The Consequences of Secrecy and Interagency Conflict: Undermining the Official Investigation intoTWA Flight 800
The search for the cause of the explosion of TWA Flight 800
on July 17, 1996 resulted
in the most extensive accident investigation in aviation history. The National
Transportation Safety Board (NTSB) and the Federal Bureau of Investigation
(FBI) began two separate investigations into the tragic and unexplained
accident. The FBI conducted a criminal
investigation that centered on suspicions that the explosion may have been
caused by sabotage. The NTSB investigation was structured in accordance with
guidelines specified in Chapter VIII, Title 49 of the Code of Federal
Regulations that permit the active assistance of all parties involved in the
design and operation of the aircraft. The NTSB outlines their investigation
procedure as follows:
The NTSB designates other organizations or corporations as
parties to the investigation. Other than the FAA, which by law is automatically
designated a party, the NTSB has complete discretion over which organizations
it designates parties to the investigation. Only those organizations or
corporations that can provide expertise to the investigation are granted party
status and only those persons who can provide the Board with needed technical
or specialized expertise are permitted to serve on the
team; persons in legal or litigation positions are not allowed to be assigned
to the investigation. All party members report to the NTSB.
In a major investigation the Board establishes investigative
groups. Each group, which is made up of specialists from the parties, is led by
a Board investigator, called the group chairman. The groups which are formed
vary depending on the nature of the accident, and may look into areas such as
structures, systems, power plants, human performance, fire and explosion,
meteorology, radar data, flight data recorder and witness statements, among
others.
Eventually, each investigative group chairman prepares a
factual report and each of the parties in the group are
asked to verify the accuracy of the report. The factual reports are placed in
the public docket.[1]
This successful system is built on a foundation of mandated
public accountability, and prior to TWA 800 the NTSB had earned a reputation
for thoroughness, impartiality and scientific rigor. However, it is obvious that such a system
could come into conflict with the exigencies of a criminal investigation. The investigation into a criminal or
terrorist act on the part of the FBI creates a legitimate need for a high
degree of secrecy. In contrast, an
investigation conducted by the NTSB ultimately becomes an undertaking subject
to public scrutiny.
In view of the number of people involved in a NTSB
investigation, many of them private citizens, the FBI would obviously fear
security risks and leaks that could jeopardize an ongoing criminal
investigation. In the case of TWA 800, participants in the NTSB investigation
included representatives from Boeing (airframe), Pratt and Whitney (power
plant),TWA, aircraft systems subcontractors, the various unions of pilots,
flight attendants and machinists, and the Federal Aviation Administration
(FAA).
Fortunately, there are explicit guidelines provided for
managing the inevitable interagency conflict that arose with the parallel
investigations into the cause of the explosion and crash of TWA 800. Again, the rules governing this situation are
found in Chapter VIII, Title 49 of the Code of Federal Regulations. The pertinent section is reproduced below, with
emphasis added:
Sec.831.5
Priority of Board Investigations.
Any investigation of an accident or incident conducted by
the Safety Board directly or pursuant to the appendix to part 800 of this
chapter (except major marine investigations conducted under49 U.S.C.
1131(a)(1)(E)) has priority over all other investigations of such accident or
incident conducted by other Federal agencies.
The Safety Board shall provide for the appropriate
participation by other Federal agencies in any such investigation, except that
such agencies may not participate in the Safety Board's determination of the
probable cause of the accident or incident. Nothing in this section impairs the
authority of other Federal agencies to conduct investigations of an accident or
incident under applicable provisions of law or to obtain information directly from
parties involved in, and witnesses to, the transportation accident or incident,
provided they do so without interfering with the Safety Board's investigation.
The Safety Board and other Federal agencies shall assure that appropriate
information obtained or developed in the course of their investigations is
exchanged in a timely manner.[2]
The protocol that should have governed the conduct of the
FBI in the case of TWA 800 is set forth here in clear and unambiguous language.
Certainly an immediate FBI investigation was justified in a search for evidence
that the explosion was caused a criminal act.
It is a misperception to assert that the FBI should not have been
involved in the investigation unless the NTSB found such evidence. The structure of NTSB investigations is not
suited to criminal investigations.
