The Waco special counsel, responding to questions about a Delta Force commando's whereabouts at the end of the Branch Davidian siege, used a polygraph on him last week to confirm that he wasn't actively involved in the FBI's assault on the sect's compound, officials said.
The former commando passed the lie-detector test after disputing another Delta Force soldier's sworn testimony. That soldier said the commando wasn't seen during the entire six-hour tank-and-tear-gas operation on April 19, 1993, and showed up hours after it ended, red-faced, tired and disheveled, officials said.
Determining the military's involvement in Waco has been a major focus of special counsel John Danforth and committees in both houses of Congress. The issue has been sensitive because of the nature of Delta Force, a unit so secretive that its existence is not officially acknowledged, and because of constitutional restrictions on the use of the military in civilian U.S. police actions.
Mike Caddell, lead lawyer for the Branch Davidians, said he was troubled by the commando's testimony - particularly its conflict with the sworn accounts of two other Delta Force soldiers. "This guy is there longer than anyone else from Delta, and he remembers nothing? He can't remember anyone he talked to, hung out with, saw," Mr. Caddell said. "The contradiction between his testimony and that of the previous two soldiers is striking and incredible."
The retired sergeant, a sniper in the secret U.S. Army unit at the time of the Branch Davidian siege, insisted that he watched part of the FBI operation in Waco but did not participate, officials said. The soldier also testified that he never carried a gun and never got within a kilometer of the building, officials said. The former commando drew intense interest last week not only from the Waco special counsel but from the Pentagon and Capitol Hill. Defense Department officials have said he was one of only three special forces soldiers - and the lone combat specialist - in Waco in the final days of the standoff. A former CIA employee went public last August with claims that several Delta Force acquaintances confirmed taking part in the April 19 operation. Pentagon officials denied that, and CIA officials later tried to discount the former employee's veracity. But the head of the Texas Department of Public Safety Commission said the issue needed full investigation because his agency had unspecified evidence suggesting that Delta troops might have taken an active role in ending the siege.
Lawyers for the sect contend in a pending federal wrongful death suit that someone from the government shot at the sect's embattled home before it burned on April 19 with leader David Koresh and more than 80 followers inside. They also allege that some of the shooters could have been military personnel. The government has denied that and has argued that the Branch Davidians bear sole responsibility for the tragedy because of evidence that the members set the compound on fire.
But the government's efforts to refute the gunfire charge have raised eyebrows. It took months of requests and finally, a formal complaint to the judge in the wrongful death case before Justice Department lawyers produced sworn answers to the plaintiffs' questions about shooting by federal authorities on April 19.
When the responses were filed last week, the Defense Department's statement that no military personnel fired on that day included a notable caveat: The Pentagon's lawyers wrote that their sworn denial of military gunfire was "based on currently available information." No other agency used similar language in their sworn statements.
So the commando questioned last week was subjected to particularly intense scrutiny. He was questioned closely about the testimony of a Delta colleague, an electronics specialist who said the commando showed up hours after the Waco fire, looked hungover, and announced he had gotten so drunk the night before that he overslept and missed everything.
The remaining Delta Force soldier known to have been in Waco on April 19, also an electronics technician, said in a separate December deposition that he did not recall whether he saw the commando on that day.
The former commando, now working in Europe, was brought back to the United States by the Defense Department for three days of formal questioning in Washington.
The soldier told interviewers that he drank a few beers on the night of April 18, and then went to bed early. The next morning, he recalled, he went out about 8 a.m. to the FBI forward command post.
He said he did not have a gun, never got closer than the command post and did not recall seeing the other Delta soldiers on the 19th, officials said. Those two men testified earlier that they were in the same area but never saw the commando. The commando recalled that he went to lunch and returned to see the compound in flames, said officials present at his interviews.
The commando said he could not remember names of anyone he met and never advised the FBI's hostage rescue team during his three weeks in Waco.
The soldier and his two colleagues each said they filed no written report to document what they saw at the end of the siege, officials said. In contrast, Defense Department records indicate that earlier teams of Delta soldiers had filed detailed reports.
