"Waco Whistleblowing"

by Dave Kopel & Paul H. Blackman ("National Review Online," September 9, 2000)

EDITOR'S NOTE: The authors are speaking on their own behalf only, and not on behalf of any organization. Their book, No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It, was given the 1997 Thomas S. Szasz Award for outstanding contributions to the cause of civil liberties, presented by the Center for Independent Thought.

Last September, there were hints that the Waco cover-up might end. In response to the FBI admission it had previously lied about using incendiary devices before the final conflagration, the Justice Department's primary opponent of independent investigations, Janet Reno, was promising one on Waco.
Yet Janet Reno's interest in uncovering the truth about Waco was no greater than her interest in uncovering the truth about Chinese Communist money entering the 1996 presidential campaign. But for Waco, her cover-up was managed far more adroitly than her patently indefensible refusals to name a special prosecutor for the 1996 campaign.
Reno, in all her Waco genius, used the appointment of an outside investigator as part of the cover-up. Her September 1999 selection of John Danforth to investigate Waco was almost instantly successful in getting the U.S. House Republican leadership to squash efforts by Rep. Dan Burton to investigate the Waco fiasco. As the Elian Gonzalez kidnapping showed, the House Republican leadership has no interest in investigating criminal violence by federal police, unless opinion polling shows in advance that the investigation will be popular.
Danforth was a brilliant choice by Reno. A moderate Republican, he had a well-established reputation in Washington for honesty. This was the main fact that the press noticed.
But there were two other significant facts about Danforth. As a senator, he had a compiled a generally pro-gun voting record. But on leaving the Senate, he gave a speech expressing his regret about all those votes, and his caving in to special interests. The Waco investigation offered Danforth a perfect opportunity for personal expiation for having been too pro-Second Amendment in Congress.
Second, Reno told Danforth that his second-in-command should be Edward Dowd, the United States Attorney for eastern Missouri. Unlike Danforth, Dowd has never pretended to be anything other than a fervent anti-gun advocate. During the Spring 1999 Missouri election campaign on a referendum to establish a licensing system for carrying handguns for legal protection, Dowd used the financial resources of his U.S. Attorney's office to fight the referendum - establishing a toll-free number for referendum opponents.
The day after the Reno Justice Department cleared Dowd of criminal charges stemming from his use of federal resources for a political campaign, the Reno Justice Department appointed Dowd to investigate the Reno Justice Department's handling of Waco. One hand whitewashes the other.
As second-in-command, Dowd could reasonably be expected to exercise plenty of control over the mode and type of information that was presented to Danforth - who was five years into retirement, and who had not practiced law for a quarter of a century. Danforth decided that his inquiry would be limited solely to the final day of the fifty-one day Waco siege. He also decided that limited inquiry would ignore any issues as to whether the FBI or others in the government had exercised bad judgment.
Thus, the Danforth inquiry did not inquire as to why the BATF served an arrest warrant for one person, David Koresh, by launching an 81-man machine gun, helicopter, and grenade offensive on a group home occupied by 120 people, most of them women and children. Nor did Danforth examine why a tank and chemical warfare assault was launched to end the siege - even though Koresh had already announced plans to surrender, and was complying with those plans. Nor did Danforth examine why the FBI concealed Koresh's surrender offer from Attorney General Reno, or how the FBI misled her about the deadly effects of CS chemical warfare agent when used indoors (nine people were dead of CS poisoning before the fire started), or how the FBI deceived Reno into approving the tank attack with false assertions that Koresh was currently abusing babies inside the compound.
Also off the table for the Danforth inquiry was the FBI's decision to ignore the advice of its own behavioral experts who predicted terrible consequences if the FBI attacked. On the weekend before the FBI attack, the Branch Davidians, expecting an imminent assault, hung a banner out their window reading "Flames Await." Yet the FBI claimed to be surprised when the building burned down after the tank assault began.
Instead, the Danforth tunnel-vision inquiry contented itself with finding that some of Koresh's lieutenants had started the fire, and that therefore the FBI was entirely blameless for everything that happened on April 19, 1993.
The only real target of Danforth's pique is the former assistant U.S. attorney whose whistleblowing forced the government to produce its latest cover-up report. It had certainly never occurred to us that Bill Johnston would turn out to be one of the good guys. His prosecution of the surviving Davidians included a panegyric in praise of the use of CS against the children. But Johnston had consistently shown some interest in preserving evidence-as when he complained during the siege that FBI tanks were destroying evidence as they crushed everything in site outside the Branch Davidian's building.
Johnston now faces probable indictment for allegedly failing adequately to turn over all his information to the special counsel, apparently out of fear the FBI would make him the fall guy.
Shortly after the failed BATF assault on Feb. 28, 1993, the Texas Rangers were appointed as special U.S. marshals to investigate the events of that day. The marshals recommended that perjury charges be brought against several BATF employees for blatantly lying to the Rangers, under oath, about what happened on Feb. 28. But of course the Reno Department of Justice prosecuted no one.
It is an effective warning to every federal employee that the only federal employee who faces any prosecution because of Waco is the man who blew the whistle on the cover-up.

