Former Federal Prosecutor Bill Johnson Discusses Branch Davidian Siege in Waco

Bill Johnston is a former federal prosecutor who played key roles in the 1993 siege of the Branch Davidian compound in Texas and the subsequent prosecution of 11 Davidians who survived the fire that ended that 51-day standoff. Although he acted very much as a team player during those events, Johnston came to question several aspects of law enforcement operations in Waco.

Johnston, who followed his father into a career as a prosecutor, was later responsible for allowing a controversial documentary producer to look at evidence that not been seen publicly before.

Part of that evidence resulted in new questions being raised about the FBI's alleged use of incendiary devices on the day the compound burned — questions that fueled many in the antigovernment movement but also caused many of Johnston's colleagues to treat him as an "intellectual leper" who had betrayed his friends.

In January, Johnston finally resigned from the U.S. attorney's office, and he since has spoken out about the alleged problems he saw. The Intelligence Report spoke to Johnston about what the radical right has come to see as the seminal event of the 1990s in America.

Intelligence Report: How did the initial Bureau of Alcohol, Tobacco and Firearms [ATF] raid plan develop?

Johnston: I don't know about all the decisions. The raid [on Feb. 28, 1993] was a project that ATF out of Houston pretty much gained control over. Initially the ATF supervisors said they were going to arrest Koresh when he was away from the compound. Then they changed the plan from an arrest to a raid [on the compound].

I think part of that change was justified in that it appeared Koresh was not leaving the compound very often. But apparently he did leave some.

One difficulty was that the directives that the ATF agents started with were not the directives they ended up with. They were asked to do things they had not been prepared for — like infiltrate the group — and were not told ahead of time by management what to expect.

First they had a surveillance function [ATF agents watched the compound for weeks from a nearby rented house], and I think they did a pretty good job. But their role morphed as the weeks went by.

The changes were particularly difficult for Robert Rodriguez [an ATF undercover agent who infiltrated the group shortly before the raid], who was put in a tough situation and performed very well. The undercover agents were strained by the different functions they were asked to perform.

IR: Where were you on Feb. 28, the day of the raid?

Johnston: I was at the command post about five miles away, standing with friends from the [U.S.] Marshals Service. We heard there was a great deal of gunfire and that it was a real bad situation.

Within 45 minutes, they were reporting a number of agents killed [four ATF agents were shot to death that day]. And I said to myself, "Nothing good will come of this. Nothing."

Right before the raid, one ATF supervisor said to about 45 agents [who were assembling near Waco for the raid], "Hurry up, they know we're coming." Of course, many agents were wondering, "What do you mean, 'Hurry up, let's go, they know we're coming?'"

Robert Rodriguez desperately tried to argue with the supervisor about the importance of the element of surprise which had been lost. Rodriguez was and remains very frustrated about that whole thing. These were the conflicts early on between ATF line agents and supervisors.

I had been in contact with the Texas Rangers, and within a day or two after the raid I asked them to investigate precisely when the ATF supervisors knew that the element of surprise had been lost.

Two Texas Rangers investigated this very thoroughly. They asked the supervisors, "What did Robert Rodriguez tell you, and when, and what did you do?" The Rangers [later] believed that both supervisors lied to them and we all felt they should have been prosecuted for false statements. They never were.

Within just a few days there was a great chasm within ATF, a feeling that the supervisors had not done a good job.

IR: There have been allegations that the operation went forward despite the loss of surprise because the ATF wanted a splashy raid to enhance their budget prospects. Do you think ATF supervisors had some kind of hidden agenda?

Johnston: I've heard a lot of talk about the agenda part but I don't think there was some grand government conspiracy. It was probably just a matter of whether or not these supervisors were tactically qualified to handle this sort of thing.

Once it had gone bad, there was a real need for honesty. And that, unfortunately, did not come from some quarters. The ones who suffered were the 75-80 line agents who were tormented and butchered out there. That was a real tragedy.

IR: In your opinion, was there a later cover-up of how the raid went down?

Johnston: I really detest this whole idea of a cover-up. Two folks were sent down from the Department of Justice [DOJ] public integrity section to look into this, and they spoke with me and the Rangers. But we never heard back from them.

It wasn't that they said, "No, we aren't going to do it." They just vanished, like they were beamed up somewhere. So we never heard back from the Justice Department regarding the decision not to prosecute the supervisors.

Not only were the ATF supervisors not indicted or charged; not only were they not prosecuted; in the end [after being suspended from active duty while their actions were under investigation], they were reinstated within the ATF.

What troubles me so much is that this is exactly the sort of government behavior that leads people who dislike the government to take action.

It really worries me because I think if the government had just held those guys accountable in some fashion, by firing or prosecuting them, then people who don't care for the government would have said, "Well, at least the system works."

I know there was a lot going on in 1993 when all this was happening, but we really needed some accountability. Ultimately, the system does work. But it didn't then.

