Subject: [conservativefriends] An Unofficial Account of the
Waco Incident
Date: Sat, 19 May 2001 20:51:31 PDT
From: carl william spitzer iv <cwsiv_2nd@juno.com>
Reply-To: conservativefriends@yahoogroups.com
To: conservativefriends@yahoogroups.com
Source: Cato Institute
No Confidence
by Timothy Lynch
Executive Summary
On February 28, 1993, a
force of 76 agents from the
Bureau of Alcohol, Tobacco, and Firearms tried to storm the
residence of a religious group known as the
Branch Davi-
dians. A firefight broke out, and there were
deaths and
injuries on both sides. The ATF maintains that its
agents
were ambushed while the Davidians claim that they were fired
upon without provocation, feared for their lives and
acted
in self-defense.
The Branch Davidian
residence was subsequently sur-
rounded by federal and state authorities and
the Federal
Bureau of Investigation assumed control. Weeks went
by as
the FBI and the Davidians engaged in negotiations to resolve
the standoff peacefully.
On April 19, 1993, Attorney General
Janet Reno gave the
FBI permission to flush the Davidians out of
their resi-
dence. FBI agents used tanks to smash holes in the walls of
the building and then sprayed tear gas into the
residence.
Agents also used hand-held grenade launchers to fire
more
than 350 "ferret" rounds into the windows of the
building,
but none of the Davidians obeyed the FBI's command to
exit
the residence. A fire then broke out, and
76 Davidians,
including 27 children, perished.
That incident-- which
is now referred to simply as
Waco--has become the most controversial
law enforcement
operation in modern American history. Although the
"offi-
cial" investigation of the incident now places all
of the
blame for the carnage on the Branch Davidian leader,
David
Koresh, numerous crimes by government agents
were never
seriously investigated or prosecuted. If those
crimes go
unpunished, the Waco incident will leave an odious
prece-
dent--that federal agents can use the "color of
their of-
fice" to commit crimes against citizens.
Introduction
On April 19, 1993,
agents of the Federal Bureau of
Investigation used tanks to assault a building
that con-
tained 76 men, women, and children. The tanks rammed
holes
through the walls of the building and
sprayed tear gas
inside. Because the adults in the building had gas
masks,
the FBI's tactical objective was to gas the children so
as
to prompt the parents to gather them up and flee the struc-
ture.1 After several hours of gassing, a fire broke out and
almost everyone in the building died. That incident,
which
is now commonly referred to as Waco because it took place a
few miles outside of Waco, Texas, has become the most
con-
troversial law enforcement operation in
modern American
history.
For years questions
have lingered about whether the
federal government was completely forthright
about what
happened at Waco. Did the people in the
building really
commit mass suicide? Or was it closer to murder, with feder-
al agents abusing their power and then covering
up their
misdeeds? The "official" investigation of the Waco
incident
was headed by former Missouri senator John C.
Danforth,
whose report essentially exonerated the federal
government
of wrongdoing.2 The factual record, however, does not
sup-
port Danforth's sweeping exoneration. On the
contrary, it
raises deeply disturbing questions not only about the tact-
ics used at Waco but, more generally, about
the mindset
often found in America's increasingly militarized law
en-
forcement agencies.
Because several federal
agencies were involved in the
Waco incident and because eight years have passed since the
primary events took place, I will begin by chronicling
the
federal government's actions and related events to provide a
frame of reference for the conclusions that follow. I
will
then identify serious crimes that I believe were
committed
by government agents at Waco--crimes that have never
been
thoroughly investigated or prosecuted. My
identification
of crimes is not based on conspiracy
theories or newly
discovered evidence. Rather, I identify crimes on the basis
of the undisputed actions of high-ranking
officials. I
conclude by indentifying questionable conduct that warrants
further investigation.
Chronology of Events
An exhaustive chronology of the
events that have taken
place over the past eight years is beyond the scope of this
study. The chronology that follows should
suffice as a
frame of reference for the findings and
conclusions that
follow.3
* June 4, 1992: After receiving a tip about the
possible
manufacture of illegal firearms,
the Bureau of Alcohol,
Tobacco, and Firearms
opens an investigation of a
religious sect, known as the Branch
Davidians, located
at the Mt.
Carmel complex near Waco, Texas.4 Mt.
Carmel is a 77-acre ranch with
several buildings. The
main residence houses approximately
100 men, women, and
children.
* July 30, 1992: ATF agents
interview Texas firearms
dealer Henry McMahon about
his business dealings with
Branch Davidian leader David
Koresh. During the inter-
view, McMahon telephones Koresh.
Koresh tells McMahon
that if the ATF agents perceive any
legal problem, they
can come to Mt.
Carmel and check his inventory and
paperwork. ATF agents decline
the invitation.5
* November 1992: Producers of CBS's 60
Minutes contact
ATF officials about sexual
harassment in the agency,
requesting an interview with the
director, Stephen Hig-
gins. ATF officials brace
themselves for an unflatter-
ing report on national television.6
* December 1992: On the basis of
information developed
through its investigation, ATF
concludes that there is
probable cause to
believe that David Koresh is in
violation of federal firearms
regulations. ATF begins
to develop a plan to
search Mt. Carmel and arrest
Koresh.7
* January 10, 1993: 60
Minutes airs a story titled
"Alcohol, Tobacco,
Firearms and Harassment," a devas-
tating report on sexual
harassment within the ATF.
Several female agents
describe how they were sexually
harassed by fellow
agents and further describe the
retaliation they received after
they lodged complaints
with their supervisors.
Agent Bob Hoffman, who cor-
roborated on of the female
agent's complaints, tells
Mike Wallace: "In my career
with ATF, the people that I
put in jail have more honor than
the top administration
in this organization. I
know it's sad commentary, but
that's my experience with the
ATF."9
* January 21, 1993: ATF solicits military
assistance for
its planned raid. Among other
things, the ATF requests
use of the Military Operations in
Urban Terrain facili-
ty at Fort Hood, Texas.9
* February 25, 1993: ATF agents seek and obtain
an arrest
warrant for David Koresh and
a search warrant for the
Mt. Carmel complex.10
* February 26-27, 1993: U.S. Army Special
Forces at Fort
Hood assist ATF agents
in rehearsing a raid on the
Branch Davidian residence.11
* February 28, 1993: The ATF
tries to storm the Mt.
