WACO, TEXAS - The military was a reluctant participant in the Bureau of Alcohol, Tobacco and Firearms' efforts against the Branch Davidians, according to memos released under the Freedom of Information Act, the Waco Tribune-Herald reported Saturday.
The newspaper reported that at one point, a top Army officer questioned the legality of military support for the original ATF attack on the compound.
Federal law bars the military from becoming actively involved in domestic law enforcement matters unless directed to do so by the president. Help with drug operations is permitted.
The military previously has acknowledged that it provided assistance to federal law officers at Waco.
In August, the General Accounting Office, an investigative arm of Congress, reported that military personnel became involved after the ATF "cited possible drug-related activity" at the Branch Davidian compound.
A senior Pentagon official then said no consideration was given to requesting a presidential waiver of the law that prohibits military involvement in domestic law enforcement because it wasn't deemed necessary or applicable.
According to the Tribune-Herald, in December 1992, ATF officials asked for help in serving a search warrant to "a dangerous extremist organization believed to be producing methamphetamine."
In a later letter dated Jan. 22, 1993, ATF officials requested training by special-forces troops, instruction in driving Bradley Fighting Vehicles and the loan of seven Bradleys.
The request was forwarded to Joint Task Force-6, the military's headquarters in El Paso for domestic anti-drug efforts. Officials there were told that assistance was "in direct support of (drug) interdiction activities along the Southwest border," the newspaper said.
But Maj. Mark Petree, commander of the Army's special forces, questioned the legality of the request. Maj. Phillip Lindley, his legal adviser, wrote in a memo dated Feb. 3, 1993, that the ATF request would make the military an active, illegal partner in a domestic police action.
"Since this was not an emergency situation, in full control of the civilian authorities on civilian lands with expert civilian (drug) laboratory 'takedown' teams available and civilian medical facilities (available) .o.o. this appeared to go beyond the DOD guidance for these missions," Lindley wrote.
After Joint Task Force-6 accused Lindley of trying to undermine the mission, he consulted his boss, Lt. Col. Douglas Andrews, the deputy staff judge advocate, the newspaper reported.
Andrews told Lindley that the military could probably evaluate the ATF plan, but could not intervene to cancel it or revise it for the agency, the paper reported.
". . . Everything else was a legal no-go," Andrews wrote. "I felt that this was the true outer edge of the envelope and did not feel all that comfortable with it."
After being told that Joint Task Force-6 was asking the Department of Defense to approve the ATF's request for help, Lindley got a phone call at about 7 p.m. from the judge advocate's office. The only involvement with ATF would be to coordinate the agency's use of an Army range and to comment on its plan to raid the Branch Davidian compound, Lindley was told, according to his Feb. 3 memo.
At Fort Hood, Texas, on Feb. 24, 1993, ATF leaders met with the special forces troops assigned to train them.
The military advisers helped construct a mock-up of the cult's compound and opened the rifle range for ATF's sharpshooters. Special Forces troops impersonated Branch Davidians to help in the ATF's training. According to written statements taken from the troops, however, they kept within the guidelines given them.
On Feb. 28, 1993, the day of the ATF's raid on the cult's compound, the military ordered its training force to be on the road headed for home.
"If anything, we may be criticized for being too conservative and not providing enough support," wrote Col. Donald DeCort, staff judge advocate, in a May 18, 1993, memo. "We can live with that!"

