[Senate Hearing 106-534]
[From the U.S. Government Publishing Office]
S. Hrg. 106-534
ADMINISTRATIVE OVERSIGHT OF THE INVESTIGATION OF TWA FLIGHT 800
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
THE INVESTIGATION OF TWA FLIGHT 800
__________
MAY 10, 1999
__________
Serial No. J-106-24
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
65-055 CC WASHINGTON : 2000
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce Cohen, Minority Chief Counsel
______
Subcommittee on Administrative Oversight and the Courts
CHARLES E. GRASSLEY, Iowa, Chairman
JEFF SESSIONS, Alabama ROBERT G. TORRICELLI, New Jersey
STROM THURMOND, South Carolina RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan CHARLES E. SCHUMER, New York
Kolan Davis, Chief Counsel
Matt Tanielian, Minority Chief Counsel
(ii)
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., U.S. Senator from the State of Iowa... 1
Thurmond, Hon. Strom, U.S. Senator from the State of South
Carolina....................................................... 4
CHRONOLOGICAL LIST OF WITNESSES
Panel consisting of Michael Marx, former metallurgist, National
Transportation Safety Board; Henry F. Hughes, senior accident
investigator, National Transportation Safety Board; and Frank
Zakar, metallurgist, National Transportation Safety Board...... 5
Testimony of William A. Tobin, former chief metallurgist, Federal
Bureau of Investigation; accompanied by Charles A. DeMonaco,
Dickie, McCamey and Chilcote, Pittsburgh, PA; and Stephen M.
Kohn, Kohn, Kohn and Colapinto, Washington, DC................. 21
Testimony of Andrew Vita, assistant director, field operations,
Bureau of Alcohol, Tobacco, and Firearms....................... 34
Panel consisting of Donald M. Kerr, assistant director,
laboratory division, Federal Bureau of Investigation; and Lewis
D. Schiliro, assistant director in charge, New York Division,
Federal Bureau of Investigation................................ 44
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Hughes, Henry F.: Testimony...................................... 8
Kerr, Donald M.:
Testimony.................................................... 44
Prepared statement........................................... 47
Marx, Michael: Testimony......................................... 7
Schiliro, Lewis D.:
Testimony.................................................... 51
Prepared statement........................................... 53
Attachment to Statement of Lewis D. Schiliro, Overview of FBI
Investigation of TWA Flight 800, dated Janurary 20, 1997... 55
Tobin, William A.:
Testimony.................................................... 21
Prepared statement........................................... 32
Vita, Andrew: Testimony.......................................... 34
Zakar, Frank: Testimony.......................................... 12
APPENDIX
Questions and Answers
Questions of Senator Thurmond for:
Michael L. Marx.............................................. 71
Henry H. Hughes.............................................. 72
Frank P. Zakar............................................... 72
William A. Tobin............................................. 73
Andrew Vita.................................................. 74
Lewis D. Schiliro............................................ 77
Questions of Senator Grassley for:
Donald M. Kerr............................................... 76
Lewis D. Schiliro............................................78, 82
Additional Submissions for the Record
Documents and memos of various investigative organizations
submitted by Hon. Charles E. Grassley.......................... 84
GAO, Office of Special Investigations, Briefing Paper, submitted
to Hon. Charles E. Grassley, dated Aug. 13, 1999............... 162
GAO, Office of Special Investigations, letter to Hon. Charles E.
