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THE NEW YORKER
November 1, 1999

ANNALS OF LAW
BURNED
As if the Justice Department hadn't made enough enemies over Waco.
BY PETER J. BOYER

In late September, the first of several Ryder trucks pulled up behind an old, yellow brick federal building in downtown Waco, Texas. Its cargo was the guns, grenade casings, spent bullets, fire-singed clothing, and other relics collected from the ashes of the Branch Davidian compound at Mount Carmel, where, on April 19, 1993, David Koresh and some eighty of his followers died after a confrontation with the F.B.I. The Davidian debris, which had been carefully catalogued and boxed by the Texas Rangers, was carted to a basement room and put under lock and key. A chain-link cage inside the room now holds, among other firearms, a .50-calibre machine gun and an AK-47 from the Davidian arsenal. A smashed metal door from the compound, mud-smeared and pierced by bullets, leans against a far wall, next to a vividly colored hand-painted sign bearing the legend "Ranch Apocalypse." The material—there is tons of it—is vital evidence in several Washington investigations, as well as in a civil suit, brought by the Davidians? survivors against the United States government, for wrongful death. It is also the macabre inventory of conspiracy theorists who hold the government guilty of mass homicide at Mount Carmel.

The Rangers had been keeping the evidence since 1993, on behalf of the government, but in late summer, in a remarkable turn in the case, federal Judge Walter S. Smith, Jr., of Waco, ordered the material placed in the custody of his court, to deflect the perception that "the government may have the opportunity to conceal, alter, or fail to reveal evidence." Smith's message seemed clear: the United States Department of Justice, which is defending the government, could not be trusted to control the evidence.

In his order, Judge Smith expressed concern about a growing public suspicion, "whether warranted or not, that there is a massive coverup regarding the evidence." Privately, Smith is said to be at least as worried by government missteps that have fed those suspicions. Six years ago, Attorney General Janet Reno, among others, swore before Congress that F.B.I. agents had not fired pyrotechnic devices into the Davidian compound. Even after one of her own lawyers at Justice tried to warn her, she continued to insist that she'd seen no evidence to the contrary Finally, over the summer, as evidence began to mount, the F.B.I. was forced to admit that pyrotechnic gas-delivery devices had been used. What's more, it developed that Justice Department and bureau officials, who had listened silently to Reno's resolute denials, knew that the devices had been used at Waco.

The Waco controversy persists partly because it is a primal American drama, complete with guns, religion, martyrdom, and apocalypse. But it is revived and sustained by the taint of political coverup. Committees in both the House and the Senate have begun new investigations into the Justice Department's role regarding Waco. Yet another investigation, ordered by Reno, is being conducted by the former Republican Senator John Danforth, of Missouri, to "answer the dark questions" about Waco, as he put it. Among other things, Danforth wants to know whether F.B.I. agents fired their guns at the Davidians. The bureau maintains that its men did not fire a single shot, but Danforth has viewed a videotape of the confrontation, recorded by government surveillance aircraft, that seems to suggest otherwise.

Those with an anti-government view accuse federal agents of a range of sins at Waco, from contributing to the fire to preventing the Davidians? escape by shooting at them. There is no evidence that the government conspired to kill the Davidians, and its contention that Koresh and others deliberately set the fire is still widely accepted, but almost from the moment the flames died the F.B.I. and the Department of Justice seemed determined to avoid embarrassment, even at the cost of credibility. In the absence of forthrightness, suspicions have taken root and flourished. (According to polls, a majority of Americans believe that the F.B.I. lied about the events.) The Justice Department's actions have, in fact, strengthened the very anti-government forces in our society which the department wishes to quell.

One of the specific questions being addressed by investigators is whether an F.B.I. sniper fired into the compound from Sierra One, the code name for sniper position No. 1, an F.B.I. undercover perch that faced the compound from a house across the street. Several weeks after the fire, an F.B.I. Special Agent named Charles Riley, a trained sniper, told an F.B.I. investigator that on the morning of the assault he saw agents move their Combat Engineering Vehicles, which had been borrowed from the Army, toward the compound, and then saw them ejecting gas. Then, the investigator's report states matter-of-factly, "Riley related he heard shots fired from sniper position #1."