I think the mistakes and lack of accountability and the lack of openness with records exacerbated and really inflamed antigovernment thought among those who believed the government was behind some grand conspiracy. Combine those things and you get a response like Timothy McVeigh.

IR: The Treasury Department report written after the Davidian compound burned says that before the raid you pushed for a "dynamic entry" approach rather than risk a protracted siege situation.

It said you wanted to avoid a difficult situation like the 1984 siege at the Arkansas compound of the white supremacist group The Covenant, the Sword and the Arm of the Lord [CSA]. Is that accurate?

Johnston: I did have that discussion with them. I don't deny that. But this was the context. The first mention of that idea came up when [ATF supervisor] Charles Sarabyn came to talk to me about the case.

First he said they were going to arrest Koresh away from the compound. Later, he said, "We may just lay siege to it."

As a lawyer, my response was there is no such thing as a siege warrant. You can search a place, but I wouldn't be in favor of [purposely] laying siege to it. It not only sounded imprudent — I also doubted we had any legal authority to do it.

When the Treasury investigators later asked Sarabyn about the ATF's decision to raid rather than lay siege, he used my legal arguments as a justification. The Treasury review found that my views didn't turn the key one way or another, because the ATF had also been influenced by discussions with agents who worked the CSA case.

The agents who worked the CSA siege told the ATF that they had lost evidence [inside the CSA compound] because of the long siege.

Not everything I said and did in this would I do the same again. Obviously, I am not perfect — that's for sure.

But that idea of some close-quarter siege really bothered me. With a warrant you could go onto the property and for a period of time you could call for him to come out, but you couldn't just occupy property on a search warrant.

But what you can do, I guess, is to have it reissued repeatedly, which is what ended up happening in this case once the initial raid failed.

IR: You wrote U.S. Attorney General Janet Reno in March of 1993, before the compound burned [on April 19]. What prompted that letter?

Johnston: After the raid, I assisted the Texas Rangers in the investigation of what had gone wrong. They interviewed all the ATF agents, the Davidians that left early on [before the fire] and others, putting together the framework of a criminal investigation.

But our crime scene was being destroyed. This led me to write to the attorney general, seeking her closer involvement in the case. I wanted someone to try and get a little more control.

During March the FBI moved a lot of vehicles away from the compound. I objected to this because ATF agents were killed behind those vehicles and we really needed to know the line of trajectory on that gunfire.

These vehicles that the agents had been hiding behind were hit repeatedly as the Davidians tried to shoot the agents. Had we had a laser or some instrument, we could have pointed to a window as to where that gunfire came from, and we knew where a lot of the Davidians were.

We might have been able to attribute the killing of certain agents that were hiding behind the vehicles to particular Davidians. This was the case with Brad Branch, a Davidian who yelled, "I got one!"

We really needed that evidence and both the Rangers and I asked the FBI not to move those vehicles. They said they wouldn't move them. But they did. And that happened time and again.

IR: How did Reno respond to your letter?

Johnston: She sent people down to interview me and the U.S. attorney. The result was that my U.S. attorney was removed from the case. She also formed a trial team answerable to the DOJ directly.

I think it was a good faith effort on her part, and I was very pleased with the response. But it was a little too late — so much had already occurred.

She was trying to gain control of an already very difficult situation. She had barely taken office, just a few days before.

IR: It's ironic that officials chose to raid in order to avoid a siege situation, but because of the raid it indeed did become a siege.

Johnston: If there was ever a no-win situation created for law enforcement, I think this was it, in terms of the initial approach. If there'd been a siege from the outset, it probably would have turned into the same type of thing.

There was no reason that Koresh would leave. Why would he? He had a harem of women. He had complete control. And on the outside, he faced imprisonment. Even if he had been arrested away from the site, a search still would have been carried out and it might have been a very deadly encounter. We don't know.

Obviously, people are now saying, "Well, if only the FBI had waited..." And there was the dispute between the negotiators and the tactical team about how to resolve the situation.

All that's true. The negotiators were very frustrated at what they saw as a tug of war between them and the tactical side. There was great dissension.

It's easy to say now, but I think it was one of the most difficult situations law enforcement could ever imagine finding themselves in.

IR: What can law enforcement learn from the mistakes made in Waco?

Johnston: The biggest problem was law enforcement management. Of course, the FBI has changed things since Waco, in terms of who is in charge.

At that time the SACs [special-agents-in-charge who head up regional FBI offices] were responsible for any incident that occurred in their territory. Now the FBI uses a different line of authority to handle it.

The reason is that the outcome of a given situation totally depended on who the SAC was in the area and whether or not they had negotiating and tactical abilities. I think the FBI determined that this was inconsistent and not a good way to handle these complex situations.

IR: What happened to you as a result of raising questions about Waco?