After his first day with investigators from Mr. Danforth's office, the former commando was asked to submit to a lie-detector test. Officials said the test focused on several key questions: Did he shoot at the compound or get anywhere near the building? Neither of the other soldiers questioned late last year and none of the more than 25 FBI agents interviewed so far by Congress, the sect's lawyers and the Waco special counsel is known to have been subjected to a polygraph, said those familiar with the inquiries. The former commando was deposed Thursday by the sect's lawyers. As in earlier depositions with Delta soldiers, the commando was hidden behind a screen, and the lawyers could ask nothing that might identify him.
The former commando was questioned Friday by House investigators and by U.S. Sen. Arlen Specter, whose investigative staff brought a court reporter to record the Senate interview, officials said. The Pennsylvania Republican is leading the Senate's ongoing review of the 1993 siege and other Justice Department controversies.
With the soldier were more than a half dozen Pentagon lawyers and officers.
"What particularly perturbs the Department of Defense is the fact that the men and women of these units have been vilified and depicted as murderers when they carried out their duties as observers in Waco," one participant said. "And now, because of the classified nature of their positions, they are unable to respond." Several officials said they remain concerned about unresolved conflicts between his account and those of his Delta colleagues.
"It appeared that the guy's holding back on something," one official said. "There's definitely a discrepancy. Somebody's lying."
But others said his story sounded largely plausible.
"The idea that the FBI's [Hostage Rescue Team] would ask a lone enlisted man to do their alleged dirty work staggers the imagination," another official said. "He may well have been less than forthcoming concerning the allegations that he was hung over on the morning of the 19th of April, but in light of the fact that he passed a polygraph on the key questions, there's little investigative interest in this guy." Mr. Caddell, the Branch Davidians' lawyer, said he doubts that the discrepancies in Delta Force testimony can be resolved. "But as we have said all along, to a small child trapped inside that building, whether it was Delta Force or the FBI pulling the triggers was irrelevant."
The appearance of repeated rhythmic flashes on a government infrared tape recorded above the compound on April 19, and some experts' assessments that they could only have come from government gunfire is the cornerstone of the sect's charges on the issue.
Suspicions about the role of military commandos in Waco also have been fed by various differing Pentagon statements about the total number of Delta Force soldiers who were sent. In October 1993, Congress was told that a total of three were sent "during the 51 day siege."
A General Accounting Office investigator said last August that a lengthy GAO audit of military assistance in Waco could not determine the number of special forces soldiers. The investigator was told five by Pentagon officials but later found records showing eight were there.
Justice Department lawyers filed court statements last year swearing that 10 special forces soldiers were sent. But Defense Department records include classified rosters of 14 special forces personnel assigned to Waco duties, and investigators are still trying to resolve the discrepancies.

The Waco special counsel's office asked a federal judge Thursday for permission to perform independent testing on tape recordings made from FBI surveillance devices on the crucial last day of the 1993 Branch Davidian siege.
The tests could help resolve whether the tapes now being held by the federal court in Waco are originals or altered copies - a concern raised last year by a recording expert hired by lawyers for the sect.
An independent analysis also might help address the question of what could be heard as the devices broadcast to an FBI command post on April 19, 1993, the day that the Branch Davidian compound near Waco burned with leader David Koresh and more than 80 followers inside.
One FBI agent who helped monitor the bugs said in a deposition last month that little or nothing could be discerned from the surveillance devices during the last hours of the siege because of poor transmission quality and background noise.
But a retired Army colonel who was in the FBI's command post as a military liaison that day told The Dallas Morning News last fall that he clearly heard voices of Davidians being broadcast by the bugs, including discussions in which the sect members talked about spreading fuel and setting fires.
The former colonel, Rodney Rawlings of Austin, was questioned last November by the independent counsel's office and has also been interviewed by congressional investigators.
