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Burden of Proof

Waco Tragedy Reenactment: Can an Orchestrated Exercise Answer Nagging Questions From April 19, 1993?

Aired February 22, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

JANET RENO, ATTORNEY GENERAL: I am very, very troubled by the information I received this week suggesting that pyrotechnic devices may have been used in the early morning hours on April the 19th, 1993, at Waco.

JOHN DANFORTH, WACO SPECIAL COUNSEL: The investigation that I am engaged in has a limited scope. It covers basically two issues: one is whether there was a cover-up; and the second is whether -- in essence, whether the government killed people. Those are the dark questions.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: A federal judge orders the reenactment of a tragedy in Waco, Texas. Will an orchestrated exercise on a Texas military base answer nagging questions from April 19, 1993?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Last week, a federal judge presiding over a Branch Davidian wrongful death lawsuit ordered a reenactment of the 1993 Waco tragedy. The controlled test, as defined by a U.S. attorney, is designed to determine the source of flashes seen on FBI infrared video of the events and help end 7-year-old questions surrounding the inferno.

ROGER COSSACK, CO-HOST: Staff members of Waco special counsel John Danforth will also be present for the reenactment, which is tentatively scheduled for mid-March at a military base in Fort Hood, Texas, near Waco.

Now, the British military will participate in the reenactment, including pilots from the Royal Navy in Lynx helicopters, in part to ensure impartiality.

VAN SUSTEREN: It's not clear if the media will be allowed to attend. Lawyers for the Associated Press and "The Dallas Morning News" have filed motions seeking access to the reenactment. Joining us today from Houston is Dick DeGuerin, who is the former attorney for Branch Davidian leader David Koresh.

COSSACK: In Charleston, South Carolina, we're joined by engineer and fire investigator Leonard Greene. Here in Washington, Jill Jackson (ph), reporter Lee Hancock of "The Dallas Morning News," and fire research expert Richard Roby. In the back, Tabitha Todd (ph), Arty Smith (ph), and Joanna Pabst (ph).

Let's go right to you, Lee. Why are they conducting this re- enactment?

LEE HANCOCK, "THE DALLAS MORNING NEWS": Well, there was a proposal that was floated last year by plaintiffs from the Branch Davidians, who are pursuing a very large wrongful death lawsuit against the government for its actions in the '93 siege.

This lawyer, basically, put his cards on the table and said: We challenge to you a winner takes all demonstration. We are so confident that the FBI airplane that shot infrared videotape over the compound on the last day of the siege, shot footage of flashes of government gunfire. We're so confident we can prove that through a test, that we will challenge you to do this.

The government immediately ridiculed the idea, sent letters to them saying this was ridiculous, scientifically invalid, and besides the information that you need to ensure a valid test would be classified. You can't get it, the court can't make you get it.

And then in November, John Danforth, who is special counsel, weighed in. Apparently, while the Justice Department lawyers had been telling the plaintiffs in the case, this is a ludicrous idea, the FBI had privately gone to Danforth and said that they could do an accurate re-enactment for him.

Danforth felt caught in the middle, filed a motion, a very unusual motion with Judge Walter Smith down in Waco saying: We don't want to get in the middle of this. We think there is scientifically valid information that can be got from such a test. We suggest, judge, that you order it, you appoint a scientific expert who can oversee it. The judge, in late December, agreed to do this after much maneuvering between both sides. This has moved forward.

And the idea being that you can get videotape of men moving on the ground, of armored vehicles maneuvering on the ground, maneuvering over debris, and of guns being fired similar to those carried by both sides in April 1993 and can compare the flashes there with the flashes on the April '93 videotape.

VAN SUSTEREN: Lee, is the enactment of the -- that they are going to do have anything to do with the fire, is a re-enactment of the fire or is simply the fluror (ph) of cameras being an overnight fly-by, in essence, to see what was going on?

HANCOCK: No, actually, what this will be doing is trying to look at what may have happened in the hour just before the fire. As the government's armored vehicles bashed into the back side of the building, and this was the one area where commercial cameras could not see in. It was the one area that was not covered by an FBI closed- circuit television camera system. As that bashing began, it knocked down what was known as the gym about 11:20, 11:18 in the morning, flashes began appearing on this videotape, and it's an infrared tape that measures tiny differences in heat. These little flashes came from areas that looked like they were government positions.

Now, the FBI has said their people never fired a shot, that no government officials fired anything but tear gas on April 19. But the plaintiffs in the case have brought forward experts from the Defense Department, former Defense Department scientists, who say this could only be gunfire, it has all the characteristics.

VAN SUSTEREN: Dick, what difference does it make in this whole investigation if the FBI did shoot?

