A Congressional report released Thursday alleges that President Clinton and Attorney General Janet Reno misled the public for years with claims that U.S. military experts endorsed the "flawed" FBI tear gas attack that ended the Branch Davidian siege.
"President Clinton and Attorney General Reno have deceived the American people for over seven years by misrepresenting that the military endorsed, sanctioned or otherwise approvingly evaluated the plan," stated the report by the House Government Reform Committee.
The 99-page report also vigorously criticizes that Justice Department's response in the aftermath of the tragedy, contending that all of the agency's actions "were consistent with an organization that was not eager to learn the full truth about what happened on April 19, 1993."
Officials at the Justice Department and the White House did not immediately return calls for comment Thursday.
But an opposing report by the committee's Democratic minority disputed the Republican majority's criticism of Ms. Reno. Committee Democrats contended that the attorney general acted properly during the siege and its aftermath and that the committee had wasted more than a year of investigative resources on the Waco tragedy.
The Democrats' 25-page response contended that the Republican majority findings were duplications of earlier investigative efforts or "unsupported allegations of wrongdoing."
"The committee's 13-month investigation was unnecessary, expensive and fruitless," the Democrats charged. "It contributes virtually nothing to the public's understanding of Waco."
Both reports released Thursday follow a year-long investigation by the same House committee that conducted two weeks of contentious and highly partisan hearings in 1995 on the Waco tragedy.
The committee renewed its Waco inquiry in September 1999 after FBI and Justice Department officials were forced to reverse years of public denials and acknowledge that some pyrotechnic tear gas grenades had been used during their final Waco operation.
That admission and a Waco federal prosecutor's public warnings to the attorney general last fall that some of her subordinates may have covered up the use of pyrotechnic tear gas grenades also led to the appointment of Waco Special Prosecutor John C. Danforth.
Mr. Danforth issued a preliminary report in July exonerating the government of "bad acts" in Waco and clearing Ms. Reno of any wrongdoing or effort to mislead Congress or the public in the aftermath of the worst law enforcement tragedy in U.S. history.
About 80 Davidians died on April 19, 1993, when their compound burned. The fire broke out about six hours after FBI agents began ramming the building with tanks and spraying in tear gas to try to force and end to a 51-day standoff.
The incident began when a gunfight broke out as agents from the federal Bureau of Alcohol, Tobacco and Firearms tried to search the Davidian complex and arrest leader David Koresh on weapons charges. Four ATF agents and six Davidians died.
The committee inquiry that led to Thursday's report began with intense partisan sniping. Ranking minority member Henry Waxman, D.-Calif., angrily chastised committee chair Dan Burton, R-Indiana, last September after the chairman accused Justice Department officials of withholding parts of an FBI lab report from Congress that identified at least one tear gas round used at Waco as a military device.
Mr. Waxman's staff discovered last fall that several copies of the report, including the reference to the military rounds, were given to the congressional committee before its 1995 hearings.
On Thursday, Democrats renewed their criticism of Mr. Burton, charging that his committee's entire report and investigation was flawed because of its beginnings with that "false accusation."
But the committee's majority noted in its report that those documents were "dumped" on the committee only three days before the start of the 1995 Waco hearings "in an apparent hope that ...no one would have the opportunity to find these documents and ask relevant questions."
"Justice Department officials were more concerned in 1995 with their own political self preservation than their duty of full disclosure to the American people and the Congress," the report released Thursday charged.
The report issued by the committee's Republican majority includes accounts from an Army general and colonel of how they refused Ms. Reno's request to evaluate an FBI plan to assault the Davidian compound when FBI officials were seeking her approval for the tear-gas operation carried out on April 19, 1993. The two special forces officers said they told Ms. Reno that federal limits on involvement by U.S. military in domestic law enforcement actions prohibited them from offering any critique or suggestion about the Waco plan.
At one point in discussing the operation plan, then deputy attorney general Webster Hubbell even asked one of the officers "is this legal," the report stated. "The army colonel did not answer when Hubbell looked at him, but stated during his interview with committee staff that his private thought at the time was, 'that's your job; not mine.'"
The report adds that both officers told Congressional investigators that they were stunned when they later learned that the tear-gassing plan had been allowed to go forward, but were never contacted by Justice officials assigned to review what happened after the siege.
"When they left the April 14, 1993, meeting, they were convinced the FBI would never execute the proposed operations plan as it was briefed at the meeting. The Army Colonel stated he believed the Attorney General 'didn't buy the plan being proposed by the FBI.' ...His impression from the meeting was that no one thought it was a smart way to proceed. He went on to state that he was astonished when he saw the fire on TV on April 19, 1993.
