armored vehicles to demolish the building where white supremacist Randy Weaver was holed up.
Mr. Coulson told Congress that he rejected that proposalbecause tanks would cause panic and loss of life.
When Mr. Coulson told The Dallas Morning News last August that bureau agents had fired pyrotechnic tear gas rounds during the Waco assault, his acknowledgment drew attention back to government actions at the siege. Ms. Reno had explicitly ordered the FBI not to use anything that might spark a fire that day.
That admission led Ms. Reno to appoint former Missouri Sen. John Danforth as a special counsel to re-examine the Branch Davidian incident. It also prompted the reopening of investigations into the Waco tragedy in both houses of Congress.

"Danforth's attempt to keep field test closed could hurt public confidence"

by William H. Freivogel and Terry Ganey ("The St. Louis Post-Dispatch", February 24, 2000)

Next month, investigators will re-enact part of the 1993 siege near Waco, Texas, to determine whether government agents fired shots. Special counsel John Danforth has asked a judge to close the test to the press and public. Press advocates argue that opening the test could inspire public trust. But Danforth says the piecemeal release of information would undermine confidence in his investigation.

* Because the re-enactment will be used in the Branch Davidians' civil case against the government, Danforth has a strong legal case for keeping it closed to the press.

Special counsel John C. Danforth appears to be on strong legal ground in asking the court to close next month's re-enactment of the conditions of the 1993 Waco siege. But his insistence on secrecy could undermine public confidence in his investigation.
That is the view of experts on the press and the courts who reviewed the arguments that Danforth made last week for closing the test next month at Fort Hood, Texas. The test is designed to determine whether government agents fired at the Branch Davidians during the April 19, 1993, assault that ended in the death of about 80 Branch Davidians.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, concedes that the courts have never recognized the right of the public or the press to be present during the "discovery" phase of a civil suit, when both sides gather evidence in advance of a trial. The re-enactment is part of that evidence-gathering in the Branch Davidians' wrongful death suit against the government.
But from a policy point of view, Dalglish thinks Danforth's decision is a mistake.
"By cloaking this whole thing in secrecy, the public gets suspicious about what they were not allowed to see. If they can see what is going on, there is going to be less of a Roswell flying-saucer element," she said.
Early last week, U.S. District Judge Walter S. Smith Jr. denied a Post-Dispatch request for access. The judge said he was denying the request because of national security concerns expressed by the British government, which is loaning a helicopter and infrared camera for use in the re-enactment.
In response to Smith's denial, The Associated Press and the Dallas Morning News filed motions asking Smith to open the test. Later, they were joined by the Post-Dispatch and the San Antonio Express-News. The news organizations argued that closure would interfere with their ability to gather news.

Plans for test were declassified

During a meeting at Danforth's offices last Wednesday, the British and U.S. governments dropped their national security concerns. They declassified information relating to the test, enabling the plans to be made public.
The day after the meeting, Danforth sent his memo to Judge Smith seeking to close the test. Danforth made no mention of national security. Instead, he said he wanted to avoid the plight of other recent special counsels whose investigations were partially discredited because of leaks. Danforth didn't name names, but this was an apparent reference to the recent Whitewater investigation by Kenneth W. Starr.
Danforth signed the memo himself, in contrast to previous court filings signed by assistants. The former senator said the piecemeal disclosure of facts would undermine public confidence by creating "a feeding frenzy of speculation and rumor." In a comment directed at the press, he said, "The special counsel would note that those who, in the past, have condemned leaks from the investigators now demand piecemeal access to fragments of this investigation." Dalglish says Danforth's attempt to close the test could have unintended consequences. "Sometimes investigators don't use their heads on this. If television and news reporters cannot view what happens by standing in a viewing area, they are going to have to rely on leaks. If they have visuals and can watch the test occur, that will probably be what they run." Last week's meeting in St. Louis illustrated Dalglish's point. Danforth insisted on closing the meeting at which the parties discussed the test plan. But details of how the test would be performed leaked out before the meeting, and some details of the discussions leaked out afterward.