FBI officials have long insisted that they could not hear anything from the surveillance devices on April 19 and have said they did not learn about the sect's fire discussions until weeks later when recordings from the bugs were enhanced. But the federal prosecutor who directed the criminal trial of surviving Branch Davidians told Congress in 1995 that he could clearly hear those conversations the first time he listened to the raw, original tapes.
The FBI commander who oversaw the operation told Congress that he would have stopped the FBI's assault of the compound with tanks and tear gas if he had known about the sect's talk of spreading fuel and other preparations for setting a fire.
Government arson investigators ruled that sect members set the compound fire, but the Davidians' pending wrongful death lawsuit alleges that government negligence and missteps caused the tragedy.
Thursday's filing seeks custody of seven surveillance tape recordings made on April 19 for 60 days of "independent tests" and expert reviews.
The tapes have been in court custody in Waco since last fall, after U.S. District Judge Walter Smith ordered the turnover of all original government documents, recordings and other evidence relating to the 1993 tragedy.
Government lawyers told the court that the surveillance tapes sent to Waco from FBI headquarters were originals. But a former U.S. Secret Service scientist hired by lawyers for the Davidians began examining those recordings in Waco late last year and issued a preliminary finding that the surveillance tapes from April 19 did not appear to be originals.
Mike Caddell, lead lawyer for the sect, said the expert found evidence that the tapes from that day were recorded in stereo, while bugging devices typically used by U.S. police agencies transmit their signals in a single monaural or "mono" channel. He said the expert also found suspicious signs of cutouts or editing on some of the tapes.
An FBI agent who helped supervise the bureau's bugging system in Waco, an electronic surveillance program dubbed "Trojan Horse," said in a December deposition that all of the FBI bugging transmissions in Waco were sent and recorded in mono.
"They were all to my knowledge, monaural," said the now-retired agent, who described himself as "Trojan Horse coordinator." "Since we had only two telephone lines, if we tried to send, you know, stereo down, we would have doubled the number of telephone lines we needed, so that we wouldn't have wanted to do that." Last week, the special counsel's office asked to conduct independent toxicology tests on tissue samples from the Davidians killed in the 1993 standoff. They have previously sought custody of bullet shell casings found in a sniper post manned by the FBI during the siege and the FBI's infrared videotapes shot April 19 for scientific tests.

Special counsel John Danforth on Thursday asked a federal judge in Waco for temporary custody of tape recordings made from listening devices that had been placed within the Branch Davidians' complex.
The recordings Danforth sought were made April 19, 1993, the last day of the government's siege. About 80 people died that day when a fire swept through the complex. Some died from gunshots, but most died from the fire.
The FBI has said remarks made by Branch Davidians and picked up by the listening devices indicate members of the sect deliberately set the fire

>Government lawyers formally denied Tuesday that anyone in federal law enforcement or the U.S. military shot at the Branch Davidian compound at the end of the deadly 1993 siege.
Their four-page federal court filing, including sworn statements by Defense Department and U.S. Treasury Department lawyers, came a week after lawyers for the Branch Davidians complained to a federal judge in Waco about the government's refusal to answer that key question.
Treasury lawyers, writing on behalf of the federal Bureau of Alcohol, Tobacco and Firearms, stated that no one under the agency's supervision or control shot at the sect's building on the last day of the 51-day standoff.
A separate Department of Defense statement said that no one from the military or under its control fired that day "based on currently available information." The issue is central to an ongoing wrongful-death lawsuit filed in Waco by surviving members of the sect and families of Branch Davidians who died on April 19.
Leader David Koresh and more than 80 followers died when their rural home burned on April 19, about six hours after FBI agents began bashing the building with tanks and spraying in tear gas.
Government arson investigators have said that the sect set the fire. But lawyers for the Branch Davidians have alleged that someone from the government fired repeatedly into the building in the final hours of the assault.
They allege that and other government actions kept innocent women and children from escaping - charges that the government has denied.
Under federal civil court rules, government lawyers were supposed to respond under oath months ago to questions about gunfire and other issues raised by lawyers to the sect.