WACO, Texas (AP) - U.S. military leaders were reluctant to assist in the 1993 siege of the Branch Davidian headquarters near Waco and questioned the legality of their role, the Waco Tribune-Herald reported Saturday.
Federal law prohibits the military from becoming actively involved in domestic law enforcement matters unless directed to do so by the president.
Citing federal documents obtained under the Freedom of Information Act, the newspaper reported that at one point, a top Army officer questioned the legality of military support for the Bureau of Alcohol, Tobacco and Firearms.
The military previously has acknowledged that it provided assistance to federal law officers. In August, the General Accounting Office, an investigatory arm of Congress, reported that military personnel were called to the scene after the ATF ``cited possible drug-related activity'' at the Davidian compound.
A senior Pentagon official then said no consideration was given to requesting a presidential waiver of the law that prohibits military involvement in domestic law enforcement because it wasn't deemed necessary or applicable.
According to the Tribune-Herald, the military role began before Feb. 28, 1993, the day ATF agents tried to serve members of the Davidians with search and arrest warrants. A gunfight ensued; four agents and six Davidians died.
The ATF had contacted Operation Alliance, an agency that coordinates law-enforcement requests for military help in fighting drugs, the newspaper said.
In a Jan. 22, 1993 letter to Operation Alliance, ATF officials requested training by special-forces troops, instruction in driving Bradley Fighting Vehicles and the loan of seven Bradleys.
Operation Alliance forwarded ATF's request to Fort Bliss and Joint Task Force-6, the military's headquarters for domestic anti-drug efforts. Officials there were told that assistance was ``in direct support of interdiction activities along the Southwest border,'' the newspaper said.
But Maj. Mark Petree, commander of the Army's special forces, questioned the legality of the request. Maj. Phillip Lindley, his legal adviser, wrote in a Feb. 3, 1993 memo that the ATF request would make the military an active, illegal partner in a domestic police action.
After Joint Task Force-6 accused Lindley of trying to undermine the mission, he consulted his boss, Lt. Col. Douglas Andrews, the deputy staff judge advocate, the newspaper reported.
Andrews told Lindley that the military could probably evaluate the ATF plan, but could not intervene to cancel it or revise it for the agency, the paper reported.
There have been allegations that members of the Army's Delta Force squad engaged in a shootout with the Davidians on the day of the April 19, 1993 fire in which sect leader David Koresh and about 80 followers died.
However, military officials insist three Delta Force members were present that day as observers only.
Delta Force officers did meet with Attorney General Janet Reno to discuss proposals to flush the Davidians from the compound.
The newspaper cites a document in which an unidentified Delta Force officer reported that Reno was only offered limited advice - including the military's belief that inserting tear gas into the residence might cause mothers to panic and ``run off and leave infants.''
Reno had been on the job less than five weeks when she approved the FBI's proposal to use tear gas to break the siege. She has said she made clear to the FBI that nothing be used that could ignite a fire.
But in August this year, the FBI acknowledged that a ``very limited number'' of pyrotechnic gas canisters were fired at a concrete shelter. The agency said the canisters did not cause the fire that consumed the compound.
Reno has appointed former Missouri Sen. John Danforth to examine the FBI's conduct at Waco.
No Army official familiar with the situation was available for comment Saturday, said Gerry Gilmore, a Pentagon Army spokesman.

John C. Danforth's 30-day head start in interviewing witnesses in his Waco investigation expires Monday, when lawyers for the Branch Davidians resume taking depositions in their wrongful death suit against the government.
For the moment, though, the focus of the investigation is in Washington, not Waco. The capital is preparing for a most unusual movie premiere. Top government officials, members of Congress and reporters are invited to Wednesday's showing of the documentary, "Waco: A New Revelation." Danforth may attend, and two of his top investigators have already confirmed.
The movie claims that the involvement of the military's Delta Force anti-terrorism unit at Waco was greater than previously acknowledged. Filmmaker Mike McNulty told the Post-Dispatch that the film will feature a dispute between military lawyers and commanders of the Delta Force. The lawyers questioned the extent of Delta Force involvement but were told to keep quiet or face a court-martial, he said.
It was McNulty's 1997 film, "Waco: The Rules of Engagement," that helped keep the controversy alive. McNulty's search for additional evidence for the new film resulted in the discovery that the FBI had shot military tear gas on the final day of the 51-day government siege in 1993. The siege, which began with a botched firearms raid on Feb. 28, ended in a fire April 19 that left about 80 Branch Davidians dead.
The revelation about the tear gas led to the appointment of Danforth as special counsel and to the delay of the wrongful death case to give Danforth and his chief deputy, Edward L. Dowd Jr., time to gear up their inquiry.
For the next several months, those two fact-finding processes will move ahead in tandem. Michael Caddell of Houston, a lawyer for the Branch Davidians, has agreed to give Danforth notice of the depositions he will be taking, in order to give the special counsel's office time to interview the witnesses first. Pretrial discovery must be completed by April 15, and the trial is set to begin on May 15 in the court of U.S. District Judge Walter S. Smith Jr. in Waco.
Smith's trial and Danforth's investigation have somewhat different purposes and different methods. The civil trial, based on sworn testimony in open court, will determine if surviving Branch Davidians are entitled to damages because of injuries caused by any government wrongdoing.
The Danforth investigation, which will issue a public report but will not take public testimony, is intended to provide the public with a believable answer to the question of whether the government committed bad acts at Waco.
Despite these differences, both are truth-seeking processes. Smith told the Dallas Morning News this month, "The court's not really an investigating agency, but it is the apparatus by which the truth is determined."
In an order July 1, Smith whittled down dozens of legal claims by the Branch Davidians to three:
* Did agents of the Bureau of Alcohol, Tobacco and Firearms use excessive force by firing "indiscriminately" into the complex during the raid Feb. 28?
* Did government agents use excessive force by firing into the complex April 19 to end the siege?
* Was the government negligent in causing the fire and keeping firetrucks away from the blaze?
There is some overlap between the questions that Judge Smith will answer and the questions that Danforth is focusing on:

