by William H. Freivogel and Terry Ganey ("The St. Louis Post-Dispatch", March 5, 2000)
No government agents are visible in the approximately 200 aerial photographs that the FBI shot of the April 19, 1993, siege of the Branch Davidian complex near Waco, Texas, according to a Post-Dispatch review of the photos.
That finding lends support to the government position that none of its agents fired at the complex. The photos show no one standing in the places where the Branch Davidians claim that agents opened fire. The Branch Davidians base their gunfire claim on about 100 flashes visible on a separate, infrared surveillance tape that recorded the same area.
But the photos do not answer the question definitively. Mike Caddell, the lead trial lawyer for the Branch Davidians, questions the veracity of the photos and points out that periods of five to ten minutes pass between shots -- plenty of time for agents to get out of armored vehicles and fire on the complex. He notes that the rear hatches on two of the armored vehicles are open, making a quick exit possible.
The still photos were shot by an FBI photographer in one aircraft, while the infrared tape was shot from a second FBI aircraft.
The FBI turned over the photos to special counsel John C. Danforth, Congress and lawyers for the Branch Davidians. Sources made the photos available to the Post-Dispatch for inspection. Justice Department officials and officials critical of the department confirmed a reporter's observation that no agents are visible near the complex in the hours leading up to the fire.
Survivors of the Branch Davidians have filed a wrongful death suit blaming the government for deaths of the approximately 80 people who perished at Waco. Both Danforth and congressional committees are investigating as well.
The photos are attracting quite a bit of attention among all parties. Caddell said he plans to file a memo in court this week challenging their value as evidence. He said he had found a five- or six-minute gap between photos around 11:30 a.m. and another 10-minute gap from 11:45 a.m. to 11.55 a.m. That means that there are no photos for some key periods when flashes appear on the infrared tape. Agents could have been firing at the complex during those intervals and still not show up in the 200 FBI photos, Caddell said.
Meanwhile, the Justice Department has hired a lab to compare the still photos to the infrared tape to look for matches to prove that no one was present to cause the flash, one source said.
The still photos do not have a time signature, but the infrared tape does. A technician can estimate the time of a still photo by comparing the appearance of the complex in a photo to the appearance on the infrared tape. This comparison is easiest in the key minutes before the fire, when a converted tank was knocking down the complex's gym. Technicians can time the photo by matching the damage to the gym in the photo to the damage visible on the infrared tape.
The batch of still photos came to light in January when the Post-Dispatch published one of them. That photo had been timed as having been shot either one second before or 35 seconds after a burst of flashes that appeared on the infrared film at 11:24 a.m. For that reason, it appeared to show that the flashes did not come from gunfire.
Caddell says he has carefully timed that photo and that his analysis of the damage to the gym indicates it was shot more than five minutes later. Justice Department sources say, however, that they have performed their own tests and that there is no question about the 11:24 time.
When the Justice Department learned late last year that the FBI was comparing the photos to the infrared tapes, the government's lead trial lawyer ordered the bureau to stop the analysis. Justice Department lawyer Marie Louise Hagen told the FBI that she feared that the comparison would be viewed as "creating" evidence, sources say.
But now the Justice Department sees the photos as important evidence that could help it refute any unfavorable findings that may come out of this month's court-ordered test to determine if an infrared camera in an airplane detects groundfire as flashes.
Later this month, British experts in infrared technology will recreate the conditions of the Waco siege. Infrared cameras mounted in two aircraft will tape a test area at Fort Hood, Texas, while Army shooters fire a variety of weapons. It is possible that the cameras will pick up the muzzle gases as flashes, but the flashes could have different properties than the flashes on the 1993 Waco tape. In the event of such an inconclusive result, the still photos could help tip the scales in the government's favor.
The Branch Davidians have brought together a number of reputable infrared experts who say that the flashes are from groundfire. But the Justice Department has its own experts who say they are not.
Aside from the flashes, there is no other evidence that the agents fired at Waco. No eyewitnesses have said they saw agents firing. All government witnesses say government forces did not fire a single shot, despite the fusillade from the Branch Davidians.
The government argues that the still photos and the infrared tapes are consistent on one important point -- just as there are no agents in the still photos, there are no shapes of bodies visible on the infrared tape. The government notes that people are visible in other parts of the 1993 infrared tapes and should show up near the flashes if there are agents firing weapons. But the Branch Davidians say the agents may have been wearing camouflage clothing that prevented their being detected.
Caddell, the lawyer for the Branch Davidians, questions the authenticity of the still photos. He says records indicate that the original negatives of the photos may have been lost. He says that the negatives he has seen are made on the kind of paper that is used to make negatives from photos.
