A court-ordered re-enactment designed to determine if FBI agents fired into Mount Carmel on the final day of the 1993 Branch Davidian siege will be closed to the media, a federal judge in Waco ordered Friday.
U.S. District Judge Walter S. Smith Jr. ruled that the media "have identified no constitutional or common-law right that would entitle them to access to this procedure." Smith, who is presiding over a wrongful-death lawsuit filed against the government by Branch Davidians, has cooperated closely with Special Counsel John Danforth's investigation into government actions on April 19, 1993.
Smith ordered the re-creation, which will begin on March 18 at a Fort Hood firing range, at the urging of Danforth and plaintiffs' attorneys in the civil lawsuit.
Lawyers for the Davidians, whose case is scheduled for trial in mid-May, contend the FBI’s aerial infrared surveillance footage proves that gunfire was directed into the building as it burned.
The field test, which will use a British Royal Navy helicopter equipped with an infrared camera much like the one used by the FBI in 1993, is designed to determine whether bursts of light on the Waco infrared footage represent muzzle blasts.
The judge's ruling to close the re-enactment came in response to requests from media outlets, including the Tribune-Herald , to view the tests.
"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," media representatives argued in their motion.
Smith wrote in his four-page order that the media "is entitled to no greater access than is the general public."
"The field tests will be conducted on the grounds of Ft. Hood, a military installation," Smith wrote. "Although Ft. Hood is generally considered an 'open' base, the field test will be conducted in areas that are closed to the public."
Smith also noted that there are "considerations of security and safety," saying that Fort Hood officials have said that the observation area to be used by civilian observers "is of very limited space."
Those scheduled to observe the re-enactment include Smith, Danforth, five government and eight plaintiffs' attorneys or their experts, three members of Danforth's staff, eight congressmen and four representatives each from the FBI and the Department of Defense.
Rob Wiley, a Houston attorney who is president of the Freedom of Information Foundation of Texas, blamed Danforth for Smith's ruling.
Danforth filed a motion with Smith objecting to letting the media view the re-enactment.
"I'm not going to quarrel with the judge and his application of the principles of law to this case," Wiley said. "My problem is with the special counsel. If he wants the public to have confidence in his investigation, he ought to be clamoring for access to the recreation by the public and the press. If the media is denied access, the only people really getting hurt is the public."
In his filings to Smith, Danforth referred to the criticism that Special Prosecutor Ken Starr received for making so much of his case public.
Wiley, however, questioned that argument.
"You can say all you want to say about the Starr investigation, but we certainly know the whole story," Wiley said. "We may not have liked everything we heard, but we didn't feel anything was kept from us." Wiley called the issues of security and safety raised by Smith "smokescreens."
"Let's face it, all those things can be managed," Wiley said. "You can restrict the press to certain areas. You can set up a pool of reporters to cover the event. I understand not wanting a circus out there. But, if you want to, you can balance the public's right to know with the interest in maintaining the integrity of an investigation. This information is going to be made public. Why not let the press in?" Smith wrote in his order that motions from the media asserted that allowing the media access will "assist the public in understanding whether government agents fired weapons during the raid.
"That position indicates a misunderstanding of the field test," Smith wrote.. "The test will merely provide additional data which the experts will then use in arriving at their expert opinions. Observing the field test without the analyses to be made by the experts would no more assist the public in knowing whether federal agents had fired weapons than it would the attorneys or the court."
Also on Friday, lead plaintiffs' attorney Mike Caddell of Houston criticized the government's insistence on the use of a "hemispherical reflector" that could produce flashes similar to those seen on the infrared tapes.
Caddell said government officials want to use a large pop-up tent covered with heat-reflective "space blankets" during the re-enactment to recreate the flashes seen on the FLIR (Forward Looking Infrared) videos.
"It is clear that the Department of Justice/FBI and their experts are so desperate to create a flash during the Fort Hood demonstrations from something other than gunfire that they are willing to sacrifice credibility and scientific accuracy in the process," Caddell said. "It is clear to everyone that there was nothing like a 6-foot-high safari tent covered with space blankets at Mount Carmel on April 19. DOJ/FBI have obviously flung scientific accuracy aside."

