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The Dallas Morning News
08/31/1999
Waco attorney warns Reno evidence
possibly withheld
Notes about file on pyrotechnics use raised his concerns
By Lee Hancock
A Waco federal prosecutor wrote Attorney General Janet Reno on
Monday to warn that "individuals or components within the Department of
Justice" may have long withheld evidence from her and the public about
the FBI's use of pyrotechnic grenades on the day the Branch Davidian compound
burned.
Assistant U.S. Attorney Bill Johnston said he felt compelled to warn
Ms. Reno after he was given a 5-year-old document that discusses the
use of "military gas" by the FBI on April 19, 1993. He said he was concerned
because the document, a three-page set of notes detailing an interview
with members of the FBI's hostage rescue team, included handwritten
notations suggesting that it be kept from anyone outside the department's
legal staff.
"There are handwritten notes on the documents discussing whether or
not they should be disclosed, and, obviously, they have not been," said
Mr. Johnston, the federal prosecutor involved longest in the Branch
Davidian investigation.
"There was discussion about whether they should be turned over," he
said. "Obviously, the decision was made somewhere in Washington that
they were not to be."
Asked about the matter late Monday, Justice Department spokesman Myron
Marlin said: "I wouldn't comment except to say that the attorney general
received assurances that pyrotechnic tear-gas devices would not be used
and were not used. And she has pledged to get to the bottom of this."
Mr. Johnston said he was presented with a copy of the document last
week after officials divulged that the FBI had, in fact, used pyrotechnic
tear gas on April 19.
A former senior FBI official told The Dallas Morning News that he
had learned that two M651 CS tear-gas grenades had been fired at an
area adjacent to the compound by members of the FBI's hostage rescue
team.
The official has maintained that use of the grenades had nothing to
do with the fire that consumed the compound.
The issue has sparked a House committee investigation and also prompted
angry congressional demands for an independent investigation of the
FBI because Ms. Reno and other senior FBI and Justice Department officials
have long maintained that nothing capable of sparking a fire was used
by the government on April 19.
The compound burned that day with Branch Davidian leader David Koresh
and more than 80 followers inside. The fire erupted about six hours
after the FBI began using tanks and tear gas to try to force an end
to a 51-day standoff.
Subpoenas issued
On Monday, the House Government Reform Committee issued subpoenas
for Mr. Johnston and the Texas Rangers ordering them to present all
their records concerning the use of pyrotechnic tear gas by the FBI.
The subpoenas ordered the prosecutor and the Rangers to appear on Sept.
7 in Washington.
Mr. Johnston has been assisting the Rangers since late June in an
ongoing inquiry to identify questioned evidence that has been in the
possession of the Texas Department of Public Safety since the Branch
Davidian standoff.
The use of pyrotechnic devices on April 19 is a key issue in a pending
wrongful-death lawsuit filed by surviving Branch Davidians and families
of those who died.
The lawsuit contends that the government's negligence or deliberate
actions caused the 1993 tragedy.
"One of the key issues in this case is who started the fire," said
Joe Phillips of Houston, one of the lead lawyers for the Branch Davidians.
"Here the government is sitting on a piece of evidence that would
guarantee that we could get the issue heard by a jury.
"If the lawyers in this case knew about that information and, in the
face of our evidence showing pyrotechnics were used, just sat on this
and continued to insist to the judge that no pyrotechnics were used,
that's fraud on the court," Mr. Phillips said. "That's something that
we were entitled to and should have been given access to long ago."
'About to choke'
Tim Evans, a Fort Worth attorney who defended one of the Branch Davidians
in the 1994 criminal trial arising from the Waco standoff, expressed
outrage Monday that the document seen by Mr. Johnston was never disclosed
by federal prosecutors.
"The credibility of the federal agents was extremely important to
the government's case in many issues, not just this. This succession
of lies would have destroyed their credibility," Mr. Evans said. "Their
lies have infected this case like maggots. Yet incredibly they still
want us to pick out the maggots and swallow the rest of their story.
I think America is about to choke."
Mr. Johnston said he has been ordered not to discuss the specific
wording of the document or the handwritten notes. The notes apparently
were added after the document was prepared.
The document was written by a paralegal working for the U.S. attorney's
office in preparation for the 1994 federal prosecution of surviving
Branch Davidians.
The paralegal was interviewing members of the FBI's hostage rescue
team, which was involved in the final assault on the Branch Davidian
compound.
Mr. Johnston said the document indicates that he may have been present
during the interviews. He said he did not recall the interviews and
said the term "military gas" did not register with him.
"If that document says I was there, then I was there. While I don't
recall it, I can say the term 'military gas round' meant little or nothing
to me, because I am unfamiliar with military ordnance," he said.
"I'll bet that the attorney general would like to have known about
these documents long before now, and my letter is an attempt to bring
these and other facts to her attention."
Federal officials in Washington who spoke on condition of anonymity
confirmed Monday that the 1993 notes surfaced last week along with a
1996 FBI legal memo.
The officials said the memo was written by the FBI's general counsel's
office after civil Justice Department lawyers notified them about the
1993 notes and also asked about allegations being raised by the Branch
Davidians' lawyers about the use of pyrotechnic devices by the FBI.
FBI officials questioned members of the hostage rescue team and then
prepared a memo stating that two military gas grenades had been launched
about 6 a.m on April 19, six hours before the compound burned, one federal
official said.
Matter of wording
The officials said that no one involved in preparing the memo realized
that the term "military gas" appeared to be shorthand for pyrotechnic
tear-gas grenades. Ordnance experts say all CS tear-gas grenades used
by the U.S. military are pyrotechnic devices.
The federal officials said that the notes referring to the use of
military gas were among thousands of Justice Department documents subpoenaed
for 1995 House hearings on the Branch Davidian standoff. One federal
official noted that the military jargon used in the note was probably
unfamiliar to and overlooked by congressional investigators.
Another federal official familiar with the document said it may have
been marked with nondisclosure warnings because of an agreement made
with Congress prior to the 1995 hearing.
"Its release would violate the privacy act, because it included the
names of specific individuals," the federal officials said.
A spokesman for the House Government Reform Committee said Monday
that the panel, which held the 1995 hearing, knew nothing about the
documents in question.
"We intend to get them, and we will get to the bottom of this," said
committee spokesman Mark Corallo.
Mr. Johnston acknowledged that his letter to Ms. Reno may open him
to criticism but said he felt he needed to ensure that the attorney
general was personally aware of the documents.
"There's been significance given to these documents in the last few
years because of the civil suit. Whether or not these documents have
been or should have been given to plaintiffs and criminal defense attorneys
is an issue that the department is going to have to answer," he said.
"I am very concerned," Mr. Johnston said. "I would rather not discuss
the details of my letter to the AG, but I can certainly tell you that
I'm very concerned that information which should've been made known
to her and to the public has not been."
© 1999 The Dallas Morning News, Inc.
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