Almost all of the defendants who were originally named in the civil lawsuit brought by family members and survivors of the Branch Davidian conflagration are, or were, federal employees. Former Gov. Ann Richards was the only non-military state official named in the lawsuits.
That's because while she was governor, Richards approved the request that allowed federal agents to use three National Guard helicopters during its Feb. 28, 1993, assault on the Waco compound.
In July, Richards was dismissed as a defendant in the lawsuit. But the use of the helicopters and whether federal agents fired guns from them continues to be one of the most contentious and frightening aspects of the Waco controversy. The use of the three military helicopters two OH-58 Kiowas and one UH-60 Blackhawk was justified by the government's specious claim that there was a methamphetamine lab inside Mt. Carmel. That allegation allowed the Bureau of Alcohol Tobacco and Firearms to ask Richards for permission to use the helicopters. Perhaps without fully understanding what she was doing, she agreed to allow the use of the choppers, two of which were based here in Austin at Camp Mabry.
If federal agents did fire from the helicopters, it would likely be a violation of the Posse Comitatus Act. Passed by Congress in 1878, the law prohibits the military from acting as a police force against civilians, as it had during its occupation of the South after the Civil War. The measure authorizes fines and prison terms for anyone who "willfully uses any part of the Army or the Air Force as a posse comitatus to make arrests or otherwise to execute the laws." The law also prohibits the direct participation by "any member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity." But the War on Drugs changed that. In 1989, drugs were declared a national security threat and Congress passed legislation that allows the military to train civilian drug police. The change blurred the line between acceptable and unacceptable military activities with regard to the police. No one has ever been prosecuted for violating the law.
There is contradictory information as to whether federal agents fired from the helicopters during the raid. Two defense lawyers who represented the Davidians and went inside the Mt. Carmel compound during the 51-day standoff Jack Zimmerman and Dick DeGuerin both said they saw bullet holes in the ceiling of the structure. Zimmerman described them as "exit holes" and said that there were only two possible explanations. "You can have a guy standing on the roof shooting in, and it would look just like that, or you can have someone shooting from a helicopter."
Several Davidians have said the helicopters fired at them. Catherine Matteson, a Davidian who left the compound during the siege, was at Mt. Carmel on Feb. 28. In her memoir, quoted in Dick J. Reavis' book Ashes of Waco, she recalls, "As I went to the window to my amazement, there were three helicopters in formation and facing David's room and firing as they came." David Thibodeau was also at the compound during the assault. He, too, claims the helicopters fired on the compound. He says that bullet holes in the compound's water towers could only have come from a helicopter. Three Davidians who were killed that day, Peter Gent, Peter Hipsman, and Winston Blake, may have been killed by gunfire coming from the helicopters.
Fueling suspicion is a telephone conversation between Koresh and ATF agent Jim Cavanaugh that occurred shortly after the raid. Cavanaugh started the conversation by saying, "We need to set the record straight and that is that there was no guns on those helicopters." That statement enraged Koresh, who told Cavanaugh, "You're a damn liar." After a few more testy exchanges with Koresh, Cavanaugh changed his story. "What I'm saying is that those helicopters did not have mounted guns. Okay? I'm not disputing the fact that there might have been fire from the helicopters," Cavanaugh said.
The 1996 U.S. House report on the Davidian incident denies that any gunfire came from the helicopters. "The helicopters were unarmed," it says, and "no ATF agents fired from the helicopters." The report says the Texas Rangers came to the same conclusion. However, the report adds that it doesn't appear that "senior ATF or Treasury officials gave any consideration to the negative image of military helicopters being used as part of a raid on American civilians."
If federal agents did indeed fire from the helicopters, it changes the scope of the initial raid. Gunfire from the helicopters would mean the incident wasn't a police raid, it was a military assault with the attack coming from both land and air on a group of civilians who had never been convicted of any crime. It would be an unprecedented use of military force on American civilians. However, proving that agents fired from the helicopters will be difficult, if not impossible. And while the question of the gunfire may be addressed in the civil lawsuit against the FBI that goes to trial next May, there are other questions. Why did Richards approve the request? Was it a mistake? Did federal authorities lie to her about the drug issue in order to get the military helicopters that they wanted? If they did lie, will they be punished? Again, as with everything else regarding Waco, the questions outnumber the answers.
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