"General (Peter) Schoomacher ... wondered why anyone would make the decision to follow through with the FBI's proposed operations plan as it had been described at the meeting," the report stated. "His thought at the time of the meeting with Attorney General Reno was that [the Hostage Rescue Team] should have put a fence around the compound and waited until the Branch Davidians came out from hunger, but he did not state this thought openly at the meeting."
Ms. Reno told Congress after the operation ended in tragedy that the military officers she had consulted before approving the plan had concluded it was "excellent," and "sound." President Clinton told reporters immediately after the incident that he was told by Ms. Reno that military officers consulted before the operation "were in basic agreement" with the FBI's operation.
Committee Democrats contended in their minority response that the officers' statements about their meeting with Ms. Reno had been misinterpreted and that Ms. Reno's account of what happened was supported by three other Justice Department officials.
"In short, the majority grossly exaggerates the significance of what is largely a difference in semantics and subjective impressions," the Democrats' response stated.
While the committee report released Thursday diverges from the Danforth report in its repeated and intense criticism of the attorney general, its conclusions mirror several of the key findings by the Waco special counsel.
Like Mr. Danforth and a federal court in Waco that recently threw out a wrongful death lawsuit filed by surviving Davidians, the congressional committee found no evidence that any government agents fired guns at the sect in the last hours of the siege.
One analyst retained by the committee's investigators stated publicly last fall that he had found evidence on an FBI infrared video to support the government gunfire charge. But the Congressional report states that the analyst, Carlos Ghigliotty, died of heart disease in March before preparing or submitting a scientific report to support his gunfire claim.
A second analyst retained to evaluate the infrared videotape recorded from an FBI airplane filed a report in September stating that none of four segments of the infrared video that he examined for committee investigators depicted gunfire.
"It is extremely unlikely that anyone will ever be able to prove, scientifically, that no government agent ever fired a shot at the Davidians on April 19, 1993. The Committee, however, has not found sufficient evidence to support the allegations that law enforcement or military personnel directed gunfire towards the Branch Davidians on April 19, 1993."
The report also criticizes Justice Department lawyers who prosecuted surviving Davidians after the siege, contending that lead prosecutors Ray and LeRoy Jahn of San Antonio and former prosecutor Bill Johnston of Waco were told in 1993 that the FBI had used pyrotechnic tear gas against the sect.
Ray Jahn, the lead prosecutor, told Congress in 1995 that only non-pyrotechnic gas was used in Waco, and his wife, LeRoy, signed pleadings during the criminal case that offered similar statements to a federal court and lawyers defending members of the sect. Records made public for the first time last fall included handwritten notes in which Jahn wrote in 1993 describing the FBI's use of military, pyrotechnic rounds.
The Congressional report notes that recent government admissions about the use of pyrotechnic gas were due in large part to Mr. Johnston's public criticism of the Justice Department and warnings to Ms. Reno of a possible coverup.
But it noted that Mr. Johnston, who resigned his prosecutor's post earlier this year, also withheld notes from the committee that showed he was told in the fall of 1993 that several "incind" or incendiary military gas rounds were fired at a bunker adjacent to the compound.
"While Johnston deserves credit for his role in bringing to light the use of pyrotechnic devices on April 19, 1993, a secret that lasted four seven years, his record in this matter is a mixed one," the report stated. "Johnston performed a public service for which he suffered undeserved reprisals from the Department of Justice. On the other hand, Johnston's apparent decision to withhold his handwritten notes ...cannot be overlooked or excused."
A lawyer for the former prosecutor said last month that he has been notified by the Waco special prosecutor that he is being targeted for prosecution for withholding the notes. The lawyer, Michael Kennedy of New York, also has said that Mr. Danforth's office tried to convince Mr. Johnston to plead guilty and testify against the Jahns but Mr. Johnston has repeatedly refused.
Neither Mr. Kennedy nor Gerald Goldstein, a San Antonio lawyer representing the Jahns, could be reached for comment Thursday.
The federal judge who has presided over seven years of litigation arising from the Branch Davidian siege will go to St. Louis this week to appear before a federal grand jury hearing evidence in the ongoing Waco special counsel's investigation.
U.S. District Judge Walter S. Smith Jr. volunteered to testify after being served on Oct. 11 with a federal grand jury subpoena by the office of Waco special counsel John C. Danforth, the judge's lawyer said Tuesday.
The attorney, Baylor Law School professor Bill Underwood, declined to discuss when the judge will appear before the secret investigative panel or specifics of his testimony.
Jan Diltz, a spokeswoman for Mr. Danforth's office, declined to comment on the matter Tuesday.
But people familiar with the inquiry say the judge is scheduled to appear Friday and will be questioned about former federal prosecutor Bill Johnston. Mr. Johnston, a longtime friend of Judge Smith's who helped prosecute surviving Branch Davidians, gained national attention last summer after complaining publicly that the government withheld evidence from the 1993 siege.