Indeed, the FBI would have been unforgivably remiss had it not launched
an immediate investigation that fully utilized all of its resources and
expertise.
However, the regulation unequivocally mandates that any such
FBI investigation be conducted in accordance with three principal guidelines
summarized as follows:
· The NTSB
investigation takes precedence over all other Federal investigations.
· Any such
parallel investigations must not interfere with the NTSB investigation.
· All
“appropriate” information discovered in the course of such investigations must
be fully shared.
No exception to these rules is made for the FBI or any other
law enforcement agency. Nevertheless, in
the case of TWA 800 the FBI repeatedly displayed a cavalier disregard for these
guidelines, moving quickly to assert control over the investigation. The extent
to which the FBI supplanted the designated role of the NTSB completely contravenes
the aforementioned rules of precedence.
While some confusion is understandable under the circumstances, news
reports immediately following the disaster show the agencies at odds on the
subject of authority:
…Less than 24 hours after the Paris-bound airliner crashed, a task force on terrorism run jointly by the
Federal Bureau of Investigation and the New York City Police Department
announced it would "assume leadership of the investigation into the
circumstances surrounding the possible explosion." The faxed statement was
sent to news media shortly after 3 p.m.
Thursday even as the safety board's lead investigator, Robert Francis, was
telling reporters in East Moriches that there was no
evidence of criminal involvement and that the NTSB was in charge.
The bureaucratic boundary remained confusing throughout the
day. At a news conference Thursday afternoon, Gov. George Pataki
declared that the FBI was treating the accident area as a potential crime
scene-- prompting Francis to return before reporters and re-emphasize that his
board was in charge of the investigation.[3]
The New York Times presented a detailed overview ofthe first 36 days of the investigation on August 23, 1996. Concerning relations between the FBI and the
NTSB, the Times reported that:
· The most
senior officials with the NTSB were “furious with their own personnel at the
scene, convinced that the agency had ceded control of the inquiry to the FBI.”
· One NTSB
investigator complained that “overbearing” FBI agents “immediately took
control, and hampered a lot of things we did.”
· NTSB officials
portrayed the FBI as “aggressive beyond propriety” and described an atmosphere
of suspicion and distrust, believing that the FBI routinely withheld crucial
information.
· This failure
to share information was particularly focused on the FBI laboratory in Washington,
which was characterized as a “black hole.”[4]
Moreover, the massive FBI presence overwhelmed and even
obstructed NTSB investigators. Accounts printed in Aviation Week and Space
Technology describe interagency relations that were
nearly adversarial:
NTSB efforts to elicit potentially vital information from
witnesses to the flight and crash of TWA Flight 800 were stymied for months by
FBI agents who blocked any attempts to interview the witnesses, according to a
copy of a safety board report obtained by Aviation Week &Space Technology…
On July 21, 1996,
the report states, Assistant U.S. Attorney Valerie Caproni
informed Norm Weimeyer, head of the Flight 800
probe’s operations group, "that no interviews were to be conducted by the
NTSB." Safety board investigators could review FBI-supplied documents onthe witnesses, "provided no notes were taken and no
copies were made."
The FBI gathered and controlled those statements as part of
its criminal investigation of the crash. Although it has designated the
investigation as inactive, the FBI has yet to give the accident investigation
team full access to the witness reports. Analyses of those reports played a
role in the FBI's determination that Flight 800 was not brought down by a
missile.
As part of their criminal probe, FBI agents restricted
access to some debris and seized other pieces for unspecified reasons for months
at a time.[5]
As events unfolded, the FBI usurpation of NTSB authority
eventually may have compromised the integrity of the overall investigation,
preventing any definitive explanation for the disaster. A careful examination
of the FBI investigation into TWA 800 raises a number of questions that are
troubling and inexplicable.