A federal judge has closed the March 19 re-enactment of the conditions of the Waco siege, stating that the press has no First Amendment right to access to such pretrial scientific tests.
U.S. District Judge Walter S. Smith Jr. rejected attempts by the Post-Dispatch, New York Times, Dallas Morning News and The Associated Press to obtain access to the test at Fort Hood, Texas. The purpose of the test is help answer the question of whether government agents fired at the Branch Davidians during the April 19, 1993, siege near Waco that ended in the death of about 80 Branch Davidians.
Special counsel John C. Danforth, who proposed the test, had asked the judge to keep it closed to the press and public. Danforth maintained that the credibility of his investigation depended on avoiding an inning-by-inning report on the progress of his investigation. Attorney General Janet Reno appointed Danforth last fall to determine if government agents engaged in illegal acts during the Waco siege.
John T. Gerhart, a Dallas lawyer representing the news organizations, said he had not had time to consult with his clients to determine whether to appeal.
The news organizations maintained that closing the test interfered with their First Amendment right to gather news and undermined the credibility of Danforth's investigation by "shrouding" it in secrecy. They also pointed out that the test was being conducted as part of the wrongful death suit filed by the Branch Davidians against the government and that neither of those parties objected to the presence of a press pool.
Judge Smith said he was denying the media request for "legal and practical" reasons. The practical reasons were security and safety. He said the viewing area for the test is small and that military should not be "responsible for assuring the safety of more civilians than necessary." The parties to the lawsuit, Danforth's staff and members of Congress will be allowed to attend.
The judge likened the re-enactment to other pretrial tests that are closed to the press and public, such as autopsies, DNA tests and lie detectors. He also likened the test to a "crime scene" and said denying the press access would reduce the "likelihood of any type of spurious test results." Smith also challenged the press claim that its access would help the public understand whether government agents fired during the raid. "Observing the field test, without the analysis to be made by the experts would no more assist the public in knowing whether federal agents had fired weapons than it would the attorneys or the court," he said.
Smith promised that "at the appropriate time, the field tests, the videos and the expert's analysis will be publicly released" as long as there is no classified information.

ST. LOUIS (CNN) -- The Justice Department plans to use "heat- reflective space blankets" to show that something other than gunfire could account for flashes seen on infrared videotape shot on the final day of the Branch Davidian seige.
A test of the infrared taping system is to be conducted at Fort Hood this month.
Infrared tape shot April 19, 1993, from an airplane over the Branch Davidian complex shows rapid flashes of light. Attorneys for the Davidians contend the flashes represent federal agents shooting at the Davidians.
The FBI has insisted its agents fired no shots. Its experts say the flashes of light are reflections.
According to a letter from the Office of Special Counsel John Danforth, the Justice Department wants the test to include a 79-square-foot steel frame tent covered with the "space blankets" in order to create a "hemispherical reflector." The reflector-covered tent will be videotaped from planes equipped with infrared cameras.
In addition, soldiers will fire different types of weapons to determine if the muzzle flashes show up as flashes on the infrared tape.
Mike Caddell, lead attorney in a civil suit brought by the Davidians against the government, described the space-blanket reflector as a desperate effort by the Justice Department to disprove his claim that agents were shooting at the Davidians.
"It is clear to everyone," Caddell said, "that there was nothing like a 6-foot-high safari tent covered with space blankets at Mt. Carmel on April 19." But Caddell said he did not object to having the reflector added to the tests because any flashes detected on the infrared tape "would have no credibility in any subsequent analysis."
More than 80 members of the religious sect perished in a fire that began after federal agents attempted to storm the Davidians compound.