Mr. Johnston's lawyer said he was notified late this summer that the special counsel's office was preparing to indict Mr. Johnston on charges ranging from perjury to obstruction of justice and lying to federal prosecutors.
The attorney, Michael Kennedy of New York, declined to comment Tuesday.
Officials familiar with the inquiry said that the special counsel's office served Judge Smith with a subpoena last week, a few hours after plea negotiations collapsed between Mr. Johnston's attorney and the special counsel.
Associates of the former prosecutor, who spoke on condition of anonymity, said the move appeared to be aimed at increasing pressure on Mr. Johnston to plead guilty to a felony – an act that would mean the loss of his law license.
Mr. Johnston's supporters say they fear that the special counsel could use the judge's grand jury testimony to limit his effectiveness as a potential defense witness. The judge has told Mr. Danforth that the pursuit of Mr. Johnston is a witch hunt and that he would testify for his friend at trial.
Mr. Underwood said the special counsel's office agreed Monday to withdraw its subpoena after being notified that the judge would voluntarily come to St. Louis.
Mr. Johnston 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 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.
Judge Smith issued an order in August 1999 requiring all government agencies to surrender all records and evidence in any way connected to the Davidian case to his Waco court.
The case then drew new national attention after a former FBI official told The Dallas Morning News that bureau agents had used gas grenades capable of sparking fires on the last day of the siege.
Justice Department officials initially ridiculed the former FBI official's statement, but they later acknowledged that pyrotechnic devices were used in the FBI's final tank and tear gas assault.
Mr. Johnston then wrote to Attorney General Janet Reno to warn that some of her subordinates may have withheld evidence about the use of pyrotechnic grenades. Ms. Reno had banned anything that might spark a fire in the final assault.
Ms. Reno decided in September 1999 to appoint Mr. Danforth, a former Republican senator from Missouri, to review the government's handling of the incident.
Mr. Johnston resigned in February from the U.S. attorney's office and was summoned twice before Mr. Danforth's federal grand jury in St. Louis.
Mr. Johnston was questioned intensively about three pages that he took from a notebook before turning it over to his superiors in San Antonio, friends and associates said. Mr. Johnston had been ordered last fall to send all of his Davidian records to the U.S. attorney's office in San Antonio after Judge Smith issued his order for the turnover of all government Davidian evidence to his court.
Mr. Johnston acknowledged that he removed several pages before sending one notebook to superiors because one of the pages included a specific reference to the FBI's use of a "military incind" – or incendiary gas round –against a Davidian bunker adjacent to the compound.
Friends said Mr. Johnston did not recall writing the phrase and withheld the pages out of fear that hostile colleagues might try to use what he had written to discredit him.
Friends said Mr. Johnston surrendered the missing pages to the special counsel's office in July. They said he told Mr. Danforth's investigators that he had not disclosed the notes sooner because he had been accused of wrongdoing from his earliest dealings with the special counsel's office.
Susan N. Kelly, a Waco lawyer who went to St. Louis in July to advise Mr. Johnston after he surrendered his notes, said the special counsel's staff threatened to indict him if he received more favorable publicity as a whistle-blower and also declared that his life "was basically over."
Judge Smith was so disturbed that he told Mr. Danforth's investigators that he was ending his cooperation with the special counsel's office. He wrote Mr. Danforth to express his dismay, and Mr. Danforth responded with a trip to Waco last month.
Officials in Waco said the special counsel spent more than an hour trying to convince Judge Smith that Mr. Johnston deserved to be prosecuted. In turn, the officials said, the judge argued during the meeting that Mr. Johnston had made mistakes, but those mistakes did not rise to the level of criminal acts.
In his grand jury appearance, the judge will offer the same information that he has already shared with Mr. Danforth, said Mr. Underwood, Judge Smith's lawyer.
WACO - The federal judge who presided over the two trials that resulted from the 1993 Branch Davidian siege will testify this week before a federal grand jury in Special Counsel John Danforth's continuing investigation of the deadly siege and its aftermath.
U.S. District Judge Walter S. Smith Jr. was subpoenaed Oct. 11 by Danforth's office to testify before the panel, but his lawyer says he has agreed to voluntarily answer questions before the jury, The Dallas Morning News reported Wednesday.
Danforth has completed his investigation of the causes of the 51-day siege and the fiery end that claimed more than 80 Branch Davidian lives, clearing the government and blaming the loss of life on Davidian leader David Koresh and his aides.
Danforth has continued investigating the roles of several government lawyers and agents following the standoff and the focus of Smith's appearance Friday is believed to be former federal prosecutor Bill Johnston of Waco, The News said.
Johnston's lawyer said he was notified this summer that the special counsel's office was preparing to indict Johnston on charges ranging from perjury to obstruction of justice and lying to federal prosecutors.