Grassley, dated Nov. 13, 1999.................................. 166
Letter from National Transportation Safety Board, to James Roth,
Chief Division Counsel, New York Federal Bureau of
Investigation, dated Aug. 20, 1999............................. 170
GAO, Office of Special Investigations letter to Michael DeFeo,
Office of Professional Responsibility, Federal Bureau of
Investigation, dated Sept. 13, 1999............................ 171
Letter to Hon. Louis J. Freeh, Director, Federal Bureau of
Investigation from Hon. Charles E. Grassley, dated June 3, 1999 174
Letter to Hon. Charles E. Grassley, from FBI's New York Office,
dated May 25, 1999............................................. 178
ADMINISTRATIVE OVERSIGHT OF THE INVESTIGATION OF TWA FLIGHT 800
----------
MONDAY, MAY 10, 1999
U.S. Senate,
Subcommittee on Administrative Oversight
and the Courts,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:05 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Grassley (chairman of the subcommittee) presiding.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Senator Grassley. I call the hearing to order. I am Senator
Chuck Grassley, chairman of this subcommittee, and I welcome
everybody to the hearing and particularly welcome our
witnesses, many who had to go out of their way to be here. We
appreciate it very much.
Today's hearing is the result of a 2-year review by the
subcommittee into how Federal agencies handled the
investigation of what caused the crash of TWA Flight 800. The
subcommittee conducted dozens of interviews of professionals
from various agencies who were either on the crash scene or
were at high levels within the various headquarters of the
various agencies.
A consensus emerged from the interviews, supported by
documentary evidence, about the conduct of the investigation.
The collective testimony from today's witnesses will leave a
very clear picture of that conduct, and, of course, it is a
troubling picture.
This investigation was run by the Federal Bureau of
Investigation. There is much doubt about whether the FBI had
statutory authority as the lead agency. There will be more on
that point later.
What the public knows about the crash and its cause is what
they know through countless press conferences and leaks to the
press. The public also has heard numerous conspiracy theories
and myths or disinformation.
The purpose of this hearing is to provide a much more real
picture of what happened and, hopefully, why it happened. The
motivation for the subcommittee's efforts is to continue to
help restore public confidence in Federal law enforcement. It
is my intention to examine some very basic and systemic
problems uncovered in this investigation.
The goal is to have a constructive dialogue with the FBI to
ensure similar problems are not repeated in the future. No one
will be fingered as a scapegoat. However, if the FBI says today
that its problems are of the past and it is now fixed, I will
not buy that, and I warn the public not to buy it, either.
There is a whole lot more to be done before the root causes of
the problem are fixed. It is a systemic cultural problem that
transcends any simplistic fix.
I would like to give a word about today's witnesses,
because it is not easy for them to be critical of questionable
actions that they saw by FBI personnel. These witnesses will
likely have to work with the FBI again, and the FBI is bigger
and more powerful than their agencies. So there is an
intimidation factor here.
But that is not why these witnesses are coming forward.
They are coming forward because of what they saw and what they
saw offended them, both from a law enforcement standpoint and
from the standpoint of public safety. They are coming forward
because they truly believe it will serve the public interest
and will improve the way that we investigate future incidents.
This is an honorable thing for these people to do. The
subcommittee appreciates their testimony and I am confident
that the public will, as well.
This is a story about how the world's preeminent law
enforcement agency, at least in terms of image and expectation,
sometimes acted like it did not even have a clue. I believe
that each and every FBI agent and employee who showed up on the
scene of that tragic crash did the best job they could and had
the best motives. The same goes for the employees of the other
agencies and groups that worked so hard. Many volunteered to do
that, and they sacrificed their time and their commitment to a
greater and humanitarian good.
There was a basic problem, however. In my view, it was one
of leadership. FBI leadership in the case of the TWA Flight 800
was a disaster. The FBI says that its investigation in this
case is a model for the future. The FBI believes that even now.
I say that because of their testimony they submitted for this
hearing. If the FBI still believes that after this hearing,
then I think the American people should be very alarmed about
whether or not the FBI gets the message, because this
investigation, which by statute was supposed to be run by the
NTSB but which was commandeered by the FBI, is a model of
failure, not success. And anyone who doubts that is not
confronting reality.
The testimony that we will hear today will describe three
things. First, it will show how the FBI lacked the proper
training to handle an investigation of this type and violated
the most basic standards of forensic science in terms of
collecting evidence, handling that evidence, and preserving the
evidence. It is the kind of thing that would make even rookie
cops wince.