Carmel complex. At about 9
a.m., National Guard heli-
coptors carrying ATF
agents arrive and circle Mt.
Carmel in an attempt to
divert the attention of the
Branch Davidians.
Moments later, two pickup trucks
hauling covered cattle
trailers pull into the Mt.
Carmel driveway. The
trucks and trailers contain 76
heavily armed ATF agents.
As the agents exit the trailers and
approach the front
door of the complex, shots
are fired and a fierce gun
battle ensues. The ATF
and the Davidians accuse one
another of firing the first
shot. After an hourlong
firefight, a ceasefire
is arranged. The Davidians
agree to hold their fire in return
for the ATF's prom-
ise to leave the property.
During the raid, ATF agents
shoot and kill two Davi-
dians and wound five others.
The Davidians shoot and
kill four ATF agents and wound 20
others. Measured in
casualties, it is not only the
worst day in the history
of the ATF but the worst day in the
history of federal
law enforcement.12
That afternoon, ATF agents
and Texas police surround
Mt. Carmel, and
telephone negotiations begin. The
standoff will last another 51 days.
* March 1, 1993: ATF relinquishes jurisdiction
to the De-
partment of Justice
and, in particular, to the FBI.
(The ATF is a component of the
Department of the Treas-
ury; the FBI is a component
of the Department of Jus-
tice.)13
* March 2, 1993: David Koresh promises to
surrender to
the authorities if they agree to
facilitate a national
radio broadcast for him.
A cassette tape is recorded
and played on the Christian
Broadcasting Network, but
Koresh does not surrender.
Koresh tells the FBI and
his followers that God has told him
to "wait".14
Within a week, however, 23
Davidians leave Mt. Carmel.
The adults are
immediately arrested and jailed; the
children are turned over to Texas
authorities or rela-
tives.
* March 8, 1993: ATF agents execute
another search war-
rant for a property
approximately five miles from Mt.
Carmel. The break into
a garage rented by one of the
Davidians in the hope
of discovering incriminating
evidence. The owner of the
garage, who is not a Branch
Davidian, is outraged by the
property damage and tells
reporters: "The
feds have torn the building to
pieces.... I don't understand
why they had to do that.
I offered yesterday to give them a
key."15
That evening, the Davidians send
out videotapes of the
children within Mt. Carmel.
The FBI had video camera
equipment sent in and asked
the Davidians to film the
children to reassure
the bureau that they were all
right. After
reviewing the videotapes, FBI agents
conclude that it would
not be in their interest to
release the tapes to the
media. A notation in an FBI
logbook cautions that, because
Koresh shows his bullet
woulds and explains the
circumstances in which he was
shot on February 28, he would
gain much "sympaty" if
the tapes were ever disclosed.16
* March 15, 1993: ATF headquarters in
Washington, D.C.,
orders its agents in Texas not to
discuss the February
28th raid publicly. The
message implies that anyone
who violates the order will be
disciplined, dismissed,
and possibly prosecuted.17
* March 26, 1993: David Troy, chief of
intelligence for
the ATF, defends his agency's
February 28th raid. Troy
tells reporters, "We feel
confident that there were no
mistakes made on our part."18
Troy dismisses critics of
the raid as "second
guessers and Monday morning quar-
terbacks who do not have access to
the facts."19
* March 28, 1993: ATF field agents
begin speaking to
reporters--on the condition
that their identities not
be revealed.
The New York Times reports that the
ATF agents involved
in the February
28th raid have likened it "to the
Charge of the
Light Brigade, laden with missteps,
miscalculations and unheeded
warnings that could have
averted bloodshed."20
One of the unexplained issues
raised by the New York Times report
is why the ATF did
not try to arrest
Koresh when he was away from Mt.
Carmel: "At first, [ATF
officials] said they believed
Mr. Koresh remained in
the compound for months at a
time and could be captured only
there, but many people
in Waco insisted that
they had seen him at bars and
jogging in the weeks before the
raid. Then in response
to the apparent discrepancy, the
[ATF] conceded that it
never conducted
round-the-clock surveillance of Mr.
Koresh, so that it did not know
whether or how often he
left the compound."21
Another issue is
whether the ATF had given the news
media advance notice of the raid.
According to the New
York Times, ATF officials
"initially insisted that the
raid had been conducted under the
strictest secrecy and
that no members of the news
media had been given any
information that could have
been construed as a tip-
off. But later, when
questions arose, they conceded
that some news organizations had
been called."22
* March 30, 1993: The FBI allows criminal
defense attor-
ney Dick DeGuerin to enter Mt.
Carmel, unescorted, to
meet with David Koresh to discuss
his legal defense and
to negotiate a peaceful
settlement.23
* April 19, 1993: After 51 days of
negotiations, Attorney
General Janet Reno and
the FBI decide to flush the
Davidians out of Mt. Carmel.
At approximately 6:00
a.m., FBI agents approach the
residence in tanks that
are specially equipped with
giant booms, which can insert
a chemical agent called
CS gas. As the booms on
the tanks smash through the
walls of the Mt.
Carmel residence and CS gas is
sprayed inside, the FBI repeatedly
broadcasts a message
over loudspeakers.
Among other things, the message
says, "This is not an
assault" and "This standoff is
over."24
Some Davidians shoot at
the tanks, but no Davidians
exit Mt. Carmel.
At 6:47 a.m., the FBI
tactical commander orders his
field agents to use
their grenade launchers to fire
"ferret" rounds through
the windows (a ferret is a 40-
mm canister that discharges
tear gas on impact). At
7:10 a.m., field agents report that
ferret rounds have
been fired into all of
the windows at Mt. Carmel.
Some 389 ferret rounds
are fired into the residence
throughout the morning.25
At approximately 12:00 p.m., a fire
breaks out and the
Mt. Carmel complex is
engulfed in flames. FBI offi-
cials do not let fire
trucks approach the residence
because of the risk of hostile
gunfire.
Nine Davidians survive the
fire; seven of them manage
to get out of the
complex on their own, and tow are
aided by FBI field agents.
The surviviors are imme-
diately arrested and turned
over to ATF for booking.