Sierra One was manned by the Blue sniper team, which was headed by a veteran F.B.I. sharpshooter named Lon Horiuchi. Eight months earlier, during another armed standoff; in Ruby Ridge, Idaho, Horiuchi had fired at an associate of an anti-government activist named Randy Weaver, and had killed Weaver's wife instead. Weaver's son and another man were also killed during the eleven-day standoff. The incident eventually became a rallying call to anti-government militants, but at the time of the Waco siege Horiuchi's role at Ruby Ridge was not well known. (In 1997, he was charged with involuntary manslaughter, but the case was dismissed the next year, when a judge ruled that Horiuchi had acted in the line of duty.)

In 1995, attorneys for the Davidian survivors learned of Horiuchi's presence at Waco, and the following year they submitted Riley's report mentioning the sniper gunfire in a filing before Judge Smith. The F.B.I. then dispatched another agent to conduct a new interview with Riley. This time, Riley said that he'd been misunderstood in the first report— that what he'd actually heard was not gunfire from Sierra One but someone in Sierra One shouting "Gunfire!"

Michael Caddell, a Houston-based lawyer who is the lead attorney for the plaintiffs in the Davidians? suit against the government, is predictably skeptical of Riley's retraction. "The fact that Horiuchi was in charge of Sierra One heightens your suspicions that, in fact, there was gunfire, and that they are covering it up, or refusing to acknowledge it," Caddell says. He points to the fact that a dozen spent .308 shells—the same calibre bullet that killed Mrs. Weaver—were found inside Sierra One. The F.B.I. says that those shells were fired by the Bureau of Alcohol, Tobacco, and Firearms, on February 28th, during the initial gunfight with the Davidians. One of the congressional committees investigating Waco is considering whether to order ballistic tests to determine who fired the shots.

Bill Johnston, the Assistant United States Attorney in Waco, who helped prosecute and convict Davidians accused of killing four A.T.F. agents in the original shootout, is known as an aggressive prosecutor and a straight arrow, and in his physical aspect he fits the part of a Texas lawman. He is six feet four, and is inclined to cultivate the cowboy mystique. The wall of his outer office is dominated by a poster-size photograph of him with some of his law-enforcement pals, posing on the prairie in jeans, boots, and Stetsons, and carrying long guns.

Johnston identifies closely with the Texas Rangers, who also enjoy a straight-arrow reputation, and during the Davidian siege, which lasted seven weeks, he asked them to act as the investigating agency in the case. The Rangers agreed, and they were temporarily sworn in as United States marshals.

By bringing in the Rangers, however, Johnston inadvertently created the means by which the Justice Department in Washington---"Main Justice," as it is called— kept the Davidian evidence from reporters, plaintiffs? investigators, and the public. The Justice dodge worked this way: When independent investigators asked for access to the material, at the Rangers? evidence vault in Austin, they were told, accurately, that permission would have to be granted by the Justice Department in Washington; invariably, Freedom of Information Act requests to the department received the reply that it didn't have the evidence—the Texas Rangers did.

Michael McNulty, the principal researcher for two documentaries critical of the government's version of events, tried a different tactic—he attempted to enlist Johnston's help. Johnston was not a fan of the first film that McNulty had contributed to, "Waco: The Rules of Engagement," an anti-government polemic. On the other hand, Johnston knew that the government's lack of cooperation only heightened suspicions about Waco.

McNulty had a piece of information that he hoped would make Johnston more sympathetic to his position. McNulty had learned of a heated debate among officers of the Army's Combat Applications Group, in Fort Bragg, North Carolina, regarding the involvement of the Army's elite Special Operations team, Delta Force, in the Waco standoff It was a subject of the highest sensitivity because American law forbids the use of United States military units in hostile operations against American citizens. The Delta Force presence at Waco is another issue on which the government's forthrightness has been questioned. At first, Delta Force's involvement was not acknowledged; then it was asserted that three Delta Force soldiers were at Mount Carmel, but only as "observers." Now the Army has admitted that ten Delta Force team members were at Waco. McNulty obtained a file holding records of that debate, in which the unit's legal staff expressed concern over the Delta Force involvement. When McNulty showed Johnston the military file, Johnston became convinced that the government was keeping some damaging secrets.

