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Each side in a trial endeavors to win its case. To this end, each side commissions experts who've arrived at conclusions favorable to the cases of those who've retained them. Experts from opposing sides in litigation do not sit together over coffee and discuss the technical merits of their cases in the interest of science; and one would not expect experts retained by plaintiffs and defendants in the Davidians' wrongful death lawsuit to work out scientific details among themselves.

It's the hidden assumptions of the English legal system that are the source of the problem. Here's a quote from my book as concerns the adversarial system and its consequences in environmental science:

The structural problem, with the use of legal processes to decide environmental remedies, is that they are shaped by bipolar outcomes: Whether by adversarial legal process or two-party political system, bipolar decision-making systems are structurally biased toward conflict.
Adversarial conflict inexorably proceeds toward a bipolar structure whatever the battleground. Bipolar opposition minimizes possible outcomes because each adversary must maximize its contingent. It drives the bases of argument to reflect differentiating properties and reduces the possibility of acknowledging either common ground or external options. The very facts necessary to achieve a satisfactory synthetic solution may thus be deliberately omitted from the argument.
Legal proceedings are founded upon an assumption of bipolar conflict, not multiparty competition. Lawyers do not make as much money by ending a contest with an agreement or by finding that the whole point of contention was a mistake. There is little likelihood that a pair of adversaries will opt for a solution that reflects the interests of a third party. The adversarial system is a great way for one side of a dispute to gain total victory, but it is a lousy way to share information and consider points of interdependence. It is also destructive to the relationships and communication necessary to discovering common interests. How then would potential litigants discover the optimal plan by which to manage a habitat back to health?
The propensity for the legal system is to make enemies out of people who might otherwise cooperate.

One should note that our adoption of the adversarial assumption and precedent structures of English Common Law were never voted upon, are not in the Constitution, nor do they intend to establish Justice, secure the blessings of Liberty, or promote the general welfare. There are a number of its systemic attributes and assumptions that are demonstrably flawed, yet we continue to let the lawyers of the BAR (British Accreditation Registry) run amok with the justice system until its apparent purpose no longer even resembles its constitutional intent.