One ATF agent sees to
it that his agency's flag is
hoisted to the top of the Davidians
flagpole.
Seventy-six Davidians die,
including 27 children. Most
die from smoke
inhalation but at
least 20 Davidians have gunshot
wounds.26
In Washington, D.C.,
Reno holds a news conference,
telling reporters
that the tear gas was necessary
because she had
received reports taht "babies were
being beaten."27 Reno
nonetheless recognizes that the
FBI operation was an
abject failure and offers her
resignation to President Bill
Clinton.
President Clinton tells reporters
that he has no inten-
tion of asking for or accepting
Reno's resignation just
"because
some religious fanatics
murdered
themselves."28
* April 28, 1993: The Judiciary Committee of
the House of
Representatives holds a
one day hearing on the Waco
incident.
Reno admits that she had no
evidence that any child was
being beaten at any time during the
standoff.29
Reno and FBI officials
testify that they did not use
any pyrotechnic devices, that
they were surprised and
saddened that the Davidians
started a fire, and that
their field agents
did not fire their guns at the
Davidians on April 19th.
* May 23, 1993: 60 Minutes
rebroadcasts its January
report about sexual
harassment within the ATF. After
the rebroadcast, Mike Wallace
reports that almost all
of the ATF agents that
he talked to said that they
believed the initial raid on
the Branch Davidians in
Waco "was a publicity stunt,
the main goal of which was
to improve the ATF's tarnished
image."30
* August 6, 1993: The Department of Justice
seeks and ob-
tains a grand jury indictment
against 12 Branch Davi-
dian survivors. The
Davidians face various charges,
including conspiracy to murder ATF
agents.31
* October 1, 1993: The Treasury
Department issues its
report on the ATF's handling
of the Waco raid. Among
other things, the
report says that "senior agency
officials went to even greater
lengths than previously
believed to deceive
investigators and Congress. It
said officials had changed a
written record of the plan
after the raid in a
self-serving way, and then lied
about the alterations.
It also concluded that the
officials had tried to pin blame
for the failure on an
undercover agent who in
fact had tried to stop the
raid."32
After issuing the
report, Treasury Secretary Lloyd
Bentsen announces that he is
replacing the head of the
ATF, Stephen Higgins,
and is suspending five other
officials who misled Congress, the
Clinton administra-
tion, and the press about what had
occurred.33
* October 8, 1993: The Justice
Department issues its
report on its
handling of the Waco incident. The
report finds that neither
Reno nor any official with
the FBI engaged in misconduct or
made any mistakes.34
* January 10, 1994: The
criminal trial of 11 Branch
Davidian survivors begins (one
survivor pled guilty and
did not stand trial).
Prosecutors with the Department
of Justice claim the
Davidians ambushed and murdered
ATF agents who were
attempting to execute lawful war-
rants. Lawyers for the
Branch Davidians maintain that
their clients feared for their
lives and acted in self-
defense.35
* February 26, 1994: The jury returns its
verdict in the
criminal case. Eleven
Branch Davidians are acquitted
of all the conspiracy
charges. Seven of the 11 are
convicted of lesser charges, and 4
are acquitted of all
charges. The New York
Times reports that "the jury's
verdict amounted to a stunning
defeat not only for the
Justice Department, which
prosecuted the case, but for
the Bureau of Alcohol, Tobacco, and
Firearms."36
Reno issues a statement that says
the jury's verdict is
actually a vindication
of the federal government's
version of events.
Because the jury did not reject
every single allegation made
by the prosecutors, Reno
claims the jury was
sending "a message that we were
justified in our actions."37
* March 21, 1994: The surviving Davidians
and relatives
of deceased Davidians
file a $100 million wrongful
death lawsuit against the federal
government.38
* June 17, 1994: U.S. District Court
Judge Walter Smith
metes out stiff prison
sentences to the Davidians who
were convicted by the jury in the
criminal case. Five
Davidians receive the
maximum sentence of 40 years
imprisonment. Three Davidians
receive sentences rang-
ing from 5 to 20 years.39
The jury forewoman,
Sarah Baine, wept outside the
courtroom. After the trial,
but before the sentencing
hearing, Baine sent
Judge Smith a letter that said,
"Even five years is too
severe a penalty." Baine at-
tended the sentencing
hearing in the hope that her
presence in the courtroom
would remind Judge Smith of
her request for leniency.40
* July-August 1995: The House of
Representatives holds
extensive hearings on the Waco
incident.
Justice Department and FBI
officials testify that they
had no warning that the Davidians
were preparing to set
a fire and that no
agent fired a gun at the Branch
Davidians on April 19, 1993.
Reno defends her decision to have
the FBI tanks attack
Mt. Carmel and blames David
Koresh for the disastrous
results. This is a new
development. In 1993 Reno ac-
knowledged that the April
19th assault was a mistake
and tried to demonstrate that
there would be account-
ability for that mistake by
offering to resign.41
The House committee subsequently
issues a finding that
Attorney General Reno
"knew or should have known that
the plan to end the standoff
would endanger the lives
of the Davidians inside the
residence, including the
children."42 Her
decision to approve the FBI tank
assault was "premature,
wrong, and highly irresponsi-
ble."43
Janet Reno gave her approval and admitted responsibility
Download free Windows Media Player 7
CLICK HERE Janet Reno on CNN 04/19/93http://www.apfn.org/wacoinfo/WACO_RENO_04_19_93.WMV
* January 18, 1997: A new film, Waco: The
Rules of En-
gagement, is released at Robert
Redford's Sundance Film
Festival in Park City, Utah.
The most dramatic conten-
tion in the film comes from
the technical expert who
examines the FBI's
aerial Forward Looking Infrared
(FLIR) film from April 19, 1993.
The FBI used the FLIR
film at the Davidians'
criminal trial in 1994 in an
attempt to show that the
Davidians started the fatal
fire. The technical expert in
The Rules of Engagement
claims that FLIR film shows
numerous gunshots directed
at the Mt. Carmel
complex. This documentary film is
subsequently nominated for an
Academy Award and wins an
Emmy for investigative reporting.44
* July 1, 1999: Judge Smith denies a pivotal
legal motion
filed by the
Department of Justice to dismiss the
wrongful death lawsuit.
