No agents are shown in 200 FBI photos of Waco siege

St. Louis Post-Dispatch, March 6, 2000
By William H. Freivogel And Terry Ganey

No government agents are visible in the approximately 200 aerial photographs that the FBI shot of the April 19, 1993, siege of the Branch Davidian complex near Waco, Texas, according to a Post-Dispatch review of the photos.

That finding lends support to the government position that none of its agents fired at the complex. The photos show no one standing in the places where the Branch Davidians claim that agents opened fire. The Branch Davidians base their gunfire claim on about 100 flashes visible on a separate, infrared surveillance tape that recorded the same area.

But the photos do not answer the question definitively. Mike Caddell, the lead trial lawyer for the Branch Davidians, questions the veracity of the photos and points out that periods of five to ten minutes pass between shots -- plenty of time for agents to get out of armored vehicles and fire on the complex. He notes that the rear hatches on two of the armored vehicles are open, making a quick exit possible.

The still photos were shot by an FBI photographer in one aircraft, while the infrared tape was shot from a second FBI aircraft.

The FBI turned over the photos to special counsel John C. Danforth, Congress and lawyers for the Branch Davidians. Sources made the photos available to the Post-Dispatch for inspection. Justice Department officials and officials critical of the department confirmed a reporter's observation that no agents are visible near the complex in the hours leading up to the fire.

Survivors of the Branch Davidians have filed a wrongful death suit blaming the government for deaths of the approximately 80 people who perished at Waco. Both Danforth and congressional committees are investigating as well.

The photos are attracting quite a bit of attention among all parties. Caddell said he plans to file a memo in court this week challenging their value as evidence. He said he had found a five- or six-minute gap between photos around 11:30 a.m. and another 10-minute gap from 11:45 a.m. to 11.55 a.m. That means that there are no photos for some key periods when flashes appear on the infrared tape. Agents could have been firing at the complex during those intervals and still not show up in the 200 FBI photos, Caddell said.

Meanwhile, the Justice Department has hired a lab to compare the still photos to the infrared tape to look for matches to prove that no one was present to cause the flash, one source said.

The still photos do not have a time signature, but the infrared tape does. A technician can estimate the time of a still photo by comparing the appearance of the complex in a photo to the appearance on the infrared tape. This comparison is easiest in the key minutes before the fire, when a converted tank was knocking down the complex's gym. Technicians can time the photo by matching the damage to the gym in the photo to the damage visible on the infrared tape.

The batch of still photos came to light in January when the Post-Dispatch published one of them. That photo had been timed as having been shot either one second before or 35 seconds after a burst of flashes that appeared on the infrared film at 11:24 a.m. For that reason, it appeared to show that the flashes did not come from gunfire.

Caddell says he has carefully timed that photo and that his analysis of the damage to the gym indicates it was shot more than five minutes later. Justice Department sources say, however, that they have performed their own tests and that there is no question about the 11:24 time.

When the Justice Department learned late last year that the FBI was comparing the photos to the infrared tapes, the government's lead trial lawyer ordered the bureau to stop the analysis. Justice Department lawyer Marie Louise Hagen told the FBI that she feared that the comparison would be viewed as "creating" evidence, sources say.

But now the Justice Department sees the photos as important evidence that could help it refute any unfavorable findings that may come out of this month's court-ordered test to determine if an infrared camera in an airplane detects groundfire as flashes.

Later this month, British experts in infrared technology will recreate the conditions of the Waco siege. Infrared cameras mounted in two aircraft will tape a test area at Fort Hood, Texas, while Army shooters fire a variety of weapons. It is possible that the cameras will pick up the muzzle gases as flashes, but the flashes could have different properties than the flashes on the 1993 Waco tape. In the event of such an inconclusive result, the still photos could help tip the scales in the government's favor.

The Branch Davidians have brought together a number of reputable infrared experts who say that the flashes are from groundfire. But the Justice Department has its own experts who say they are not.

Aside from the flashes, there is no other evidence that the agents fired at Waco. No eyewitnesses have said they saw agents firing. All government witnesses say government forces did not fire a single shot, despite the fusillade from the Branch Davidians.

The government argues that the still photos and the infrared tapes are consistent on one important point -- just as there are no agents in the still photos, there are no shapes of bodies visible on the infrared tape. The government notes that people are visible in other parts of the 1993 infrared tapes and should show up near the flashes if there are agents firing weapons. But the Branch Davidians say the agents may have been wearing camouflage clothing that prevented their being detected.

Caddell, the lawyer for the Branch Davidians, questions the authenticity of the still photos. He says records indicate that the original negatives of the photos may have been lost. He says that the negatives he has seen are made on the kind of paper that is used to make negatives from photos.

The Justice Department denies Caddell's claim. It says that the original negatives are in the custody of the federal court in Waco, where the