The Justice Department denies Caddell's claim. It says that the original negatives are in the custody of the federal court in Waco, where the wrongful death trial will begin in May.
by Lee Hancock ("The Dallas Morning News", March 5, 2000)
Crime-scene records, videos and photographs from the Branch Davidian siege call into question the FBI's account of where, when and how many pyrotechnic tear gas rounds were fired by its hostage rescue team at the end of the 1993 standoff, investigators say.
The Texas Rangers completed a lengthy final report last month on efforts to identify questioned evidence from the standoff and locate a pyrotechnic tear gas projectile that disappeared in 1993 after it was photographed by a Department of Public Safety photographer.
The photographer's field notes show the projectile was "located about 200 yards northwest of the [compound water] tower," the Rangers report states. That means the device probably was fired from behind the building, and not from the area where FBI officials have previously said that only two such devices were launched that day, said investigators involved in the ongoing inquiries.
Based on the accounts from some FBI agents involved in the Waco operation and commercial television footage of the April 19 tear gas assault, investigators say they are also questioning whether members of the hostage rescue team, or HRT, may have fired pyrotechnic gas rounds on April 19, 1993, at a time far later than previously acknowledged.
One investigator also says the appearance of distinctive white smoke characteristic of M-651 pyrotechnic tear gas grenades on video recorded by a Waco television station about 12:09 p.m. suggests that one of the rounds might have been fired as the sect's compound began burning.
"With all that we are seeing, it seems quite probable that the HRT fired more pyrotechnic rounds than they've ever fessed up to," said the investigator. "You have to remember: They were running out of tear gas that day."
Congressional committees and the office of Waco special counsel John C. Danforth are looking into the matter with the Rangers' help.
Bureau officials did not return telephone calls. But they have previously said their agents fired only one or two of the military tear gas rounds during their tear gas assault. They have said those rounds were fired away from the sect's home, at an underground bunker, and were fired before 8 a.m. - hours before the compound caught fire.
More than 80 Branch Davidians died as the compound burned, and attorneys for surviving sect members and families of the dead have filed a federal wrongful death lawsuit alleging that the government's actions and negligence caused the 1993 tragedy.
Government officials have insisted that their agents were not responsible. They have noted that 17 sect members had fatal gunshot wounds, one child was stabbed to death and a government arson investigation ruled that sect members deliberately set the compound blaze in three separate places.
But a fire investigation expert hired by the sect's attorneys has criticized the government fire inquiry as woefully inadequate and based on what he described as suspect evidence never before used in a major fire investigation.
Questions about what the government did on the final day of the standoff have mounted since FBI officials were forced last August to admit the use of pyrotechnic tear gas at Waco.
Top FBI officials had previously insisted that their agents used only nonflammable gas powder and nonburning, plastic tear gas shells known as "ferret" rounds in the April 19 assault. Attorney General Janet Reno had banned the use of anything capable of sparking fires when she approved the FBI's gas assault plan.
But in August, a former FBI official told The Dallas Morning News that at least two military pyrotechnic rounds, known as M-651s, were fired at Waco.
M-651 grenades burn a 20- to 30-second pyrotechnic charge to release a cloud of tear gas. The devices emit a distinctive white smoke while burning and are described in U.S. military manuals as being capable of sparking fires.
The FBI's admission that several of the grenades had been used, in violation of Ms. Reno's ban, prompted new congressional investigations and the appointment of Mr. Danforth to re-examine the government's actions in Waco.
Something was missing
Texas Rangers began their own inquiry early last summer. They were brought in to help investigate the Waco case just after it began and were asked by the Justice Department to retain custody of all key physical evidence after a 1994 criminal trial.
After years of denying all public requests for access to that evidence, federal authorities told the Rangers in 1998 that it could be viewed by an independent filmmaker.
That filmmaker, Mike McNulty of Fort Collins, Colo., told Rangers after being shown the evidence that one key item was missing: a spent gray projectile with a shiny brass top and a red stripe. The item had been photographed by a Department of Public Safety photographer, but it was never turned in or entered into the Rangers' computerized evidence logs.
The Rangers began an investigation to learn what the projectile in the picture might be and what happened to it. They also began trying to identify a 40-mm casing that was found in their collection of Waco evidence.
They were nearing a conclusion last August that the photo showed a spent M-651 pyrotechnic round and that the casing was also from a M-651 grenade when the former FBI official publicly admitted that several of the devices had been fired.
'Somebody pocketed it'
The Rangers searched through tons of stored evidence in Waco late last fall but never found the missing round.
"It's the only item that anyone can think of that was photographed and not entered into evidence," one investigator said. "You can't help but think that somebody pocketed it."
