Davidians accuse U.S. of distorting law, facts

Court motion latest in war of filings in wrongful-death suit

The Dallas Morning News, April 22, 2000
By Lee Hancock

The lead lawyer in the Branch Davidians' wrongful-death case charged Friday that the Justice Department is "misrepresenting the law [and] the facts" to avoid being assessed even partial responsibility for the 1993 Waco tragedy.

His lengthy motion alleges that government officials from Attorney General Janet Reno on down were "continuing their seven-year spin" as they seek dismissal of legal complaints that the government and its agents were negligent in failing to bring in adequate firefighting equipment before launching a tear-gas assault on the sect's home and prematurely ordering tanks to start demolishing it.

The 58-page pleading by Houston attorney Michael Caddell also offered new details of what low-level FBI agents were being told in the last weeks leading up to the April 19, 1993, assault. The operation ended in a massive fire that consumed the Branch Davidian compound and more than 80 sect members.

Friday's motion cited a videotaped April 7 briefing in which an unidentified supervisor told an FBI regional SWAT team that the bureau had wanted to take action earlier but could not because it was "kind of a rudderless ship." The official also told agents in Waco that early proposals to bash the compound with tanks and spray in tear gas were rejected as too provocative, but even less-aggressive plans to lob in gas from a distance with shoulder-fired grenade launchers were widely expected to provoke violence.

After tanks were used to bash holes into the building and spray in gas, senior FBI officials told Congress that they had no idea that their lead agent in Waco thought any gassing would provoke Branch Davidian gunfire.

One senior FBI official said last year that then-Deputy FBI Director Floyd Clarke vetoed lobbing in gas because he feared that it might appear that the bureau's agents had fired the first shots - a potential public-relations disaster if the assault ended badly.

Friday's pleading is the latest in a series of increasingly contentious legal filings in which each side has accused the other of twisting facts and legal precedent to try to persuade U.S. District Judge Walter Smith about which issues in the sect's wrongful-death lawsuit should be allowed to go to a full trial.

Mr. Caddell's motion comes on the heels of a detailed government motion seeking the dismissal of all claims against the government except those dealing with alleged use of excessive force during the 1993 standoff.

Responsibility issues

The government has long contended that the sect was responsible for the 1993 tragedy because government evidence, including wiretaps and a government fire investigation, showed that Branch Davidians torched their home.

The government's recent motion argued that Ms. Reno gave the FBI's commanders in Waco broad authority - including discretion to send tanks deep into the building at any time - when she allowed them to launch a tank and tear-gas assault against the Branch Davidians' home on April 19, 1993. It argued that federal law protects such discretionary decisions by government agents from private lawsuits.

But Mr. Caddell's motion Friday extended his argument that the FBI commanders' decision to send in a tank to demolish much of the rear of the compound violated the assault plan outlined by senior FBI leaders and approved by Ms. Reno.

The motion noted that senior FBI officials testified in recent depositions that the bureau's Waco commanders had no authority to send tanks in to demolish the building that early in the assault, absent emergency or prior approval from Washington.

It also characterized as a "smoking gun" an internal FBI award recommendation signed by both Waco commanders that described a tank's assignment at the rear of the compound that day as a "mission . . . [to begin] the dismantling of . . . the gymnasium."

Mr. Caddell said Ms. Reno's recent deposition testimony on that and other issues was "evasive, nonresponsive" and a "well-coached" product of "her after-the-fact failure to properly investigate this matter and punish the wrongdoers - which she now must defend."

The motion also tried to bolster the sect's argument that FBI leaders should have had adequate firefighting equipment on hand in Waco. It stated that the bureau's top officials acknowledged in depositions that the attorney general's directives for adequate emergency equipment required it.

Only the bureau's Waco commanders, Jeffrey Jamar and Richard Rogers, said they didn't know that the directive extended to firefighting equipment.

Ms. Reno and the FBI's top officials acknowledged in depositions that no one in the bureau told the attorney general that Mr. Rogers and Mr. Jamar sent notice to FBI headquarters just before the assault that they didn't intend to try to fight any fire that might break out during their operation.