DICK DEGUERIN, FMR. ATTORNEY FOR DAVID KORESH: Well, I think it makes a great deal of difference, because it shows that the government has been hiding the ball all along. What we have here is a judge who's gotten rightfully mad at the government, dragging their feet on discovery. We have plaintiffs' lawyers who are trying to get the truth out, and the Justice Department trying to hide it.

And so what it is going to affect is how the jury feels about the truthfulness, the credibility of the government position in this case.

COSSACK: Lee, I want to expound on something that you said, you said initially that the FBI ridiculed the idea of re-creating this, and then privately was going to the judge and saying: But look, we think we can do it?

HANCOCK: That apparently is what's happened. That is what has been laid out in letters and in pleadings that the special counsel has filed.

There is an additional problem they have run into. They had a meeting last Wednesday in which a very detailed protocol, or plan, a scientific outline for this test was hashed out, finalized, signed by all parties in the case. In a very unusual move, the federal judge from Waco went to St. Louis to the special counsel's office for this private meeting. And there was a classified portion of the meeting, because the FBI and the Justice Department have long said that even the most basic data, the most basic information about their camera is classified. That's one roadblock that they have thrown up to doing this test. They have thrown it in their pleadings before the judge.

I'm told by an expert for the plaintiffs, who had the clearance to get into that meeting, that once they all sat down at table it was very quickly established that there were no classified elements at all, you know, to the operation of the camera that were necessary to the tests, specifically it's a British-made camera. So the British government has been asked to loan a Navy camera similar for the test. The British said, there is nothing we know that is secret about it, according to the expert I talked to. COSSACK: The FBI still, though, hasn't backed off on that issue that they think it is secret. They just feel that the British are the ones that are giving up the information?

HANCOCK: Well, they all apparently walked out of this classified briefing, told the judge, who released the entire contents of the protocol to the public.

VAN SUSTEREN: Dick?

DEGUERIN: Yes, you know, even if it were classified, I think the classification issue is just nonsense, but even if it were classified, there is ways that judges can deal with that, they deal with it on a regular basis. They can restrict who gets to see the results of it or who gets to know about it, and enter a protective order. But the classification excuse is just that, it's an excuse.

VAN SUSTEREN: Dick, should this be open to the media? "The Dallas Morning News," for which Lee works, wants its open, so do some other media outlets, should this be open?

DEGUERIN: I'm all for the general public knowing what happened. And I have been for that since 1993, when this happened. Slowly, thanks to people like Lee Hancock, we're getting more truth. I don't think we're at the bottom yet of what happened, but we're getting there, we are getting closer. Yeah, I think it ought to be out.

COSSACK: All right, let's take a break. Up next, re-creating a tragedy and ensuring impartiality of its results can be costly. Transporting British military equipment could cost as much as $300,000. Stay with us.

(BEGIN LEGAL BRIEF)

Concerned that the U.S. Supreme Court would ban the electric chair, the Georgia House voted 161-10 Monday to phase out electrocution and use lethal injection instead.

Today, by a 5-4 vote, the Supreme Court rejected an appeal from an Alabama death row inmate who claimed the chair as "cruel and unusual punishment" forbidden by the Constitution.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

1240

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log-on to CNN.com/burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern Time. If you miss that live show, the program is available on the site at any time via "Video On-Demand." You can also interact with our show and even join our chat room. (BEGIN VIDEO CLIP)

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: Well, let me say I support the attorney general's decision to seek an independent investigation, and I think that's what ought to happen. And we ought to see what the investigation turns up. We ought to find out what the truth is and let you and the American people know.

(END VIDEO CLIP)

COSSACK: A federal judge is taking another step toward finding the truth behind the Waco tragedy: reenacting the events of April 19th, 1993. A Texas government official says the reenactment could cost $750,000. The recreation is being orchestrated by British firm Vector Data Systems.

Rick, we're talking about the FLIR, which is the ability to see the flashes of gunfire by that change of heat. Why is it important to study that?

RICHARD ROBY, FIRE RESEARCH EXPERT: Well, the FLIR, the forward- looking infrared, was used extensively in the investigation of the fire to look at the spread of the fire in the compound. Because fire is obviously a lot hotter than the surrounding background, the infrared radiation can pick that up. But you need to have some idea of the calibration of the FLIR. That is, you need to know what exactly does it see. And the only way you can do that is by doing a controlled experiment where you use the FLIR and you know from other independent means what's going on.

COSSACK: What does that tell you?