But the Rangers were able to determine more about where the missing projectile was photographed after a federal judge in Waco told the FBI last September that all Waco negatives and accompanying field notes from DPS photographers must be returned to Texas. The bureau had previously responded to DPS requests by sending a partial set of prints of the DPS crime scene photographs to Austin, officials in Texas said.
Field notes checked
After gaining access to their DPS field notes, the Rangers' February report states, their photographer determined that he photographed the projectile on April 30, 1993, in an area in front of the compound.
Investigators say that location suggests that the device was fired from the back side of the compound toward the building.
They say they have doubts about the FBI's claims that M-651s were shot only twice at the underground bunker and were aimed away from the compound because the spent M-651 photographed by DPS was found well behind where bureau officials said their agent fired.
"If it had been shot toward the bunker like they say, that shell should've been found on the back side and not the front," another investigator in Texas said. "Nobody had any logical explanation or reason for why it would be out in the area it was, unless they were firing at something else." In a motion filed last week in U.S. District court in Waco, attorneys for the Branch Davidians noted that hostage rescue team members in a Bradley armored fighting vehicle on the back side of the building fired tear gas rounds into the kitchen just before it caught fire. That motion alleged that there is evidence that the rounds may have been pyrotechnic and could have triggered at least one of the three fires that quickly consumed the compound.
By that time, FBI agents in the Bradleys had fired almost all of the 400-round supply of nonflammable ferret rounds brought to Waco for the assault, records show. Notes found last fall at the hostage rescue team's headquarters in Quantico, Va., state that each of the Bradleys used by the FBI in Waco was stocked with M-651 rounds.
White smoke noted
Notes from a prosecutor's interviews with hostage rescue team agents in the fall of 1993 stated that one agent stationed behind the compound saw "white smoke" coming from the compound kitchen just after noon, and it appeared less than 30 seconds after another agent fired three rounds of tear gas into the kitchen.
The interview notes indicate that the agent who fired those three rounds was the same team member who fired several M-651 rounds at the underground bunker.
Video footage recorded by Waco television station KWTX at 12:09 p.m., just after the compound fire began, shows wisps of white smoke moving low to the ground from the side to the front of the compound.
That smoke is similar to the white plumes that appeared in an area where FBI agents fired pyrotechnic tear gas grenades at that area earlier in the day. A CBS television crew recorded video footage of the agents opening a Bradley hatch to fire that M-651 and the appearance of billowing white smoke where that device landed.
One investigator said the appearance of similar white smoke after noon raises concerns because it is strikingly different from the black smoke rising from the burning building. He said it is also being looked at closely because it appeared well before the fire became hot and big enough to spread to the ground surrounding the building.
"It doesn't mean that the FBI set all three of the compound fires. It raises the question of how much they've been lying about their use of pyrotechnic devices," the investigator said.
The discovery of a melted mass of bluish plastic among the evidence inventoried last November by the Rangers and investigators from Mr. Danforth's office fuels additional uncertainty about how the FBI deployed tear gas on April 19, an investigator said.
The plastic is about the size and weight of one of the nonpyrotechnic ferret rounds used by the FBI. Those rounds have blue tips on milky white bodies, and the blob of plastic is an identical shade of blue, the investigator said.
It was recovered from the bunker deep within the compound where many Branch Davidian women and children went for shelter from the gas attack and later died.
If the plastic came from a ferret round, the investigator said, the device either had to be fired at relatively close range into the bunker or carried in by a Branch Davidian. The investigator called the second prospect unlikely because the ferret round would have been coated by the same tear gas powder that it had expelled on impact, and picking up anything contaminated with that powder would have would caused intense skin irritation.
"It needs to be analyzed to see if the plastic matches the plastic used in manufacture of ferret rounds," the investigator said.
The February report by the Texas Rangers noted that the one roll of DPS crime scene film that was not returned last fall by the FBI was a roll taken inside the bunker.
"With the magnitude of what was pulled out of there, you'd expect maybe to see something like a bullet might turn up missing. But a big projectile? That's unusual," another investigator in Texas said. "A roll of film? That's weird. Remember that was taken where all the bodies were, inside the bunker. Who knows what it means, but having it come up missing? It doesn't make sense."
by Terry Ganey bnd William H. Freivogel ("The St. Louis Post-Dispatch", March 4, 2000)
A former FBI agent who was in command during the final siege on the Branch Davidians said Friday that no agents fired guns or fire-causing rounds at the sect's complex near Waco, Texas, in 1993.
The agent, Richard Rogers, also said he had not deviated from a plan approved by Attorney General Janet Reno when he ordered tank-driving FBI agents to ram deep into the complex during a tear gas attack.
Rogers said one converted tank had plowed into the back of the structure to clear a path for another that was to insert tear gas in an area where the sect's members had taken refuge. In the process, the gymnasium was destroyed, but Rogers said he did not order that to happen.
