Waco test impossible, officials say

The Dallas Morning News, November 18, 1999
By Lee Hancock

Tests to find the cause of flashes on FBI infrared videotape shot in the final hours of the Branch Davidian siege will probably be meaningless because the camera used at Waco no longer exists, federal officials said Wednesday.

Authorities have refused to release anything about the make or capabilities of the FBI's infrared camera used to record the fiery end of the 1993 Davidian standoff. They cited national security and law enforcement secrecy rules.

But an FBI official said Wednesday that the camera was a one-of-a-kind instrument extensively upgraded after the 1993 incident and had capabilities that probably couldn't be duplicated with any other camera.

"It does not exist in the form that it was. It has been upgraded from analog to digital recording," said the official, who spoke on condition of anonymity. "It's a significant change that is so fundamental to a re-creation, I don't know how we can ever say how experts will be able to agree to a test protocol."

U.S. District Judge Walter Smith on Monday ordered infrared field tests at the request of the office of Waco special Counsel John Danforth. Earlier, the FBI offered to conduct a private "accurate recreation" for the independent counsel while government lawyers rejected proposals for a joint public test with the Davidians' lawyers.

FBI and Justice Department officials said they will cooperate with the court-ordered test, despite their doubts about its ability to resolve anything.

Lawyers for the sect have alleged in a federal wrongful death lawsuit that repeated bursts of white light captured by an airborne FBI infrared camera were muzzle blasts from guns government agents fired at the Branch Davidian compound. Judge Smith has scheduled the case for trial in mid-May.

The FBI says that none of its agents fired a single shot during the 51-day Davidian standoff. Although they once theorized that the flashes on the Waco infrared video might have come from sunlight reflections, bureau officials recently began telling reporters that the white blips of light were inexplicable electronic "anomalies" whose source will probably never be identified.

The issue is a cornerstone of the Branch Davidians' lawsuit, which alleges the government's gunfire kept innocent women and children trapped in the compound as it burned to the ground.

The fire erupted six hours after FBI tanks began ramming the building and spraying in tear gas on April 19, 1993. Branch Davidian leader David Koresh and more than 80 followers died. Officials say that the sect deliberately set the fire and that the government's actions did not contribute to the final tragedy.

Last month, lawyers for the Branch Davidians challenged the government to joint infrared field tests. Guns similar to those deployed with the FBI and the Branch Davidians would be test-fired, and shots would be recorded by an airborne infrared camera. Attorneys for the government rejected that and warned that any test would be hopelessly flawed without key technical data that they intended to withhold as national security secrets.

That triggered Mr. Danforth's request for court supervision. The judge's order set a one-week deadline for filing objections to a proposed test plan. Neither side has filed formal responses.

But government officials acknowledged that the judge's order has forced the Justice Department's hand. "Nobody thinks you can recreate it," said a top Justice official who spoke on condition of anonymity. "It doesn't matter. We're going to participate."

The officials noted that the testing will be hampered by not only the alteration of the FBI's camera but also by the difficulty in trying to duplicate environmental conditions from the spring of 1993.

Mike Caddell, lead attorney for the sect, disputed that and called the FBI's claim about its camera equipment "absurd."

"They're saying there's only one camera in the world like the one they used, and it doesn't exist anymore? What crock," Mr. Caddell said. "How did the FBI intend to do a valid test for Mr. Danforth? They told him they could do an accurate recreation."

He said he was also disturbed that the government's position had shifted since the court order. "Before that, there was no mention that there was one piece of equipment in the world that could perform the test and it no longer existed," he said.

He said he will ask the court to explore whether the FBI camera could be restored to its 1993 condition for the field tests.

Officials with Mr. Danforth's office declined to comment.

The special counsel has already sought custody of hundreds of firearms the FBI deployed in Waco.

Tuesday, Mr. Danforth's office also asked Judge Smith for temporary custody of shell casings found in a house used by FBI snipers during the siege. The same house was used by snipers of the federal Bureau of Alcohol, Tobacco and Firearms during a failed gun raid that touched off the Davidian siege.

Four ATF agents died when the gunbattle broke out on Feb. 28, 1993, and ATF officials have said that the dozen .308 shell casings found in the house may have come from their agents.

But some gun experts warn that it may be impossible to match the shell casings to either ATF or FBI guns because the high-performance rifles used by police snipers are frequently retooled and rebuilt to ensure accuracy.

An FBI official confirmed Wednesday that some of the guns Mr. Danforth is seeking have had barrels changed and have undergone other alterations since the siege.

Also Wednesday, Texas Rangers and 10 investigators from Mr. Danforth's office began examining tons of debris, burned ammunition and other "junk" evidence retained in Waco since the standoff. The search is expected to last all week.

And in Washington, a special subcommittee led by Sen. Arlen Specter, R.-Pa, won the right to seek subpoenas if needed for a new investigation into troubled Justice Department cases, including the Branch Davidian siege. Committee Democrats had complained about the broad scope and potential expense of the committee inquiry and warned that it could impede Mr. Danforth's investigation.

House investigators have already issued broad subpoenas as part of their re-examination of the Waco incident.

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