FBI didn't plan to fight Waco fire

http://dallasnews.com/texas_southwest/42359_WACO02.html

 

                   Records in extensive sect filing

                   03/02/2000

                   By Lee Hancock / The Dallas Morning News

                   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 ... Jamar
                   and ... 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 side

                   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.

                   Sect's contentions

                   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 signals
                   suggesting 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."


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