FBI plan not followed, Davidian lawyers say

Judge told commanders' use of tanks makes U.S. culpable for deaths in siege

The Dallas Morning News, February 3, 2000
By Lee Hancock

The FBI's two lead Waco commanders violated a Washington-approved plan by ordering tanks to begin demolishing the Branch Davidian compound in 1993, and thus should be liable for the horrific tragedy that ensued, the sect's lawyers argued Wednesday.

Their Wednesday plea in a Waco federal court lays out a detailed case for how FBI commanders Jeffrey Jamar and Richard Rogers within hours diverted from the plan authorized by top FBI officials and approved by Attorney General Janet Reno. That written plan allowed for demolition of the sect's embattled building only after tear gas had been sprayed into it for 48 hours, but FBI tanks began demolishing the rear of the building less than five hours after the gassing began.

"The decisions made by Rogers and Jamar were unauthorized, outside the scope of their authority, unjustified by the circumstances, and caused or contributed to the deaths of countless innocent children and some adults," the plaintiff's motion argued.

The plaintiff's pleading came one day after the Justice Department argued that legal limits on lawsuits against federal agencies and officials should prevent the Branch Davidians from putting the government on trial for its handling of the 1993 gassing operation, including its use of tanks. The government argued that federal law prohibits using lawsuits to "second-guess" the judgment calls of federal officials, even if those decisions have tragic results.

The motions from both sides come as Judge Smith prepares to make final decisions about the size and scope of the sect's wrongful-death case. He has set a trial for mid-May on three major questions: Did federal agents use excessive force in the raid that began the 1993 standoff, a botched operation that disintegrated into a gunbattle that left four agents and several sect members dead? Did federal agents shoot at the Branch Davidians and prevent their escape when the compound caught fire during the FBI's gas assault? And was the FBI negligent in failing to prepare for the threat of a fire and for refusing to let local firetrucks approach when a fire did erupt?

More than 80 Branch Davidians died in the fire, which began less than an hour after FBI tanks rolled deep into the building on April 19, 1993. Government officials have argued that the sect was solely to blame, noting that government arson investigators ruled that Branch Davidians deliberately set the blaze.

In his decision last July to allow the Branch Davidians' case to go to trial, Judge Smith dismissed Agent Jamar, Agent Rogers and most other federal officials from the lawsuit.

He left one defendant in the case: a hostage rescue team sniper accused by the sect of firing at the compound during the April 19, 1993, tear-gas assault. The judge based that decision largely on the statement of another FBI agent, who told investigators after the siege that he heard shots fired from the position where the sniper was assigned that day. The agent has since said he was misquoted, and other agents in the area have said that the only gunfire they heard came from the sect. The sniper, FBI Agent Lon Horiuchi, has denied firing a shot. Earlier this week, lawyers for the agent asked the judge to dismiss him from the case for a lack of evidence.

Lawyers for the sect have conceded that the agent will probably be dismissed, despite recent revelations about evidence that could support the gunfire claim. Texas Rangers issued a report last fall that described how a dozen spent .308 shell casings had been found after the incident in the house where Agent Horiuchi was stationed.

The house had been used earlier by snipers from the Bureau of Alcohol, Tobacco and Firearms during the raid that began the standoff, and federal officials have argued that the shell casings came from ATF guns. The office of special counsel John Danforth is performing forensic tests to determine which agency's guns were used.

The two FBI commanders were among the large number of federal officials dismissed from the lawsuit last summer.

If the judge decides to reinstate them as defendants, it would be the first time that either Agent Jamar, the FBI's on-scene Waco commander, or Agent Rogers, head of the FBI's hostage rescue team, have testified at a trial arising from the tragedy. Neither FBI nor ATF commanders involved in the initial raid were called to testify at the 1994 criminal trial of surviving Branch Davidians, in part because prosecutors feared that defense lawyers would use them to put the government on trial.

In Wednesday's pleading, the sect's lawyers contended that Agents Jamar and Rogers should be reinstated as defendants because they not only violated federal policy but the sect's constitutional rights. The plaintiff's brief argued those violations stripped the two men of normal federal legal protections that severely limit civil lawsuits against federal officials and agencies.

"The problem that the FBI has with calling use of the tanks to destroy the building a judgment call: Those commanders didn't have the authority to make that call. The attorney general of the United States approved a plan, and that plan could not have been clearer: Don't even consider demolishing the building until you've gassed for 48 hours," lead sect lawyer Mike Caddell said.

"Instead, these two cowboys Jamar and Rogers, went off on their own without authorization, thumbed their noses at the AG's plan and said, 'We know better than you,' " he said.

Asked about the matter Wednesday, a spokesman for Ms. Reno declined to comment. Agents Jamar and Rogers could not be reached for comment. Mr. Caddell's filing and a separate motion filed by another attorney for the sect, former U.S. Attorney Ramsey Clark, also argued that the two men should be put on trial because they were commanders at the time that sect members allege gunfire was directed at the compound. Officials have denied for years that any FBI agents fired a shot during the 51-day siege. But the sect's lawyers have argued that infrared videotape shot by the FBI on April 19 captured repeated rhythmic flashes that could have only come from gunfire.

Judge Smith has authorized a court-supervised field test next month to try to resolve the issue.

Mr. Caddell's motion focused on the commanders' decision to send in tanks to demolish the rear of the Branch Davidian compound. He cited statements by senior FBI negotiators and other behavioral experts who had explicitly warned prior to the assault that sending in tanks guaranteed a violent response and massive loss of life.

He also cited detailed internal agency reports and congressional testimony in which senior FBI and Justice Department officials said demolishing the building was thought too risky to consider in the early stages of the tear-gas operation.

He noted that Deputy FBI Director Floyd Clark told Congress a month after the fire that officials had ruled out the idea of using tanks to "systematically dismantle the building." "That didn't have a very good likelihood, because on a number of occasions when we were maneuvering around the building, removing the obstacles, the Davidians would appear in the windows and hold the children up, refer to them as the Kevlar kids," Mr. Clark testified in 1993. "So we had to dismiss that."

The motion alleges that Agent Rogers later tried to "cover up" violating the decision of his superiors in Washington by telling Congress and the public that the tanks had only tried "to clear a pathway" for spraying in more gas. But internal FBI documents show that Agent Rogers and his lieutenants told bureau leaders that the tanks were on a demolition operation. A proposal in which he and his lieutenants unsuccessfully lobbied for plaques, medals and cash awards for the hostage rescue team specifically praised two tank drivers for courage in carrying out their "mission of slowly and methodically beginning the dismantling" of the rear area of the compound.