Throwing its weight behind lawyers for the Branch Davidians, the Waco special counsel's office is asking for court-supervised tests to determine if flashes recorded by FBI infrared cameras in the last hours of the 1993 siege came from government gunfire.
The request came less than two weeks after the Justice Department flatly rejected a proposal by the Branch Davidians' lawyers for joint field tests. Justice warned that such testing would be hopelessly flawed without key data that the government is withholding as national security secrets.
But resolving the issue is significant to the special counsel's investigation and to the pending wrongful-death lawsuit filed by surviving Branch Davidians against the government, deputy special counsel Edward L. Dowd wrote U.S. District Judge Walter S. Smith Jr.
"Both the trust of the public and the truth-seeking process are not best served by the course of events as they are unfolding," Mr. Dowd wrote Friday. "We propose therefore that the court supervise a neutral FLIR (forward-looking infrared) re-creation."
The letter from the office of special counsel John Danforth increases pressure on the government's lawyers. The Justice Department has faced growing criticism from Judge Smith and congressional investigators for its slowness in handing over government documents and other evidence relating to the 1993 incident.
Even some FBI officials have privately complained that the Justice Department's handling of the case has further battered the credibility of an agency already damaged by recent revelations about its conduct in the Branch Davidian case.
FBI officials declined to comment on the matter Tuesday, and officials with the special counsel's office also declined to comment.
Department of Justice spokesman Myron Marlin said, "We're actively considering various ways that a re-creation could be done."
He declined further comment.
Judge Smith had issued no formal response by late Tuesday. But the special counsel's letter stated that a written proposal followed a telephone conference with the judge, an indication that he had signaled his interest in a court-supervised test.
FBI officials have insisted that none of their agents fired a single gunshot at the Branch Davidians. Leader David Koresh and more than 80 followers died in a fire that consumed the Branch Davidian compound on April 19, 1993, the day that the FBI launched a tank and tear-gas assault to try to force an end to the 51-day siege.
FBI and Justice Department officials have long insisted that government actions played no role in the fire, which government investigators ruled was deliberately set by the Branch Davidians.
But the government's actions came under renewed scrutiny after government officials were forced to admit in August that the FBI on April 19 had fired tear-gas grenades capable of sparking fires. That reversed six years of adamant government contentions that no pyrotechnic devices were used that day because they had been expressly banned by Attorney General Janet Reno.
The admission led to new congressional investigations and the appointment of Mr. Danforth, a former Missouri Republican senator, as special counsel.
The admission also drew new attention to the pending wrongful-death lawsuit, in which lawyers for surviving Branch Davidians and the families of the dead have alleged that the government caused the final tragedy.
A cornerstone of that lawsuit is the allegation that an FBI airplane equipped with an infrared camera captured repeated flashes of gunfire and other ordnance being fired by government agents during the last hour before the compound burned.

FBI denials

FBI officials have repeatedly insisted that the flashes could not have been gunfire.
Late last month, lawyers for the Branch Davidians announced that they would conduct a public field test recording shots from guns similar to those used by the FBI and the Branch Davidians at a Dallas-area firing range.
Bureau officials then began inviting reporters into the FBI laboratory in Washington to view snippets of digitized footage from the Waco infrared video. They also presented arguments from FBI video experts that flashes on the tape were electrical anomalies or "unexplained FLIR phenomena."
In those presentations, FBI officials have argued that the flashes cannot be gunfire because no gunmen are visible in any of the areas where they occur.

Infrared experts

They also have disputed assertions from some infrared experts that gunmen might not have been detected by a heat-sensing camera because their body temperatures were close to ground temperatures or because their clothing masked human body temperatures.
In contrast to the lack of people visible at times when the gunfire occurs, FBI officials point out that fuzzy outlines of people can be seen moving around the compound wreckage later on the April 19 infrared tape. The officials displayed a fire-retardant flight suit worn by a member of the FBI's hostage rescue team on April 19, suggesting the garment's thin fabric could not have masked body heat.
But some independent infrared experts who have viewed copies of the April 19 infrared film have echoed the assessment of experts hired by the Branch Davidians, saying that the flashes it captured could have only come from gunfire. Among those are an independent infrared specialist retained by the House Government Reform Committee recently allowed to conduct a frame-by-frame study of the FBI's original infrared tape.
Some experts also have noted that humans might have been hard to detect on the video because they wore heavy body armor or because of the limited ability of infrared cameras to detect stationary people.
"The only way to resolve this is experimentally," said one expert with more than 30 years experience using and designing similar infrared technology. "Only an experiment makes sense. But the key is an experiment that takes into account the low probability of intercept: The way these cameras work, if 50 flashes were captured on film, there must have been a far higher number of gunshots that actually occurred."
FBI officials have repeatedly said it would be impossible to re-create the conditions under which the April 19 infrared video was recorded.
"We can only say what it isn't - not what it is," one FBI official said. "I don't think that any one will ever prove conclusively what those flashes were, but we are confident that they are not gunfire."
Both the FBI and the Justice Department have asserted that the capabilities, and even the model and make of their infrared cameras used at Waco are classified national security secrets that cannot be made public and do not have to be shared with lawyers for the Branch Davidians.
But Friday's letter to Judge Smith indicated that the FBI has offered to conduct private demonstrations of its infrared cameras - "an accurate recreation of the FLIR activity" - for Mr. Danforth and his investigators.