The ruling paves the way for
Branch Davidian lawyers to question
under oath govern-
ment witnesses about their conduct
and to demand physi-
cal evidence from the federal
government.45
* July 28, 1999: The Dallas Morning News
reports that the
Texas Rangers have discovered
evidence that calls into
question the federal government's
claim that its agents
used no incendiary or pyrotechnic
devices on April 19,
1993. Myron Marlin, a
spokesman for the Justice De-
partment, tells the newspaper
that the allegation is
"nonsense."46
* August 25, 1999: The FBI issues a statement
saying that
"pyrotechnic devices may
have been used in the early
morning of April 19, 1993."47
* August 30, 1999: The federal prosecutor
in Waco, Bill
Johnston, bypasses the
chain of command and sends a
letter directly to Attorney General
Reno. Among other
things, the letter says, "I
have formed the belief that
facts may have been kept from
you--and quite possibly
are being kept from you even
now by components of the
Department [of
Justice]."48 Sen. Phil Gramm of Texas
tells the press: "I hope
[Johnston] is not punished for
that. There's a long history
in the federal government
of hostility toward people
who come forward with bad
news."49
* September 1, 1999: The Justice
Department dispatches
U.S. marshals to FBI
headquarters to seize previously
undisclosed videotapes containing
footage of pyrotech-
nic tear gas rounds
being fired at the Mt. Carmel
complex. The videotapes also
contain radio traffic of
an FBI commander authorizing the
use of the pyrotechnic
rounds. FBI officials
had previously submitted sworn
affidavits that they had no
videotape before 10:42 a.m.
on April 19, 1993. And,
in a Freedom of Information
Act lawsuit, FBI officials
told a federal judge under
oath that the bureau
had no recorded radio traffic
during the entire tear gas
assault.50 The bureau does
not explain how the
evidence in its files remained
unnoticed.
* September 9, 1999: Reno appoints former
Missouri sena-
tor John C.
Danforth as a special prosecutor to
investigate whether the
federal government engaged in
misconduct at Waco
and then tried to cover up its
actions.51 Danforth says he
will investigate allega-
tions of "bad acts" but
will not prosecute any govern-
ment employee for "bad
judgement."52
In Texas Judge Smith becomes
furious when he learns that
the local U.S. marshal has delayed
executing his order to
seize any evidence relating
to the Waco incident from
the local ATF
office. Smith issued his directive
quietly under a court seal when he
learned that the ATF
was closing its office. The
local U.S. marshal spent
hours consulting with both his
agency's headquarters in
Washington and the U.S.
attorney's office in San
Antonio before taking any action.
It is unclear wheth-
er any evidence from the ATF
office was removed, al-
tered, or destroyed.53
* September 15, 1999: The
Justice Department removes
federal prosecutor Johnston
from the Waco case. Jus-
tice Department officials say
the move has nothing to
do with Johnston's public comments
suggesting a possi-
ble government cover-up.54
* September 20, 1999: Judge Smith postpones the
wrongful
death trial and related
depositions so that Danforth
can interview
witnesses. In a letter to Danforth,
Smith writes, "It is my
fervent hope that your investi-
gation, and certainly
to a lesser extent, the civl
procedings here, will help
restore the public's con-
fidence in its government."55
* October 5, 1999: An expert
in thermal imaging and
videotape analysis tells the
Washington Post that he
has spent hundreds of hours
reviewing various tapes of
the Waco siege and has
concluded that the FBI fired
shots that day." The
expert, who had previously been
retained by the FBI as a
thermal imaging consultant,
says, "The gunfire from the
ground is there, without a
doubt."56
* October 8, 1999: U.S. Army Col.
Rodney L. Rawlings
tells the Dallas Morning News
that the FBI knew that
David Koresh and his
followers were preparing to set
fires on April 19, 1993.57 Rawlings
was in Waco assist-
ing the FBI during the siege.
On the morning of April
19th, he was in an FBI
monitoring room where voices
from within the Mt. Carmel
complex could be overheard.
FBI "bugging"
devices allowed the colonel and law
enforcement officials to "hear
everything from the very
beginning, as it
was happening."58 Rawlings says,
"Anyone who says you couldn't
[hear what was happening
at the time] is being less
than truthful."59 The FBI
has always maintained that it was
unaware of any Davi-
dian plan to set fires.
* October 9, 1999: Newly released documents
from the FBI
show that agents asked
for permission to shoot any
unarmed Branch Davidians who
left Mt. Carmel and ap-
proached their armored
vehicles. The request to use
illegal deadly force
was denied by FBI officials in
Washington. The
documents also outlined seven in-
stances in which FBI agents
threw or launched "flash
bang" grenades at
Davidians who were exiting Mt.
Carmel earlier in the standoff.
The documents contain-
ing this information were not
turned over to lawyers
representing the Davidians at
the 1994 criminal trial
or to Congress as it was
preparing for the 1995 hear-
ings on the incident. Bureau
officials said the docu-
ments were either overlooked as the
responded to previ-
ous inquiries or that such
information was not specifi-
cally sought by Congress.60
* October 14, 1999: The Dallas Morning News
reports that
the FBI had
closed-circuit cameras around the Mt.
Carmel complex throughout the
51-day siege. No video-
tape from those surveillance
cameras has ever been made
public by the federal
government. Lawyers who repre-
sented the Davidians in bothe
the criminal trial and
the pending wrongful death lawsuit
are outraged by the
newspaper report. The
Davidian lawyers suspect that
the FBI withheld the
information about the cameras
because of the images they captured
on April 19, 1993.
References to those cameras
were blackened out on the
documents that the
Justice Department has thus far
disclosed to the Davidians in the
civil lawsuit.61 FBI
and Justice Department officials
have no comment on the
leaked documents.