But while the government filed a pleading in September stating that no one from the FBI or under its control shot guns at the compound, its lawyers failed to produce similar sworn statements from the Defense Department and Treasury until sect lawyers complained to the court last week.
ATF agents helped man a large law-enforcement perimeter around the compound April 19. But officials with that agency and the FBI have said that no ATF agents were directly involved in the tear-gas assault.
Soldiers from the U.S. Army's secret anti-terrorism unit, Delta Force, were also in Waco that day. But Defense Department officials have said that no military personnel were actively involved in the April 19 operation.
Two Delta soldiers questioned last month in depositions swore that they got no closer than a kilometer from the compound. But they acknowledged that they could not account for the whereabouts of a third Delta Force soldier.
That soldier, a combat specialist, told his colleagues that he got drunk the night before, slept late and missed the entire FBI assault, one soldier testified.
He is scheduled to be questioned later this week in Washington by lawyers for the sect.
Mike Caddell, lead lawyer for the Branch Davidians, said he is glad government lawyers finally made good on repeated promises to produce sworn statements about gunfire from Defense and Treasury officials.
But he noted that the issue is still in serious dispute, citing infrared FBI videotapes recorded that day that contain what some experts say are flashes of government gunfire.
U.S. District Judge Walter Smith has ordered a field test using cameras like the one deployed by the FBI that day and test-shots of weapons similar to those carried by the government and the sect.
Mr. Caddell also said Tuesday that he plans to seek fines and other sanctions against government lawyers for their continuing failure to meet deadlines for production of documents in the case. The two sides were to have exchanged documents by Jan. 15.
Government lawyers filed a pleading Monday arguing that fines were unwarranted because they were doing everything possible to produce records for the plaintiffs and their lawyers.
In Monday's argument, Justice Department lawyers said Branch Davidian lawyers were partially to blame for delays because they insisted on scheduling 24 depositions last month.
They noted that 51 boxes of materials were sent last weekend, before the deadline, and they contended that more would have been produced if Justice officials had not been distracted by the plaintiffs' other demands.
But Mr. Caddell said he plans to tell the court that the "three-quarters" of the government documents sent to his office arrived late. He had filed an earlier motion seeking sanctions and $50,000 in fines, telling Judge Smith that even before the Jan. 15 deadline, he feared a last-minute "dump" of records.
"I think that the arguments that our depositions interfered is also a significant misrepresentation to the court," he said. "That didn't have anything to do with their failure to produce. They continue to lie to the court."

WACO, Texas (AP) - Government lawyers on Tuesday formally denied that federal law enforcement agents or the U.S. military shot at the Branch Davidian compound at the end of the deadly April 1993 siege.
Their four-page federal court filing includes sworn statements by Defense Department and U.S. Treasury Department lawyers, The Dallas Morning News reported Wednesday.
Treasury lawyers wrote on behalf of the federal Bureau of Alcohol, Tobacco and Firearms that no one under the agency's supervision or control shot at the sect's building on the last day of the 51-day standoff.
The Department of Defense, in a separate statement, said no one from the military or under its control fired that day ``based on currently available information.''
The response comes a week after lawyers for surviving Branch Davidians and their families, who have filed a wrongful-death lawsuit, complained to a federal judge in Waco about the government's refusal to answer that key question.
The deadly standoff began Feb. 28, 1993, when federal agents raided the rural compound of Branch Davidian leader David Koresh and his followers. On April 19, 1993, Koresh and more than 80 others died in an inferno, some from fire, others from gunshots.
Government arson investigators have said the Davidians set the blaze. Plaintiffs' lawyers have alleged that someone from the government fired repeatedly into the building in the final hours of the assault.
In a federal court filing Jan. 18, lead plaintiffs' attorney Michael Caddell complained of a ``clear gap'' between the broad scope of the plaintiffs' question and the ``limited response'' the government's lawyers provided - despite acknowledgment that the military's elite Delta Force was present during the siege.
