In February, 1993, a gun battle erupted outside Waco, Texas, as federal agents attempted to search the communal residence of a religion known as the "Branch Davidians." The battle, and the following siege, was the greatest law enforcement debacle in American history, costing nearly a hundred lives.
After a criminal trial, two Cabinet-level studies, and three sets of Congressional hearings, the truth appeared to be firmly settled. A cult led by a madman had shot at federal agents and had then set themselves aflame. The issue was settled.
Then in 1999, the Waco issue exploded, with proof that the Federal agencies had lied to their own leadership, to Congress, and to the courts.
"This Is Not An Assault" explores this remarkable turnabout. It is authored by someone who saw it from the inside, a former government attorney whose lawsuit forced ATF and FBI to divulge the incriminating documents and tapes. -- From the cover of "This Is Not An Assault": Penetrating the Web of Official Lies Regarding the Waco Incident by David Hardy & Rex Kimball.
The first great federal law enforcement scandal of modern memory was the immolation of 80 Branch Davidians on 19 April 1993 by the FBI. Like the Gunwalker scandal there was government generated evidence which seemed damning. So damning in fact that special care had to be taken to discredit the evidence. The best source on this is "This Is Not An Assault": Penetrating the Web of Official Lies Regarding the Waco Incident. by David Hardy with Rex Kimball.
From the cover of This Is Not An Assault comes this bio:
David T. Hardy is an attorney and a legal scholar. He holds a B.A. and Juris Doctorate from the University of Arizona, where he served as Associate Editor of the Arizona Law Review, a fellow of the Instiute for Humane Studies, and was given the ABA's Lewis M. Powell medallion for excellence in appellate advocacy.
Mr. Hardy is the author of three books, portions of six anthologies, and thirteen law review articles. His writings on Federal firearms laws have been cited as authority by the U.S. Supreme Court and ten of the thirteen U.S. Courts of Appeals. He has testified before two Senate committees conducting oversight of the Bureau of Alcohol, Tobacco, and Firearms.
Mr. Hardy spent eight years as a Federal agency attorney, representing the U.S. Department of the Interior and the Federal Deposit Insurance Corporation. Before and after his federal service, he practiced law in Tucson, Arizona.
The damning evidence at Waco was a Forward Looking Infrared record taken from an orbiting FBI surveillance aircraft. According to Gordon Novell, these images were first provided to the Davidian defense team by former CIA Director William Colby. Shortly afterward, Bill Colby died in what was ruled to be an accidental drowning. (See "A message that Eric Holder understands perfectly well: No more free William Colbys.") Colby's was not the only mysterious death associated with the Waco F.L.I.R. tape. The Washington Post reported on 29 April 2000: "Waco Siege Investigator Found Dead In His Home." (David Hardy's take on Carlos Ghigliotti's death is much more detailed and found here.)
To understand the nature of the evidence, please watch this documentary by Mike McNulty entitled "The F.L.I.R. Project."
The FLIR Project, Part One:
The FLIR Project, Part Two:
The FLIR Project, Part Three:
The FLIR Project, Part Four:
David Hardy has graciously consented to allow me to quote wide swaths of material from "This Is Not An Assault" in support of a follow-on essay which I will post tomorrow. From Chapter Ten, "The System Tries Its Hand":
At the time of Carlos' death, three separate efforts to get to the bottom of the Waco incidents were pending. There was the wrongful death suit brought by the Davidian's families, the Special Counsel appointed by Janet Reno, and the investigation undertaken by the House Committee on Government Reform. Each had advantages that all researchers, from Carol Moore to Mike McNulty, had lacked . . . a budget, a staff, the subpoena power. The Special Counsel alone was budgeted for twelve million dollars.
Of the three, I put the least trust in the court action. The person who said that a trial is a search for the truth either knew little of trials or knew nothing of the truth. A trial is an effort either to put someone in jail or to give them money. Determining the truth is an unintended, and often undesirable, byproduct of these objectives. This is especially true of a lawsuit against the government. . . -- pp. 129-130.
I resume Hardy's narrative at the point that the legal battle over the FLIR tapes draws to an unsuccessful conclusion in the lower courts:
That left us with the Special Counsel and House Government Reform Committee, as means to find the truth.
After spending something over twelve million dollars, Special Counsel Danforth came out with an "Interim Report to the Deputy Attorney General" on July 21, 2000. He frankly admitted that he had released an "interim" report because he might be under consideration as a vice presidential candidate, and wanted to be free of his duties as Special Counsel. Nothing like dedicated service, on what he had claimed he saw as the most important duty of his life.
The 149-page report was for the most part a chronology according to the government sources. It did not consider any allegations against the ATF. It likewise ignored many major questions regarding the FBI -- whether gas was used in lethal quantities, whether FBI misled the Attorney General, and so on.