When Mike Caddell agreed to represent survivors of the government siege on the Branch Davidian compound in Waco, Texas, few thought he had much of a chance to win his suit. But the Houston lawyer has managed to punch holes in the goverment's defense as the case approaches trial. His motive? Finding the truth, he says.
Mike Caddell says there were doubters when he took the wrongful death case six years ago, but few now question his commitment to finding the truth about Waco.
When Mike Caddell became the lead attorney for Branch Davidian survivors who are suing the federal government, some of the more conservative elements of that group questioned whether he truly believed in their cause.
After all, he was a big campaign contributor to President Bill Clinton. And didn't the Clinton administration supervise the siege that left about 80 Branch Davidians dead? Wasn't it Clinton's Justice Department that blocked attempts to get information about Waco? If there were doubters -- and Caddell says there were -- they have been silenced by the fact that he has taken the Branch Davidians' wrongful death case further than any of his colleagues thought possible when it was filed six years ago.
Last July 1, he cleared a big obstacle when U.S. District Judge Walter Smith Jr. agreed to let some parts of the case proceed.
Caddell passed another milestone last month when the plaintiffs, the government and special counsel John Danforth signed off on a plan to re-enact some Waco conditions for a test to determine if government agents fired at the Branch Davidians.
"Caddell's the guy who's making the engine run," said Mike McNulty, a moviemaker who has investigated the Waco disaster for the past six years. "He is a true believer in the Branch Davidian case and he has put his money where his mouth is."
In December, Texas Lawyer magazine named Caddell as the lawyer with the most impact in Texas last year. The magazine said Caddell's persistence in the Branch Davidian case had done what a criminal trial and congressional hearings had not: punched a hole in the government's defense of its actions at Waco.
Caddell stands about 5 feet 8 inches in his black boots. His brown hair is trimmed just above the collar. Boyish, but not cowboyish, he's passionate when he talks about his clients, who these days are the Branch Davidians.
"People take him at his word, and they don't do that with a lot of lawyers in Texas," said one observer of the Texas legal scene.
With an office in Houston, Caddell is known in Texas for successfully representing plaintiffs in personal injury and product liability cases. Last summer, his nine-member law firm obtained a $30 million settlement on behalf of survivors of 14 Mexican workers killed in a bus accident in Mexico.
Before that, Caddell was lead counsel in a national class action suit against the manufacturer of a plastic pipe that was found to leak and damage homes. That case was settled for $950 million in 1995.
The Branch Davidian case, scheduled for trial in mid-May, now dominates Caddell's life. His firm has sunk $3.5 million in time and $1 million in expenses into it. This month he is deposing FBI commanders who were on the scene at Waco and Attorney General Janet Reno, who gave final approval to the tear gas plan to end the siege.
"He will never get out of it the time and effort and expense he has put into it," predicted Fred Hagans, a friend and lawyer who once worked in the same firm as Caddell. "I don't think he even took the case to generate a substantial fee. He thought it was right."

An unpopular case

Caddell's 10th-floor office occupies a corner of a building in downtown Houston that looks out onto the George Brown Convention Center. David Koresh, the leader of the Branch Davidian religious sect, attended gun shows at the convention center. Caddell, who never met Koresh, now represents the survivors of 52 of the 80 people who died with Koresh during the 1993 siege by federal agents.
Four federal agents and Branch Davidians were killed Feb. 28 during an attempt to search the sect's complex for illegal, automatic weapons and to arrest Koresh. On April 19, after a 51-day siege, converted tanks pumped tear gas into their complex and began tearing it apart. Some of the Branch Davidians died from gunshot wounds and others died from a fire that engulfed the structure.
Caddell got the wrongful death civil case with the help of Richard DeGuerin, Koresh's lawyer. When Caddell picked up the civil case, 11 of the sect's survivors faced murder and conspiracy charges in a federal criminal case. Seven were convicted of lesser charges ranging from voluntary manslaughter to weapons violations.
Representing the Davidians against the government was not popular in Texas. When the case against the government was filed in 1994, the public's perception of what happened at Waco reflected the government's explanations.
"The general public believed the Davidians were nothing but a bunch of religious nuts and child molesters who needed killing," DeGuerin said. "It wasn't easy to find a lawyer . . .
"He (Caddell) had been successful and had the money to finance the case and was willing to do it. You can't always find a lawyer willing to take a very unpopular case -- almost a sure loser -- and be willing to put up his own money." Caddell thinks he will recover money for his clients but acknowledges that "there will be significant liability allocated to the Branch Davidian leadership for what happened at Mount Carmel.
"Not everything you do can be about money," he says. "We take cases we believe in."
The suit alleges that government wrongdoing and recklessness contributed to the loss of lives at Waco.
Caddell said a guiding principle he has tried to follow since getting the case has been to put to rest as many conspiracy theories as possible. He said he suspected the Branch Davidians may have started the fire, "but the government could be culpable in precipitating or accelerating the fire or failing to take steps to stop the fire or impeding the escape from the fire."
He said he first found it hard to believe that government agents fired guns but was convinced by flashes on the infrared tape recorded on the last day of the siege.
"At the end of the day we are going to convince Judge Smith of that," Caddell predicted.
FBI agents have denied firing guns at any time during the siege.