Caddell said he is pleased the government responded more specifically, but said the issue remains in dispute. He noted that infrared FBI videotapes recorded that day contain what some experts say are flashes of government gunfire.

(CBS) What really occurred outside Waco on April 19, 1993? Is the U.S. government responsible for the deaths of more than 70 men, women and children at the Branch Davidian compound?
For years anti-government conspiracy theorists have argued that the answer was yes. Today the Waco incident is the subject of two congressional investigations, an independent counsel and a multimillion-dollar civil lawsuit against the government.
Many new details about the disaster have come to light only recently.
Today virtually all of the evidence from Waco, much of it paperwork from the many different government agencies involved, is stored in a secured room in Waco. The federal judge handling the civil trial ordered it collected and stockpiled, so that it could not be tampered with.
That evidence may provide some new answers to what actually happened at the Branch Davidian compound outside Waco. Dan Rather investigates.
"In the last two months, three months, we've learned more about what happened than we did in the preceding six and a half years," says Michael Caddell, a Houston attorney representing survivors and family members of the Branch Davidians in their suit against the government.
Caddell says that the government has not accepted its share of the responsibility for those deaths.
It all started nearly seven years ago with a February 1993 raid by more than 70 agents from the Bureau of Alcohol Tobacco and Firearms. David Koresh and his followers, the Branch Davidians, were known to have a large cache of high-powered weapons. The ATF also suspected that the group had explosives and the parts to manufacture machine guns illegally. When it arrived to search the compound, shooting started almost immediately.
Afterward, four ATF agents and six Branch Davidians were dead. The Federal Bureau of Investigation moved in, and a lengthy standoff ensued. For more than seven frustrating weeks, the FBI tried to persuade the Davidians to come out.
"The FBI's job was to try to resolve this matter and convince these people to come out and face multiple first-degree murder charges in the state that leads the nation in capital punishment," says Byron Sage, head of the FBI negotiating team in Waco. "It was virtually an insurmountable task."
The standoff ended on the morning of April 19, when a tank and other FBI armored vehicles moved in. The FBI spent the next several hours shooting tear gas into the compound. Shortly after noon, the building was engulfed in flames.
"I called in immediately, over the loudspeaker system," Sage remembers. "And I said, 'You know, David, don't do this to those people. This is not the way to end this.'"
By the end of the day, more than 70 men, women and children were dead.
"I would submit to you that we played right into the hands of David Koresh," says Sage, now retired. "He had an apocalyptic end in mind apparently. And he used us to fulfill his own prophecy."
Did the FBI and the Justice Department contribute in some way to that apocalyptic end - either by pushing the Davidians to the brink as the assault on the compound progressed or by doing something that could have caused the fire?
Independent filmmaker Michael McNulty came upon some evidence that appeared damaging to the government. He found a shell casing from a certain type of tear gas round that could start a fire - a device the Justice Department had denied using for more than six years - publicly and to Congress.
"Congress was mislead on this; there is no question about it," says Assistant U.S. Attorney Bill Johnston, the top justice department official in Waco. He worries that someone in the Justice Department hid the truth.
For several weeks Johnston wrote to his superiors warning them that the new evidence contradicted what they had been saying. But the Justice Department did not change its story until August, when Attorney General Janet Reno was forced to admit that the tear gas round had been used.
Investigators have concluded that two of these devices were used. Though credible experts still overwhelmingly believe the Davidians started the fire, the damage had been done. The FBI was caught in a lie.
Sage says that nothing was hidden on purpose. "It's not a case of coverup," he says. "And I would have to say that it is a case of screwup. It was not flagged for its importance. Therefore, it's taken on a life of its own."
The admission breathed life into conspiracy theories that surround the Waco case. Sage blames the FBI for not addressing accusations more seriously.
"I told the bureau a while back that in Texas, if your eye starts stinging and your nose hurts and you reach up and you've got blood on your face, you're in a fight," Sage says. "And you damn well better realize that you are in a fight. The bureau, the credibility, the public perception of the bureau's integrity is at danger here."
