FBI didn't plan to fight Waco fire

Hours after a federal prosecutor cautioned the FBI about the need for firetrucks at the Branch Davidian compound, the bureau's Waco commanders sent a message to Washington saying they wouldn't

Thursday, March 2nd 2000, 12:00 am

By: News On 6

Hours after a federal prosecutor cautioned the FBI about the need for firetrucks at the Branch Davidian compound, the bureau's Waco commanders sent a message to Washington saying they wouldn't even try to fight any blaze that might break out.

FBI records show that the two exchanges occurred on April 9, 1993, as FBI leaders were finalizing plans to assault the sect's compound with tanks and tear gas.

Lawyers for the sect included the documents in a Wednesday motion aimed at convincing a federal judge that the FBI's two Waco commanders, Jeffrey Jamar and Richard Rogers, should remain defendants in the Branch Davidians' wrongful death lawsuit.

Justice Department attorneys maintain that federal law protects the Waco commanders from a civil lawsuit arising from their actions in the 1993 siege.

Lawyers for the Branch Davidians on Wednesday also released their own arson experts' report on the fire that consumed the Branch Davidian compound within hours after the FBI tear gas assault began on April 19, 1993. That report, by Chicago-based fire investigator Patrick Kennedy, stated that adequate firefighting equipment could have been obtained for the siege and would have saved many lives.

More than 80 Branch Davidians died in the fire that ended the 51-day standoff.

"If the fire had been extinguished in its early stages, there probably would have been little, if any, loss of life," Mr. Kennedy's report stated.

A document filed with the Branch Davidians' Wednesday motion, a two-page FBI summary of an April 9 briefing, indicated that Assistant U.S. Attorney LeRoy Jahn asked FBI leaders in Waco "if there was a firetruck available in case the Davidians attempted to torch the compound."

A second document, described in the sect's motion as a phone report filed at FBI headquarters at 7:30 that evening, reported that Waco FBI leaders were sending Washington their plan for emergency medical treatment during the proposed tear gas assault. But that report added, "per ... Jamar and ... Rogers, there would be no plan to fight a fire should one develop in the Davidian compound."

The Justice Department's lengthy 1993 review of the Waco tragedy gives no indication that Attorney General Janet Reno was advised of the FBI commanders' decision. Mr. Jamar later told Congress that he held local firetrucks back from the compound for more than 40 minutes after it caught fire because sect members had fired shots at FBI tanks that morning and he didn't want to endanger firefighters.

The one-page document detailing his April 9 report to FBI headquarters was filed under court seal. Justice Department lawyers turned the document over to the Branch Davidians' lawyers on condition that it be kept confidential and not released to the public, Wednesday's court pleading indicated, but it was included in the pleading.

Government side

Government lawyers contend that Mr. Jamar, the bureau's overall commander in Waco, and Mr. Rogers, head of its Hostage Rescue Team, cannot be sued for "judgment calls" even if those lead to tragedy because they are broadly protected by federal law.

Justice Department lawyers have told U.S. District Judge Walter S. Smith that strict federal limits on how and when the government can be sued preclude the court from considering whether authorities contributed to the 1993 deaths by ordering tanks to demolish the sect's building and then refusing to let fire trucks approach after it caught fire.

They have also argued that a report by government arson investigators ruled that sect members set the fire. That report relied heavily on an infrared video recorded from an FBI airplane, which showed the heat signatures of fires erupting within two minutes in three separate parts of the compound.

The government has contended that additional evidence used in the 1994 criminal trials of surviving Branch Davidians supports that claim. In that case, prosecutors argued that FBI surveillance devices recorded voices of sect members discussing their preparations to burn their building.

But lawyers for the Branch Davidians challenged those assertions in their motion and in reports from a fire investigation firm, a recording expert and other forensic specialists.

"This is a story of a government agency run amok, and two guys, Jamar and Rogers, who are apparently answerable to no one. They thought they were the law," said Mike Caddell, lead lawyer for the sect. "The American people should be angry because what we know now is how badly we've been misled, how badly we've been lied to for seven years.

Sect's contentions

The Branch Davidians' pleadings and expert reports released Wednesday contend:

The failure to obtain adequate firefighting equipment before launching a tear gas assault violated a specific directive from the attorney general to spare no expense or effort in ensuring "an adequate emergency response."