Johnston decided to help McNulty get at the evidence, and informed Janet Reno's top public-affairs officer that he was doing so. Over a period of several months, McNulty toured the Rangers? evidence room four times, once accompanied by Johnston and the Rangers, the other times solely by the Rangers. McNulty knew just what he was searching for. He had seen a photograph, taken by a Ranger at the scene after the fire, of something that looked like a military gas canister, a bubble-headed object with a red stripe—which, McNulty knew, was a pyrotechnic device. McNulty, who brought along an explosives expert on one of his visits, could not find the canister among the evidence, but he did discover two other projectiles that he believes are also pyrotechnic. He shared this information with the Rangers and with Johnston, and he says that last November he detailed his discovery and his speculation about what it meant in a letter to the Justice Department's public-affairs office. Still, the department continued to publicly deny that pyrotechnic devices had been used at Waco.

Johnston began to grow uneasy, as did the Rangers. But most discomfited, perhaps, were lawyers in the Justice Department's torts branch, who were preparing a defense of the government in the Davidians? wrongful-death suit, and were anticipating a key moment in the proceedings. The defense team had put together what it hoped would be its big play—a hundred and forty-four pages of motions asking Judge Smith to dismiss the case. Judge Smith was expected to rule on the motions in early summer.

As it happened, McNulty had also shared his discoveries inside the evidence vault with the plaintiffs? attorney, Cadddell, and in June McNulty submitted an affidavit summarizing his findings to the plaintiffs? legal team, which then submitted it to Judge Smith. In Washington, a career Justice attorney named Marie Hagen, one of the lead lawyers on the government's defense team, was incensed to learn that Johnston had helped McNulty (and, through him, the plaintiffs) gain access to the evidence. She telephoned Johnston at home on a Saturday morning last spring, and, as Johnston puts it, "growled" at him, "Did you let McNulty see the evidence?" When he told her that he had, he says, "she was very disturbed."

Back in Texas, events moved quickly once the knowledge of the pyrotechnic devices began to spread. Jim Francis, the chairman of the Rangers? administrative parent, the Public Safety Commission, decided that the Justice Department had used the Rangers to shield the evidence, and he wanted out. He had the department's lawyers file a motion with Judge Smith asking to be relieved of responsibility for the evidence, and he did something else that would prove significant: He ordered an inventory of the evidence, asking his investigators to pay particular attention to the projectiles that McNulty and his expert claimed were pyrotechnic devices. "They spent most of their inquiry on those issues that McNulty had raised," Johnston says. "Those projectiles really did have the appearance of being trouble."

On July 1st, Judge Smith made his long-awaited ruling on the government's motions to dismiss the case. Smith had never shown much sympathy for the Davidians, and had meted out stiff sentences to those convicted of shooting the A.T.F. agents at the original gun battle. Not surprisingly, he threw out most of the plaintiffs? claims. But he allowed a key issue to live for judgment by a jury in trial: Did the F.B.I. fire into the compound, preventing Davidians from escaping, as the plaintiffs claimed? "If Plaintiffs? allegations are true, due process would be implicated as such behavior would rise to a level that would shock the conscience," Smith wrote in his ruling. Smith cited the expert opinion of Edward Allard, a former government specialist on infrared imagery who had joined the plaintiffs? side. Allard had submitted an affidavit in which he declared that a Forward Looking Infrared (FLIR) Surveillance video, recorded by the government during the gas assault, revealed bursts of automatic gunfire coming from government agents.

The Judge also allowed the plaintiffs? claim against one government defendant to stand. The F.B.I. sniper Lon Horiuchi, the Judge wrote in his opinion, occupied the sniper position from which another agent reported that he heard the sound of gunfire. Smith was obviously unimpressed by the government's assertion that Riley, who had initially reported the gunfire, had been misunderstood.