The government's integrity has been damaged by other discoveries as well. Within the past six months it was forced to acknowledge that military Special Forces, believed to be the secret Delta Force, were present outside Waco. And a surveillance tape with suspicious gaps was discovered at FBI headquarters.
The most serious question remaining is: Did government agents fire shots into the compound on April 19?
Caddell thinks that they did. This is one of the main contentions of the suit he has brought on behalf of the victims and family members. "The government was responsible for gunfire on April 19," he says. This gunfire "either killed Davidians or pinned them down, so that they could not escape the fire."
The attorney general and the FBI as a whole have consistently maintained the government did not fire a single shot that day.
Caddell says that the proof lies in video shot by a camera aboard an FBI aircraft, a heat-detecting eye in the sky known as a "forward-looking infrared." Attorney Caddell believes it tells the story.
"What we see on numerous occasions," says Caddell, referring to the videotape, "is an ongoing gun battle between government forces and the Davidians."
Caddell claims that the flashes of heat recorded by the sensitive camera are evidence of someone shooting into the compound in response to Davidian gunfire. They began late in the morning and continued until a little after noon.
"You continue to see gunfire at various times from behind that tank directed primarily at the Davidian gun positions here and in the tower and also into this dining room area," he says.
But the government says that Caddell's theory is impossible.
As evidence, Sage points to an aerial photograph that he says was taken within seconds of a flash that shows no one on the ground doing any shooting.
He says the still frame enlargement of the infrared tape makes the same point. "There is nobody there," Sage says.
Sage is not sure what caused the flashes, he says. "My layman's view is that it's probably water or moisture that's reflecting sunlight," he says. "I can't tell you as an expert. Because I am not one. But I can tell you what it's not. It's not gunshots."
To find out more, CBS News hired Paul Beavers, a writer on military and law enforcement tactics and technology. Beavers, who used infrared imagery extensively in the British army, demonstrated what gunfire looks like on a thermal imaging camera.
He compared the infrared tape of his demonstration with the FBI's tape from Waco. "There's some flashes there, which to me look exactly as if they're gunfire," Beavers says, looking at the Waco tape.
"They have all right characteristics. There we go. There we go. Two rounds. It's what's called a 'doubletap. It's what you expect a trained marksman to do, to fire two rounds within close proximity of each other," he says.
"One, two, yep it's not a glitch in the camera," Beavers continues. "It's not the sun striking something. It's not swamp gas reflecting off the planet Venus. This is somebody shooting."
But the FBI denies this emphatically. Although its agents came under Davidian machine gun fire, the FBI maintains that no agent fired back at any time.
"No FBI person fired, period, during the entire 51 days," Sage says. "Now that's an extraordinary statement. The fact that these agents did not return fire is an extraordinary statement to the professionalism and the discipline that is pervasive throughout the hostage rescue team and throughout the FBI, for that matter."
Whatever the current investigations conclude, Sage regrets what happened that day.
"Hindsight is a wonderful thing," he says. "And I think if you ask anyone that was involved in this situation from the on-scene commander to the rank-and-file agent in the field that we probably would not have gone forward on the 19th of April or any other time with a tear-gassing operation knowing now that they intended to set that place on fire."
"Our reason for being there was preservation of life, not to contribute to the loss of life," Sage continues. "Approximately 27 children perished on that day. That loss of life - any loss of any life - is something that I think all of us would have done - would have moved heaven and earth to try to change."
An independent counsel appointed by Attorney General Reno hopes to settle the matter of alleged gunfire by meticulously re-creating the conditions at Waco in a field test in March.
On Tuesday, Bill Johnston, the assistant U.S. attorney in Waco who helped bring key evidence to light, announced that he is leaving the Justice Department after more than 12 years of service.

WACO, Texas (AP) -- The federal prosecutor who was removed from the Branch Davidian case after raising questions about a possible government cover-up is resigning, saying Justice Department leaders have been ``less than forthright.''
U.S. Attorney Bill Johnston said he is leaving his job as chief federal prosecutor in Waco in two weeks to practice civil law. While he said he needed a break, he also referred to the Davidian controversy.