Law may favor closure

Danforth has most of the law on his side, the experts say.
Peter Joy, a Washington University law professor, noted that Danforth's memo cited several previous court decisions upholding secrecy in similar matters, while the news organizations had little legal support.
Over the past two decades, the U.S. Supreme Court has broadened the First Amendment right of the press and public to attend trials and pretrial proceedings. But in Seattle Times Co. vs. Rhinehart in 1982, the court said there was no First Amendment right to disseminate information obtained during pretrial discovery.
"It is going to be really tough for the press to gain access to the field test," Joy said. "The tests are being conducted for two purposes. One is the investigation, and the other is the civil lawsuit. That puts it in the same position as a deposition, and to get a deposition open is really unusual." Joy said that the public has a "diminished right to know" what happens during discovery because all of the relevant information eventually will come out in open court. Also, depositions can be misused as fishing expeditions. Because the judge is generally not present, lawyers can ask questions that are eventually ruled out of order by the judge.
Pretrial visits to the scene of traffic accidents are generally not open, Joy said. Nor are scientific tests conducted during discovery.
Still, Joy says, press organizations can argue that the re-enactment is different from a deposition and not subject to the same kind of abuse. If the parties to the case -- the Branch Davidians and the federal government -- do not object, Judge Smith may have the discretion to open the test, he said. The Justice Department said Wednesday that it would defer to Danforth, and Branch Davidian lawyers have said they favor an open test.
Mike McNulty, who has made two films alleging government wrongdoing at Waco, said in an interview that the press ought to be allowed to view the test to avoid suspicions and rumors in the future. McNulty has long said the press must shoulder part of the blame for the 1993 Waco tragedy because it allowed the FBI to push it back away from the complex before the final assault, making press scrutiny impossible.
Danforth argued in his memo to the judge that the field test is analogous to the videotaped depositions taken of former President Ronald Reagan in the Iran-Contra prosecution of John Poindexter and of President Bill Clinton in the Paula Jones sexual harassment case. The press was not present for either deposition.
The Reagan deposition is often cited, however, as an example of a judge providing for prompt press access. Judge Harold Greene arranged for the media to watch the videotape and to purchase a transcript before it was played in court. By contrast, the federal appeals court in St. Louis has not permitted the press to obtain an unedited tape of the Clinton deposition, though it, too, was eventually made public.
Dalglish, of the Reporters Committee, says a better analogy than the Reagan and Clinton depositions is the investigation of the Challenger disaster in 1986, when the space shuttle crashed and the crew was killed.
"Everyone knew that someone had to be at fault, that somebody made a bad decision. But much of that investigation was in public. Many people remember when one of the investigating scientists dropped a piece of rubber in a cold water glass in front of national TV to show how the cold could have made the O-ring more brittle. People had a very substantial confidence in that investigation because they were kept informed." Dalglish said she could understand it if Danforth's argument was that he should not have to immediately provide raw data from the test. "But I don't see what the problem is with letting a group of reporters on to Fort Hood in a reviewing area to watch this." Paul McMasters, the First Amendment ombudsman at the Freedom Forum in Arlington, Va., and former managing editor of the Springfield, Mo., News Leader, said that allowing press access can help the inquiry by making it possible for knowledgeable readers and viewers to contribute their knowledge.
McMasters laments that the learning curve of public officials on the issue of secrecy is a slow one. "The very reason that Danforth was brought in," said McMasters, "was because trust in official inquiries was paramount. The more open, the more trust. And yet this is just one more example of how government officials want the public to trust them, but they won't trust the public."

Arguments against opening the Waco test:

* Piecemeal disclosure of the Danforth investigation will undermine public trust.
* The press and public are not allowed to attend pretrial depositions or scientific tests in civil cases.
* The presence of reporters and camera crews to observe the test will not add much to the public understanding and may distort it.

Arguments in favor of opening the test:

* A closed test undermines public trust and fuels suspicions of a cover-up.
* A closed test interferes with the press's ability to gather news.
* An open test promotes public understanding of the investigation.

"Davidian admits to shooting: Testimony given in civil trial deposition"

(Associated Press, February 24, 2000)

SAN ANTONIO (AP) -- A Branch Davidian survivor has admitted he fired shots at federal agents involved in the Waco standoff.
Livingstone Fagan, one of 11 Davidians tried in San Antonio six years ago, said in a deposition that he shot at two of the four U.S. Bureau of Alcohol, Tobacco and Firearms agents who climbed onto the roof of the sect's compound on Feb. 28, 1993.
Fagan gave the deposition in a wrongful death lawsuit Waco survivors and their families are bringing against the federal government.
Fagan was convicted in 1994 of manslaughter and a weapons charge and is serving a 40-year prison sentence. It's unclear whether prosecutors will file new charges based on his deposition, taken earlier this month at a federal prison in Allenwood, Pa.
The admission was made public this week by the Houston legal firm Caddell and Chapman, which represents several plaintiffs in the civil case.
Fagan is a party to the wrongful death lawsuit because his mother, Doris, 60, and his wife, Evette, 30, died in the 1993 fire that consumed the sect's headquarters on April 19. In court pleadings, attorneys for Davidians and their family members have argued the ATF used excessive force in its Feb. 28 raid, and that the government is to blame for the blaze seven weeks later in which about 80 Davidians died.
In other deposition news, a former FBI leader has testified that sending tanks into the site was not part of the Washington-approved plan for ending the 51-day siege, the sect's lead lawyer said Wednesday.
Former deputy assistant FBI Director Danny Coulson, who made that statement in a deposition Tuesday, was one of the bureau's key decision-makers in drafting the detailed gassing-operation plan that Attorney General Janet Reno approved.
Coulson said last August that bureau agents had fired pyrotechnic tear gas rounds during the Waco assault, an acknowledgment that drew attention back to government actions at the siege. Reno had explicitly ordered the FBI not to use anything that might spark a fire that day in April.


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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