From: http://www.ntskeptics.org/2000/2000may/may2000.htm

The big lie (Debunking 'claims' about the FLIR used in Waco showing gunmen and gunfire)
by John Blanton
This is not about claims of the paranormal or even about extraordinary claims requiring extraordinary proof. It is about people believing what they want to believe in the face of contrary evidence. It is about people putting aside good judgement and critical thinking and allowing their personal preferences to dictate what is true and what is not. As such, it is rightly a topic for discussion by the skeptics.
The siege and fiery end of the Branch Davidian compound near Waco seven years ago has been a point of controversy ever since. Apologists for the Davidians have maintained the members were innocent victims of an overzealous government. Some have gone so far as to claim the final assault by the government was a calculated move to murder those inside.
One making such a claim was attorney Linda Thompson, who shortly after the fire distributed a video titled Waco: The Big Lie. Scenes and narration in the video attempt to convince the viewer that government tanks using flame throwers torched the building, causing those inside to burn to death.
Professor Ray Eve at the University of Texas at Arlington was called in as a consultant by the attorney for Cathy Schroeder, who was one of the surviving Davidians prosecuted by the government. During the course of his work on the case, Dr. Eve obtained a copy of the video, and he gave it to former NTS President Joe Voelkering for examination.
Joe, who has since died, operated a business investigating aviation accidents and preparing presentations of evidence for court cases. Those who continue to delude themselves will continually find unexpected surprises during cross-examination, and as a result Joe developed a keen sense for putting aside personal preferences and seeing only what the evidence showed.
I viewed the tape, as well, and Joe described to me what was going on. He pointed out the places where severe editing of the tape had placed events out of chronological order to best support the story Linda Thompson wanted to tell. He also pointed out places where large flashes of light were described as flames from the tank (really an armored engineering vehicle). Closer examination showed these flashes were associated with pieces of siding or wall board from the building flashing in the sun.
Others were not so critical in viewing Linda Thompson's video. Apparently Timothy McVeigh watched the video a number of times and convinced himself that the government had murdered the Davidians. This is thought to be part of his motivation for killing 168 people two years later.
More recently writer Mike McNulty has produced a documentary Waco: The Rules of Engagement. While the story line of Rules of Engagement is decidedly anti-government, it goes beyond offering sympathy for the Davidians. A press release states it "is a shocking film which says that the FBI machine-gunned Branch Davidians at Waco, Texas and committed numerous other rights violations there." The press release was related to the announcement in 1998 that the film had been nominated for an Academy Award. Siskel and Ebert gave it "two thumbs up," and it "was named one of the year's best films in The Los Angeles Times, the Minneapolis Star Tribune, the San Francisco Chronicle, L.A. Weekly and the St. Paul Pioneer Press."
McNulty's conclusions regarding the machine-gunning of innocents seem to hang on his interpretation of FLIR (Forward-Looking Infra-Red) video captured by a reconnaissance aircraft flying overhead at the end of the siege. Flashes of light in the vicinity of the building are perceived as muzzle flashes from automatic and other small arms fire by government agents. In fact, a consultant shown analyzing the FLIR imagery is not circumspect in his statements. He uses phrases similar to "Here we see gunfire toward the kitchen area" and "This is a two-second burst from an automatic weapon."
McNulty is no Linda Thompson. When two NTS members participated in the taping of a McCuistion TV program about the siege recently he was there and repeated the shooting allegations in language less strong than he used in the video. He even had praise for the agents who took part in the initial raid, including Robert White, who was wounded that day and was on the McCuistion show with him.
The NTS has subsequently obtained a copy of the Rules of Engagement video, and at the April 2000 meeting we showed the portions illustrating the purported gunfire. I have some previous experience with FLIR technology and gave my interpretation of what we were seeing. Here is a little background.
FLIR is a remarkable technology. It enables seeing in the dark for all practical purposes. Infra-red film is sensitive to what is called "near infra-red." This is electromagnetic energy with wavelengths just longer than red in the visible spectrum. What IR film sees is very hot objects or reflected solar IR. In contrast, FLIR sees objects that are barely warm. This electromagnetic energy is low energy and is called "far infra-red."
In a laboratory demonstration once I switched off the lights and viewed the imagery on a video monitor (which is what you have to do, since the FLIR just produces digitized images). There was no practical difference between lights on and lights off. Everything in the room showed up to some extent, since everything was about room temperature. People produce remarkable IR images. Certain areas of the face and other exposed skin show up lighter because they are warmer. Clothing is darker because it is closer to room temperature. Cold objects are very dark. Place your hand on a surface and remove it. The outline of you hand shows due to the residual warmth.
Outside, the imagery mostly shows the effects of solar warming and residual warmth. Objects that absorb IR readily also readily emit it. The black lettering on the Wal Mart truck driving by showed up clearly in the imagery. A construction worker's cigarette was a bright beacon.
I did not retain any of the imagery from my FLIR project, but I do have a shot from a Texas Instruments Web page (see Figure 1). The picture shows a highway and railroad bridge north of Dallas. The shot was made in the daytime, when the sun was warming exposed surfaces. Steel structures are hot and show very bright in the image. Bridge piers are shaded and show up dark. I have reversed white and black in this image, because the FLIR operators produced the original in reverse mode, showing hot as dark. The black rectangles were injected into the imagery by a target tracking system to show the operator the tracking points. They show up black here, but they were white in the original.
Figure 1. FLIR image from a missile seeker From the Texas Instruments (now Raytheon) Web site
Other imagery I have dealt with showed automobiles, tanks, and other vehicles, and here is the important point. You can tell by looking at the tires of a car or truck or the treads of a tank whether the vehicle has been moving. The tires and treads are warm and show up brighter.
In the Rules of Engagement video the tank treads show up brighter. The FLIR was sensitive enough to show the extra warmth. In the siege video no shooters show up. "Gunfire" erupts from a patch of ground, supposedly directed at the Davidian's building, and we don't see anybody doing the shooting. The FLIR that is sensitive enough to show warm tank treads does not show a warm (98F) person lying on the ground. More so, there is a two-second burst of automatic weapon fire, and we don't see a stream of hot bullets. A gun barrel that should be too hot to touch does not even register.
Surviving Davidians are now suing the US government for the wrongful deaths of their friends, and they had planned to use the FLIR imagery from the aircraft as evidence. In its defense, the government conducted tests at Fort Hood using similar FLIR equipment plus real gunfire and real shooters.
The results of these tests are now beginning to come in, and it does not look good for the Davidians. The new video shows shooters where there are shooters, and it shows flashes like those in the earlier video where there are no shooters. Science may provide the answer to what has been wild speculation up to now.
In the meantime, Mike McNulty has produced another video, Waco: A New Revelation. We have not seen it yet, but you can get additional information from a Web site devoted to it at www.anewrevelation.com.
It seems everybody has an opinion one way or the other in this matter, and here is mine: Rather than submit to a raid by the AFT and to the surrender of their weapons and rather than face arrest on felony weapons charges, the Davidians chose to shoot it out with the feds. For 51 days they held off the inevitable, knowing the government forces would not attack because of the presence of the children. Finally, when the government did force the issue (in a rather stupid and clumsy manner), the Davidians torched their own compound and killed themselves (with some exceptions) and all of the children. Sometimes the truth is as simple as that.

