A Fire That Won't Die

Among the many oddities surrounding the 1993 conflagration at Waco, Texas, there is the mystery of page 49. The story goes like this: after the disastrous siege that ended in the deaths of David Koresh and some 80 of his Branch Davidian followers, Attorney General Janet Reno ordered up an exhaustive investigation. She had directed that nothing pyrotechnic be used in the standoff, and now she wanted to be assured that her orders had been followed. Justice Department lawyers interviewed scores of FBI agents and reviewed thousands of documents. Buried somewhere among them, on the 49th and final page of a dry FBI crime-lab report, was a small reference to a "fired U.S. military 40mm shell casing" used to disperse tear gas. To anyone who understands weaponry, it should have been a bright red flag: unlike plastic "ferret rounds" of tear gas that are often used to break up unruly crowds, military shells burn when released. They can start fires--precisely what Reno had prohibited.

But when Justice turned over that report to congressional investigators in 1995, page 49 was missing. "It appears that the page on which mention is made of a shell casing for military CS round... was not produced to Congress," a Justice Department lawyer explained in a recent memo obtained by NEWSWEEK. Congressional investigators want to know what happened to the page. Was it accidentally lost in some cardboard box? Or did someone purposely remove it? Justice officials say they haven't a clue.

The story of page 49 is much like the tale of Waco itself. The Feds made mistakes and then exercised painfully poor judgment by covering their tracks, making their motives look more suspect than they probably were. After it was revealed in court papers last month that FBI agents at Waco had in fact used incendiary devices--and that elite units from the Army's secretive Delta Force may have played a larger role than was previously acknowledged--an angry Reno made a show of seizing evidence from FBI headquarters, embarrassing FBI Director Louis Freeh. Last week, amid calls for her resignation, she tapped former Missouri senator John Danforth, an upright Episcopal priest and Republican, to lead an unfettered probe into the Waco catastrophe. His mission: find out what really happened.

Barring still more surprises, it's unlikely that Danforth will unearth any proof that the nation's most storied crime-fighting outfit set the fatal fire in Waco. After all, among the damning bits of evidence against the Davidians is a chilling audiotape in which members can be heard talking about the need to pour fuel around the compound so they can start the "fire." The two pyrotechnic devices fired by agents were likely irrelevant; they were launched at an underground bunker 40 yards from the main compound, and about three hours before the fire even began. The outcome was undeniably disastrous; about 80 people, 25 of them children, were brought out of the compound dead. But for all the tragic missteps, it would seem, there's no evidence that the FBI had a plot to cover up.

Even so, the Feds may have committed a damaging crime in the aftermath of Waco: they concealed and may have lied about relatively minor mistakes, and fueled a conspiracy when there didn't need to be one. Virtually every right-wing antigovernment group points back to Waco as the moment that Washington waged war on its own people. Even the Oklahoma City bombing has its roots in the faith that the Branch Davidians were murdered by the FBI after they had fended off the "jackbooted thugs," as the National Rifle Association once referred to the Bureau of Alcohol, Tobacco and Firearms. "Had there been an honest investigation and inquiry into Waco in 1993, and had there been justice or the appearance of justice, then clearly there would have been no Oklahoma City bombing," says Stephen Jones, the lawyer who represented Oklahoma City bomber Timothy McVeigh. That may be a stretch, but by failing to reveal all the facts in Waco, the FBI may have legitimized the views of the survivalist fringe. "The FBI didn't set the fire," a Justice official says. "But they set the conspiracy fire. That's the tragedy here."

The roots of the debacle are hard to trace. From the earliest reports of families with children holed up in the heavily-armed compound, the Waco affair had all the makings of a disaster. After four agents died in the Feb. 28, 1993, ATF raid, the FBI began a long and frustrating siege. Reno had been on the job for only weeks--and like many in the Clinton White House had no federal law-enforcement experience--when the FBI began pressing to launch a tear-gas attack. She questioned the agents and then reluctantly went along with their plan, stipulating no use of incendiary devices. Then on the climactic day, she went to Baltimore to give a speech.

Reno was only nominally in charge. The FBI's vaunted Hostage Rescue Team viewed her as a mushy-headed social worker, and the agents were determined to do things their way. The FBI director at the time, William Sessions, was under an ethical cloud and was less engaged than his successor Freeh, who took office on Aug. 6, 1993. (Freeh himself has not been implicated in a cover-up.) Bureau sources say the agents saw the 51-day standoff at Waco as an opportunity to put their expertise to use, and to break out some new weaponry. They apparently ignored Reno's orders; agents can be heard on tape getting authorization from the head of the hostage-rescue team to fire the military-style tear gas. "Some of the cowboys at FBI were strutting," says a former law-enforcement official. When their plan failed, Reno took full responsibility--and assured Congress that nothing incendiary had been used.

Many people knew otherwise. Documents provided to Congress last week show that Justice Department interviews of FBI agents produced numerous mentions of the military shell casings. One agent talked about using a "military... outdoor pyrotechnic." A senior FBI official told NEWSWEEK that as many as 100 FBI agents and officials may have known about the devices. It's still not clear why no one spoke up earlier.

Conspiracy theorists believe Reno and the FBI covered up the murder of the Davidians. This still seems farfetched. The "evidence" for FBI gunfire centers on murky infrared videotapes that supposedly capture gunfire going into the compound. In a recent film, Waco critic Michael McNulty points to FBI footage that shows black shapes and flashes of light. McNulty's film claims the shapes are agents and the flashes gunfire. In fact, an unedited version of the footage shows FBI tanks rolling over the shapes, so it's highly unlikely they were agents.

Conspiracies aside, FBI agents may have had a more mundane reason for staying in the background: if they volunteered information about the pyrotechnic weapons, they may have faced accusations that they disobeyed a direct order from their new boss. And they may have justified their silence, in a Clintonian way, by assuming that the pyrotechnic rounds were irrelevant as long as they didn't actually start the fire.

Others, including Justice officials, may have been confused about the evidence. Bill Johnston, a federal prosecutor who brought charges against some of the Davidians, acknowledged in a recent letter to Reno that he may have been in a 1993 meeting when FBI agents referred to "military gas rounds." But Johnston said he probably wouldn't have understood the significance. In his letter, he warned Reno that "facts may have been kept from you--and quite possibly are being kept from you even now."

The confusion over who knew and who should have known has further strained relations between the FBI and the Justice Department. FBI agents say they told Justice the truth about the incendiary weapons, but nobody listened; Justice says the FBI hid evidence of its insubordination. Freeh was said to be miffed at the heavy-handed way Justice confiscated evidence from FBI headquarters. Reno was said to be furious at having been misled. Still, a friend who had dinner with Reno last week says she was upbeat about her relationship with Freeh. Some of her deputies see it differently. Freeh and his agents "have been sabotaging her all along," says a Justice official. "That's SOP [standard operating procedure] at the bureau."

It's up to Danforth to slog through the mutual recrimination--as well as the fuzzy videotapes, missing audiotapes and slippery documents. Known in the Senate as "Saint Jack," the former prosecutor's word is trusted by some of Reno's most ardent foes. If Danforth says there were no "dark crimes," as he put it, most critics may listen. Then again, maybe not. Indiana Rep. Dan Burton, who spent years chasing an alleged plot to kill Deputy White House Counsel Vince Foster, has taken up the Waco cause and is consulting with filmmaker McNulty. Thanks to the mishaps at Justice, the Waco conspiracy lives on.