Rogers made his statements during an eight-hour deposition in Washington, D.C. He was questioned by three lawyers for Branch Davidian survivors, who say his conduct contributed to the deaths at Waco. Rogers was represented by two of his own lawyers and six others from the Justice Department and the FBI.
Informed sources have described Rogers as a key focus of John C. Danforth's investigation of Waco.
Although the deposition was closed, Branch Davidian lawyers and Justice Department sources described what Rogers said. They said his demeanor was calm and confident. Rogers has rejected previous requests for interviews, saying he wanted to wait until the trial of the Branch Davidians' wrongful death suit is over. It is set for May.
Rogers, 56, was the commander of the FBI's hostage rescue team, an elite 50-member unit trained to handle volatile police situations. The unit had surrounded the Branch Davidian complex known as Mount Carmel and was supposed to use tanks and tear gas to force the sect's members to surrender on April 19.
Shortly after noon, about six hours after the gas attack began, the complex caught fire. About 80 people died, some from gunshots but most from the fire.
Branch Davidian lawyers say Rogers should be an individual defendant in their suit because they say he made an on-the-scene decision to accelerate the forced eviction plan that Reno had approved.
Witnesses to the deposition quoted Rogers as saying that an operations plan cannot cover every contingency and that people in the field have to be able to react to conditions.
The plan Reno approved called for a gradual insertion of tear gas into Mount Carmel over a two-day period. Converted tanks equipped with gas pumping booms were to punch holes into the structure. If no one surrendered, then the tanks were to begin dismantling the building.
According to depositions of some tank-driving FBI agents, Rogers ordered that tanks penetrate the building less than six hours after the gas attack began. In an after-action report two days later, Rogers said that was to create openings for people to exit.
In his deposition Friday, Rogers said using tanks to penetrate to insert gas was part of the operations plan. He said he had authority to issue orders that a converted tank penetrate the structure to reach the base of a tower to clear a path for another tank to insert gas there. In the process, one of the tanks destroyed the gymnasium, which was located on the back side of the complex.
Rogers, a former U.S. Army tank officer, commanded the operation from an Abrams tank about 240 yards in front of the structure. He said he could not see the gym.
A former top FBI official, Danny Coulson, said in a previous deposition that Rogers' orders were "inconsistent" with the plan Reno had approved. A memo Coulson wrote was critical of Rogers' conduct, and compared it to the 1992 siege on Randy Weaver's cabin at Ruby Ridge, Idaho, when an FBI sniper killed Weaver's wife.
According to the memo, Rogers convinced the special FBI agent in charge of that operation that Weaver would not come out, although he later did. During Friday's deposition, Mike Caddell, lead attorney for the Branch Davidians, asked Rogers if he had pushed the special agent in charge at Waco, Jeff Jamar, into more aggressive tactics. Rogers replied that he didn't talk anybody into anything at Ruby Ridge or at Waco.
Asked about a firefighting plan, Rogers said someone had checked with the Defense Department about the availability of armored firefighting equipment and that there was none.
Jim Brannon, one of the lawyers for the Branch Davidians, contended that Rogers' testimony showed there had been no "sincere effort" to come up with a firefighting plan.
"They didn't even think about putting out a fire," said Brannon, who represents the estates of three deceased children of the sect's leader, David Koresh, who also died.
Brannon also disputed Rogers' claim that FBI agents were not demolishing the gym. He pointed out that FBI documents proposing to give medals to the hostage rescue team participants said they were being decorated for, among other things, demolishing the gym.
Brannon said although the medals were not awarded, another FBI agent who was deposed on Thursday said that most of the FBI agents were given cash awards for their work at Waco.
Media object to secrecy
In another development, four news organizations challenged Danforth's attempt to close this month's test to determine if government agents fired at Waco. In court papers filed in federal court in Waco, the New York Times, Dallas Morning News, Associated Press and St. Louis Post-Dispatch stressed that neither the Branch Davidians nor the Justice Department had objected to a media presence. The test is being conducted as part of the Branch Davidians' wrongful death suit against the government.
"Having elected to involve his investigation in this lawsuit, the special counsel should not be allowed to shroud in secrecy civil proceedings that otherwise would be open to the public," the news organizations said. Allowing the media to observe the test will "enhance the public's confidence" in the Danforth investigation," they said.
by Susan Parrott (Associated Press, March 3, 2000)
DALLAS (AP) - The special counsel investigating the 1993 Waco siege should not be allowed to ``shroud in secrecy'' a court-ordered re-enactment of aspects of the deadly standoff, several news organizations said in a federal court filing Friday.