A follow-up article by the North Texas Skeptics -

http://www.ntskeptics.org/2002/2002january/january2002.htm

FLIR

by John Blanton
FLIR is an acronym that stands for Forward Looking Infra-Red. It's a technology that uses far infra-red radiation for seeing without benefit of visible light. Why it's necessary to add the words "forward looking" is not clear, except that IR is not very satisfying as acronyms go, and it's too much like a Spanish verb.
FLIR is also the name of the latest video produced by Mike McNulty concerning claims that government forces killed innocent Branch Davidian members on the final day of the standoff near Waco. McNulty has previously produced Waco: the Rules of Engagement and Waco: A New Revelation. Rules of Engagement was honored as "Documentary Film of the Year" by the International Documentary Association for 1997. It received an Oscar nomination for "Best Feature-Length Documentary Film" for 1997. McNulty won a national Emmy award for "Best Investigative Journalism" in 1999 for his work in the production of Rules of Engagement.
We previously encountered McNulty when he appeared as a panelist on the McCuistion show on PBS. The May 2000 issue of The North Texas Skeptic carries an account of this plus additional details of the Waco controversy. ¹
McNulty's two previous videos were highly critical of government actions related to the Mount Carmel siege and the destruction of the Branch Davidian compound on 19 April 1993. The language used in these documentaries states in strong terms that government forces used fire from automatic weapons to prevent the escape of innocent civilians from the fire.
Branch Davidian survivors sued, claiming the US Government was responsible for the deaths of over eighty people in 1993. In 1999 former Republican senator John Danforth was appointed special counsel to investigate possible government culpability in the case. A key issue was the contention by the plaintiffs that FLIR video recorded by the government on the final day of the siege provides incriminating evidence. Plaintiffs alleged that the imagery shows flashes from small arms, including automatic weapons fire, directed at the Branch Davidians. The plaintiffs contended that in some cases they can make out the movements of the shooters. The governments contention was that the flashes that appear in the video result from reflections of infra-red sources by debris on the ground and that no shooters are visible in the video. Senator Danforth retained Vector Data Systems to analyze the Waco FLIR and conduct FLIR test. On 19 March 2000 the government conducted tests at Fort Hood, Texas, to replicate the situation of 19 April 1993. FLIR videos were made from two aircraft flying 4000 to 6000 feet above the test area. The test area included debris on the ground and some scenarios with shooters firing weapons. The conclusion of Senator Danforth was that the test video invalidated the plantiffs' claims. Specifically:
1. Plaintiffs claimed the Waco video shows gun fire from locations where no shooters are visible. In the Fort Hood video shooters are always visible.
2. The government contended the flashes in the Waco video came from reflections. The Fort Hood video shows similar flashes from a debris field, where no shooters were present.
In July 2000 the case was decided against the plaintiffs. In US District Court a 5-person advisory jury reported to Judge Walter Smith "… the ATF had not fired indiscriminately or used excessive force. They also agreed that the FBI tanks' actions were not negligent and did not contribute to the fire, and that the FBI commanders were not negligent in their decision not to try to fight any fires at the compound during the tear gas assault." ²
Response to the decision was swift, broad, and somewhat one-sided. While cooler heads accepted the verdict even if they did not agree with it, many opposed to the government action and to the administration in power at the time denounced the outcome of the trial, the validity of the Fort Hood tests, and even the integrity of Senator Danforth. A Google search revealed a large number of anti-government sites as well as many sites critical of the conspiracy theorists. ³
One response to Judge Smith's decision was the latest McNulty video from COPS Productions L.L.C. In FLIR McNulty has followed up on his claim that the Waco video shows government gunfire directed at the trapped Branch Davidians. He now takes the added step of arguing that the Fort Hood video fails to make the government case and, furthermore, seeks to back up his claims regarding the Waco video. Specifically, McNulty asserts:
1. The Fort Hood tests are fatally flawed by not exactly replicating the conditions of the Waco siege: The Fort Hood tests did not use FLIR equipment identical to that used at Waco. The Fort Hood tests did not use the same weapons. Temperatures at Fort Hood were 20 degrees F cooler than existed at the siege. And finally, dusty conditions at the siege site enhanced the flash from the weapons, and the Fort Hood tests did not duplicate these conditions.
2. Government forces at Waco wore uniforms that suppressed their IR signature, accounting for why shooters would not be visible.
3. In the Waco video government agents can be clearly seen when standing on a plain, concrete, surface, but they readily disappear when they move onto the grassy areas, which provide a concealing, mottled background.