As to the question of the FLIR and of FBI gunfire, it invoked Vector Data as Proving "with certainty" that "each of the flashes noted on the 1993 tape resulted from a reflect off debris on or around the complex." That Vector Data's analysis, expertise, and impartiality, had been torn apart when its staff were deposed was nowhere acknowledged, nor were the contrary conclusions of Dr. Allard, Fred Zegel, or others disclosed in the course of proclaiming this "certainty."
The report concluded, with equal certainty, that the Davidians had started the fire. Part of the evidence cited was the discovery of a "homemade torch." I had seen that during the civil trial; it proved to be no more than a foot-long stick with a cloth balled around one end, intact, when the rest of the building was reduced to ash, which suggested it spent its last day in water rather than gasoline. Of the strange problem of the vanishing evidence, there was not a mention . . . unless we count footnote 73, which acknowledged that when the Davidians' bodies were refrigerated, "sometime after the examination, the freezer malfunctioned."
Danforth's report had one stunning aspect, one bit of (perhaps unintentionally) honest self-depiction. In his preface, the former Senator made it clear where he felt the blame did lie: with you.
In the face of a tragedy like Waco, he stated, "we have a need to affix blame. Things like this just can't happen; they must be the government's fault." Yes, it was that impulsive, childish citizenry, those masses who just cannot understand things as their natural superiors do. Danforth continued his pontification:
Ample forums exist to nurture our need to place blame on government. Sensational films construct dark theories out of little evidence and gain ready audiences for their message. Civil trial lawyers, both in the public and private sectors, carry the duty of zealous representation to extremes. The media, in the name of "balance," gives equal treatment to both outrageous and serious claims.
You could almost see the writer's look of indignation: documentary makers, attorneys, the press, all dare to criticize the government! In the face of this, Danforth continued, it was only natural for government officials to, well, maybe lie a little. "In today's world, however, it is perhaps understandable that government officials are reluctant to make full disclosures of information, for fear that the result of candor will be personal or professional ruin."
That was it. By demanding truth and accountability, the fickle mob was forcing government officials to lie and withhold evidence.
That orientation might explain the one concrete result of the Danforth inquiry. After Danforth's departure, the OSC released a final report. This conceded that several FBI agents and Justice prosecutors had lied under oath, covered up evidence, or tried to obstruct its investigation. And, time after time, it concluded that no one would be prosecuted.
On the matter in which I had some personal interest, the report acknowledged that in the FOIA suits the head of FBI's Litigation Unit had categorically stated, under oath, that there were no FLIR tapes from before 10:42 A.M.. She had sworn that this information came from the head of the HRT and his deputies; when I asked that FBI check with FLIR cameraman Agent Arnold Ligi, the FBI stated that Agent Ligi confirmed there were no earlier tapes.
We had learned, of course, that there WERE FLIR tapes from before 10:42 A.M.; the sworn statements were false. The OSC investigation found even more damning evidence. First, Agent Ligi DENIED having told anyone that there were no pre-10:42 A.M. FLIRs. Second, OSC found a memorandum indicating that one of the Davidians' prosecutors had told the Litigation Unit that he believed there WERE earlier FLIR tapes. No matter how far Danforth and the OSC were committed to covering up a cover up, they were going to be hard put to wriggle out of that one; agents had, indisputably, lied under oath, on a key matter, where the only conceivable motive would have been to conceal up the truth.
But wiggle the OSC did: "As negligent as this cavalier approach to congressional subpoenas and FOIA requests may have been, the Office of Special Counsel does not believe that the FBI's failure to disclose the early morning FLIR tapes was the result of any intentional effort to conceal them." Fearful that even this might be taken as criticism of the FBI, the OSc added an apologetic footnote: "Of course, FOIA only requires a reasonable search, and this Report makes no conclusion about whether the search was reasonable."
The approach summed up the entire Danforth report. Time after time, agents or Department of Justice attorneys had been caught lying or hiding key evidence, and time after time Danforth proclaimed that no charges would be brought. The evidence just wasn't clear enough. Or the lie was understandable. Or there were extenuating circumstances. Or the agent deserved merely to be fired -- but, fortunately, he had already retired. Agent James Caidgan had hidden a notebook in his attic and failed to produce it when Congress and the OSC issued subpoenas. He would not be prosecuted since the concealment "does not appear to be an attempt to obstruct the Special Counsel's investigation." Two federal prosecutors, Ray and Leroy Jahn, had not only concealed evidence; they had both lied to the Special Counsel about it, and then called up some other witnesses to coach them to do the same. They would not be prosecuted, because the evidence was not quite clear enough.
FBI in-house attorney Jacqueline Brown had played a key role in covering up the use of pyrotechnic devices. Danforth concluded that she had "clearly lied to the Office of Special Counsel," had "unfairly cast suspicion" on other officials, and tracking down her false statements had "wasted countless hours and investigative resources."
But, Danforth explained, "What the Office of Special Counsel has found is one FBI attorney's attempt to cover up her own misconduct. While this is reprehensible, it is not the principal focus of this investigation. Therefore, the Office of Special Counsel declines to pursue a criminal prosecution . . ."