The motion noted that the FBI also ignored offers for the free use Czech-made armored firefighting equipment from a California vendor who had previously sold or rented aircraft to the FBI and other federal law-enforcement agencies. The equipment could be operated by remote control to avoid exposing firefighters and was featured in Jane's Intelligence Review the month before the siege began, the motion stated.

The vendor who offered the equipment testified recently that bureau officials never followed up on his offer. Senior FBI officials testified that they didn't recall the offer and assumed that no such equipment was available after an agent was told by Defense Department officials that none was available.

Videotape evidence

The motion included extensive excerpts from a home video made by an FBI agent assigned to help man FBI positions in the final weeks of the standoff. The recording was turned over to Mr. Caddell as part of discovery in the lawsuit and also was recently released to an Arizona lawyer who has filed a freedom-of-information lawsuit to force the FBI to turn over all of its video and audio recordings.

In that April 7 video of an FBI briefing, an unidentified FBI SWAT team leader told a small group of camouflaged FBI agents gathered in a motel room that FBI headquarters rejected an early plan to use tanks to punch holes in the building and inject gas "because it would be perceived by the Davidians, the people inside, as an act of aggression or attack. . . . They will retaliate with gunfire. So headquarters rejected it because we'll take fire if we did that."

He added that "most people here" thought that even a less-aggressive effort to fire in gas from a distance would probably prompt the sect "to come out shooting."

He also told the agents that earlier bureau requests to launch a tactical action to try to force the sect to surrender had gone nowhere because of turmoil in the FBI's senior leadership, the lack of an attorney general during the early days of the siege and the unwillingness to approve a domestic paramilitary action that might lead to bloodshed.

Ms. Reno was not sworn in until the second week of the siege, and then-FBI Director William Sessions was under intense fire from within his agency.

"As far as all the red tape," the official said in the briefing, ". . . it's because the bureau has had kind of a rudderless ship. You look at the situation with the director. Rumor has it that, as soon as this is over, he's gone. He's kind of in a nondecision-making mode. The attorney general: there was no attorney general actually in place when this actually happened, and when Janet Reno finally got the job, she obviously wasn't going to make the decision to do that.

"And then a new administration, the Clinton administration, did not want something of this magnitude being the first military or paramilitary bloodshed, domestic, on American soil - something of this magnitude. So he wasn't willing to say, 'Go get 'em out.' It bypassed headquarters, went up to DOJ, and actually, decisions started being made from . . . the White House."

The FBI SWAT team leader added that many bureau actions, including the controversial decision to allow criminal defense lawyers into the compound midway through the standoff, were dictated by Washington.

Mr. Jamar told Congress after the siege that he alone made the decision to let the lawyers go in.

But in the video, the FBI SWAT team leader told agents that Mr. Jamar was initially adamantly opposed to letting sect leader David Koresh and his chief lieutenant meet with lawyers hired by their families.

"But somewhere between that time and the next morning, headquarters was contacted back and forth and headquarters says, 'Yeah, let 'em go in.' So that was even above his head," the FBI SWAT team leader said.

Mr. Caddell's motion said those comments posed an "irony [that] is clear: Apparently the decision whether to send attorneys into Mt. Carmel was 'above' Jamar's head, but - the DOJ wants us to believe - sending tanks into the building was not."

In a segment of the video not cited in Mr. Caddell's motion, the official also said that the FBI had gone all over the world to interview former Branch Davidians and families of those inside the compound. Those interviews concluded that "nobody seems to think that this will be resolved peacefully. [Sect leader David] Koresh is not built that way. It [goes] against his preachings that he will die at the hands of the government violently.

"He has predicted that it would happen on past occasions just at the end of Passover, and it never happened. So in order to maintain his credibility, they feel that this will have to be a time for it to happen," the official said. "So everybody that knows him that they've been talking to for the most part feels that this will not end peacefully. It's going to be violent."