"On the fringe"

A back room in Caddell's law office is dedicated to the Branch Davidian case. There are photos and diagrams of the complex on the wall and a table holds a scale model of the structure. Filing cabinets contain thousands of documents about the case. Last fall, Danforth and a half-dozen of his newly hired investigators assembled in the room to get a briefing from Caddell about what he thinks happened.
Shortly after Reno appointed Danforth to investigate Waco, Caddell faxed to Danforth's office a list of people who would vouch for Caddell's credentials. The list included retired judges and lawyers, some of whom had appeared on the opposite side of cases from Caddell.
"This case, by its nature, has drawn a lot of people who we might characterize as being on the fringe," Caddell said. "I wanted Danforth to know that here was someone who had some credibility. I didn't want him to come in and think this is someone who is a conspiracy theorist." Caddell says credibility is a lawyer's most valuable asset. He believes the government's credibility has slipped with Judge Smith and the public due to shifts in its positions. After years of denials by Reno, the FBI acknowledged that it used pyrotechnic devices during the siege. The infrared re-enactment test next week comes after months of FBI claims that the test couldn't be conducted.
A graduate of the University of Virginia law school, Caddell has been part of a campaign that has raised $132 million for the school. He also has been a big fund-raiser for Clinton.

Coffee at the White House

Caddell has a photo of himself with Clinton, who is wearing a University of Virginia T-shirt Caddell had given him. On the back of the shirt is a statement by the school's founder, Thomas Jefferson: "For here we are not afraid to follow truth wherever it will lead nor to any error so long as reason is left free to combat it."
Records show that since Clinton first ran for president in 1991, Caddell has contributed more than $150,000 to his campaigns or to the Democratic National Committee, a source for soft money for all Democratic candidates. In 1997, the National Center for Responsive Politics ranked Caddell's law firm at 106 among the nation's top 400 contributors to Democrats. Caddell has been a guest for coffee at the White House.
He was one of many lawyers who became more active on behalf of Clinton after George Bush and other Republicans campaigned against trial lawyers and in favor of limiting the damages that plaintiffs could receive in product-liability cases. Caddell said he contributed to Clinton because he thought he was good for the country. During his meetings with the president, he said, they never discussed Waco.
The suit Caddell has brought is one of three avenues that may lead to a conclusion of the Waco matter sometime this year. The other two are investigations by Danforth and Congress.
Caddell says he trusts Danforth and Judge Smith and thinks they have no agenda other than finding the truth. "When this process is over, we need to be able to say we've explored all suspicions and we have confirmed and dealt with them or laid them to rest," Caddell said.
He believes that in the end, some charges will be found baseless and some will merit compensation.
"The job is to assure the public after all these years there has been a thorough airing of what happened at Waco," he said. "The plaintiffs, the defendants, the special counsel and the court should stand up and will be able to say, 'This is what we think is true.' That will close the book on Waco."

