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- Judge Walter Smith claimed that tests to determine if
FLIR video taken over Waco shows gunshots directed at Mt. Carmel must be
top secret to protect the "national security concerns" of the
British government, which loaned the FBI the FLIR camera used (see the
St. Louis Post-Dispatch, 2/14/00). However, four days later the Dallas
Morning News (2/18/00) reported that the British government said they had
no national security concerns regarding their FLIR technology. The fact
that the reason judge Smith had cited for keeping the tests top secret
was terminated did not thwart his determination to keep those tests secret.
Now his excuse seems to be that the public has no constitutional right
to know:
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- "There are times when you cannot keep your job and
put alternative explanations for data on the table." Former FBI Special
Agent Dr. Frederic Whitehurst
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- link
- Public Access at Waco Test Nixed
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- By Michelle Mittelstadt Associated Press Writer
Friday, March 10, 2000; 6:43 p.m. EST
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- WASHINGTON (AP) -- A court-ordered field test that will
re-enact aspects of the 1993 Waco siege to determine whether federal agents
fired any shots into the Branch Davidians' retreat will be closed to the
media, a federal judge ruled Friday.
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- U.S. District Judge Walter Smith of Waco rejected news
organizations' argument that the test, due to be held next weekend at Fort
Hood in Texas, should be open as a matter of public interest.
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- "The court has determined that the media have identified
no constitutional or common-law right that would entitle them to access
to this procedure," Smith wrote. "Pre-trial matters are not public
components of a civil trial."
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- The judge, who ordered the test and is presiding over
surviving Davidians' wrongful-death lawsuit against the government, said
the test "may be likened to a crime scene, which unquestionably may
be closed to the public and the press in order to preserve the integrity
of the evidence."
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- In a motion filed earlier this month, The Associated
Press, Dallas Morning News, The New York Times and St. Louis Post-Dispatch
said a private field test "will only increase the public's skepticism
about whether all the facts surrounding the Branch Davidian raid have been
completely and accurately disclosed." The Waco Tribune-Herald also
pressed for public access.
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- John Danforth, a former senator appointed special counsel
by Attorney General Janet Reno to investigate the government's conduct
during the Davidians' 1993 standoff with federal agents, argued against
media attendance. "The quickest way to discredit an investigation
is to provide the media with selective information during its course,"
the special counsel wrote in a motion.
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- The government and Davidians' lawyers did not oppose
public access.
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- A lawyer representing the news organizations expressed
disappointment with the judge's order.
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- "I don't believe Judge Smith or the special counsel
have identified any reason that justifies shrouding this field test in
secrecy," Dallas attorney John Gerhart said. "This test goes
to a critical issue of whether or not the government fired weapons during
the raid. And continued secrecy on such a critical point should not be
allowed unless compelling circumstances force that secrecy."
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- The Davidians' lead counsel said the public interest
would have been served by an open test.
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- "I just think it's unfortunate for the process because
inevitably there will be some people who will read into this some sinister
purpose, which is really not there," said Houston lawyer Michael Caddell.
"I do think there would be a tremendous benefit created by having
press access and having someone that people would view as not having any
agenda other than to report the facts."
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- The government has long denied that its agents fired
shots on April 19, 1993, during the waning hours of a 51-day siege. Davidian
leader David Koresh and some 80 followers died during the inferno that
occurred several hours into an FBI tank-and-tear gas operation designed
to flush the sect members from their retreat.
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- Lawyers for the Davidian plaintiffs, whose case goes
to trial in mid-May, contend the FBI's aerial infrared surveillance footage
offers definitive proof of gunfire directed into the building as it burned.
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- The field test, which will use a British Royal Navy helicopter
equipped with an infrared camera much like the one used by the FBI in 1993,
is designed to determine whether bursts of light on the Waco infrared footage
represent gunfire.
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- Weapons similar to those carried by the Davidians and
federal agents will be fired during the test. Military tanks like those
used in 1993 also will be deployed.
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