"Danforth seeks to repair rift with judge over Waco case"

by Lee Hancock ("Dallas Morning News," September 9, 2000)

WACO – Special counsel John C. Danforth met privately Friday with U.S. District Judge Walter S. Smith Jr., trying to repair a rift created when the special counsel's investigators recently threatened to indict a former federal prosecutor who turned whistle-blower in the Branch Davidian case.
"We're just here to talk to the judge about the relationship between the court and the office of special counsel. We've enjoyed a very good and close working relationship, and we want that to continue," he said.
But the former Missouri senator said before meeting with Judge Smith that he was not prepared to discuss what action, if any, his office might take against the former longtime Waco federal prosecutor, Bill Johnston.
"I can say that that's not something that could come up. The answer is no, it can't come up in our discussion," he said, adding that he could not say "one way or another" whether his office will file criminal charges against "anybody" as a result of its 11-month, $12 million inquiry.
Judge Smith angrily confronted several of Mr. Danforth's investigators last month over the special counsel's treatment of Mr. Johnston, telling them that he was ending his court's cooperation with the inquiry because of what he said appeared to be a witch hunt against a respected federal prosecutor.
The judge also told Mr. Danforth's investigators that they were no longer welcome to carry firearms in the courthouse and would be given only the same access to the building offered to the public.
The special counsel's investigators left their courthouse offices that day and largely stayed away until Friday, when Mr. Danforth arrived from St. Louis.
Airing concerns
Before entering the judge's chambers Friday, Mr. Danforth acknowledged that he requested a meeting with Judge Smith, in part, to air concerns about that incident.
He emerged tightlipped after about an hour in the judge's office, refusing to say whether he had briefed the judge or listened to his concerns about reports from Mr. Johnston and his attorneys that say the special counsel's assistants were threatening him with felony criminal prosecution.
Mr. Danforth also would not say whether the hourlong discussion had repaired the strained relationship between his office and Judge Smith, who has heard all litigation arising from the 1993 standoff.
Judge Smith declined to comment on the meeting. Mr. Johnston has declined to speak publicly about the case.
His attorney, Michael Kennedy of New York, could not be reached for comment. But he acknowledged last week that Mr. Danforth's investigators told him that Mr. Johnston would soon be indicted on charges of obstruction of justice, lying to federal investigators and perjury.
Possible indictment
Late Friday, supporters of the 41-year-old former prosecutor said that they believe his indictment is imminent and the special prosecutor's visit amounted to a courtesy call before criminal charges are made public.
"It appears they are determined," said one person familiar with the case who asked not to be identified. "They have made it clear."
Mr. Johnston was told in late July that the special counsel's office believed he committed criminal violations in withholding pretrial notes from the 1994 prosecution of surviving Branch Davidians.
He was among five federal prosecutors who brought federal criminal charges against survivors of the 51-day Davidian siege, which began with a gunfight in which four federal agents and six Branch Davidians died. The battle started when federal Bureau of Alcohol, Tobacco and Firearms agents tried to search the sect's compound and arrest leader David Koresh on firearms charges.
The siege ended on April 19, 1993, with a fire that burned the compound with Mr. Koresh and more than 80 followers inside.
The case drew new attention last summer after a former FBI official acknowledged that agents had used gas grenades capable of sparking fires on the last day of the siege.
Justice Department officials initially ridiculed the admission but later acknowledged that pyrotechnic devices were used in the FBI's final tank and tear gas assault.