``Conducting the field test in secrecy will only increase the public's skepticism about whether all the facts surrounding the Branch Davidian raid have been completely and accurately disclosed,'' The Associated Press, Dallas Morning News, The New York Times and St. Louis Post-Dispatch said in their motion. The Waco Tribune-Herald also is seeking public access.
The media organizations are asking the judge presiding over the Davidians' wrongful-death lawsuit against the government to open to the public a field test that is designed to answer a key question: Whether federal agents directed gunfire at the compound on April 19, 1993.
The test, planned at Fort Hood for the weekend of March 18, is to determine whether an infrared camera used by the FBI could have detected gunfire.
Davidian leader David Koresh and some 80 followers died during the inferno that ended the 51-day siege, some from the fire, others from gunshot wounds.
The government has long denied its agents fired any shots that day, saying the Davidians died by their own hand. But the plaintiffs, in a civil case headed to trial in mid-May, contend the FBI's 1993 surveillance footage offers proof that federal agents fired into the burning building.
The re-enactment was ordered by U.S. District Judge Walter S. Smith Jr. in Waco at the behest of Special Counsel John Danforth.
Danforth has argued against public access to the test, saying ``the quickest way to discredit an investigation is to provide the media with selective information during its course.'' The government has said it would defer to Danforth's wishes.
But the media organizations, in their filing, said Danforth has no right to object to public access because he is not a party to the lawsuit.
``This case involves a civil lawsuit - a proceeding that is presumptively open to the public,'' the motion said. ``Having elected to involve his investigation into this lawsuit, the special counsel should not be allowed to shroud in secrecy civil proceedings that otherwise would be open to the public.''
by William H. Freivogel and Terry Ganey ("The St. Louis Post-Dispatch", March 3, 2000)
John C. Danforth's investigation of Waco appears to be focusing on Richard Rogers, the former head of the FBI's Hostage Rescue Team.
That is the conclusion that some former FBI commanders at Waco have reached based on the questions that Danforth's investigators asked them during recent interviews. Other sources knowledgeable about the special counsel's investigation also believe Danforth's focus is on Rogers.
Rogers is the former Army tank officer in Vietnam who directed the Waco operation at the scene.
He is giving a deposition today in Washington in the wrongful death suit that the Branch Davidians have filed against the government. The Branch Davidians claim that the government -- and Rogers in particular -- was responsible for the deaths of approximately 80 Branch Davidians who died at the standoff in Texas in 1993.
Over the last several months, Danforth's investigators have questioned the top FBI commanders at Waco, including Jeffrey Jamar, Bob Ricks and Richard Schwein. All answered hours of questions voluntarily and without lawyers. They were not put under oath or read their Miranda rights and they were told that no grand jury is currently involved in the Danforth investigation.
Danforth's investigators wanted to know if Rogers had bullied Jamar, the special agent who was in charge at Waco. In particular, investigators wanted to know if Rogers urged Jamar to agree to aggressive tactics, including the destruction of the gym of the complex in the hour leading up to the climactic fire.
Some agents responded that no one could bully Jamar. But they added one caveat: Once the tactical operation of inserting tear gas into the complex began on April 19, Rogers had complete control as head of the Hostage Rescue Team. All that Jamar could have done would have been to call off the operation.
The government has maintained that Rogers and Jamar had the discretion to make decisions at the scene.
But a split in the ranks of the FBI's top command has emerged in recent weeks. Lawyers for the Branch Davidians have released memos and testimony in which Danny O. Coulson criticizes Rogers and Jamar. Coulson was the first commander of the Hostage Rescue Team and was at FBI headquarters in Washington during the Waco siege.
Other FBI agents have generally supported Rogers and Jamar. Several say privately that Coulson never thought anyone ran the Hostage Rescue Team as well as he had.
In one recently released memo from March 23, 1993 - three weeks before the assault - Coulson criticized a plan submitted by Jamar for tear-gassing the complex. Coulson wrote that "a lot of pressure is coming from Rogers." The memo recalled Rogers' role in 1992 at Ruby Ridge, Idaho, where an FBI sniper killed the wife of Randy Weaver. "We had similar problems in Idaho with him," Coulson wrote, "and he argued and convinced the (special agents in charge) that Weaver would not come out. That proved to be wrong." In 1995 testimony to Congress about the Ruby Ridge incident, Coulson testified that FBI officials had not approved the key language of the rules of engagement at Ruby Ridge - that agents "can and should" fire. Rogers added the words "and should" to the orders. Coulson said he had rejected Rogers' plan to use an armored vehicle to knock into Weaver's cabin. In a deposition last month, Coulson said the decision by Rogers and Jamar to knock into the Branch Davidians' gym with a converted tank during the last hour of the siege was a "deviation" from the plan he helped to compose.