Judge Smith's ruling was a victory for the plaintiffs, and it shifted the focus to the evidence stacked in the Rangers? storage vault in Austin, which would now be considered by a jury. By July, the Rangers? examination of the evidence was nearing completion, and some of what they were finding was disturbing. A Ranger investigator named Joey Gordon, who was Bill Johnston's contact, said that many crime-scene photographs had been "borrowed" by the F.B.I. and never returned. More important, Gordon reported, McNulty's assertions about the pyrotechnic devices were apparently true.

By E-mail, Johnston began reporting what he was hearing from the Rangers to his superior, the United States Attorney in San Antonio, Bill Blagg, who told Johnston that he had forwarded the reports to top Reno aides in Washington. In early August, Johnston faxed Blagg copies of the specifications of a .40-mm. M651 gas round, whose casing had been found among the evidence. It was a pyrotechnic device, and was not one of the plastic "ferret" rounds that the F.B.I. and the Justice Department had insisted were the only projectiles their agents fired during the assault. To drive the point home, Johnston also faxed to Blagg the transcript of sworn testimony given before a congressional committee in 1995 by a member of the Justice Department's prosecution team. The prosecutor had begun his testimony by telling the committee members that "more than anyone else involved with the case, we had the opportunity to review all of the investigative reports and materials and to speak with the vast majority of witnesses." He said he was there to dispel some of the "myths" that had grown out of the Waco event, and promised "to continue to assist you in your search for the truth."

In his fax to Blagg, Johnston underlined one sentence in the government lawyer's statement:; "On the 19th of April, though repeatedly fired upon by the occupants of Mount Carmel, the F.B.I. did not fire a shot, other than the non-lethal ferret rounds which carried the gas."

Johnston now knew that the prosecutor's statement was wrong. "He'll have to answer for that, most likely," Johnston told Blagg, "and Congress will want to know why he misled them."

But, to Johnston's dismay, the Justice Department continued to deny that the F.B.I. had fired any pyrotechnic devices. Blagg tried to reassure Johnston by E-mail, saying that he had reported everything that Johnston had told him directly to the highest levels of Justice in Washington, adding, "I have every reasonable reason to believe that the AG has been informed of whatever it is that you have reported to me."

Still, Justice continued its denials, telling Lee Hancock, a reporter for the Dallas Morning News, that allegations about pyrotechnic devices were "nonsense." Johnston says, "I waited, and it didn't get any better, and eventually I determined in my mind that one of two things was happening. The worst was that this had been given to the Attorney General and she was intentionally continuing to mislead the public about it. Or some chasm had formed between what I'm sending and what she's saying. There's a breach somewhere."

Johnston began to suspect that the department might be bending, if not breaking, federal discovery rules requiring lawyers to reveal key information to the other side. To confirm his suspicions, Johnston telephoned Caddell, the plaintiffs? lawyer, and asked if he had tried to obtain information from Justice about the pyrotechnic devices. Caddell said that he had. Did Justice comply? Johnston asked. Caddell said that it had not.

Johnston decided to break his chain of command and go directly to the top. Last August, he wrote a letter to Reno, saying that somebody at Justice had to have known about the pyrotechnic devices. Johnston had seen some internal department memorandums of interviews for trial preparation, with notations that said "privileged" and "DOJ witness do not disclose." Johnston wrote:

It appears that someone was making decisions about whether the plaintiffs in the civil case, or others, should have access to these documents. It is my own hypothesis that the Torts Branch has had these documents for years, and that they decided not to make them available to the plaintiffs. Certainly, as attention focused in the past year on the fire issue, the full import of these documents must have been known to whomever possessed them.

But someone at Justice was taking the situation seriously, and that person apparently decided it was in the department's best interest to undermine Johnston. One day in August, Johnston received from the San Antonio office a facsimile of some notes, taken by a paralegal, which showed that Johnston had been present at an interview with a member of the F.B.I.'s Waco team in 1993, while he was preparing for the criminal trial against the Davidians. The notes included the phrase "attempt to penetrate bunker w/1 military and 2 ferret rounds." Johnston says he had no reason to understand what a military gas round was in 1993, but he completely understood why the notes had been sent to him now: it was someone's way of suggesting that he, too, stood to lose if the government was embarrassed. Several days later, the message was made even clearer, when Johnston learned that someone had leaked the old notes to the Dallas Morning News. An article quoted Blagg as saying that he couldn't think of a worse thing for a United States Attorney—Johnston, obviously—than to be discovered as having failed to reveal key information in a case.