Many of the points made by McNulty are essentially correct. FBI standard issue is a 14-inch barrel military rifle, and the Fort Hood tests included standard M-16s with 20-inch barrels. It should be noted that the FBI states rifles with 14-inch barrels were also used in the Fort Hood tests. ⁴ Also, the Fort Hood tests did not use the same type of FLIR equipment, and Fort Hood test conditions were about 20 degrees cooler. Furthermore, combat clothing can reduce the wearer's IR signature, and certain backgrounds can help conceal personnel on the ground.
COPS, the producers of FLIR conducted their own tests, apparently in November 2000, and presented their imagery in the video. The COPS tests did not involve aircraft but used a long boom to place the FLIR equipment high above the ground. The COPS tests were also conducted at the same temperature as the day of the Waco assault and included a variety of weapons, ammunition and ground debris.
A prime assertion of the government side of the case is that the flashes seen in the Waco FLIR are too long to represent muzzle flashes, and the Fort Hood tests demonstrated muzzle flashes much shorter than those that show up on the Waco FLIR. COPS seeks to refute this point by noting that the dusty atmosphere at Waco would have prolonged the duration of the muzzle flashes. The idea is that the heat from the muzzle discharge will heat the dust particles in the air producing a prolonged glow. To demonstrate this, COPS had someone throwing dirt in front of the weapons before they were fired, and they showed that a longer flash was produced under these conditions.
Additionally, COPS seeks to show in its video that it is problematical whether ordinary debris would have produced the flashes seen in the Waco FLIR.
In conclusion, FLIR reiterates McNulty's previous assertions that government agents at the rear of the Branch Davidian compound directed automatic weapons fire at the compound. He further contends this action killed innocent Branch Davidians directly and resulted in the deaths of others by preventing their escape. This is a serious charge that finds many friends. What are we to make of it all?
The problem is that McNulty's claims are made outside the context of a very large body of other information. In fact, it may be that the producers of FLIR have shot themselves in the foot. Here are a number of issues that FLIR failed to note:
1. A major claim of FLIR is that the smoky, dusty atmosphere at Waco produced the prolonged flashes seen in the video. By stirring up dust and firing into the dust they seem to have demonstrated their case. However, a reasonable person comparing the Waco imagery and the COPS imagery will find little in common. The COPS video shows a shooter firing directly into a dust cloud right after someone has thrown a handful of dirt in front of the weapon. While the narrator points out that only dust is present, and not dirt, at the time the weapon is fired, it is quite obvious that this procedure produces a heavy concentration of dust that quickly settles out. A look at the Waco video seems to show the ground quite clearly from over 4000 feet up without the obscuration that would result from a heavy concentration of dust at 65 degrees F.
2. McNulty purports to show muzzle flashes from invisible shooters. He asserts that their camouflage clothing hides them in the Waco imagery. However, the firing demonstration in the COPS video shows a shooter holding a weapon, and the barrel of the weapon shows very bright in the imagery. In the Waco FLIR no hot, bright gun barrels show up.
3. FLIR also completely ignores an issue previously pointed out by other detractors. While McNulty claims to show invisible shooters, there is at least once case in which a tank tread runs completely over one of these invisible "shooters." ⁵ This would appear to invalidate NcNulty's claim that the flashes could not have been produced by ground debris. If there is at least one case of muzzle flashes without a shooter, then it is up to McNulty to explain what produced those flashes and why this explanation does not apply to all the other cases.
4. The Branch Davidians were killed by their leaders. Eavesdropping federal agents recorded the leadership issuing orders to start the fire. Some children and adults and even leader Vernon Howell (AKA David Koresh) were killed at close range by small arms fire while deep inside the compound.
5. Motive. For 51 days the government tried to coax the Branch Davidians out and even effected the release of some children and adults. On the final day of the siege members of the rescue team risked their lives to save Branch Davidians from the fire. One has to ask: How did the government forces divvy up the chores that day. "Team one, you guys try to save as many people as you can. Team two, you try to kill as many as you can." Inquiring minds would like to know the answer to this riddle.
References
1 http://www.ntskeptics.org/2000/2000may/may2000.htm
2 The Dallas Morning News, 15 July 2000. http://www.dallasnews.com/texas_southwest/111922_waco_15tex.html
3 Here are some relevant sites:
http://www.rense.com/general12/danfo.htm
http://www.gospelcom.net/apologeticsindex/news1/an010412-01.html
http://www.lewrockwell.com/orig/nelson1.html
http://www.webleyweb.com/tle/le970315-02.html
4 "Waco Inquiry Failed to Test Correct F.B.I. Gun," Matt Kelley, Associated Press, available at http://www.flirproject.com/current_events.html
5 "The Waco FLIR Flashes" by Ian Goddard at http://iangoddard.net/wacoflir.htm