Index

TESTIMONY OF JOHN C. DANFORTH

BEFORE THE SENATE JUDICIARY COMMITTEE

June 20, 2001

After 14 months of exhaustive investigation, costing the taxpayers $17 million, I am absolutely convinced that the FBI had nothing to hide about Waco. The FBI did not do the dark things some people suspected. Agents did not cause the fire that killed scores of Branch Davidians. Agents did not fire guns into the complex. The evidence exonerating the FBI is overwhelming on these points. Evidence implicating the FBI is non-existent.

Yet, some FBI personnel and some Justice Department lawyers were not forthcoming in reporting the events at Waco, and some FBI personnel were not cooperative with my investigation.

Lack of openness and candor caused and then complicated my investigation. And, far more important, lack of openness and candor undermined public confidence in government.

On August 26, 1999, a Time magazine poll indicated that 61 percent of the public believed that federal law enforcement officials started the fire at Waco. That is what I mean by undermined public confidence in government. Absolutely no evidence supported this terrible belief. Its principal cause was lack of openness and candor by some people in the Justice Department and some people in the FBI.

Beginning on the day of the fire, the FBI and the Justice Department insisted that no pyrotechnic tear gas rounds had been fired at Waco. This was an innocent but mistaken assertion. An FBI agent had fired three pyrotechnic rounds at a target 75 feet away from the Branch Davidian complex, four hours before the fire started. The firing of pyrotechnic tear gas rounds had no bearing on the tragedy that followed.

Some FBI and Justice Department officials who knew of the pyrotechnic rounds were not forthcoming in setting the record straight. Had they come forward with the truth, there would have been no cause for believing there was any implication with the fire. Instead, when the public learned that pyrotechnics had been used and not disclosed, 61 percent assumed the worst.

My thoughts about why people who knew the truth didnít tell the truth are speculative, but I would bet a lot that Iím correct. I think that the motive is not to hide evil deeds, but to avoid embarrassment. A long standing value of the FBI is not to embarrass the FBI. Mistakes are embarrassing, so, rather than admit them, cover them up.

Late in April, 1993, the Hostage Rescue Team commander who had authorized the use of pyrotechnics sat silently through the Congressional testimony of Attorney General Reno and FBI Director Sessions without correcting their mistaken statements suggesting that pyrotechnics had not been used. To have corrected the FBIís previous denial about pyrotechnics might have embarrassed the Bureau.

In 1996, an FBI attorney neglected to transmit information about the use of pyrotechnics to a Justice Department attorney. I think that her negligence was an embarrassment to her, perhaps something that would jeopardize her career. So she began lying about her negligence to my investigators.

The irony is that attempts to cover up embarrassment cause embarrassment to the Bureau, and destroy public confidence as well.

It is important to keep things in perspective. Every instance of failure to produce records isnít a cover-up or an intentional effort to avoid embarrassment. In the Waco investigation, we examined 2.3 million pages of documents. In major cases such as Ruby Ridge, Waco and Oklahoma City, hundreds of FBI agents are involved, and all of them are generating paper. I am sure that systems for managing information can be improved, but I am sure that there will always be a drawer somewhere or a box somewhere with something in it. So I would caution against a standard of perfection.

However, it was clear in the Waco investigation that at least some people in the FBI were cavalier or resistant in turning over evidence to outsiders.

Until September, 1999, the FBI denied the existence of Forward Looking Infrared (FLIR) tapes containing audio evidence of the approval of pyrotechnics. The government did not turn them over during the criminal trial of surviving Branch Davidians, nor in response to a Congressional request in 1995, nor in response to specific FOIA requests from 1995 to 1997. Then, in late August, 1999, the FBI located at HRT headquarters a previously undisclosed FLIR tape. On September 1, 1999, two more tapes mysteriously appeared in an FBI file cabinet. To say the least, the FBI was cavalier in not producing this evidence.

Days after the tragic fire, FBI agents attempted to disable by gunshot a pyrotechnic projectile found at the scene. Obviously this was evidence that pyrotechnics had been used. One of the supervising agents on the scene took notes of this event; however, instead of keeping his note pad describing this event in his office with his other notes, he kept it in the attic of his home. A second supervising agent repeatedly and implausibly told our investigators that he had no recollection relating to pyrotechnic tear gas at Waco.

Itís important to recognize that FBI agents who actually participated in the tear gas insertion were completely forthcoming in describing what happened, including the use of pyrotechnics. Also, Attorney General Reno, Deputy Attorney General Holder and Director Freeh clearly called for cooperation with my investigation. Similarly, notwithstanding our problems with the General Counselís office of the FBI, I believe that the General Counsel himself, Larry Parkinson, was trying to be helpful. But, while many were willing to help, others kept information from us.

The FBIís Office of General Counsel was not as cooperative as its head. Convinced that certain individuals were withholding information from our investigators, we threatened to obtain a search warrant, and sent 11 agents and three lawyers to the Office of General Counsel to search its files.

I believe that, within the FBI, there are strong pressures to resist divulging information to outsiders.

Soon after I was appointed Special Counsel, my office realized that we would need a liaison with the FBI who would be the contact person for our investigation. Deputy Special Counsel Ed Dowd asked FBI Supervisor Special Agent John Roberts if he would be interested in this role, having been told by Postal Inspectors that Roberts had done an excellent job with the Ruby Ridge investigation. According to Dowd, Roberts didnít want to act as liaison, claiming that working with our office would hurt his career in the FBI.

Supervisor Special Agent Patrick Kiernan, a lawyer who teaches ethics at the FBI Academy, became our liaison, and did an excellent job. Kiernan has told me that he believes that people within the FBI have retaliated against him for assisting my investigation, and that he has filed the appropriate referrals with the FBIís Office of Professional Responsibility.

Whether or not the concerns of Roberts and Kiernan about their careers are well founded, the fact that they have those fears indicates to me that there is a culture within the FBI of non-cooperation with inquiries from outside the Bureau and of protecting those within the Bureau from criticism.

People have suggested several ways to improve the FBI including the creation of an Office of Inspector General or a Blue Ribbon Commission. These may be good ideas. But my own belief is that the only way to correct a cultural problem is to change the culture.

This means that there must be a persistent message that the role of the FBI is to protect the country and the Constitution, not to protect the FBI from criticism, and that lack of candor and openness hurts the FBI and destroys public confidence as well.

It is a message that must come from the top: from the President, from the Attorney General and from the Director of the FBI. It must be heard on the first day a new agent arrives at the FBI Academy, and it must be repeated every day until retirement.

And because it is human nature for todayís enthusiasms to become tomorrowís forgotten resolutions, it is important that Congress put in place a permanent system for overseeing the FBI.

And if there is an ďold boys networkĒ of FBI officials who create and enforce a closed culture within the Bureau, it is important to replace these people. Otherwise, any reform would be sure to founder on everyday resistance from within. I would not humiliate them. Iím sure they believe that what they are doing is for the best. But I would replace them. I would give them farewell parties and effusive thanks, and I would send them on their way.

Finally, it is important for all of us--Congress, the media, the public--to acknowledge our own responsibilities for the lack of openness we lament in government. When public officials fear that the disclosure of their mistakes would lead to personal humiliation and professional ruin, it is understandable if they prefer concealment to candor. By confusing the discovery of human error with the sensationalism of exposťs, we help create a mentality in government where the first law is self-preservation.

If we really believe that making mistakes is not as bad as hiding mistakes, then it is our responsibility to keep that in mind and express it in words.

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