Date: Tue Sep 7 01:01:33 1999 From: murphy@MYBLUEHEAVEN.COM (Phil Murphy) Subject: "Houston Chronicle" on Waco To: AZRKBA@asu.edu
September 04, 1999, 09:10 p.m.
Filmmaker, lawyer unravel FBI's official story of Davidian siege
By JIM HENDERSON
DALLAS -- The big cannons of Congress had their shot at uncovering the truth about Waco and the Branch Davidians, and they misfired.
The Justice Department and the Treasury Department had their own crack at the truth and fared no better. Neither did the dozens of lawyers and scores of journalists who chased hundreds of leads and rumors.
The official story remained undented: David Koresh and his cult followers at Mount Carmel instigated the gunbattle with federal agents in the spring of 1993 and, 51 days later, committed mass suicide by setting fire to their own compound. Koresh and some 80 followers died that day.
Last week, fragments of the official version began to crumble, but it took an unlikely pair of outsiders -- a lone wolf lawyer from Tucson, Ariz., and a low-budget documentary film researcher from Fort Collins, Colo. -- to force the revelations that FBI agents withheld evidence about the siege and possibly committed perjury to keep that evidence secret.
"The wall of silence, the stonewalling, finally is starting to come apart," said Joe Phillips, an associate of the Houston law firm Caddell & Chapman that has filed a wrongful death lawsuit against the government.
What finally cracked the wall was the perseverance of David Hardy, former Interior Department attorney who set out five years ago to write a book about the "militarization of law enforcement," and Mike McNulty, a down-sized insurance salesman-turned-filmmaker whose first effort, Waco: Rules of Engagement, was nominated for an Academy Award.
Hardy was drawn to Waco because it was an illustration, he says, of the dangers of turning soldiers into cops. McNulty, a Mormon, has said he became interested in the story because of its similarities to the massacre of church members at Haun's Mill in Missouri in 1838.
McNulty did not return calls last week for comment on his role in forcing the FBI to amend its previous version of events, but Hardy said that while they had different interests in the Branch Davidian siege, they have worked closely together and shared information.
What their labors led to may not alter the verdict on Waco. However, it has seriously dented the credibility of the Justice Department and could have an important impact on wrongful death suits filed by the families of Davidians who died in the Mount Carmel fire. A trial is set for Oct. 18 in federal court in Waco.
Among the major disclosures of the past 10 days:
The FBI withheld from Attorney General Janet Reno and Congress the fact that pyrotechnic devices were used on the last day of the siege of Mount Carmel.
FBI officials lied in sworn statements when they said they had no infrared video of the first four hours of the assault -- videos that possibly would show the use of pyrotechnics.
Possible perjury by FBI officials, who, in response to Hardy's Freedom of Information lawsuit, told a federal judge they had no recording of the radio traffic during the entire six-hour assault.
In fact, the FBI's hostage rescue team had a tape that revealed that Reno's order not to use pyrotechnic devices was violated; that the first two hours of the assault were recorded on infrared videotape; and that there was an audio recording of the use of pyrotechnic devices being ordered by Richard Rogers, commander of the hostage rescue team. For six years, that tape had been in the custody of the hostage rescue team in Quantico, Va.
In his years as an Interior Department lawyer, Hardy said, he became familiar with the federal Freedom of Information Act. After he left government and returned to Tucson in 1988, he began to use that law to gather material for his book.
While his mostly civil law practice often had civil liberties overtones -- he prosecuted one lawsuit that challenged gun control and another that ultimately restricted government spying on churches -- he disputes the suggestion that he is part of the anti-government/militia/conspiracy crowd.
"I just want information I'm entitled to have," he said. In his quest for documents pertaining to the Davidian incident, Hardy first sued the Bureau of Alcohol, Tobacco and Firearms, which conducted the botched raid that led to the 51-day siege and subsequent fire, in 1996. ATF lawyers responded that certain materials it once had were turned over to the Texas Rangers, which had gathered evidence from the scene after the siege ended.
He then filed a state open records request with the Rangers, who told him they only had custody of the evidence and were not authorized to release it without approval from the Justice Department.
"The circle was closed," Hardy said. "The Justice Department controlled it but didn't have it. The Rangers had it but didn't control it. They could bat you back and forth forever."
Which they almost did.
Through 1997 and 1998, he was passed from one agency to another: the U.S. attorney's office, the Executive Office of U.S. Attorneys, the FBI, the ATF, the Rangers again.
Separately, McNulty was pursuing material for a sequel to his first Waco film, this one titled Waco: A New Revelation. He was encountering the same runaround.
More vocally anti-government than Hardy, McNulty once hosted a talk radio show and billed himself as chairman of the Citizens Organization for Public Safety of Fort Collins, Colo. But Waco was his passion, and his research was dogged enough that lawyers in the wrongful death lawsuits paid him for his services.
Frustrated by what he considered blatant stonewalling by the government, McNulty began calling on Bill Johnston, the assistant U.S. attorney in Waco, who would play a peculiar role in the scenario.
Once accused of covering up, Johnston would suddenly turn whistle-blower. During congressional hearings in 1995, Fort Worth attorney Tim Evans, who represented one of the Davidians charged with murder in the death of four ATF agents, gave the committee an internal ATF memo which alleged that Johnston ordered the agents to stop their internal investigation into the assault on the Davidian compound. Johnston, the memo said, did not want the ATF to develop evidence that defense lawyers could use in the criminal trial of the accused Davidians.