In coming forward, Johnston may have done the right thing, but he had plainly made a bad career move. At a party, one of Blagg's assistants remarked to one of Johnston's that "Bill really fucked up" in his handling of the case. When the United States Attorneys in the central district of Texas held their quarterly meeting recently, Johnston was not invited.

For all its vast expanse, Texas can be a very small place. Johnston, himself the son of an esteemed Texas prosecutor, was held in high regard by people who mattered in central Texas, such as the Rangers? boss, Jim Francis. Johnston also had a warm relationship with Judge Smith—so close that after Smith saw him being interviewed on television he felt free to offer the younger man some grooming advice. (Always wear a coat and tie.) Smith didn't like much of what he was hearing about the Justice Department, and he was particularly displeased by its treatment of Johnston—enough to call the Attorney General about the matter. Reno took his call right away, and the Judge expressed his respect for Johnston's integrity; saying that he admired what Johnston had done, and that he hoped it wouldn't hurt him at the department. "I agree with you, Judge," Reno assured Smith. "He's a fine person. I certainly hope nothing negative is going to happen to him." A week later, the case was removed from Johnston's district.

But Judge Smith had the final word. On August 9th, he granted the Rangers? motion to be relieved of responsibility for the Davidian evidence. The Judge could have had the evidence transferred to another law-enforcement agency, such as the F.B.I., in which case the evidence would still have been under the control of the Justice Department. Instead, he ordered that it be delivered to him: not only the evidence in the Rangers? vault but all the material in the government's possession—every tape, photograph, document, and memorandum. And, perhaps thinking of Justice documents he'd seen that carried such notations as "do not disclose," on September 2nd he pointedly warned the government that "any party that destroys, alters or otherwise tampers with any evidence" would be held in contempt and punished. A few weeks later, the Ryder trucks were on the way to Waco.

At sunset, the Branch Davidian property, which spans seventy-seven acres outside Waco, is a weirdly beautiful sight, spectral but not dead. The brush is alive with fat brown Texas grasshoppers, noisy enough to suggest Biblical plagues. The Davidian litter still scattered about—one of Koresh's smashed motorcycles here, the rusted hulk of a school bus there—gives the place its haunted feel, but although Mount Carmel is not easy to get to, even at dusk there are tourists walking the grounds and snapping photographs.

Some people, hut unlike Civil War buffs who have combed Antietam Creek for souvenirs, claim to have found bullets on the site. Indeed, there are monuments and memorials all over Mount Carmel. Myrtle trees have been planted for each of the Davidian dead, and near the former site of the compound there is a stone marker engraved with a legend that reads like something from an alternative National Park Service:

On February 28, 1993, a church and its members known as Branch Davidians came under attack by ATF and FBI agents. For 51 days, the Davidians and their leader, David Koresh, stood proudly. On April 19, 1993 the Davidians and their church were burned to the ground. 82 people perished during the siege. 18 were children 10 years old or younger.

The memorial is not official, of course—it was placed by the Northeast Texas Regional Militia of Texarkana— but then nothing is really official at Mount Carmel, including a clear title of ownership. That issue is tied up in court.

This has not stopped an undertaking called the Phoenix Project, an ad-hoc effort to build a new church on the site of the old Davidian compound. The project members, who are volunteers, think of the Davidians as martyred victims of a government massacre. They work on Sundays, mostly, and after three weeks of mixing concrete by hand and digging with picks and shovels they laid the foundation for the new church. ‘And this is hard Texas ground, this is black clay," Jeffrey Ward, one of the volunteers, says.

Ward is a bantam former marine, who wears a camouflage shirt and a flop hat, and says that he is here on principle. "A church was burnt down. People were murdered. Not ‘killed.? People were murdered... . People say, ‘Not in America.? But look, this happened in America. It happened in America. Goll-ee, man! Guys with ski masks on—like Nazi Germany, the Gestapo—came and kicked down the door and shot up a bunch of women and children, with extreme prejudice."