Classified data

The special counsel's office can obtain the classified information being withheld from the Branch Davidians' lawyers because Mr. Danforth's staff was issued the required clearances through their appointment as special Department of Justice personnel, the letter indicated.
But Mr. Danforth's office is "uncomfortable with the idea" of the FBI conducting a secret test while the Department of Justice first withheld needed information and then criticized the Davidians' public test for lacking it, Mr. Dowd's letter stated.
"The DOJ's [Department of Justice's] ability to withhold information appears to be the basis for challenging the accurancy of any conclusions reached," Mr. Dowd wrote.
A neutral test overseen by a court-appointed expert would allow both sides to participate and contribute to scientific protocols "that would best approximate the conditions of April 19, 1993," the special counsel's letter stated. "The protocol would include the make or model of the FLIR equipment, the type of aircraft, altitude, weather conditions, angle of the sun, types of weapons, rapidity of firing of the weapons."
Having both sides help set standards for the test would ensure "that it would not be challenged later," Mr. Dowd wrote.
Mike Caddell of Houston, lead lawyer for the Branch Davidians, said the special counsel's proposal "forces the issue."
"The procedure that's been proposed is clearly designed to protect any legitimate security concerns by the FBI and the Department of Justice," he said. "They've taken away the one legitimate reason that they could have for refusing. Any refusal now is because they already know what the answer is going to be. I think that would be the most damning admission of liability they could possibly make.
"It's clear now that the office of special counsel, the courts and the plaintiffs are all interested in getting to the truth of what happened on April 19. The question that's lingering out there is, is the government interested in getting at the truth?" Mr. Caddell said.
On Capitol Hill, investigators involved in ongoing investigations of the government's actions in Waco also welcomed the special counsel's proposal.
"It would be unwise for the Justice Department not to participate. The attorney general appointed Sen. Danforth, and the attorney general pledged complete cooperation with Sen. Danforth's probe," said Mark Corallo, spokesman for the House Government Reform Committee. "We think it's a good idea."

"Waco Reenactment Sought: Special Counsel Wants to Probe Whether U.S. Agents Fired"

Waco special counsel John C. Danforth has asked a federal judge to oversee an authoritative reenactment of the government's final siege of the Branch Davidian compound to determine whether the federal agents who participated fired their guns.
Danforth's surprising request comes after the Justice Department rebuffed earlier recommendations by Davidian plaintiffs' attorneys that a reenactment be staged for their wrongful-death suit against the government.
The FBI and Justice Department have consistently maintained that no federal agents fired their weapons during the April 19, 1993, assault, which ended with 74 Davidians perishing as flames swept through the compound near Waco, Tex. But experts retained by congressional investigators and the Davidians say they have detected agent gunfire on media videotapes and government-recorded infrared tapes of the siege.
Justice Department officials said last night that they now are willing to consider the reenactment requested by the Office of Special Counsel (OSC). "We're actively considering various ways that a re-creation could be done," Justice Department spokesman Myron Marlin said.
"The purpose for OSC's request is very straightforward," wrote deputy special counsel Edward L. Dowd in a letter dated last Friday to U.S. District Judge Walter S. Smith, who is presiding over the Davidians' lawsuit in Waco. "The issue of whether [an infrared camera] used under the proper conditions would show gunfire is significant both to the case pending before Your Honor and to the OSC's charter from the Attorney General."
The FBI has not taken an official position on the cause of the flashes on aerial infrared tapes. But during congressional testimony in 1995, an FBI arson expert said the flashes were probably sunlight reflections. Experts hired by the Davidians have said the infrared equipment cannot pick up such phenomena.
Plaintiffs' attorney Michael A. Caddell had proposed to the Justice Department last month that they participate in a joint re-creation--duplicating the infrared camera, the aircraft on which it was mounted, the agents' weapons and the conditions the day of the siege--to settle the dispute. Justice Department lawyers declined his offer. They also withheld details on the infrared equipment from Caddell on the grounds that disclosure would expose privileged law enforcement techniques or national security information.
"If they refuse to join in this proposal, I think that would be the most damning admission of liability they could make, short of just admitting there was gunfire," Caddell said.
Dowd's letter to the judge said the FBI had offered to conduct a private re-creation for Danforth's office because its attorneys have the proper security clearances. Senior FBI officials had maintained that it would be pointless to do a reenactment because replicating the final siege would be impossible.
Dowd's letter also said Danforth was troubled by the possibility of two re-creations--one public but with incomplete information and the other private and therefore "subject to claims of bias." Dowd told Judge Smith, "The trust of the public and the truth-seeking process are not best served by the course of events as they are now unfolding." Staff writer Richard Leiby contributed to this report.
© Copyright 1999 The Washington Post Company