Government gunfire?

Both Smith and Danforth want to find out if the government fired into the complex during the April 19 assault. The FBI maintains that none of the agents fired. Experts for the Branch Davidians say that infrared videotape shows evidence of shots fired, a claim that government infrared experts dispute.
The question of whether the ATF agents used excessive force during the Feb. 28 raid is central to Smith's trial but a borderline call for Danforth. If the government agents fired indiscriminately into the complex and without provocation, their actions might amount to excessive force in the wrongful death case. But Danforth might classify that as an example of bad judgment -- which he is not pursuing -- rather than bad acts.
In his order in July, Judge Smith was emphatic in his rejection of several other claims by the Branch Davidians -- that the ATF search warrant for illegal weapons was deficient, that the ATF's attempt to force its way into the complex was excessive, that the FBI shouldn't have used tear gas on April 19, and that the FBI mishandled the 51-day siege by playing loud music. Claims that Smith rejected are unlikely to be viewed as bad acts by Danforth.

Who started the fire?

Danforth, like Smith, wants to know if the government started the fire. But Danforth also wants to know if the government intentionally started the blaze. Smith will go further to determine if the government was negligent in blocking the Branch Davidians from fleeing the fire or in causing the fire by
knocking over kerosene lanterns as tanks broke down the walls to the complex.
Caddell believes "the negligence case against the government can be successful even if a handful of Davidians started the fire." The government says electronic intercepts prove that the Branch Davidians started the fire.

Was the military actively involved?

Another question that Danforth is trying to answer is whether the military violated the Posse Comitatus law, barring military involvement in most domestic police actions. None of Judge Smith's three questions deals directly with the military. But Caddell says that the role of the military is crucial to the question of whether the government used excessive force in the April 19 raid.
"If Delta Force was part of a domestic law enforcement operation in violation of Posse Comitatus, that is almost certainly excessive force all by itself, whether or not shots were fired into the compound," he said.
Judge Smith said in a Dallas Morning News interview last week that his views about the case have changed in recent months because of the increased evidence of military involvement. As recently as his July 1 order, he ridiculed the suggestions of military involvement.
But he told the newspaper, "That was before I had become aware that they (military forces) were there. I don't know how many military people were there. I don't know what they did or didn't do. That's going to be forthcoming."

Was there a government cover-up?

Judge Smith did not allow any claims directly relating to the alleged cover-up. But Caddell maintains that any evidence that the government withheld information will be relevant to the other three issues.
In an article last week, The New Yorker reported that Judge Smith had confided to friends that he was disturbed that the Justice Department's ineptness in releasing information had made it look like the government had something to hide, even though it may not.
Judge Smith will hear all but one part of the trial without a jury. The jury portion involves the claim that FBI sharpshooter Lon Horiuchi fired into the complex on the morning of April 19. Horiuchi, who shot and killed the wife of Randy Weaver at Ruby Ridge in 1992, is the only individual who is still a defendant in the case. Judge Smith refused to dismiss him from the suit because an FBI agent said in an after-action report in 1993 that he heard a shot from Horiuchi's sniper position. The agent later said he had been misunderstood -- that he had said he heard someone from the sniper position report that the Branch Davidians were firing.
In an order last week, Judge Smith said he would consider restoring individual defendants to the case if the Branch Davidians come up with additional proof of individual complicity.
A shorter version of this story appeared in the Five Star Lift edition.