Initial drafts of the tear-gassing plan said tanks would "create entrances/escape routes in the structure . . . ." But those parts of the plan were deleted. The final plan called for an incremental approach and only provided for tearing down the complex if the Branch Davidians did not surrender within 48 hours.
Coulson testified that he and Michael Kahoe, another FBI official stationed near him on the day of the operation, were surprised when they saw the converted tank knock into the gym.
Kahoe cursed when he saw it, said Coulson. Coulson responded, "I hope that's a bad camera angle." Coulson testified that Rogers and Jamar had not asked for permission to knock into the gym. And he said that knocking down the gym appeared to be "inconsistent" with the FBI announcement that was being broadcast over the loudspeaker at Waco that no assault was under way.
The Branch Davidians also cited Coulson's testimony in a legal filing on Thursday that blamed Rogers and Jamar for not having fire equipment standing by. The fire burned more than 30 minutes before fire fighting began.
The Justice Department's 1993 report on Waco said Attorney General Janet Reno had not asked for fire trucks to be standing by because she was worried about an explosion, not a fire. But Michael Caddell, lawyer for the Branch Davidians, said Coulson testified that Reno had asked for all kinds of emergency vehicles.
According to the record of an April 9, 1993, telephone call Jamar and Rogers made to FBI headquarters, the two decided, "There would be no plan to fight a fire should one develop in the Davidian compound."
Jamar explained later that he would not have allowed fire vehicles near the complex any sooner than he did for fear of subjecting the fire fighters to Branch Davidian gunshots. But Caddell says the FBI could have obtained armored fire equipment.
Coulson also was involved in the events of last summer that led to reopening the Waco investigation. He confirmed that Rogers had authorized the firing of pyrotechnic tear gas in the early morning of the day of the assault. This contradicted Reno's repeated assurances that no fire-causing tear gas had been fired at Waco and prompted Reno to appoint Danforth. There still is no evidence that pyrotechnic tear gas was fired at the complex or started the fire.
("Houston Chronicle", March 2, 2000)
WACO -- Branch Davidians suing the government contend that FBI commanders never planned to fight the fire that ended the standoff with the sect in 1993, although adequate firefighting equipment would have saved many lives.
Court documents prepared by plaintiffs attorneys detail exchanges between FBI commanders and Washington prosecutors on April 9, 1993, as FBI leaders finalized plans to assault the sect's compound with tanks and tear gas.
The documents were included in a motion aimed at convincing a federal judge that the FBI's two Waco commanders, Jeffrey Jamar and Richard Rogers, should remain defendants in the civil suit, which is scheduled to go to trial on May 15.
An FBI summary of an April 9 briefing indicated that Assistant U.S. Attorney LeRoy Jahn asked FBI leaders in Waco "if there was a firetruck available in case the Davidians attempted to torch the compound."
Waco FBI leaders sent back to Washington their plan for emergency medical treatment during the proposed tear gas assault, according to the motion.
But that report added, "per . . . Jamar and . . . Rogers, there would be no plan to fight a fire should one develop in the Davidian compound." Lead plaintiffs' attorney Michael Caddell of Houston called the lack of a fire plan "unforgivable. ... How can you propose an operation like this that has the potential for a violent response, with 25 children in there, and have no intention to try and fight a fire?" he said Thursday.
Davidian leader David Koresh and some 80 followers died at their compound 10 miles east of Waco, some from the fire, others from gunshot wounds.
The government has long contended that the Davidians fulfilled their apocalyptic vision by setting the building aflame.
"The truth is ugly," the plaintiffs say in their motion.
"Rather than making choices from among various options based on `social, economic and political reasons' and `finite resources,' Jamar and Rogers simply decreed there would be no plan to fight a fire should one develop in the Davidian compound. This is not defensible on discretionary function or any other basis."
The government contends Jamar and Rogers should not be reinstated to the lawsuit, claiming that as government officials their decisions were shielded under the "discretionary function" privilege.
Jamar has told Congress he held fire trucks back from the blaze that ended the 51-day standoff for fear firefighters might be shot.
But government agents could have taken precautions to protect firefighters, plaintiffs' attorneys said in their motion.
"The potential for gunfire from at least some of the Davidians when the tanks began inserting tear gas was well known," the motion says. "The FBI's special agent in charge, Jeff Jamar, `believed it was 99 percent when we approached with the tank they would fire.' "
"Given that expectation, the FBI's reliance upon a local volunteer fire company as the `primary responder' for fire suppression was particularly egregious.
The plaintiffs' attorneys also released their own arson experts' report on the fire. Fire investigator Patrick Kennedy's report said adequate firefighting equipment on the scene could have saved many lives.
by Lee Hancock ("The Dallas Morning News", March 2, 2000)
Hours after a federal prosecutor cautioned the FBI about the need for firetrucks at the Branch Davidian compound, the bureau's Waco commanders sent a message to Washington saying they wouldn't even try to fight any blaze that might break out.