On November 18,
1997, FBI Assistant Director James Kallstrom
announced the results of the FBI investigation into the explosion of TWA Flight
800. More than sixteen months after the
tragedy, Kallstrom labeled the case as “inactive”,
reporting that:
We must now report that no evidence has been found which
would indicate that a criminal act was the cause…we turned over every stone,
not once but 10 times.[6]
The official FBI press release issued in conjunction with
the news conference stated that the FBI “disengagement” from the investigation
was based on the:
…overwhelming absence of evidence indicating a crime, and
the lack of any leads that could bear on the issue.[7]
The press release also stated that the now inactive
investigation would be reopened should any information come to light suggesting
the possibility of criminal involvement.
This seemingly innocuous declaration of the obvious would soon be cited
in an unprecedented suppression of information that by law should have been
made public.
It should be noted that the FBI press conference was held
just before the NTSB was to conduct a weeklong public hearing into the
investigation of TWA 800 in Baltimore,
beginning December 8,1997.
In his opening statement at that hearing, NTSB Chairman James Hall outlined the
purpose of such hearings:
Public hearings such as this are exercises in
accountability: accountability on the part of the Safety Board that it is
conducting a thorough and fair investigation…[8]
The NTSB held a weeklong public hearing into the
investigation of TWA 800 in Baltimore,
beginning on December8, 1997. The
hearings showcased the unprecedented scope of the investigation and a host of
extensive "Exhibits" outlining NTSB research was released to the
public. The NTSB used the hearings to
present a de facto conclusion that the Center Fuel Tank exploded as a result of
an unknown but internal ignition source.
Discussion of eyewitness testimony and other unresolved
anomalies that suggested an external source such as a missile was declared
off-limits at the behest of the FBI. In
a letter dated December 3, 1997,
FBI Assistant Director James Kallstrom wrote a letter
to Chairman Hall that demanded that no discussion of these issues be allowed at
the upcoming hearings. Did Chairman
Hall's noble commitment to "accountability" force him to disregard
this rather blustering and arrogant letter?
Was his resolve to convince the public that a "thorough and fair
investigation" was being conducted enough to stand up to FBI demands for
secrecy and suppression of these relevant issues?
To their discredit, the NTSB meekly complied with every FBI
demand. The spectacle of a public hearing where essential topics are declared
off limits for discussion underscored the extent to which the investigation had
been undermined. Kallstrom's
letter remains one of the most troubling artifacts of the investigation. It warrants careful scrutiny.
Citizens concerned about the debacles plaguing the FBI in
recent years will not take solace in the presumptuous tone of this letter,
which seeks to suppress the legally mandated public discussion of matters
essential to the duties of the NTSB. This document is reproduced in its
entirety as follows:
26 Federal Plaza
New York, New
York 10278
December 3, 1997
Honorable James E. Hall
Chairman
National Transportation Safety Board
490 L'Enfant Plaza
East, SW
Washington, DC
20594
Dear Chairman Hall,
I write to express again my views, concerns and objections
to those portions of the public hearing, scheduled to begin December8, 1997 in
Baltimore, that address the criminal investigation into the TWA Flight 800
tragedy. As we have discussed previously, the FBI, exercising its jurisdiction
and responsibility under the law, conducted an exhaustive and thorough
investigation to determine if the Flight 800 tragedy was caused by a criminal
act, particularly a bomb or a missile. After sixteen months, having exhausted
all avenues of investigation, we found no evidence that this tragedy was the
result of a criminal act and we placed the investigation in a pending inactive
status. As we have discussed, the FBI has not closed the criminal investigation
because of the possibility that new evidence could be discovered in the course
of the continuing National Transportation Safety Board (NTSB)accident
inquiry, from intelligence sources or wreckage that heretofore has not been
found. The possibility of this occurring is, admittedly remote. Nevertheless, until the NTSB has definitely
determined an accidental cause for the crash, I believe it is prudent to
withhold from public disclosure or discussion the identities of witnesses and
the raw investigative details of the criminal investigation.
Simultaneous with the FBI's criminal investigation, the
National Transportation Safety Board (NTSB), exercising its authority and
responsibility under the law to investigate civil aviation accident
investigations, conducted and continues to carry out a massive, thorough and
exhaustive examination to identify a non-criminal cause for the flight
800tragedy. It is our understanding that the results of the NTSB's
accident investigation, to date, will be presented at the public hearing in Baltimore.