Thus, after expending somewhat over twelve million dollars, Danforth and the OSC rested their case: there was simply nothing worth doing and no one responsible.
Or almost no one. There would be one exception, one prosecution. Felony charges were to be filed against Bill Johnston, the former Assistant U.S. Attorney who had allowed Mike McNulty into the Rangers' evidence locker, and who had informed Attorney General Reno that her subordinates were withholding the truth. The OSC found that, when summoned to its grand jury, Johnston had not revealed all the documents he had in his possession, specifically holding back a few pages that suggested that he, too, might have known about the pyrotechnic gas projectiles. It was wrong to do that, of course -- but certainly a good deal more excusable than the other conduct which OSC had been quick to whitewash. In Johnston's case, though, the knives were out. By letter of October 25, 2000, the Office of Special Counsel informed Mr. Johnston's counsel that:
As you have been told, our office will indict Bill Johnston in both St. Louis, Missouri, and in Texas. The charges in St. Louis wil be perjury charges for his grand jury appearances on May 10, 2000, and July 25, 2000, false statement charges for his statements during interviews by this office and obstruction of this investigation under U.S.C. 1505. The charges in Texas will be obstruction of the Congressional investigation, 1505, and a false statement charge for his Sept. 17, 1999, certification that he had turned over all his Waco related records. We will indict first in St. Louis and we will space the indictments sufficiently to allow an orderly process of both trials.
Twelve million in taxpayer dollars had gone to . . . produce a report blaming the taxpayers, and a prosecution of the one whistleblower who had broken ranks from the coverup. Danforth's office had shown its true colors. Its report was simply a coverup of a coverup. Its only concrete action was to act as the Justice Department's enforcer, pursuing the man who had broken its "code of silence."
There was still one hope: Congress, in the form of the House Government Reform Committee. Initially, I had held high hopes for this inquiry: they had Carlos Ghigliotti studying the FLIR tapes, and his statements to me were that the Committee had uncovered clear evidence of misappropriation of "war on drugs" monies, and other evidence so startling that they could not let it out for fear of sparking another Oklahoma City. He had found the way to cross-relate gunshot images on the FLIR with regular video showing agents taking shooting stances at the same place and time, and had pieced together the entire story, down to spotting the tank's hatch opening and a crewman getting out just before shots came from his area. I knew the Committee had been impressed: Carlos had mentioned its staffers looking as if they were "sucking on lemons" as they watched the FLIR and he pointed out what could be seen.
My hopes declined after Carlos' death, and the Committee's sudden moves to distance themselves from his results; Committee staff had suddenly begun claiming that Carlos was just a loose cannon, and they had fired him long ago. My hopes fell still farther after Mike Caddell met with Carlos' sister and the committee staffer, and reported that the staffer seemed interested only in laying hands on Carlos' materials and conclusions, and making sure no one else saw them.
Mike McNulty and I buttressed Carlos' findings by sending a Committee member copies of our experiments and of Fred Zegel's affidavit, which showed conclusively that gunshot flashes could last far longer than 8 milliseconds.
We had also encountered a friend and supporter of the chairman, Rep. Dan Burton. Through the friend, I offered to provide the Chairman with all the information, evidence, and leads I had. The mutual friend reported that Burton would call back. No call came. A week later, the friend said he had just talked to Burton, who wanted me to call him, now. I called; the staffer said the chairman was casting a vote, would be back in minutes, to stand by the phone. I did; no call came. The friend, who belonged to that class of friends closest to a professional politician -- that is, a major campaign contributor -- allowed that he was at a loss: he'd never encountered a reaction like this.
The Committee released its report in October 2000. It dealt with Carlos' report by concealing it. All that was said of Carlos' efforts were that he had "prepared a list of the questionable thermal flashes he detected" but he had died "without having submitted to the Committee a scientific report on the flashes." There was no mention of Carlos' briefings, or of his written report, not only of the gunshots but of the circumstances of the battle at the rear of the building, let alone of his interlinking flashes on the FLIR tape with videotape images of agents taking shooting stances. The Committee then noted that another infrared analyst, Dr. Don Frankel, had ruled out gunfire because, he opined, based on his reading of reference materials, gunfire flashes should last less than 2 milliseconds in infrared and the flashes on the Waco tape were longer than that. The Committee did not refer to the materials Mike and I had transmitted, which proved by experiment that firearms of the type actually used by FBI generated infrared flashes that lasted many, many times longer than 2 milliseconds.
The powers that be had had three tries at getting to the bottom of the Waco affair, and had swung for three strikes. No, strikes is not quite the term: a strike is only noteworthy because the batter is trying to hit the ball. There was little effort at that in these cases. We cannot attribute it to lack of opportunity, lack of power, or lack of information. No, there was simply something too frightening about the prospect of success. -- pp. 151-157.
Frightening indeed to the permanent political class, regardless of party. How this all fits into the upcoming Congressional investigation of the Gunwalker scandal will be dealt with tomorrow in these pages.