WASHINGTON (AP) - A court-ordered field test that will re-enact aspects of the 1993 Waco siege to determine whether federal agents fired any shots into the Branch Davidians' retreat will be closed to the media, a federal judge ruled Friday.
U.S. District Judge Walter Smith of Waco rejected news organizations' argument that the test, due to be held next weekend at Fort Hood in Texas, should be open as a matter of public interest.
``The court has determined that the media have identified no constitutional or common-law right that would entitle them to access to this procedure,'' Smith wrote. ``Pre-trial matters are not public components of a civil trial.''
The judge, who ordered the test and is presiding over surviving Davidians' wrongful-death lawsuit against the government, said the test ``may be likened to a crime scene, which unquestionably may be closed to the public and the press in order to preserve the integrity of the evidence.''
In a motion filed earlier this month, The Associated Press, Dallas Morning News, The New York Times and St. Louis Post-Dispatch said a private field test ``will only increase the public's skepticism about whether all the facts surrounding the Branch Davidian raid have been completely and accurately disclosed.'' The Waco Tribune-Herald also pressed for public access.
John Danforth, a former senator appointed special counsel by Attorney General Janet Reno to investigate the government's conduct during the Davidians' 1993 standoff with federal agents, argued against media attendance. ``The quickest way to discredit an investigation is to provide the media with selective information during its course,'' the special counsel wrote in a motion.
The government and Davidians' lawyers did not oppose public access.
A lawyer representing the news organizations expressed disappointment with the judge's order.
``I don't believe Judge Smith or the special counsel have identified any reason that justifies shrouding this field test in secrecy,'' Dallas attorney John Gerhart said. ``This test goes to a critical issue of whether or not the government fired weapons during the raid. And continued secrecy on such a critical point should not be allowed unless compelling circumstances force that secrecy.''
The Davidians' lead counsel said the public interest would have been served by an .
open test``I just think it's unfortunate for the process because inevitably there will be some people who will read into this some sinister purpose, which is really not there,'' said Houston lawyer Michael Caddell. ``I do think there would be a tremendous benefit created by having press access and having someone that people would view as not having any agenda other than to report the facts.'' The government has long denied that its agents fired shots on April 19, 1993, during the waning hours of a 51-day siege. Davidian leader David Koresh and some 80 followers died during the inferno that occurred several hours into an FBI tank-and-tear gas operation designed to flush the sect members from their retreat.
Lawyers for the Davidian plaintiffs, whose case goes to trial in mid-May, contend the FBI's aerial infrared surveillance footage offers definitive proof of gunfire directed into the building as it burned.
The field test, which will use a British Royal Navy helicopter equipped with an infrared camera much like the one used by the FBI in 1993, is designed to determine whether bursts of light on the Waco infrared footage represent gunfire.
Weapons similar to those carried by the Davidians and federal agents will be fired during the test. Military tanks like those used in 1993 also will be deployed.

Lawyers for the Branch Davidians argued in court papers Wednesday that the federal judge hearing their wrongful death suit should not throw out their claim that government agents may have started the deadly 1993 fire by firing military-style pyrotechnic tear gas at the complex.
The FBI agents in two Bradley Fighting Vehicles near the complex had about 10 pyrotechnic tear gas rounds available on the morning of the fire, and the agents have testified that they saw smoke about 30 seconds after they fired tear gas into the kitchen.
The Branch Davidians did not present evidence that the tear gas fired into the kitchen was flame-causing pyrotechnic gas. The government has said that none of the pyrotechnic gas was fired at the building and that the Branch Davidians started the fire.
The Branch Davidians also argued Wednesday that the head of the FBI's Hostage Rescue Team, Richard Rogers, was personally negligent in not having armored fire vehicles at the complex.

A Texas state trooper who stood guard as the flames were subsiding April 19, 1993, at Mount Carmel, told lawyers Wednesday that he saw a cargo van enter the property and leave carrying a body bag, that a rental truck spirited debris away from the scene and that he heard FBI agents discussing a gunfight.
Sgt. David Keys, a 17-year veteran of the Texas Department of Public Safety, provided details of his observations in a Waco deposition for attorneys in a wrongful death suit that Davidian survivors have filed against the federal government.
Keys told the lawyers that, at about 4 p.m. on April 19, some two hours before Texas Rangers took custody of Mount Carmel from FBI agents, he was told by Texas DPS personnel he should allow a white mini-cargo van to enter Mount Carmel "to pick up a body," plaintiff's attorney James Brannon reported.
Keys also said that when the van left the site, he looked inside and saw a body bag with a shape that could have been that of a corpse.
"The van that Keys saw could only have been kept secret, at that level, by the military," Brannon declared following the testimony. "If somebody was killed, they could just say that he was killed in a training accident. It's a mystery who it was and we're waiting for somebody in the government to tell us."
The van, Brannon said, never has been mentioned in hearings and inquiries into Mount Carmel.
"Keys also says that he also saw something as big as a door being loaded into a U-Haul truck. One of the doors from Mount Carmel has been missing since the day of the fire — the door that might prove that during the Feb. 28 raid, the ATF fired first," Brannon said.
Testimony in the 1994 San Antonio trial of 11 Branch Davidians established that one of Mount Carmel's twin front doors was missing; the other was entered into evidence in the trial.
The missing door, defense lawyers insisted, would show agents of the U.S. Bureau of Alcohol, Tobacco and Firearms had fired at unseen targets during the raid.
According to Brannon, Keys also testified that earlier on April 19, 1993, while Keys was at the DPS Waco commando center, he overhead an FBI agent who said that a "firefight" was under way at the back of the Mount Carmel compound.
Plaintiffs' attorneys have alleged federal agents fired upon Mount Carmel's back side in the final moments of the tank-and-tear-gas assault of April 19.
Justice Department officials did not immediately respond when asked to comment on Keys' testimony.
Keys, who has not testified in the Waco matter before, told Brannon and government attorneys that he observed the van and the rental truck between 3 and 5 p.m., more than an hour before Rangers took custody of the scene.