The FBI is the primary criminal investigative agency of the government and
decisions regarding the presence or lack of evidence of criminal activity are
committed to and made by the FBI and the Department of Justice. I do not believe
it is appropriate for the NTSB, and agency whose jurisdiction is to conduct
aviation accident investigations and which has no criminal investigative
jurisdiction, to examine the particulars of and to present the results of the
criminal investigation at a public hearing, particularly when there is a
possibility, albeit remote, that the criminal investigation could be
reactivated based on new information.
Due to the enormity of the tragedy and the intensity of the
public interest regarding the possibility of criminal activity in connection
with the crash, the FBI took the extraordinary step of detailing the scope of
the Criminal investigative effort, announcing our conclusion and answering
questions about the investigation at a news conference as well as providing
briefings to the appropriate Congressional committee and Subcommittee Chairs,
ranking members of the minority, representatives of the families of the victims
of Flight 800 and representatives of the governments of the foreign victims. At
my press conference, which you attended, and at each of the briefings I
reiterated what I said above regarding the status of the criminal investigation
and concluded the press conference by inviting anyone with any information of
possible criminality to contact the FBI. Since then, I have carefully monitored
the public reaction to our announcement. To date, that reaction has been almost
uniformly positive and there has been no serious questioning, public or
otherwise, from any source regarding our investigative conclusions. Thus, from
the standpoint of public information, I see no need to again examine and
present the results of the criminal investigation.
Set forth below are the specific parts of the hearing, as
set forth in the 11/29/97 5:56 AM draft Witness list, to which we object
and the bases for our objections.
Presentation CIA Video
For the reasons noted above, the FBI objects to the use of
the CIA video at the hearing if the purpose is to examine the eyewitnesses’
observations or negate the possibility that a missile caused the crash. Because
they are the product of a criminal investigation and the remote possibility
that the criminal investigation could be reactivated, the FBI also objects to
requests to disclose or include in the public docket of any FBIFD-302s or
summaries of FD-302s prepared by the NTSB that report the results of any
interviews or reinterviews of the 244 eyewitnesses
whose reports were examined by the CIA in connection with it’s analysis and to
calling any eyewitnesses to testify at the public hearing.
Review of Witness Statements Panel
As noted above, the FBI objects to the use of any of the 244
eyewitness FD-302s or summaries prepared from those FD-302s by the NTSB in
connection with this hearing. As I have discussed with you previously, the FBI
has serious reservations about the presentation by NTSB of expert testimony
regarding the limitations of eyewitness observations. The FBI is well aware of
the general issues relating to the reliability of eyewitness observations and
testimony and factors those limitations into our criminal investigations. Many
of the factors that affect the reliability of eyewitness testimony, e.g., age,
visual acuity, position, stress, focus, etc. are peculiar to the individual eyewitnesses
as well as the actual event viewed, e.g., lighting conditions, violence etc. I
believe that it is inappropriate to use ‘experts’ to present general
observations about eyewitness reliability and to apply those general
observations to the particular situation presented by TWA Flight 800 when the
‘experts’ have not had the opportunity to review the eyewitness reports or to
evaluate the various factors as they relate to the particular eyewitnesses. In
addition, because the experts have not had the opportunity to review/evaluate
the particular eyewitnesses whose accounts were analyzed by the CIA and have
not discussed with the CIA its evaluations of the witnesses’ accounts, there is
a risk that the expert presentations questioning eyewitness reliability will
have the unintentional effect of undermining the CIA’s work. As you know, I
have always stated that the eyewitnesses are good people who told us what they
saw. I believe that the presentation of expert testimony that could cast doubt
on the eyewitness’ veracity does not further the accident investigation and
could complicate our efforts if the criminal investigation were to be
reactivated.
The witness list does not explicitly indicate that you
desire to use summaries prepared by the NTSB from FBI FD-302s reporting the
results of interviews of individuals other than the 244 eyewitness reports
analyzed by the CIA. While we object to the use of any of the FD-302s or
summaries prepared from those FD-302s by the NTSB of the 244 eyewitnesses whose
reports were reviewed by the CIA in connection with its analysis, we do not
object to the use of and inclusion in the public docket of summaries prepared
by NTSB of FBI interviews of other individuals to the extent their information
may relate to mechanical or similar issues, e.g., fuelers,
aircraft mechanics, passengers on the flight from Athens, etc., provided that
the names of those individuals are deleted to protect their privacy and this
office has the opportunity to review those summaries prior to their disclosure.
