Waco special counsel John C. Danforth has asked a federal judge to oversee an authoritative reenactment of the government's final siege of the Branch Davidian compound to determine whether the federal agents who participated fired their guns.
Danforth's surprising request comes after the Justice Department rebuffed earlier recommendations by Davidian plaintiffs' attorneys that a reenactment be staged for their wrongful-death suit against the government.
The FBI and Justice Department have consistently maintained that no federal agents fired their weapons during the April 19, 1993, assault, which ended with 74 Davidians perishing as flames swept through the compound near Waco, Tex. But experts retained by congressional investigators and the Davidians say they have detected agent gunfire on media videotapes and government-recorded infrared tapes of the siege.
Justice Department officials said last night that they now are willing to consider the reenactment requested by the Office of Special Counsel (OSC). "We're actively considering various ways that a re-creation could be done," Justice Department spokesman Myron Marlin said.
"The purpose for OSC's request is very straightforward," wrote deputy special counsel Edward L. Dowd in a letter dated last Friday to U.S. District Judge Walter S. Smith, who is presiding over the Davidians' lawsuit in Waco. "The issue of whether [an infrared camera] used under the proper conditions would show gunfire is significant both to the case pending before Your Honor and to the OSC's charter from the Attorney General."
The FBI has not taken an official position on the cause of the flashes on aerial infrared tapes. But during congressional testimony in 1995, an FBI arson expert said the flashes were probably sunlight reflections. Experts hired by the Davidians have said the infrared equipment cannot pick up such phenomena.
Plaintiffs' attorney Michael A. Caddell had proposed to the Justice Department last month that they participate in a joint re-creation--duplicating the infrared camera, the aircraft on which it was mounted, the agents' weapons and the conditions the day of the siege--to settle the dispute. Justice Department lawyers declined his offer. They also withheld details on the infrared equipment from Caddell on the grounds that disclosure would expose privileged law enforcement techniques or national security information.
"If they refuse to join in this proposal, I think that would be the most damning admission of liability they could make, short of just admitting there was gunfire," Caddell said.
Dowd's letter to the judge said the FBI had offered to conduct a private re-creation for Danforth's office because its attorneys have the proper security clearances. Senior FBI officials had maintained that it would be pointless to do a reenactment because replicating the final siege would be impossible.
Dowd's letter also said Danforth was troubled by the possibility of two re-creations--one public but with incomplete information and the other private and therefore "subject to claims of bias." Dowd told Judge Smith, "The trust of the public and the truth-seeking process are not best served by the course of events as they are now unfolding."
Staff writer Richard Leiby contributed to this report.