Prosecutor's accusations
Mr. Johnston then wrote Attorney General Janet Reno late last August to warn that some of her Justice Department subordinates may have withheld evidence from her and the public about the FBI's use of pyrotechnic grenades. Ms. Reno had banned anything that might spark a fire in the final assault.
Ms. Reno asked Mr. Danforth last September to review government actions in the standoff and determine why officials had so long denied that the FBI had used anything capable of sparking fires.
Mr. Johnston went public shortly after writing Ms. Reno, and friends and former colleagues said they soon feared Mr. Johnston would face retribution for publicly embarrassing the Justice Department and Ms. Reno.
After Mr. Johnston resigned in February from the U.S. attorney's office, he was taken twice before a federal grand jury in St. Louis by Mr. Danforth's investigators.
In late July, Mr. Johnston was grilled about three pages he took from a notebook before turning it over to his superiors. He was told to surrender his Davidian records after Judge Smith ordered all government agencies last August to turn over everything relating to the incident to his court.
Associates said Mr. Johnston acknowledged that he removed several pages before sending one pretrial notebook to superiors in San Antonio because one page included a reference to incendiary objects. They said Mr. Johnston did not recall why he wrote the phrase in the fall of 1993, but feared that hostile colleagues might try to use the notes to discredit him.
Friends said Mr. Johnston surrendered the missing pages and volunteered his personal records from his tenure as a Waco federal prosecutor. They said he told Mr. Danforth's investigators that he had not disclosed the notes sooner because he had been harshly treated and accused of wrongdoing from his earliest dealings with them.
They said Mr. Johnston recounted being told that he could avoid prosecution by accepting a felony conviction that would mean the loss of his law license. He recalled being told he would have to provide information to help the special counsel's office prove that his co-counsel in the Davidian prosecution, Assistant U.S. Attorneys Ray and LeRoy Jahn of San Antonio, had conspired to conceal information about the use of pyrotechnic gas.
The Jahns have retained San Antonio criminal defense attorney Gerald Goldstein, who has declined to comment.
Friends of Mr. Johnston said he told Mr. Danforth's investigators that he knew nothing that might help build a criminal case against the husband-and-wife prosecution team.
Mr. Johnston's last round of questioning came less than a week after the special counsel's office released a preliminary report absolving Ms. Reno and the FBI of wrongdoing in Waco.
No criminal charges
Criticizing what it termed unfounded accusations and a resulting climate of fear among federal officials involved in the siege, Mr. Danforth's report concluded that his office would not pursue criminal charges against an FBI lawyer whom Mr. Danforth said lied four times to his investigators.
At the time, the former senator said it would be the equivalent of "hitting a gnat with a sledgehammer" to prosecute a low-level attorney accused of lying when she said she gave Justice Department lawyers a 1995 FBI memo detailing use of several pyrotechnic military tear gas grenades in Waco.
Mr. Danforth's report also repeated the Jahns' explanation that they were negligent but had not intentionally tried to mislead when Mr. Jahn told Congress in 1995 that gas used at Waco was nonflammable and Ms. Jahn made similar representations in legal filings for the 1994 criminal case.
Mr. Danforth's report made little mention of Mr. Johnston. Mr. Danforth waved off questions about the former prosecutor when he released the report, saying he could not discuss any of the issues still under investigation.
Friday, Mr. Danforth said his investigation is nearly complete. "We've made good progress," he said, adding that a final, public release of his investigative findings "will be in the imminent future."