Investigation For Missile/WarheadImpact/Bombs/Explosives; Residue Examination
(exhibit 20I); PETN Findings, Small Explosive Charges
Because each of these items address matters addressed by the
criminal investigation, the FBI believes, for the reasons stated above, that it
is not appropriate for the NTSB to address them at the public hearing. In
addition to the general objection, we particularly object to discussion of the
residue examination and the use of exhibit 20I, an FBI Laboratory report on the
chemical analysis of the red residue found on the seats. As you know, this
office and the office of the United States Attorney, Eastern District of New
York is vigorously investigating a conspiracy to steal and the actual theft of
pieces of the seats that contained this red residue in support of an
"investigation" by an author/journalist We fully expect this
investigation to result, shortly, in a prosecution of those responsible. The
residue examination and the FBI Laboratory report of the results of that examination
will likely be evidence in this prosecution.
We do not object to the presentation of the metallurgical
findings and are willing to allow Dr. Shabel, the
outside expert retained by the FBI, to testify regarding his factual
observations and his conclusion that his observations are consistent with an
over pressurization of the center fuel tank, he break-up of the aircraft and
the aircraft impact with the ocean.
Finally, I have discussed these concerns with Director Freeh and the United States Attorney for the Eastern
District of New York, Zachary Carter, and they are in agreement with the
position and concerns set forth above.
Sincerely,
James K. Kallstrom[9]
This letter is clearly an attempt to intimidate the NTSB into
the unlawful concealment of vital information of which the law requires public
disclosure. Yet when faced with this
challenge to its authority and integrity, the NTSB was a willing participant in
the extralegal suppression of information.
In a May 17, 1999
editorial, Aviation Week and Space Technology was
harshly critical of both agencies:
What is not understandable is the FBI's arrogance. Its
leaders blocked the participation of experts with decades of experience in explosives
and accident investigation. It brought in experts who knew little or nothing
about commercial aircraft. The FBI also blocked up the exchange of information that
normally occurs within an accident investigation and from the investigation to
the flying public. The NTSB for too long collaborated in cutting off the flow
of accurate, detailed information on the status of the accident probe. This all
fueled suspicions that the government was withholding what it really knew about
the cause of Flight 800's downing.[10]
Is such suspicion justified?
Ronald Reagan believed that in dealing with the Soviet Union
on arms control issues, the United States
should "trust, but verify." An
objective observer might consider a similar approach to the official
investigation prudent. Incredibly, the
NTSB and FBI have erected a Berlin Wall of secrecy around a number of troubling
issues, declaring these matters off limits for public discussion. The
demolition of that wall is long overdue.
--------------------------------------------------------------------------------
[1] About the NTSB: The Investigative Process, National
Transportation Safety Board, 1997
[2] Code of Federal Regulations, Title 49, Volume 5 [Revised as of October 1, 1997]
Part 831, Accident/
Incident Investigation Procedures
[3] Newsday, July
19, 1996 Law Enforcement Moves In Early, Jordan Rau
[4] The New York Times, August 23, 1996 Behind a Calm Façade, Chaos, Distrust,
Valor by Joe Sexton
[5] Aviation Week and Space Technology, December 8 and 15,
1997
[6] Newsday, November
19, 1997, FBI: Case ‘Inactive’, Sylvia Adcock and Robert E. Kessler
[7] Press Release, November
18, 1997, Federal Bureau of Investigation, New
York Office
[8] Proceedings, Baltimore,
December 8, 1997, National
Transportation Safety Board
[9]Kallstrom, James K., Assistant
Director in Charge, Federal Bureau of Investigation
December 3, 1997 Letter to Honorable James E. Hall, Chairman,
National Transportation Safety Board
[10] Aviation Week and Space Technology, May17, 1999