FBI records show that the two exchanges occurred on April 9, 1993, as FBI leaders were finalizing plans to assault the sect's compound with tanks and tear gas.
Lawyers for the sect included the documents in a Wednesday motion aimed at convincing a federal judge that the FBI's two Waco commanders, Jeffrey Jamar and Richard Rogers, should remain defendants in the Branch Davidians' wrongful death lawsuit.
Justice Department attorneys maintain that federal law protects the Waco commanders from a civil lawsuit arising from their actions in the 1993 siege.
Lawyers for the Branch Davidians on Wednesday also released their own arson experts' report on the fire that consumed the Branch Davidian compound within hours after the FBI tear gas assault began on April 19, 1993. That report, by Chicago-based fire investigator Patrick Kennedy, stated that adequate firefighting equipment could have been obtained for the siege and would have saved many lives.
More than 80 Branch Davidians died in the fire that ended the 51-day standoff.
"If the fire had been extinguished in its early stages, there probably would have been little, if any, loss of life," Mr. Kennedy's report stated.
A document filed with the Branch Davidians' Wednesday motion, a two-page FBI summary of an April 9 briefing, indicated that Assistant U.S. Attorney LeRoy Jahn asked FBI leaders in Waco "if there was a firetruck available in case the Davidians attempted to torch the compound."
A second document, described in the sect's motion as a phone report filed at FBI headquarters at 7:30 that evening, reported that Waco FBI leaders were sending Washington their plan for emergency medical treatment during the proposed tear gas assault. But that report added, "per . . . Rogers, there would be no plan to fight a fire should one develop in the Davidian compound."
The Justice Department's lengthy 1993 review of the Waco tragedy gives no indication that Attorney General Janet Reno was advised of the FBI commanders' decision. Mr. Jamar later told Congress that he held local firetrucks back from the compound for more than 40 minutes after it caught fire because sect members had fired shots at FBI tanks that morning and he didn't want to endanger firefighters.
The one-page document detailing his April 9 report to FBI headquarters was filed under court seal. Justice Department lawyers turned the document over to the Branch Davidians' lawyers on condition that it be kept confidential and not released to the public, Wednesday's court pleading indicated, but it was included in the pleading.
Government lawyers contend that Mr. Jamar, the bureau's overall commander in Waco, and Mr. Rogers, head of its Hostage Rescue Team, cannot be sued for "judgment calls" even if those lead to tragedy because they are broadly protected by federal law.
Justice Department lawyers have told U.S. District Judge Walter S. Smith that strict federal limits on how and when the government can be sued preclude the court from considering whether authorities contributed to the 1993 deaths by ordering tanks to demolish the sect's building and then refusing to let fire trucks approach after it caught fire.
They have also argued that a report by government arson investigators ruled that sect members set the fire. That report relied heavily on an infrared video recorded from an FBI airplane, which showed the heat signatures of fires erupting within two minutes in three separate parts of the compound.
The government has contended that additional evidence used in the 1994 criminal trials of surviving Branch Davidians supports that claim. In that case, prosecutors argued that FBI surveillance devices recorded voices of sect members discussing their preparations to burn their building.
But lawyers for the Branch Davidians challenged those assertions in their motion and in reports from a fire investigation firm, a recording expert and other forensic specialists.
"This is a story of a government agency run amok, and two guys, Jamar and Rogers, who are apparently answerable to no one. They thought they were the law," said Mike Caddell, lead lawyer for the sect. "The American people should be angry because what we know now is how badly we've been misled, how badly we've been lied to for seven years.
The Branch Davidians' pleadings and expert reports released Wednesday contend: The failure to obtain adequate firefighting equipment before launching a tear gas assault violated a specific directive from the attorney general to spare no expense or effort in ensuring "an adequate emergency response."
A senior FBI official recently acknowledged that Ms. Reno asked the FBI to ensure that it could address fire threats at the compound. That official, retired FBI Agent Danny O. Coulson, said the availability of armored firefighting equipment was investigated, but it was never obtained.
The acting attorney general when the standoff began later told FBI officials that bringing in fire trucks might have been risky or impractical, but forest-fire fighting equipment might have been used. "Think about fire next time," the official, Stuart Gerson told FBI investigators, FBI records indicate.
Mr. Kennedy stated that suitable fire equipment was available, including water cannons used for riot control, armored firefighting vehicles deployed by the city of Washington and helicopter-borne water slings used to fight forest fires.
Mr. Coulson, who helped supervise the Waco siege from FBI headquarters, said the decision to send tanks into the building, which experts on both sides said contributed to the rapid spread of the fire, was inconsistent with the plan Ms. Reno approved.