* November 1, 1999: Justice Department
lawyers acknowl-
edge that about 10
individuals from the U.S. Army's
Special Forces were at Waco during
the siege but insist
that they were only providing
technical assistance to
FBI agents. Lawyers for the
Branch Davidians are told
that they cannot question
those soldiers face to face
and cannot have
their names. The Branch Davidian
lawyers are told that, if they want
to persist in their
claim that the soldiers had a more
active role at Waco,
they should sumbit
written questions and they will
receive anonymous answers.62
* November 2, 1999: Judge Smith warns Justice
Department
officials that he will hold
them in contempt of court
if they do not surrender all
of the Waco evidence in
their possession. The judge's
order complains that the
Justice Department has
unnecessarily delayed and possi-
bly even deliberately stalled
making arrangements for
the transfer of classified
documents.63
* November 3, 1999: A new documentary
film, Waco: A New
Revelation, is shown in Washington,
D.C., to reporters
and researchers. Among
other things, the film shows
several ATF agents
kicking and punching a cameraman
from a local TV station on February
28, 1993. The ATF
agents were angry
because the cameraman was filming
their humiliating retreat from the
Mt. Carmel ranch.
* January 24, 2000: Federal prosecutor Bill
Johnston an-
nounces that he is leaving
the Department of Justice.
Johnston tells the Dallas Morning
News that he has been
ostracized by the Department of
Justice since he wrote
Attorney General Janet Reno about
the possibility of a
cover-up.64
* January 25, 2000: 60 Minutes airs a story
titled, "What
Really Happened at
Waco?" Dan Rather reports that 60
Minutes has hired an
expert in infrared imagery to
examine the
controversial FBI FLIR tape. The only
thing plainly visible to the naked
eye on the FLIR tape
is a series of flashes.
Some experts say the flashes
represent gunfire, but
the FBI maintains that the
flashes are "reflections
of sunlight." As the expert
view the FLIR tape on a
television monitor, he ex-
claims: "It's not the sun
striking something, It's not
swamp gas reflecting
off the planet Venus. This is
somebody shooting [at the Mt.
Carmel complex]."65
* February 1, 2000: In response to
questions posed by
lawyers for the Branch Davidians in
the pending wrong-
ful death lawsuit, Pentagon lawyers
file a sworn denial
that there was any military gunfire
on April 19, 1993.
But the formal denial
includes a caveat: the Pentagon
denial is based on
"currently available information."
This response confounds
Davidian lawyers, who are
seeking to identify key
witnesses before the upcoming
trial.66
* March 15, 2000: Branch Davidian lawyers
file a formal
legal motion with Judge
Smith accusing the federal
government of mishandling and
tampering with key evi-
dence in the wrongful death case.
Among other things,
the motion notes that an FBI aerial
photographer testi-
fied in a deposition that he shot
10 rolls of film, but
only 7 rolls of film now exist.67
* March 19, 2000: An elaborate
reenactment of the FBI's
tactical operations of April 19,
1993, is conducted at
Fort Hood, Texas. Judge
Smith ordered the experiment
to help resolve the
disputed question of gunfire on
April 19th. The FBI has long
maintained that no agent
fired any gun at the Davidians
during the entire stand-
off. But the Davidians'
lawyers and others maintain
that the FBI's own FLIR film shows
numerous individuals
shooting at Mt. Carmel,
preventing the Davidians from
escaping the burning structure.
Judge Smith and Special
Presecutor John Danforth are
witnesses to the reenactment,
and both say they will
rely on an
analysis of the filmed experiment by a
British firm, Vector Data Systems.
The news media are
not permitted to witness the
reenactment.68
* May 18, 2000: Judge Smith rules that
the Branch Davi-
dians' lawyers have failed to
prove that the federal
government intentionally altered or
destroyed evidence.
Although some evidence may
have been mishandled, the
judge sees no reason to impose
sanctions on the federal
government.70
* July 14, 2000: The jury returns
its verdict in the
civil wrongful death case.
The jury finds that federal
officials are not liable for
the deaths of the Branch
Davidians who were killed at Mt.
Carmel in 1993. The
Justice Department releases a
statement saying, "This
terrible tragedy was the
responsibility of David Koresh
and the
Branch Davidians, not the
federal
government."71>
* July 21, 2000: Danforth issues an
"Interim Report" that
exonerates federal officials and
agents of wrongdoing.
Danforth tells reporters: "I
give you these conclusions
with 100 percent certainty.
The blame rests squarely
on the shoulders of David Koresh.
This is not a close
call."72 Although his
investigation is not yet over,
Danforth tells reporters that
it is "95 percent com-
plete."
Justice Department officials
release a statement say-
ing, "We join
Senator Danforth in wishing that this
report begins the process of
restoring the faith of the
people in their government."73
* September 20, 2000: Judge Smith formally
dismisses the
wrongful death civil
lawsuit brought by the Branch
Davidians. Smith
rejects all of the Davidians' legal
claims and finds that
"the entire tragedy at Mount
Carmel can be laid at
the feet" of one individual,
David Koresh.74
* November 8, 2000: Danforth seeks and
obtains a grand
jury indictment of
former federal prosecutor Bill
Johnston. The
five-count criminal indictment accuses
Johnston of concealing his
knowledge that pyrotechnic
devices were being used by
the FBI at Waco. Johnston
tells reporters that he is being
made into a scapegoat
because he undermined the
legal stance of the Justice
Department in the then
pending wrongful death lawsuit
by raising the possibility of
a cover-up. Danforth
maintains that Johnston is being
prosecuted because he
broke the law.75
* February 6, 2001: Former federal prosecutor
Bill John-
ston pleads guilty to a
single felony count. In ex-
change for Johnston's guilty
plea, Danforth agrees to
drop a five-count felony indictment
and to recommend a
sentence of probation.76
Johnston, the only person to
be criminally prosecuted by
Danforth, is scheduled to
be sentenced on June 7, 2001, in
St. Louis, Missouri.
Danforth's Office
of Special Counsel officially
closes.77
Unofficial Findings of Crimes at Waco
In a free society a person
who commits a crime is not
exempt from investigation or prosecution merely because
he
works for the government, wears a uniform, and
carries a
badge. If that basic legal principle is taken seriously, it
is not extraordinarily difficult to identify
crimes that
were committed by government agents at Waco in 1993.
ATF Agents Attacked TV Cameraman
Dan Mulloney
On February 28, 1993,
several ATF agents physically
attacked a local television cameraman named Dan
Mulloney.
