U.S. warned to release Waco siege documents

Judge again threatens government with contempt

The Dallas Morning News, Nov 3, 1999
By Lee Hancock

A Waco federal judge angrily warned Tuesday that the government faces contempt proceedings within two weeks if its lawyers do not surrender every federal document relating to the Branch Davidian standoff.

"The court is not unmindful that the government waits not only until the last day, but until the last minute, to respond to every order this court has issued. That practice causes the court to be suspect of the government's desire to comply with its orders," Judge Walter S. Smith Jr. wrote in a four-page order rejecting a government plea for another month to complete the turnover.

It marks the second time in two months that the judge has threatened to hold the government in contempt for its efforts to fight the wholesale turnover of all federal documents relating to the 1993 incident.

Judge Smith issued a sweeping order in August ordering that all government information relating to the Branch Davidian siege be sent to his federal clerk for safekeeping. Government lawyers tried to fight the order but agreed to comply in September after the judge threatened to hold them in contempt.

On Tuesday, U.S. Attorney Mike Bradford of Beaumont said federal officials will "comply timely" with the judge's latest deadline of Nov. 15. One day earlier, he and other Justice Department lawyers filed a motion seeking to delay full compliance until Dec. 1. Mr. Bradford said more time was needed because of problems with duplicating videotapes and photographs from the Waco case for ongoing investigations by Congress and special counsel John Danforth.

"We're going to try to get that finished by Nov. 15, and if we can't make that deadline, we'll turn over what we have," said Mr. Bradford. The East Texas federal prosecutor was assigned to oversee the case after the chief federal prosecutor in Central Texas, William Blagg, asked that his office be recused.

Despite that recusal, Judge Smith wrote that he will hold both Mr. Bradford and Mr. Blagg responsible if the government misses his latest deadline. Judge Smith's Tuesday order complained that the Justice Department has unnecessarily delayed and possibly even deliberately stalled making arrangements for housing federal classified documents connected with the case in Waco.

The order noted that government lawyers have tried to use the lack of proper facilities in Waco to delay sending secret military records and other classified materials related to the case.

As a result, Judge Smith wrote, more than 7,000 secret Defense Department documents have not been produced, and the Justice Department "has done nothing to assure the transfer of those materials."

He set a Nov. 9 deadline for security arrangements for storage of classified records in Waco. After that, Judge Smith wrote, "the court will presume that the Department of Justice has waived the right to complain about how such materials are stored in the Waco courthouse."

At least some of the military's classified documents detail the deployment of soldiers from classified special operations units during the 51-day standoff, according to government documents already made public in the case. Government lawyers recently acknowledged that 10 special forces personnel were sent to Waco during the 1993 incident to act as observers or technical advisers. Lawyers for the Branch Davidians have alleged in a wrongful-death lawsuit that some of the soldiers may have been actively involved when the FBI mounted a tank and tear-gas assault on the Branch Davidian compound. Six hours after the assault began on April 19, 1993, a fire consumed the compound with Branch Davidian leader David Koresh and more than 80 followers inside.

Lawyers for the sect have alleged that government agents, possibly including special forces soldiers, fired shots into the compound that day - a charge that the government has long denied.

The sect alleges that the government's actions also may have caused the fire, but government investigators have said that the blaze was deliberately set by Mr. Koresh and his followers.

Judge Smith is presiding over that case, now set for trial in mid-May. Government lawyers have told lawyers for the Branch Davidians that national security restrictions will permit only written questioning of special forces personnel involved in the incident.

Monday's filing by the Justice Department suggested that the White House is also considering asserting executive privilege to withhold some of its Waco documents.

The government's Monday filing indicated that more than 580 White House documents have been slated for release to the Waco federal court. But lawyers for President Clinton indicated in a Friday memo to the Justice Department that they are withholding one classified document "until further notice.

That memo, filed with the Monday government pleading, indicated that White House lawyers will not decide until Nov. 12 whether to withhold other "materials that we believe are subject to executive privilege," the memo stated.

More than 300 boxes of government documents and other materials have since been shipped to Waco, including 171,000 pages of Waco-related documents from the FBI and 30,000 pages from the Department of Defense, according to Monday's government pleading.