More time sought to surrender siege papers

The Dallas Morning News, Oct. 2, 1999

The U.S. government has asked for another month to surrender documents dealing with the Branch Davidian standoff, telling a federal judge Friday that its agencies, particularly the White House, needed more time.

The plea was filed just before a Friday deadline set by U.S. District Judge Walter Smith, and it came as U.S. marshals in Washington packed a truckload of Branch Davidian documents for shipment to the federal court in Waco. Last month, Judge Smith gave federal officials until Oct. 1 to surrender all documents and other information related to the 1993 standoff.

He issued the unprecedented order after Texas Department of Public Safety officials asked him to take control of Branch Davidian case evidence that they had kept for the federal government since the standoff. Texas Rangers were brought into the case to investigate the deaths of four federal agents who died in a gunfight that broke out as they tried to search the Branch Davidian compound and arrest sect leader David Koresh on Feb. 28, 1993. A 51-day standoff followed the gunbattle, and it ended with a fire that destroyed the compound on April 19, 1993, with Mr. Koresh and more than 80 followers inside. The fire erupted after FBI agents assaulted the compound with tear gas and tanks.

Investigators ruled the fires were set by the Branch Davidians. But criticism of the government's actions reignited in August after a former FBI official told The Dallas Morning News that the bureau had used pyrotechnic tear gas during its final assault.

Senior FBI and Justice Department leaders have insisted that the tear-gas grenades capable of sparking fires had nothing to do with the final compound blaze.

But the revelation has prompted congressional inquiries and an independent counsel's investigation.

Attorney General Janet Reno banned such devices during the final assault because of fears that they could spark a fire.

She and other government officials repeatedly told the public and Congress that none were used, and she has said she learned that they were used only after the former FBI official's admission in late August.

But Justice Department records recently turned over to Congress and Judge Smith's court indicate that some lawyers in the Justice Department have known for years that pyrotechnic gas was used.

Those documents include handwritten notes from prosecutors' 1993 interviews with the FBI's hostage rescue team and notes from interviews conducted by Justice Department civil lawyers.

Although none of the notes identify their authors, a document accompanying them indicates that the interviews on which they were based were conducted by Assistant U.S. Attorney Leroy Jahn of San Antonio and Justice Department prosecutor John Lancaster. The two prosecutors could not be reached for comment.

One of the prosecutor's sets of notes contrasted the nonflammable "federal" tear-gas rounds approved by Ms. Reno with the "military" rounds used by the hostage rescue team, noting that the military rounds were "pyrotechnic." The other prosecutor's notes refer to "military gas rounds," adding that one agent said he "fired 1-4 incendiary rounds. . . . One military round at cement underground deal."

Other documents that have surfaced since August include a 1996 FBI memo describing the use of gas rounds capable of starting fires against an underground bunker adjacent to the sect's compound.

Mike Bradford, a Texas-based federal prosecutor assigned to oversee the search and turnover of government materials related to the siege, said this week that more than 200,000 pages of documents had been found in the federal prosecutor's office in San Antonio alone.

Mr. Bradford, the U.S. attorney for the Eastern District of Texas, said many of those were turned over to Congress in 1995, when the House conducted a lengthy investigation of the Waco tragedy. The prosecutors' handwritten notes describing use of pyrotechnic or incendiary rounds were not turned over in 1995, congressional documents indicate.

Mr. Bradford was asked to oversee the document turnover after the U.S. attorney in San Antonio asked that his entire district be taken off the case because of a possible conflict of interest.

His prosecutors could be asked to testify in congressional inquiries and also could face new legal action for failing to reveal the use of pyrotechnic tear gas to defense lawyers representing members of the sect in a 1994 federal criminal trial.

More time needed

Mr. Bradford said the production of all federal information relating to the siege could take weeks because copies of everything must be made for Congress and independent counsel John Danforth.

The government's motion stated that the White House counsel's search has been slowed by the "number and magnitude of searches being conducted" by its lawyers. "They have been unable to complete their search, but they will produce any responsive documents as soon as possible."

At least some of the documents being turned over to the Waco court could become public in a wrongful-death lawsuit filed by surviving Branch

Davidians. Judge Smith is presiding over the case, in which Branch Davidians have alleged that government negligence and wrongdoing caused the tragedy. Judge Smith has warned both sides that he will not allow a fishing expedition into the massive document trove, which is expected to include classified military data and information protected by federal privacy laws.