ROBY: It gives you data as a baseline to tell you exactly what the FLIR is imaging. The problem is that a FLIR, as we saw on some of the tapes of this, can pick up a human body. Obviously, a fire is a lot hotter than a human body. So, the question is, at what point do you start really seeing fire, is that overwhelming signals from other things like warm bodies, and how do you know exactly what it is you're seeing. You have to do some kind of test so that you're calibrated to know what you're really seeing when you look through that infrared. Obviously human beings moving, that's pretty easy to figure out what it is, but can you see a human being but not a dog, can you see a dog but not a mouse? You know, unless you do a calibration, you don't know.

VAN SUSTEREN: Leonard, I want to talk about control experiment as it relates to fires. Can you do a controlled experiment as relates to fires or do you have all sorts of variables that make this virtually impossible?

LEONARD GREENE, ENGINEER AND FIRE INVESTIGATOR: It's a yes-and- no answer. You can do a controlled experiment, but it's hard to predict that you're going to get accurate, useful and consistent results. There are a lot of variables that you have to take into account. One of the key issues that we have with the flashes that we're looking at in the infrared tape is, are those flashes from reflections or from gunfire, and I have problems with the protocol on how the test is done. First of all, it's been scheduled for the middle of March when the actual event took place in the middle of April, and we have different solar conditions, 30 days difference as a matter of fact. The other thing is, we don't know what reflective materials are being put on the ground as part of the test. We do have a protocol for all the weapons, but we don't have a protocol for all of the reflective materials. And how can we distinguish weather those flashes that we see come from reflections or come from gunfire without having some reflections to have as a standard or a basis for the test? So, I think they have not basically assembled a good protocol.

VAN SUSTEREN: Rick, do you agree or disagree with Lenny?

ROBY: No, I think he's absolutely right. You have to be very careful to know that you have a controlled environment that includes all the elements that you care about.

VAN SUSTEREN: Well, you're talking about -- I mean, you say you have to be very careful. Roger says it's going to cost anywhere from 300 to $750,000. Can't we be, you know, like real -- I mean, shouldn't we be more concerned than...

ROBY: These full-scale recreations are extremely expensive. But the point is, if there were puddles of water on the ground that day that could have reflected the sun, you have to have puddles of water and you have to know that they're about the same depth and the same temperature, because the infrared is very sensitive to temperature. So, if you don't have the right conditions -- for example, the angle of the sun is going to be different 30 days earlier -- that makes a difference. So, if you're trying to look at small differences in infrared signals, you better make sure you know what you're looking at.

COSSACK: Leonard...

VAN SUSTEREN: Lee?

COSSACK: I'm sorry. Go ahead.

HANCOCK: Yes, one thing to throw in. They are going to put debris on the ground. They're going to put puddles of -- pools of water, they're going to put crushed aluminum. As a matter of fact, the government...

VAN SUSTEREN: But identical? I mean, it sounds like it's almost...

HANCOCK: They are going to try to match it, they're also going to trying to get one of the large armored vehicles to drive back and forth over the tank. The government has even asked for the protocols to include large mirrors on the ground to see if those will reflect.

There is a debate as to whether this particular type of FLIR would actually pick up sunlight reflections, again, because what they're doing is not taking a picture, as you see on video, but they're measuring differences in temperature.

Now, the government, their lawyers say once this is done the flashes, any that do appear, and they say there may be gunfire that's picked up on this test, but those flashes will be, they say, so distinct and different than what's on the April 19th tape that you will, you know, be able to rule it out as gunfire.

COSSACK: Leonard, in listening to what you and Rick say, is -- do you feel it's possible to ever recreate a situation so that it would be identical so that perhaps if you were called to court you can back up the test that was done?

GREENE: No, you can't recreate a situation and have identical conditions. The best you can do is approximate and get as close as you can. And I think they need to be very careful about when they do it so that they can recreate everything that's possible, such as the angle of the sun, which means you have to do it the day that the accident -- the day that the event occurred, and also you have to make sure that the altitude of your camera, the angle of the lens, the azimuth of the lens that it's shooting at. All of those items are the same, too, because all of that will affect the type of a signature that you'll get from a reflection.

VAN SUSTEREN: All right...

DEGUERIN: Let me weigh in on that just a second if I can.

VAN SUSTEREN: Yes, sure, Dick.

DEGUERIN: Not -- from a nonscientific standpoint, I think that sun reflection business has been pretty well dismissed, because you have to remember that the aircraft that was carrying the FLIR was moving and so that you wouldn't have a constant angle from the sun, and yet the flashes from -- that have been identified by the experts as gunfire are in the same position, relative position, and it just couldn't be reflections from the sun.

VAN SUSTEREN: All right, we're going to take a break.

And up next, a civil trial is scheduled for May. Will it end the debate? Stay with us.

(COMMERCIAL BREAK)

(INTERRUPTED BY COVERAGE OF A LIVE EVENT)

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