Mulloney was on the scene at Mt. Carmel
covering the ATF
raid for KWTX-TV. After the firefight, Mulloney was filming
the ATF agents as they were retreating from the
Davidian
property. When several ATF agents noticed
what he was
doing, they screamed obscenities at him and actually punched
and kicked him while others tried to
steal his camera.
Because Mulloney kept his camera rolling during the
entire
episode, this assault, battery, and attempted
theft are
captured on film. The evidence is thus overwhelming.
It is
a crime for an ordinary citizen to punch and kick a camera-
man. It is no less a crime for ATF agents to do
so, yet
they were never criminally prosecuted.
Although this incident
lasted for approximately one
minute, the film footage is telling because it clearly shows
that certain ATF agents felt perfectly justified in breaking
the law.78
ATF Agents Lied to Federal
Investigators
To avoid an actual or
perceived conflict of interest,
Texas Rangers were asked to conduct an
investigation of
possible criminal wrongdoing by ATF agents.
The Rangers
were deputized as U.S. marshals and were asked to look
for
possible federal criminal violations. In sworn
testimony
before Congress, one of the investigating Rangers said that
the two ATF commanders, Phil Chojnacki and Chuck
Sarabyn,
lied to him about what had happened on February 28,
1993.
Because ordinary citizens are sent to jail for
lying to
federal investigators, the Ranger recommended that Chojnacki
and Sarabyn be indicted and prosecuted.79 The Ranger
gave
his recommendation to federal prosecutor
Bill Johnston.
Johnston, in turn, referred the matter to the Department of
Justice in Washington, which took no action.80
In October 1994 the
Treasury Department did suspend
Chojnacki and Sarabyn from active duty for
making false
statements, but they were subsequently reinstated with full
back pay and had the entire Waco incident
expunged from
their personnel records.81
FBI Agents Fired More Than
350 Ferret Rounds into Mt.
Carmel
The FBI has always admitted firing
more that 350 ferret
rounds at the Davidians on April 19, 1993. The ferrets were
fired into the residence from hand-held grenade
launchers.
Ferret rounds are fired at such a speed that they are
cap-
able of causing serious injury or death. Government
docu-
ments and testimony euphemistically refer to the
"delivery"
of tear gas into the residence--as if the the ferrets
were
delivered by United Parcel Service. Firing
ferret rounds
into a building without knowing which adults are threatening
and which are not--and without knowing where children
are
located--manifests an extreme indifference to human
life.
Such indifference is not only unconscionable but criminal.
Special Prosecutor Danforth's
investigation of the Waco
incident tried to draw a distinction between "bad
judgement"
and "bad acts." When he was appointed
special prosecutor,
Danforth promised that he would not file charges against any
government employee for exercising bad judgement. But
the
firing of ferret rounds on April 19th cannot
be brushed
aside as simply bad judgement. A police officer
exercises
bad judgement if he uses the siren on his
car to speed
through traffic to a dental appointment. What
happened at
Waco was far more serious.
An ordinary citizen would not
be accused of mere "bad
judgement" if he used a grenade launcher
to fire ferret
rounds into a nursery school. If a child were
struck and
killed by one of the ferrets, the citizen could face murder
charges. Even if the citizen intended only to scare people,
he could be held liable for second degree murder because his
actions consciously disregarded a substantial and unjustifi-
able risk of harm to others.82
FBI agents might have been
justified in firing ferret
rounds into all of the windows of the Mt. Carmel complex if
they had reasonably believed the children were going to
be
killed in a mass suicide. Attorney General Janet Reno
has
already admitted, however, that no such exigency existed on
the day of the assault.
Government officials cannot
use color of their office
to commit crimes against citizens.83 Since at
least one
child was struck by a ferret round, second
degree murder
charges may be appropriate.84 Note that such charges
have
been leveled against law enforcement officers after
other
controversial incidents. In 1999, for example,
prosecutors
in New York charged the police officers
involved in the
Amadou Diallo killing with "depraved indifference to
human
life," a second degree murder charge that carried a sentence
of 25 years to life.85
Whether or not
sufficient proof can be mustered to
sustain a second degree murder charge, charges relating
to
the reckless endangerment of human life are
certainly in
order.
FBI Agents Used
Tanks to Demolish Sections of Mt.
Carmel
The FBI has always admitted
that its tear gas "inser-
tion" plan called for tanks to smash holes in the
walls of
the Mt. Carmel complex. Government documents and
testimony
employ euphemisms to describe what happened.
Reno, for
example, referred to the tanks as "good
rent-a-cars," and
FBI supervisor Larry Potts spoke of "poking
holes" in the
building--as if nails, instead of tanks, were being
driven
into the walls of Mt. Carmel.86 Because federal
officials
and agents did not know where the Davidian
children were
located, it was both unconscionable and criminal to have the
tanks smash into the residence and knock down walls.
Does anyone doubt that, if the
Davidian adults had been
holding children of senators and congressmen hostage within
the Mt. Carmel buildings, the FBI's tank assault plan would
have been rejected out of hand? Is it not
equally clear
that, if an ordinary citizen were to drive a car into
the
side of someone's home--indifferent to what might be on the
other side of the wall--he would be prosecuted for
second
degree murder should someone be killed? The
driver would
also face lesser charges, such as reckless endangerment
of
human life.
The FBI's use of tanks on
April 19, 1993, evinced an
extreme indifference to human life. While it
is unclear
whether any Davidan was actually killed by the
destructive
activity of the tanks, the law pertaining to the
reckless
endangerment of human life was once again violated.87
Conduct That Warrants Further
Investigation
Whether the National
Guard Helicopters Strafed Mt.
Carmel
The Texas National Guard, the
ATF, and the Department
of Justice have always maintained that no one
aboard the
National Guard helicopters fired on the Davidians on Febru-
ary 28, 1993. The pilots and ATF field
agents have all
given sworn statements that no person fired on Mt. Carmel.
There is evidence to the
contrary, however. Several
Branch Davidians claim they received fire from the helicop-
ters. Davidian Wayne Martin called 911 soon after the
ATF
arrived in a frantic attempt to end the
gunfight. His
recorded phone call includes a statement about shots
from
the helicopters. Federal officials have
scoffed at the
recorded statements, calling them
"self-serving." (While
that is possibly true, the same can be said about the deni-
als from the ATF agents.)
