Waco Siege - Investigation and The Danforth Report

Investigation and The Danforth Report

The Oklahoma bombing in April 1995 made the media revisit many of the questionable aspects of the government's actions at Waco, and many Americans who previously supported those actions were now asking for an investigation. By 1999, as a result of certain aspects of the documentaries discussed above, as well as allegations made by advocates for Davidians during litigation, public opinion held that the federal government had engaged in serious misconduct at Waco. A Time magazine poll conducted on August 26, 1999, for example, indicated that 61 percent of the public believed that federal law enforcement officials started the fire at the Branch Davidian complex. In September of that year, Attorney General Janet Reno appointed former United States Senator John C. Danforth as Special Counsel to investigate the matter. In particular, the Special Counsel was directed to investigate charges that government agents started or spread the fire at the Mt. Carmel complex, directed gunfire at the Branch Davidians, and unlawfully employed the armed forces of the United States. A yearlong investigation ensued, during which the Office of the Special Counsel interviewed 1,001 witnesses, reviewed over 2.3 million pages of documents, and examined thousands of pounds of physical evidence.

In the final Danforth Report of November 8, 2000, Special Counsel Danforth concluded that the allegations were meritless. The report found, however, that certain government employees had failed to disclose during litigation against the Davidians the use of pyrotechnic devices at the complex, and had obstructed the Special Counsel’s investigation. Disciplinary action was pursued against those individuals. Allegations that the government started the fire were based largely on an FBI agent’s having fired three "pyrotechnic" tear gas rounds, which are delivered with a charge that burns. The Special Counsel concluded that, because the FBI fired the rounds nearly four hours before the fire started, at a concrete construction pit partially filled with water, 75 feet (23 m) away and downwind from the main living quarters of the complex, the rounds did not start or contribute to the spread of the fire. The Special Counsel noted, by contrast, that recorded interceptions of Davidian conversations included such statements as "David said we have to get the fuel on" and "So we light it first when they come in with the tank right right as they’re coming in." Davidians who survived the fire acknowledged that other Davidians started the fire. FBI agents witnessed Davidians pouring fuel and igniting a fire, and noted these observations contemporaneously. Lab analysis found accelerants on the clothing of Davidians, and investigators found deliberately punctured fuel cans and a homemade torch at the site. Based on this evidence and testimony, the Special Counsel concluded that the fire was started by the Davidians.

Charges that government agents fired shots into the complex on April 19, 1993, were based on Forward Looking Infrared (FLIR) video recorded by FBI Nightstalker aircraft. These tapes showed 57 flashes, with some occurring around government vehicles that were operating near the complex. The Office of Special Counsel conducted a field test of FLIR technology on March 19, 2000, to determine whether gunfire caused the flashes. The testing was conducted under a protocol agreed to and signed by attorneys and experts for the Davidians and their families, as well as for the government. Analysis of the shape, duration, and location of the flashes indicated that they resulted from a reflection off debris on or around the complex, rather than gunfire. Additionally, independent expert review of photography taken at the scene showed no people at or near the points from which the flashes emanated. Interviews of Davidians, government witnesses, filmmakers, writers, and advocates for the Davidians found that none had witnessed any government gunfire on April 19. Finally, none of the Davidians who died on that day displayed evidence of having been struck by a high velocity round, as would be expected had they been shot from outside of the complex by government sniper rifles or other assault weapons. In view of this evidence, the Special Counsel concluded that the claim that government gunfire occurred on April 19, 1993, amounted to "an unsupportable case based entirely upon flawed technological assumptions." The Special Counsel considered whether the use of active duty military at Waco violated the Posse Comitatus Act or the Military Assistance to Law Enforcement Act. These statutes generally prohibit direct military participation in law enforcement functions, but do not preclude indirect support such as lending equipment, training in the use of equipment, offering expert advice, and providing equipment maintenance. The Special Counsel noted that the military provided "extensive" loans of equipment to the ATF and FBI including, among other things, two tanks the offensive capability of which had been disabled. Additionally, the military provided more limited advice, training, and medical support. The Special Counsel concluded that these actions amounted to indirect military assistance within the bounds of applicable law. The Texas National Guard, in its state status, also provided substantial loans of military equipment, as well as performing reconnaissance flights over the Davidian complex. Because the Posse Comitatus Act does not apply to the National Guard in its state status, the Special Counsel determined that the National Guard lawfully provided its assistance.

David Koresh's lawyer called the Danforth report a whitewash. Ramsey Clark, former U.S. Attorney General, who represented several Branch Davidian survivors and relatives in a civil lawsuit said the report "failed to address the obvious": "History will clearly record, I believe, that these assaults on the Mt. Carmel church center remain the greatest domestic law enforcement tragedy in the history of the United States."