Johnston wrote to Attorney General Janet Reno last summer to warn her that some of her subordinates might have withheld evidence about the use of grenades that could spark fires on the final day of the Waco siege. The government later admitted they were used, but Danforth's review ultimately determined they did not start the fires on April 19, 1993.
Questions about the concealment of the grenade information led Reno in September 1999 to appoint Danforth to conduct his investigation to review the government's handling of the standoff.
Johnston has been called twice before Danforth's federal grand jury to answer questions about three pages of a notebook on the Waco case before turning it over to superiors, according to friends and associates quoted by The News.
In August 1999, Smith had ordered all government agencies to surrender all records and evidence connected to the Waco standoff to his court because of a pending wrongful-death lawsuit against the government. A jury cleared the government and Smith upheld the verdict.
Johnston has said he removed the pages because he feared some people in the Justice Department would use them to discredit him because of his whistle-blower role with Reno.
Smith has also been critical of Danforth's investigation of Johnston, at one time ending his cooperation with the office. He wrote Danforth to express his concern and Danforth traveled to Waco last month to discuss the Johnson case with the judge.
U.S. District Judge Walter S. Smith Jr. has rejected a second attempt by plaintiffs in the Branch Davidian wrongful-death lawsuit against the government to reopen the case concerning allegations that the FBI shot into Mount Carmel on April 19, 1993.
Plaintiffs attorneys David T. Hardy and Jim Brannon asked Smith to reconsider his ruling from last week that rejected the notion that flashes picked up on FBI infrared video on the final day of the 51-day siege were muzzle blasts from FBI weapons.
In a ruling this week, the judge said the request was "without merit."
The plaintiffs alleged that another gunfire test performed earlier this month near Fort Collins, Colo. shows flaws in how a March 19 test at Fort Hood was conducted. The test was in conjunction with the lawsuit and Special Counsel John Danforth's investigation.
Danforth, the civil jury in Smith's court and Smith's judgment in the case absolved the government of wrongdoing in the Feb. 28, 1993, raid at Mount Carmel and in the April 19, 1993, fire in which David Koresh and 75 of his followers were killed.
An infrared expert for the plaintiffs has said that the flashes on the forward-looking infrared (FLIR) videotape taken from an FBI surveillance airplane can be attributed to gunfire from government sniper locations.
Smith removed the gunfire issue from the trial of the lawsuit because a court-appointed infrared expert from England was ill and couldn't testify at trial. Smith later ruled on the issue based on evidence previously submitted after an attorney for the majority of the plaintiffs said after the four-week trial that he no longer was willing to pursue the matter.
The court's expert from Vector Data Systems determined that the flashes were sunlight reflecting off debris.
Smith ruled that the flashes were not gunfire because people are not visible on the FLIR near the flashes and that the flashes are too long to constitute gunfire.
"We submit that the defense experts and the Office of Special Counsel's team from VDS have misled the court into relying on these supposedly 'scientific criteria' for ruling out gunshots," the plaintiffs' motion said. "It is important, in the light of history as well as of law, that the issue not be determined by supposed scientific 'rules' which have been disproved by actual scientific testing."
The Fort Collins tests disproved findings in both areas, the motion contends.
WACO, Texas (AP)- A federal judge rejected a second attempt by plaintiffs to reopen the Branch Davidians' wrongful-death lawsuit against the government.
Attorneys David T. Hardy and Jim Brannon asked U.S. District Judge Walter S. Smith Jr. to reconsider his ruling that rejected the notion that flashes picked up on FBI infrared video on the final day of the 51-day standoff at the sect's Waco compound were blasts from FBI weapons.
In a ruling last week, the judge said the lawyers' request was without merit.
Brannon said Sunday that it was his impression that ``the judge was not going to let anything get in the way of his ruling, including the facts. His mind was made up a long time ago.''
The plaintiffs alleged that another gunfire test performed in early September near Fort Collins, Colo., shows flaws in how a March 19 test to help analyze the flashes on the infrared video was conducted.
The test was in conjunction with the lawsuit and Special Counsel John Danforth's investigation of the government's actions at the compound. A court-appointed expert determined the flashes from the compound video were actually sunlight reflecting off debris.
The lawsuit arose from the standoff that started Feb. 28, 1993, when Bureau of Alcohol, Tobacco and Firearms agents attempted to search the Davidian compound for illegal weapons and arrest sect leader David Koresh. Four agents and six Davidians were killed in an ensuing gun battle that triggered the sect's standoff with the government.
Danforth, the civil jury in Smith's court and Smith's judgment in the case absolved the government of wrongdoing in the initial raid and in the April 19, 1993, fire that ended the standoff. Koresh and about 80 followers perished in the blaze that destroyed the compound hours after FBI agents began a tear-gassing operation meant to end the ordeal.
Waco, FBI and the Branch Davidians: Updates
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