``There's no secret I've been frustrated by the Department of Justice,'' Johnston said in Tuesday's Waco Tribune-Herald. ``The vast majority of people in the agency are great people. But at the leadership level, I feel some people have been less than forthright.''
A Justice Department spokesman declined to comment Tuesday, and Johnston's supervisors in San Antonio did not return calls.
Johnston, 40, helped draft the Bureau of Alcohol, Tobacco and Firearms search warrant that became the basis of the 1993 raid and ensuing 51-day siege at the compound near Waco. He later helped convict nine Davidians.
He was removed from the case last fall 10 days after sending a letter to Attorney General Janet Reno in which he warned that he had seen documents indicating that government lawyers had known for years about pyrotechnic grenades being used during the standoff.
The FBI has admitted that incendiary devices were used, but denies starting the fire on April 19, 1993, in which Davidian leader David Koresh and about 80 others perished.
Johnston, appointed an assistant U.S. attorney in 1987, also drew criticism from many inside the Justice Department last spring when he allowed Mike McNulty, one of the producers of the Oscar-nominated documentary ``Waco: Rules of Engagement,'' to tour a locker where Davidian evidence was stored.
McNulty reported finding FBI projectiles, which he said were capable of starting a fire.
Meanwhile, FBI employees have reportedly testified that flashes seen in an infrared surveillance video of the siege are ``glint,'' not gunfire.
The Tribune-Herald reviewed the statements of 20 FBI employees, including technicians, pilots and infrared video operators. The agents were deposed for the upcoming wrongful-death lawsuit filed against the government by surviving Branch Davidians and their families.
The agents were not identified, the newspaper reported Tuesday.
In one deposition, a pilot who flew the plane carrying the video camera said ``glint'' was ``an unexplained phenomenon'' that sometimes appears on infared tape during the day. Another FBI employee likened the flashes to the shine from a car fender or hood.
Plaintiffs' attorney Michael Caddell attacked the theory.
``How did we distinguish between a glint and something else?'' Caddell asked during a deposition. ``Is it a glint when it might have otherwise been gunfire from an FBI agent?''
Federal officials have insisted that no government shots were fired when the siege ended. Some of those who died had gunshot wounds, but the government says the Davidians died by their own hands.

Bill Johnston, the federal prosecutor who complained to Attorney General Janet Reno last fall about a possible cover-up of information about government actions in the Branch Davidian siege, is leaving the Justice Department.
Mr. Johnston said he will submit his resignation Tuesday, ending a 12-year stint as chief federal prosecutor in Waco.
He said he was not being forced out and was not leaving as an act of protest but wanted "a breather" after almost two decades of prosecuting state and federal cases.
But he also acknowledged that the strain of the last six months, a period in which he has been ostracized by federal colleagues outside Waco, was a major reason for his decision to leave the office he opened for the Justice Department in 1987.
"I've thought about this for the last three years, off and on," he said. "What really acted as a catalyst were the events of August and September." He said he hoped a stint in civil private practice might give him a fresh professional perspective and eventually help him return to public service in a new administration's Justice Department.
"I have a hard time working for people that I don't respect. I've had a harder and harder time within this organization," he said. "The vast majority of people at the Department of Justice and the FBI are fine people. But in terms of leadership and policy and direction, I've had an increasingly hard time working within the current framework. So it's time for a breather." Mr. Johnston made national headlines for writing Ms. Reno in late August that he feared lawyers within her department had intentionally withheld evidence from her and the American public about the use of pyrotechnic tear gas on the last day of the Branch Davidian standoff.
Ms. Reno had expressly ordered FBI commanders not to use anything that might spark a fire when they assaulted the Davidians' compound on April 19, 1993, using tanks to bash holes in the building and spray in powdered "CS" tear gas.
Mr. Johnston went public shortly after warning Ms. Reno. He said that he felt compelled to speak out after being shown 6-year-old documents documenting how FBI agents fired at least two military gas grenades capable of sparking fires.