A veteran FBI behavioral expert told a bureau lawyer in a 1995 interview that he believed FBI officials "misled" Attorney General Janet Reno to gain her approval to gas the Branch Davidian compound on April 19, 1993, a confidential document states.
Retired FBI Agent Peter Smerick, whose psychological profiles were termed the best predictors of the Waco tragedy by experts and negotiators involved in the siege, told FBI interviewers that he believed "the FBI misled the attorney general by giving her 'a slanted view of the operation' in Waco." A 1995 report obtained by The Dallas Morning News says that Mr. Smerick blamed FBI headquarters for convincing the attorney general that using tear gas was the only way to end the standoff peacefully.
He said that he and one of the FBI's top negotiators had by then "concluded that the best strategy would have been to convert the Branch Davidian compound into a prison and simply announce to [sect leader David] Koresh that he was in the custody of the United States. This idea was not endorsed, however." "Smerick speculated that FBI headquarters viewed this option as one which would have caused them to 'lose face' and therefore was unacceptable," the report said.
Mr. Smerick, who retired from the FBI in late 1993 and now is a behavioral consultant in a firm of ex-FBI agents, could not be reached for comment. He has declined interviews, citing ongoing investigations by Congress and Waco special counsel John Danforth. Ms. Reno's spokesman declined to comment.
The 15-page FBI report of Mr. Smerick's interview, written by the FBI general counsel's office, is labeled "attorney-client privileged and confidential." It has never before been made public, and lawyers representing the Branch Davidians in a federal wrongful-death lawsuit say they have never seen the document despite repeated requests for such information.
The report states that Mr. Smerick based his allegation that Ms. Reno was misled on the fact that his five Waco profiling memos were not in the "briefing book" that FBI leaders gave her when they began lobbying her on April 12 to approve using tear gas.
'Last option' Those memos warned that using force against the Branch Davidians would intensify a "bunker mentality" in which "they would rather die than surrender." Mr. Smerick's memos also warned that the sect considered its home "sacred ground" and would "fight back to the death" if the authorities tried to go in. "The bottom line is that we can always resort to tactical pressure, but it should be the absolute last option we should consider," one memo said.
Two of the most experienced negotiators in Waco, including the current head of FBI negotiations and crisis management, said in recent depositions that they agreed with Mr. Smerick's assessments and recommendations in Waco. Both testified that they shared his belief that punitive FBI tactics and impatience killed negotiations and kept many Branch Davidians from leaving before the final day.
More than 80 sect members died when the compound burned. The fire erupted about six hours after FBI agents began spraying in tear gas and ramming the building with tanks. "I think we could've gotten more people out if there were better decisions," retired FBI Agent Frederick Lanceley testified. "I don't think we would have gotten everybody out. But I think we would've gotten more people out." Mr. Smerick's memos were so adamant about the danger of using force that they drew intense criticism from FBI leaders in Waco and Washington who favored tactical options, FBI records show.
An administrative notebook kept by the hostage rescue team in Waco belittled his profiling of Mr. Koresh. One unsigned note in the notebook outlined Mr. Smerick's recommendations for ensuring "safety of children who are victims," and "facilitat[ing] peaceful surrender." It concluded: "psychological profile of a . . . [expletive] by jerks." New procedure On March 9, Mr. Smerick told FBI interviewers, he was called by his boss in Washington and told that his future memos must go to Washington before being read by commanders in Waco.
Although no one plainly stated that he would be censored, Mr. Smerick said in 1995, he felt unmistakable pressure to change his advice. He added in the confidential interview that he believed that "the traditionally independent process of FBI criminal analysis . . . was compromised at Waco." Mr. Smerick told interviewers that he quit writing after submitting an "acquiescent" final memo that omitted previous cautions against pushing the sect and incorporated suggestions from his Washington boss for tactical pressure. He said he left Waco "in frustration" on March 17, though he kept in contact with some negotiators.
Ms. Reno initially balked at the tear-gas plan. On April 16, she asked senior FBI and Justice officials to prepare an annotated report explaining the situation in Waco and the need for a tactical resolution.