Mr. Kennedy's report concluded that the government's investigation, which ruled that Branch Davidians set the compound fire, was "fatally flawed." He noted it failed to follow national standards, overlooked the government's possible role in the blaze and hinged on evidence "that has never been used in such fire investigations before or since."
That evidence, an infrared videotape shot by an FBI airplane above the compound on April 19, does not prove "with any certainty the origin of the fire."
Mr. Kennedy, whose past cases include the Las Vegas MGM Hotel fire, the DuPont Plaza Hotel fire in Puerto Rico and the Philadelphia MOVE standoff fire, wrote that the government's bulldozing of the crime scene "made it impossible to answer the questions left open by the government's inadequate fire investigation."
"When analyzed according to accepted industry standards of fire investigation, the origin of this fire must be listed as 'undetermined,' and the responsibility for this fire must be listed as 'undetermined,' " Mr. Kennedy stated.
The Branch Davidians' court filing contended that post-fire interviews with FBI hostage rescue team members suggests that tear gas rounds two agents fired into the compound kitchen "accidentally triggered a fire." A federal prosecutor's notes stated that one agent reported firing "three rounds into kitchen & at same time less than 30 sec later he saw white smoke." That agent fired military pyrotechnic tear gas rounds at a bunker near the compound in the first hours of the gas assault.
Ms. Reno banned the use of any devices capable of sparking fires that day.
Mr. Kennedy's report disputed conclusions of government investigators that the propellant FBI tanks used to spray in gas was nonflammable and incapable of contributing to the fire.
Mr. Kennedy said the propellant, methylene chloride, is highly flammable in vapor or mist form. He added, "there are many documented cases of fires and burn injuries fueled by methylene chloride vapors."
He noted that propellant vapors "could significantly contribute fuel to the rapidly propagating flash fires reported by surviving Branch Davidians" A former Secret Service forensic recording specialist hired by the sect to analyze FBI audio and videotapes said he had found broad evidence of tampering and erasures in crucial government recordings.
The expert, Steve Cain, stated that tapes of the surveillance recordings from April 19 that Justice lawyers described as originals to the Waco federal court all appeared to be copies.
He said those April 19 recordings, which included what prosecutors said was the sect's fire preparations, included instances were two tapes labeled as simultaneous recordings contained noticeably different "speech content."
Those and other anomalies led Mr. Cain to conclude that the tapes' "reliability, authenticity and originality are in serious question and indicate that portions of these recordings have been tampered with." Mr. Cain said the government's April 19 infrared recordings appear to have been altered, and the videos from the six hours before the fire contained evidence "that they have been probably edited and possibly tampered with."
That evidence includes the erasure of the audio track from the infrared tape shot in the crucial hour before the fire, he said.
That tape includes repeated flashes on the back side of the compound that lawyers and experts for the sect have alleged were caused by government gunfire. Government lawyers have denied that their agents fired a single shot on April 19.
The government's videotape from that period contains electronic signalssuggesting the erasure all of the discussions between personnel in the plane that carried the camera and cockpit broadcasts of radio traffic between FBI agents on the ground, Mr. Cain's report stated.
Although government lawyers told Judge Smith that tape was an original, Mr. Cain wrote, it appears to be a copy, "and therefore does not constitute reliable evidence."
(Associated Press, March 2, 2000)
DALLAS (AP) - Ten days before the deadly inferno at the Branch Davidian compound, the FBI told prosecutors it had no plans to battle any blazes, The Dallas Morning News reported Thursday.
A motion filed Wednesday by attorneys in a wrongful death lawsuit over the raid cited FBI records of two exchanges as plans were being finalized to assault the compound near Waco with tanks and tear gas.
In a two-page FBI summary of an April 9, 1993, briefing, Assistant U.S. Attorney LeRoy Jahn asked FBI leaders in Waco ``if there was a fire truck available in case the Davidians attempted to torch the compound.'' A second document, described as a telephone report filed at the FBI's Washington headquarters that evening, said ``there would be no plan to fight a fire should one develop in the Davidian compound,'' according to the News. Plaintiffs' attorneys filed the motion to convince U.S. District Judge Walter Smith that the FBI's on-scene commanders, Jeffrey Jamar and Richard Rogers, should remain defendants in the wrongful death suit.
Jamar has told Congress that he held fire trucks back from the compound for more than 40 minutes after it caught fire because he feared sect members would endanger firefighters.
Davidian leader David Koresh and some 80 followers died at the compound after the FBI assault began April 19. Some inside died from the fire, others from gunshot wounds.
Plaintiffs' attorneys also released a report by their fire investigator, Patrick Kennedy, who said adequate firefighting equipment on the scene could have saved many lives.
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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