Those documents surfaced within days after a former senior FBI official acknowledged to The Dallas Morning News that members of the bureau's hostage rescue team had fired pyrotechnic military tear gas rounds in the early hours of their April 19 assault.
Even before that, Mr. Johnston had been drawing fire from within his own agency for his actions in the Davidian case.
The lead lawyer defending the government in a federal wrongful-death lawsuit brought by sect members and their families lashed out at Mr. Johnston last June after documentary filmmaker Mike McNulty was given access to the Davidian evidence collected by state and federal authorities after the 1993 tragedy.
Mr. McNulty was allowed four visits to the large trove of evidence kept by the Texas Rangers in Austin the fall of 1998 and spring of 1999. Before that, Justice Department officials had blocked all public access to the evidence by first telling the Rangers to refer any open-records requests to Washington and then routing those requests back to Austin with the explanation that federal authorities did not have custody of it.
Justice lawyers blamed Mr. Johnston for letting in a journalist whose previous work on Waco, the Oscar-nominated 1997 film "Waco: The Rules of Engagement," was condemned by government officials as irresponsible and inflammatory. Mr. Johnston said he did not make the decision to let Mr. McNulty in but was supportive of opening the evidence vault when a former department public relations adviser asked how to handle Mr. McNulty's access request.
Mr. McNulty told the Rangers that some key evidence appeared to be missing, and other government critics began clamoring to get into the evidence vault. That in turn prompted the Texas Rangers to open an investigation to determine what was in their Davidian evidence lockers -- an investigation that Mr. Johnston immediately began assisting.
As the investigation began, the Texas Department of Public Safety asked U.S. District Judge Walter Smith of Waco to take custody of the Davidian evidence. He responded in early August with a sweeping and unprecedented order taking control of everything in the federal government's possession in any way related to the 1993 tragedy.
As those events unfolded, Mr. Johnston sent a series of e-mails to his immediate boss, U.S. Attorney Bill Blagg of San Antonio, warning that the Rangers' inquiry was getting closer and closer to proving that the FBI had used pyrotechnic tear gas in Waco.
The senior FBI official's admission in late August broke the story wide open, and Mr. Johnston came under more criticism from Justice Department colleagues. James B. Francis Jr. , chairman of the Texas Department of Public Safety Commission, said he and others within the agency were saddened but not surprised at Mr. Johnston's decision.
"He's a fine prosecutor," said Mr. Francis, whose agency includes the Texas Rangers. "He's held in high esteem here in Texas by the DPS and the Texas Rangers, and we very much hate to see him step down but recognize he's got to do what's right and proper and best."

WACO, Texas (AP) -- Government attorneys say they acted in good faith in turning over documents in the Branch Davidian civil lawsuit and shouldn't be penalized for what attorneys for the Davidians call stalling tactics.
In a filing Monday in federal court, Justice Department attorney Marie Louise Hagen said the government opposes a $50,000 sanction requested two weeks ago by lawyers for surviving Branch Davidians who have sued the government for wrongful death.
She said plaintiffs' attorneys caused part of the delay in turning over evidence by insisting on taking 24 depositions in December, which took government employees away from document production.
Attorneys for the Branch Davidians asked U.S. District Judge Walter Smith to fine the government, alleging Justice Department lawyers would delay the surrender of thousands of documents until shortly before a court-imposed deadline.
Lead plaintiff's attorney Michael Caddell had said he feared a ``last-minute document dump'' that would slow his preparation for the trial's scheduled start in mid-May.
Ms. Hagen said in Monday's filing that most documents were sent to plaintiffs before the deadline, including 51 boxes of materials sent the final weekend.
The government sent some materials after the deadline. Ms. Hagen said thousands of pages of Department of Defense documents still must be declassified before being turned over.
The deadly standoff near Waco began Feb. 28, 1993, when federal agents raided the rural home of Branch Davidian leader David Koresh and his followers. Four agents and six sect members died in the gunbattle.