WASHINGTON (AP) -- An investigator wants a federal judge to order an impartial simulation of the FBI's infrared videotaping in the waning hours of the 1993 Waco siege to determine whether bursts of light in the original tapes were made by gunfire from federal agents.
Survivors of the decimated Branch Davidian sect insist that they were. The government denies it.
Special counsel John Danforth is proposing that the judge presiding over the Branch Davidians' wrongful-death lawsuit against the government supervise the re-creation of the aerial taping that occurred April 19, 1993.
Danforth's suggestion in a letter to U.S. District Judge Walter Smith could resolve one of several conflicts simmering between the Justice Department and the Davidians' lawyers as they prepare for a mid-May trial date.
Both sides have proposed re-creations, which places the special counsel's office in an "awkward position," deputy special counsel Edward Dowd wrote the judge.
The plaintiffs' lead counsel, Houston lawyer Michael Caddell, welcomed Danforth's suggestion and said he would be surprised if the judge rejects it.
"This is the appropriate way to do it," Caddell said Tuesday. "Basically, this calls the government out and says, 'We'll do this in a way that protects your legitimate security concerns and lets us get to the truth of what happened."'
Davidian leader David Koresh and some 80 followers died during the standoff's fiery end, some from the flames, others from gunshot wounds. The government played no role in the fire or the deaths, Justice Department and FBI officials have long maintained, saying the Davidians died by their own hand.
The plaintiffs, in a high-stakes challenge, offered last month to stage a simulation that would put to the test their claim that the FBI's infrared footage offers conclusive proof that federal agents trained machine-gun fire into the compound in the seven-week siege's waning hours.
The plaintiffs' lawyers offered to fly a plane over a Dallas firing range and record, with an infrared video camera similar to the FBI's, discharges from the types of weapons carried that day by federal agents and cult members.
The FBI contends the flashes on the infrared tapes recorded from its "Nightstalker" airplane represent glints of sunlight on puddles of water, metal or other debris.
Danforth, appointed by Attorney General Janet Reno in September to investigate the newly resurgent Waco controversy, has said the issue of government gunfire will be among "dark questions" his inquiry will seek to answer.
The government has refused to provide crucial details such as the type of camera the FBI used, saying that information is classified. But it contends the plaintiffs' test would be of dubious validity if it doesn't recreate conditions exactly.
The FBI then offered to stage a re-creation of its own for Danforth.
Danforth's office declined comment Tuesday, as did the FBI.

WASHINGTON (AP) - An investigator wants a federal judge to order an impartial simulation of the FBI's infrared videotaping in the waning hours of the 1993 Waco siege to determine whether bursts of light in the original tapes were made by gunfire from federal agents.
Survivors of the decimated Branch Davidian sect insist that they were. The government denies it.
Special counsel John Danforth is proposing that the judge presiding over the Branch Davidians' wrongful-death lawsuit against the government supervise the re-creation of the aerial taping that occurred April 19, 1993.
Danforth's suggestion in a letter to U.S. District Judge Walter Smith could resolve one of several conflicts simmering between the Justice Department and the Davidians' lawyers as they prepare for a mid-May trial date.
Both sides have proposed re-creations, which places the special counsel's office in an ``awkward position,'' deputy special counsel Edward Dowd wrote the judge.
The plaintiffs' lead counsel, Houston lawyer Michael Caddell, welcomed Danforth's suggestion and said he would be surprised if the judge rejects it.
``This is the appropriate way to do it,'' Caddell said Tuesday. ``Basically, this calls the government out and says, `We'll do this in a way that protects your legitimate security concerns and lets us get to the truth of what happened.'''
Davidian leader David Koresh and some 80 followers died during the standoff's fiery end, some from the flames, others from gunshot wounds. The government played no role in the fire or the deaths, Justice Department and FBI officials have long maintained, saying the Davidians died by their own hand.
The plaintiffs, in a high-stakes challenge, offered last month to stage a simulation that would put to the test their claim that the FBI's infrared footage offers conclusive proof that federal agents trained machine-gun fire into the compound in the seven-week siege's waning hours.
The plaintiffs' lawyers offered to fly a plane over a Dallas firing range and record, with an infrared video camera similar to the FBI's, discharges from the types of weapons carried that day by federal agents and cult members.
The FBI contends the flashes on the infrared tapes recorded from its ``Nightstalker'' airplane represent glints of sunlight on puddles of water, metal or other debris.
Danforth, appointed by Attorney General Janet Reno in September to investigate the newly resurgent Waco controversy, has said the issue of government gunfire will be among ``dark questions'' his inquiry will seek to answer.
The government has refused to provide crucial details such as the type of camera the FBI used, saying that information is classified. But it contends the plaintiffs' test would be of dubious validity if it doesn't recreate conditions exactly.
The FBI then offered to stage a re-creation of its own for Danforth.
Danforth's office declined comment Tuesday, as did the FBI.