Catherine Matteson, a
72-year-old Davidian, who was
never accused of any crimes, told reporters that the
heli-
copters fired on the residence.88 Another Davidian
woman,
Rita Riddle, told the Los Angeles Times,
"I heard [the
helicopters] spraying the building when they went over."89
-------- Original Message --------
Subject: [conservativefriends] WS>>(3)An Unofficial Account of the Waco Incident
Date: Sat, 19 May 2001 20:52:29 PDT
From: carl william spitzer iv <cwsiv_2nd@juno.com>
Reply-To: conservativefriends@yahoogroups.com
To: conservativefriends@yahoogroups.com
In a phone conversation
recorded a few days after the
initial raid, ATF agent Jim Cavanaugh tried to
get David
Koresh to acknowledge that the helicopters did not fire
on
Mt. Carmel. When Koresh called the ATF agent a liar,
Cava-
naugh backed off and said he was not disputing the fact that
there was fire from the helicopters, only that the helicop-
ters did not have outside "mounted" guns, to
which Koresh
offered no objection.
The criminal defense attorneys who
went into the resi-
dence during the siege saw bullet holes in the
ceiling of
Mt. Carmel with splinters of wood punched
inward. The
Davidians explained that those were some of the shots fired
from the helicopters.
Special Prosecutor Danforth
brushes all of those wit-
nesses aside and concludes that there was no gunfire
from
the helicopters on February 28, 1993.90
The ATF agents aboard the
helicopters were supposed to
divert the attention of the Davidians at the outset of
the
raid, film the raid as it unfolded, and, finally, transport
the wounded (if any) to a nearby hospital. As the raid went
awry, however, it is certainly plausible that
the agents
aboard the helicopters wanted to assist their fellow agents
on the ground who were under heavy fire.
Understandable as that may
be, National Guard regula-
tions prohibit guard personnel from active participation in
law enforcement activity.91 But if there was strafing of the
roof of the Mt. Carmel residence, an even
more serious
allegation arises. Indiscriminate firing into the
roof or
walls of a building known to contain innocent people (e.g.,
children) could result in possible murder
and reckless
endangerment charges. Because of the conflicting
testimony
and the gravity of the allegations, further investigation of
this matter is warranted.
Whether FBI Agents Knew about Any
Davidian Fire Plan
FBI officials have always
maintained that they had no
prior knowledge of the Davidian plan to
set fires. In
testimony before Congress, Jeff Jamar, the FBI's
on-scene
commander at Waco, said: "If I knew about his plans to
burn
the place, we would have had another approach.... We
would
not even come close to approaching the place
[e.g., the
Branch Davidian residence]."92 Larry Potts, who was
Jamar's
supervisor in Washington, D.C., testified, "Any
indication
about danger to those children, the rule was--back
off."93
The veracity of those high-ranking officials has now
been
directly challenged by a U.S. Army colonel who was at
Mt.
Carmel on April 19, 1993.
According to the Dallas
Morning News, Col. Rodney L.
Rawlings was assisting the FBI during the Waco siege. Rawl-
ings told that newspaper that FBI "bugs" had been
placed in
Mt. Carmel during the standoff and that on April 19 he
was
present in an FBI monitoring room where the voices of
the
Davidians could be clearly heard.94 As the FBI tanks
began
to ram holes in Mt. Carmel, Rawlings
said the bugging
devices picked up the voices of David Koresh and his follow-
ers as they were preparing to start, and then starting, the
fires.95
Those audio recordings
have been part of the public
record for years. The FBI has used them in an
effort to
prove that the Davidians, not the bureau, started the fire.
What is significant is that bureau officials
have always
maintained that the voices on the tapes were
not clearly
audible in "real time." The tapes had to be
"enhanced" later
to discover what was actually being said. Thus, the FBI did
not have any advance warning of the Davidian fire plans.
Col. Rawlings, however,
claimed that "you could hear
everything from the very beginning, as it was
happening."96
Rawlings further stated that FBI officials were "using
the
excuse of technical difficulties to cover why they
didn't
react to the information they had."97 When asked about
the
bureau's claim that it had no forewarning
of the fire,
Rawlings said, "That is the worst lie of all."98
Colonel Rawlings appears to be a
credible whistleblow-
er. He is a combat-decorated helicopter pilot and a 31-year
veteran who retired from the Army in 1997.
Inexplicably,
the Waco report prepared by Special Prosecutor John Danforth
does not discuss Colonel Rawling's allegations. If the
FBI
knew the Davidians were spreading fuel and making fire plans
and did not stop the tanks from ramming
the residence,
murder, manslaughter, and perjury laws, among other,
were
violated.
Whether Gunfire Was Directed at the
Davidians on April
19th
The FBI has always
maintained that, throughout the
siege, its agents never fired at the Branch Davidians
(The
bureau does not deny firing the ferret rounds,
however.)
According to the FBI, the Davidians' gunshot
wounds were
either self-inflicted or inflicted by other Davidians.
Several infrared experts have
come forward to contra-
dict the FBI's claim. The FBI's aerial
FLIR film from
April 19, 1993, contains flashes of light. Edward
Allard,
a former employee of the Defense Department and a
thermal
imaging consultant for more than 30 years, appeared in
the
documentary film, Waco: The Rules of Engagement, and
said
those flashed were gunfire directed at Mt. Carmel.
Maurice
Cox, a retired intelligence analyst who worked on
military
satellite operations, appeared in the film,
Waco: A New
Revelation and said the flashes of light were gunfire
di-
rected at Mt. Carmel. Carlos
Ghigliotti, an expert in
thermal imaging and videotape
analysis who once did
freelance work for the FBI, examined the
FLIR tape and
reached the same conclusion as Allard and Cox.