A senior FBI official recently acknowledged that Ms. Reno asked the FBI to ensure that it could address fire threats at the compound. That official, retired FBI Agent Danny O. Coulson, said the availability of armored firefighting equipment was investigated, but it was never obtained.

The acting attorney general when the standoff began later told FBI officials that bringing in fire trucks might have been risky or impractical, but forest-fire fighting equipment might have been used. "Think about fire next time," the official, Stuart Gerson told FBI investigators, FBI records indicate.

Mr. Kennedy stated that suitable fire equipment was available, including water cannons used for riot control, armored firefighting vehicles deployed by the city of Washington and helicopter-borne water slings used to fight forest fires.

Mr. Coulson, who helped supervise the Waco siege from FBI headquarters, said the decision to send tanks into the building, which experts on both sides said contributed to the rapid spread of the fire, was inconsistent with the plan Ms. Reno approved.

Mr. Kennedy's report concluded that the government's investigation, which ruled that Branch Davidians set the compound fire, was "fatally flawed." He noted it failed to follow national standards, overlooked the government's possible role in the blaze and hinged on evidence "that has never been used in such fire investigations before or since."

That evidence, an infrared videotape shot by an FBI airplane above the compound on April 19, does not prove "with any certainty the origin of the fire."

Mr. Kennedy, whose past cases include the Las Vegas MGM Hotel fire, the DuPont Plaza Hotel fire in Puerto Rico and the Philadelphia MOVE standoff fire, wrote that the government's bulldozing of the crime scene "made it impossible to answer the questions left open by the government's inadequate fire investigation."

"When analyzed according to accepted industry standards of fire investigation, the origin of this fire must be listed as 'undetermined,' and the responsibility for this fire must be listed as 'undetermined,' " Mr. Kennedy stated.

The Branch Davidians' court filing contended that post-fire interviews with FBI hostage rescue team members suggests that tear gas rounds two agents fired into the compound kitchen "accidentally triggered a fire."

A federal prosecutor's notes stated that one agent reported firing "three rounds into kitchen & at same time less than 30 sec later he saw white smoke."

That agent fired military pyrotechnic tear gas rounds at a bunker near the compound in the first hours of the gas assault.

Ms. Reno banned the use of any devices capable of sparking fires that day.

Mr. Kennedy's report disputed conclusions of government investigators that the propellant FBI tanks used to spray in gas was nonflammable and incapable of contributing to the fire.

Mr. Kennedy said the propellant, methylene chloride, is highly flammable in vapor or mist form. He added, "there are many documented cases of fires and burn injuries fueled by methylene chloride vapors."

He noted that propellant vapors "could significantly contribute fuel to the rapidly propagating flash fires reported by surviving Branch Davidians"

A former Secret Service forensic recording specialist hired by the sect to analyze FBI audio and videotapes said he had found broad evidence of tampering and erasures in crucial government recordings.

The expert, Steve Cain, stated that tapes of the surveillance recordings from April 19 that Justice lawyers described as originals to the Waco federal court all appeared to be copies.

He said those April 19 recordings, which included what prosecutors said was the sect's fire preparations, included instances were two tapes labeled as simultaneous recordings contained noticeably different "speech content."

Those and other anomalies led Mr. Cain to conclude that the tapes' "reliability, authenticity and originality are in serious question and indicate that portions of these recordings have been tampered with."

Mr. Cain said the government's April 19 infrared recordings appear to have been altered, and the videos from the six hours before the fire contained evidence "that they have been probably edited and possibly tampered with."

That evidence includes the erasure of the audio track from the infrared tape shot in the crucial hour before the fire, he said.

That tape includes repeated flashes on the back side of the compound that lawyers and experts for the sect have alleged were caused by government gunfire. Government lawyers have denied that their agents fired a single shot on April 19.

The government's videotape from that period contains electronic signals suggesting the erasure all of the discussions between personnel in the plane that carried the camera and cockpit broadcasts of radio traffic between FBI agents on the ground, Mr. Cain's report stated.

Although government lawyers told Judge Smith that tape was an original, Mr. Cain wrote, it appears to be a copy, "and therefore does not constitute reliable evidence."