For people with Ward's view of events, the F.B.I.'s admission about the pyrotechnic devices is confirmation of their darkest suspicions. "Maybe that's gonna wake somebody else up out there," Ward says. "It's the powers that be. It's that ‘new world order? that the State Department is talking about all the time. Hey, even Kofi Annan said that they're not going to recognize national borders anymore— if they wanna send in peacekeeping troops, they're gonna send them in. Well, not on my watch. Not in my homeland."

John Danforth recently visited Mount Carmel, where he certainly could not have missed a huge sign that someone had posted. It says, "Senator Danforth, after three coverups called investigations, will you finally subpoena the evidence?" Danforth has already seen much of the evidence, including the most controversial: the tapes that, some insist, prove that federal agents repeatedly fired automatic weapons at the Davidians on the day of the fire.

In Houston, Danforth and his staff visited the law office of Michael Caddell. Danforth was there from 8:30 A.M. until 6 P.M., and spent a substantial portion of that time in a conference room that had been transformed into a high-tech screening room. Caddell had set up broadcast monitors and a thirty-five-inch plasma screen (which produces the clearest possible images), and Ed Allard, the infrared specialist, walked Danforth and his staff through the infrared surveillance video.

Any thermal-imaging infrared recording made during daylight provides a fuzzy image at best, because FLIR actually records contrasts in surface temperatures. A man going from an air-conditioned room into the heat of the sun, for example, would seem to disappear as his clothing reached the temperature of the ground surface. For that reason, the FUR tapes that, according to some viewers, show F.B.I. gunfire are a bit like a video Rorschach test—the viewer tends to see what his mind is prepared to see. But Caddell has recently obtained from the F.B.I. a copy of the FUR that is starkly more clear than the one widely seen by the public, and that is what Danforth and his staff saw. In lecture style, Allard, a former physics professor, ran a bit of the video for Danforth, stopped to explain the basics of thermal imagery, and then returned to the scene of what he believes is a pitched gun battle between Davidians and F.B.I. agents firing automatic weapons.

"I can look at students, and I can tell you if they're paying attention," Allard says. "The Danforth people were totally absorbed." Of one scene in the video, he says, "There's no question that's a full gun battle." As he recalls it, "What I did with the Danforth people is, I said to them, ‘Look, why don't you count the fire your-self?? I played the tapes, frame by frame. And as you play them frame by frame the people say, ‘I see one, two, three, four. . . I see five! No, I think there's four, run it back? And pretty soon they say, ‘Yeah, there's five shots from there, and there's one shot from the other side."

It is probably not good news for the F.B.I. that Danforth and his staff have been counting the F.B.I.'s putative automatic-gunfire shots at Waco. Significantly, although the F.B.I. still denies that it fired shots at the compound, the most recent denial included a slight qualification—that experts differ on what the FUR shows. The F.B.I. says it has experts who back the bureau's contention that no shots were fired. However, an independent specialist in thermal imaging, Carlos Ghigliotti, viewed the F.B.I.'s FUR tapes at F.B.I. headquarters, and concluded that shots had been fired. If the government is forced to confess another prevarication, the conspiracy fires will certainly flame higher.

The revived controversies over Waco can only intensify a broadening unease about the Justice Department's integrity; which has put the department on the defensive on several fronts. Besides the Waco issue, Congress is questioning Justice actions in the alleged Chinese appropriation of American nuclear secrets, the campaign finance scandal of 1996, and, most recently, the department's role in securing clemency for jailed members of F.A.L.N., the radical Puerto Rican independence group.

Senator Fred Thompson, Republican of Tennessee, who first came before the public as a congressional counsel during the Watergate hearings, and was himself an Assistant United States Attorney for three years, talked about his former agency recently. "One of the things I've been most concerned about since I've been up here is what has happened to the department over there—the incompetence," Thompson said. "Some of it is baffling." He paused. "What I think we're witnessing is the beginning stages of incremental damage done to our last remaining institution, one that's been largely unassailed so far. The Presidency's been dragged down, the Congress has been dragged down, most of it self-infflicted. But our justice system has still remained pretty much respected. Controversial sometimes, but respected. And this is a part of that incremental damage, and it's serious.

© 1999 New Yorker