FBI headquarters immediately sent a detailed request to Texas seeking "specific documentation to support our position" that tear gas was the only option. The request outlined how the information would be used to argue against waiting out the sect.
The request also stated the FBI's plan for addressing questions about negotiations in the report to the attorney general: "The universal assessment of all involved - including FBI and outside consultants: that negotiation would not work," the internal memo says.
The resulting report, presented to Ms. Reno on the evening of April 17, does not mention Mr. Smerick's behavioral memos. The report said nothing about repeated complaints from him and top negotiators that their efforts to coax sect members out were working until negotiations were derailed by intimidating FBI tactics. The report also said nothing about their warnings that using tanks or other force against the Branch Davidians would cause violence and death.
Instead, the final report to Ms. Reno offered a terse assessment of the Waco negotiations: "Since negotiations began on Feb. 28, 1993, despite 51 days of efforts, the negotiators have concluded that they have not been able to successfully negotiate a single item with Koresh." Reno gives go-ahead According to the 1993 Justice review, Ms. Reno gave that report "a cursory review" and then said that the gassing operation could begin at dawn on April 19.
After seeing the briefing book presented to the attorney general, the report on Mr. Smerick's 1995 FBI interview said, "Smerick speculated that the preparers selectively incorporated memoranda and evidence from the case which selectively supported the tactical step of tear-gas insertion.
"He feels compelled to present the foregoing information for the Bureau's consideration and deliberation in an attempt to prevent similar outcomes in future hostage situations," the report said. "Smerick explained that if he is called to testify at any official public hearings regarding this matter, he will present the facts in a fashion as favorable to the FBI as possible."
Two months after his confidential FBI interview, Mr. Smerick was a witness in congressional Waco hearings. He discussed his memos briefly but offered none of the intense criticisms that he voiced in his FBI interview.
FBI leaders also testified, maintaining that they did everything possible to resolve the 51-day siege peacefully before taking tactical action.
Ms. Reno echoed that in her 1995 testimony, telling Congress that she was "very satisfied" with the information she was given by FBI officials.
The Justice Department's 1993 review of government actions in Waco offered a similar assessment, adding that Ms. Reno's belief "was well founded. . . . No witness involved in this review has claimed otherwise."
Mr. Smerick and some top negotiators did offer highly critical statements to Justice interviewers after the siege, but most details of those complaints were omitted from the review, internal Justice memos show.
Criticisms edited Internal FBI records show that reports from other interviews conducted by the FBI for the 1993 review, including earlier interviews with Mr. Smerick, were edited to remove critical or controversial statements that might reflect negatively on the FBI's efforts in Waco.
In his 1995 FBI interview, Mr. Smerick voiced concerns about the objectivity and accuracy of the Justice review. He complained that he had been shut out of presentations to a panel of outside experts that the Justice Department asked to help with the review in the summer of 1993.
Mr. Smerick said he was excluded from initial meetings with the panel and talked with them only because he barged in uninvited to a final meeting.
"He walked into the meeting room unannounced and requested to speak to the panel . . . and gave them copies of the memoranda he had authored," the 1995 FBI report said. Mr. Smerick added that the agents there were so displeased "that they would not speak to him afterwards."
The panel of experts recommended that select FBI regional leaders receive intensive training in crisis management, including behavioral-science training.
The recommendation prompted a new FBI crisis-training program. But Mr. Smerick told FBI lawyers in 1995 that he and other Waco behavioral experts and negotiators were excluded from classes detailing what happened in the Branch Davidian standoff. Instead, he noted in his 1995 interview, only the two FBI commanders who led the operation in Waco - both vocal advocates of aggressive tactics against the sect - were asked to brief the FBI classes.
"Smerick explained that he finds this very troubling because these [leaders] should have been advised as to what actually happened at Waco from a behavioral-science perspective," the report on the interview said. "Smerick concluded the interview by noting that he has always been loyal to the FBI and will continue to be loyal. He advised that he is providing the foregoing information for in-house edification, not to publicly criticize the FBI."