Johnston: I just continued to do my job, but it seemed that to some within Justice, I was like an intellectual leper. They just weren't sure what to do with me.

So they didn't help me prepare for a rather unprecedented call to testify before Congress in 1995. U.S. attorneys are not supposed to testify in front of Congress on their cases. There's a protocol that strongly discourages that. And yet I was called upon to testify.

I would have thought that someone in Justice would have drilled me or prepared me in some fashion. They didn't at all. They didn't want to get too close. It made it very difficult. I had no idea what Congress suspected, what they'd been told, what memos they had. This is all part of the fallout from the first letter to Janet Reno.

It was subtle. No one tried to come after me or completely ostracize me. But by the end, I wasn't included in staff meetings in San Antonio. I literally was not called and told about meetings.

I knew there would be some consequence from speaking out and I handled it. That was the practical effect of taking these positions and probably to be expected within an organization like the DOJ.

IR: Last July, you gave Michael McNulty, a controversial documentary-maker, access to evidence from the Waco siege that he used in making "Waco: A New Revelation." Please describe your contact with McNulty.

Johnston: I must have talked to him on the phone a million times. He was very persistent — that would be a nice way to put it. Maybe pestlike.

I was hesitant to deal with McNulty because of his first film ["Waco: The Rules of Engagement"]. I thought it was not well founded. But I also felt it was really important for the government to be as open as possible because you tend to breed conspiracy theories when you look like you have something to hide.

IR: Last August, you wrote Reno a second letter, which you later made public, saying you feared DOJ officials might have withheld evidence about the use of "pyrotechnic" devices on the day the compound burned. [Reno had forbidden the use of devices that could start a fire, and until McNulty's film was released officials had consistently denied such devices were used.]

A month before you sent the letter, your supervisor, Bill Blagg, faxed you a copy of a memo saying you were present at a 1993 meeting where the FBI described the use of pyrotechnic CS gas canisters in Waco. [Johnston has since said that it wasn't made clear at that meeting that the canisters were pyrotechnic. His critics say Johnston wrote Reno to preempt any criticism of his own role.] What were Blagg's intentions?

Johnston: I felt that I was being sent a message: "You better look out if you raise this too strongly because you have a problem in this." I still feel that way.

In very late July [1999], I was working with the Rangers on the evidence that McNulty found. As they looked at it, every week they reached a more defined conclusion. They faxed the information to me regarding the pyrotechnic nature and military specifications and I faxed it on to my U.S. attorney. I kept him up to date on the Rangers' conclusions week after week.

And week after week, the Justice Department kept telling the press that the pyrotechnic stuff was nonsense. I wanted to make sure the attorney general knew someone was not telling her the truth.

Several government offices had received this same 1993 fax and knew about it. They'd already had the information for a month, and they kept denying it.

Why didn't they admit this? It made me feel like they were hiding information, and they were trying to suppress me with it. I was not going to be suppressed.

As time went on it became more apparent that they were not going to deal with it. They had plenty of opportunities. I faxed them the figures and diagrams of the rounds that the Rangers gave me. This was around Aug. 5, after the Rangers had consulted military experts and declared absolutely that it was a pyrotechnic M651 tear gas round. It can explode if misfired and has a burning time of 20-30 seconds.

I felt like, "I cannot believe they are still denying this." I just wasn't going to be a party to it. I was going to make an outcry and I did by the letter.

IR: The government says the CS canisters were only fired at a bunker behind the compound and couldn't have ignited the main building. But there have been other allegations, including that the government fired on Davidians trying to escape the flames, that have been reported recently. Are you surprised by these reports?

Johnston: Yes. The FBI said they didn't have certain materials and then it turns out they have been at their headquarters for months. There has been a lack of candor.

I'm not saying that it's some dark-room conspiracy — never assume a conspiracy when ignorance and incompetence can explain the situation. Also, in this case the sheer volume of evidence led to some of it being overlooked.

Too often, people think, "The ATF and FBI conspired to do this or that." In reality, those agencies didn't even really get along.

It's important to remember we're dealing with human beings who make mistakes. Sometimes they're forthright enough to admit it, and sometimes they're not. Some people want to assume a cover-up.

IR: If you had the power, what would you do to rectify the kinds of mistakes that occurred in Waco?

Johnston: I would try to make all agencies more accountable and rid them of the institutional arrogance that has developed within some of them.

The great majority of these agencies are staffed by dedicated, excellent, ethical people. Unfortunately, a few people in any organization can develop an attitude: "We can't be wrong. Don't question us."

That also breeds public frustration because people think, "Well, hey, if I had done that, I'd have been fired."

The government should be accountable. Taxpayers have a right to that. And we need to create an environment where employees feel like they can admit a mistake without getting beaten over the head.

Making decisions — even wrong decisions — is a part of governance. People need to know they can admit errors and the consequence of that error will be balanced.