Ghigliotti
told the Washington Post, "The FBI fired shots that
day."99
60 Minutes hired a British army expert in
infrared from
April 19, 1993. That expert, Paul Weaver, said the
flashes
"look exactly as if they're gunfire."100
Special Prosecutor John
Danforth hired two experts to
analyze the FLIR tape. The concluded that the
flashes on
the film were reflections off debris on the ground. Instead
of acknowledging the conflicting expert testimony on
this
important issue and reporting that the evidence was
incon-
clusive, Danforth proclaimed with "100 percent
certainty"
that the analyses performed by his experts showed
that no
gunfire was directed at the Davidians from government posi-
tions.101
Ordinary citizens can use deadly
force to defend them-
selves and others from imminent harm. But if someone
fired
a gun to keep others from fleeing a burning
building, he
would be subject to prosecution for murder. Because
there
is conflicting expert testimony as to what appears on
the
FLIR tapes, and because of the gravity of some of the
ex-
perts' allegations, further investigation of this matter is
warranted.
Whether Federal
Employees Obstructed Justice
When Attorney General Janet
Reno was asked in 1993 to
identify those at the FBI who participated in the
decision
making process regarding the April 19th assault plan,
she
mentioned, among others, (1) Assistant Director Larry Potts,
(2) Deputy Assistant Director Danny Coulson, and (3) Michael
Kahoe, chief of the FBI's Violent Crimes and Major Offenders
Section.102 Those names should have set off alarm bells with
Special Prosecutor Danforth's investigators.
Potts, Coulson, and Kahoe were
suspended by the FBI in
1995 for their role in the controversial Ruby Ridge
incid-
ent. Danforth does not mention that in his
Waco report.
The suspensions were not obscure personnel decisions.
They
were reported on the front pages of the New York Times
and
the Washington Post, among other newspapers.103
Kahoe was eventually
sentenced to 18 months imprison-
ment for destroying evidence and lying to
investigators
about his role in the Ruby Ridge cover-up.
He admitted
boasting to his subordinates that, when Justice
Department
investigators asked him about his conduct in the affair, he
gave them a bunch of "[expletive]."104 (That
admission is
itself a damning indictment of the FBI's internal culture.)
Kahoe's defense attorney told the sentencing
judge that
Kahoe committed crimes to protect "what he wrongly perceived
as the institutional best interest of the
bureau."105 De-
partment of Justice prosecutors told reporters that
there
was "insufficient evidence"
to prosecute Potts and
Coulson.106 Although FBI director Louis Freeh and the
De-
partment of Justice condemned Kahoe's crimes, they
allowed
him to remain on the federal payroll until he reached
his
50th birthday--thus ensuring his eligibility for a
federal
pension.107 Potts and Coulson presumably
received their
pensions as well.
A serious probe into
obstruction of justice by the
bureau with respect to Waco would have quickly
identified
Potts, Coulson, and certainly Kahoe as potential
suspects.
Danforth should have hauled those individuals before a grand
jury and questioned them about missing Waco evidence.
He
did not.
The FBI tactical commander at Waco,
Richard Rogers, was
also involved in the Ruby Ridge incident and was disciplined
for his conduct there.108 When Congress sought to
question
him about his role at Ruby Ridge in 1995, Rogers declined to
testify, citing his Fifth Amendment right
against self-
incrimination.109
In the summer of 1999,
previously undisclosed audi-
otapes surfaced and revealed that Rogers actually gave
the
order to FBI field agents to fire pyrotechnic devices. That
disclosure raised a deeply disturbing question:
Why did
Rogers sit passively behind Attorney General Reno when
she
gave sworn testimony to Congress in 1993 that
pyrotechnic
devices were not used against the Branch Davidians on April
19, 1993? When Danforth's investigators asked Rogers
about
the obvious discrepancy, Rogers said that he was not paying
attention to Reno's testimony.110 Danforth chided Rogers for
dereliction of duty but declined to
prosecute him for
"making or allowing others to make
false or misleading
statements."111 Danforth could have sent his dereliction
of
duty finding to the FBI and demanded disciplinary
action,
including revocation of Rogers's pension. He did not.
And
the FBI director Freeh, who tells Congress and
the press
that he takes any bureau controversy "with the most
extreme
seriousness," has not taken any action on his
own against
Rogers.112
It is now clear that the FBI
withheld relevant docu-
ments and videotapes from Congress, the Davidian
lawyers,
and citizens who filed Freedom of Information Act requests.
The only question is whether the evidence was
deliberately
withheld or there was a series of bureaucratic
"snafus."
Special Prosecutor Danforth did not investigate the
matter
thoroughly. Obvious investigative leads were not
followed.
Indeed, with a convicted felon in a supervisory position on
the Waco case, obstruction of justice seems not only possi-
ble but probable. Further investigation into tampering
and
spoliation of evidence is warranted.
Conclusion
The Waco incident was the worst
disaster in the history
of federal law enforcement. More that 80 people (agents and
civilians) lost their lives in 1993. The American people
are entitled to know exactly what happened and why.
Unfortunately, the
"official" investigation of the
incident, headed by former senator John Danforth, was
soft
and incomplete. Danforth's sweeping exoneration of
federal
officials is not supported by the factual record.
It is certainly true that Branch
Davidian leader David
Koresh cannot escape his share of responsibility
for the
tragedy. Scores of lives could have been saved if
he had
simply walked out of Mt. Carmel and surrendered peacefully.
But his refusal to do so cannot absolve federal
officials
from what they did at Waco.
Danforth hoped his
report would help to restore the
American people's "faith in government."
After everything
that has come to light in the years since the agents and the
Davidians perished, it is difficult to follow
Danforth's
logic. The ATF, the FBI, and Attorney General Reno exploit-
ed the public's faith in government when
they tried to
deceive everyone about what happened in Waco. Recall,
for
example, that Reno had to recant her statement that
"babies
were being beaten" during the standoff.
Because numerous crimes at
Waco have gone unpunished,
the people serving in our federal police agencies may
well
come to the conclusion that it is permissible to recklessly
endanger the lives of innocent people, lie to
newspapers,
obstruct congressional subpeonas, and give misleading testi-
mony in our courtrooms.113 If such activity
becomes more
common that it is today, those agencies will surely
become
lawless and unaccountable. The only way to
counter that
danger is for the American people to distrust
government
officials, limit their powers, and demand
accountability.
In 1997 FBI director Louis Freeh told Congress,
"We are
potentially the most dangerous agency in the country if
we
are not scrutinized carefully."114 The carnage at
Waco is
grisly testament to that.
Notes
1. Harvard law professor Alan Stone was
retained by the
U.S. Department of Justice to
review and