However, Johnston, according to one lawyer, "had a change of heart" late last year and agreed to give McNulty limited access to the evidence being held by the Rangers in Austin. Between November and arch, McNulty made four visits to the evidence room and on one occasion he was accompanied by Johnston.
Johnston would not agree to an interview for this story, but one source close to him said the prosecutor initially thought McNulty was "some weirdo, conspiracy nut"and that there was nothing in the evidence that would contradict the official version of the Davidian events.
"He thought there was no reason not to let him look at the material," the source said. "Back then (last November), there was n controversy."
Hardy said that although McNulty was not allowed to make copies of documents, he observed things, including projectiles he believed were pyrotechnic, that had not been previously revealed.
"He faxed me a list of evidence and asked if I would file an FOI request for them," Hardy said.
On March 1, 1999, Hardy sent another open records request to the Rangers and an identical FOI request to Johnston. On March 17, he received a reply from Austin: All evidence "remains in control of the U.S. Marshals" and "is not under the control of the Texas Department of Public Safety."
When he made the same request to the U.S. Marshals Service, he was told that a search "failed to locate any record which indicates the (Marshals Service) has control over the documents, videotapes and audiotapes which are in possession of (the Rangers)."
Going back to the Rangers in May, Hardy was told the U.S. Attorney's office had ordered them not to release evidence without federal permission, but the Executive Office of U.S. Attorneys said none of the material was under its control.
In short, everyone disavowed control of the evidence.
In a final letter to the Rangers, Hardy wrote, "I may be stating the obvious, but it appears the federal agencies may be setting you up. DPS takes the flak for withholding the records -- they benefit -- but the moment the withholding is challenged, they disavow any responsibility and pin the blame on you. In fact, the Marshal's answer hints that they don't have the foggiest idea what you are talking about."
Convinced that the legal channels were sealed off, Hardy turned to a political course.
A former president of the Tucson Rod & Gun Club and attorney for an Arizona sheriff who challenged the Brady law, Hardy had friends in the gun lobby. Some of those friends in Texas steered him to Jerry Patterson, the former state senator from Pasadena who sponsored the legislation that gave Texans the right to carry concealed weapons.
Though he was out of office and lobbying for the health insuranc industry, Patterson said, "I guess I'm the gun guy."
Hardy faxed him the file of his correspondence with various government agencies, which led Patterson also to believe that the Rangers were being used by the feds to conceal evidence.
"I called Clay Johnson, Gov. Bush's chief of staff, just to give him a heads-up in case Bush had to answer questions about it," Patterson said. "He told me to call Jim Francis."
Francis, chairman of the Department of Public Safety, was a veteran political operative who had run campaigns for Texas U.S. Sens. Phil Gramm and Kay Bailey Hutchison, as well as Govs. Bush and Bill Clements. He is currently raising funds to elect Bush president.
Taking on the U.S. Justice Department may not have been politically motivated, but it promised political reward. Bush, the GOP front-runner, was not in office during the fires of Waco. Vice President Al Gore, seeking nomination by the Democrats, was. Any unfavorable light shed on the Justice Department could reflect onto the vice president.
Francis ordered the Rangers to begin sifting through the evidence that was in their possession and asked U.S. District Judge Walter Smith in Waco to impound all evidence in the Davidian case.
Smith agreed and ordered all federal agents to turn over to the court all material they had.
By midsummer, the FBI and the ATF were facing the possibility that the evidence, once in the hands of the court, could become public.
McNulty's film, containing information from his visits to the evidence rooms, was about to be released. And, Francis had received reports from the Rangers about the use of pyrotechnic tear gas grenades by the FBI as well as intriguing questions about the role of the Army's elite Delta Force, which officials had said was there only to observe.
From there, the spin scramble was on.
Danny Coulson of Dallas, former deputy director of the FBI, told the Dallas Morning News that two pyrotechnic devices had, indeed, been fired the day the Davidian compound went up in flames. But, he said, they were fired several hours before the blaze and were fired at a bunker 40 yards from the house.
Bill Johnston, taking a stand against the agency for which he works, went public with a memo advising Reno that she had been duped by her own agents. Johnston was criticized by his boss, U.S. Attorney Bill Blagg in San Antonio, but praised by others for his change of heart. "I don't know how he plans on keeping his job," Hardy said.
Johnston and Blagg did not return phone calls.
Reno ordered a new investigation into the Waco case, and the FBI's hostage rescue team suddenly came up with a long-concealed videotape on which the head of the team is heard authorizing the use of "military devices" -- pyrotechnic grenades -- on the day of the final assault at Mount Carmel. U.S. Marshals were dispatched to confiscate that tape, which the FBI had previously denied existed.
While it was being accused of a six-year cover-up, the Justice Department went to federal court to fight Judge Smith's order that it relinquish all Davidian evidence. While Johnston was airing the FBI's secrets, his boss, Blagg, was being ordered into Smith's court "to explain why he should not be held in contempt of court" if the government does not comply with the judge's order.
By week's end, however, lawyers in the wrongful death lawsuits filed by the more than 70 survivors of Davidians who died in the fire were still trying to get Smith to delay the Oct. 18 trial date.
"We've been given 30 days for discovery," said Houston attorney Jim Brannon, who represents hree dead children of David Koresh. "It could take months to go through that evidence, if we ever see it, and to depose everybody."
For his part, the lawyer who pushed Waco back into the headlines and back into Congress is a little amused by the turn of events.
"It does seem strange that a couple of unknown characters could finally get this out in the open," Hardy said.