Second, we will try to understand the culture within the
FBI that allows this sort of thing to happen. Why does the
world's preeminent law enforcement agency make the kinds of
mistakes that even rookies do not make?
And third, why is it that the FBI would try to prevent
critical public safety information from getting to the proper
authorities?
A January 1997 ATF report, which will be discussed today,
showed that the cause of the crash of the TWA Flight 800 was a
mechanical failure. The FBI did not want that report out. It
tried to suppress it. The FBI feared that if the case became a
criminal case and went to court, the ATF report would be
discoverable through Brady doctrine and might help exculpate
the potential suspects.
But the FBI had the cart before the horse. You cannot start
suppressing information when there is no crime. The vast
majority of explosions like TWA are due to accidents, not to
sabotage. For the FBI to assume first that an explosion is
sabotage reveals its lack of experience in dealing with
explosion incidents. Indeed, the FBI rarely investigates
explosions and fires. Other law enforcement agencies, most
notably the ATF, investigate many explosions and have lots of
experience.
The proof is in the pudding. The ATF called the cause of
the crash correctly, 10 months before the FBI did. In fact, it
is fair to say that the FBI hindered the investigation and the
public's and the families' right to know, and in the process,
in my view, the FBI risked public safety.
Before we begin, I would like to clarify one critical
issue. The FBI's suppression of the ATF report is a serious
matter. In testimony from the third panel today, we will hear
how the top FBI manager on this case, Mr. Jim Kallstrom, did
not want crucial public safety information to go to public
safety officials, and that is the National Transportation
Safety Board. He succeeded in bottling it up. The NTSB has told
us and told us all along that they never received a copy of the
report.
Last Friday, pursuant to a document request of the FBI by
the subcommittee, we discovered a draft letter dated March 17,
1997, from Mr. Kallstrom to the Chairman of the NTSB, Mr. Jim
Hall. The unsigned draft letter said that a copy of the ATF
report was enclosed. The FBI is claiming that this draft letter
lets them off the hook, saying that they did, indeed, send the
ATF report to the NTSB.
The fact is, it does not let them off the hook. I have been
through too many Ruby Ridges and Wacos and Richard Jewel
investigations to buy into that argument. I suspect that maybe
the American public will be equally skeptical.
When the draft transmittal letter came to the
subcommittee's attention, I asked the NTSB to verify if such a
letter had indeed been received by them. The computerized mail
system that logs in all letters to the Chairman showed that no
such letter came in. An interview of the appropriate handlers
of such letters showed no recollection of that letter.
Moreover, the FBI says that, pursuant to the subcommittee's
document request, all relevant documents have been produced.
Since no signed, finalized letter appears in the document
production, I think it is wise to be skeptical that the ATF
report was ever sent to the NTSB. And, in fact, that is what
the NTSB has stated. In my view, that means the FBI is still
not off the hook in terms of risking public safety in this
case.
Once again, the purpose of this hearing is to continue the
subcommittee's efforts to help restore public confidence in
Federal law enforcement. As the Nation's preeminent Federal law
enforcement agency, the FBI, under the scrutiny of the public's
eye, has an obligation to ensure that the egregious problems
that we will hear about today never happen again, and I will do
all that I can to help us through that process.
I would like to include in the record a statement from
Senator Strom Thurmond.
[The prepared statement of Senator Thurmond follows:]
Prepared Statement of Senator Strom Thurmond, U.S. Senator from the
State of South Carolina
Mr. Chairman: At the time TWA Flight 800 exploded, there was a
great deal of uncertainty, and one of the primary fears was that the
disaster was intentionally caused by a bomb or missile. There was much
speculation in the media and in other public forums about the
possibility that terrorists were involved and that they might strike
again.
Public awareness of the unpredictability and severity of domestic
terrorism had already been heightened by the 1993 World Trade Center
bombing, the 1995 Oklahoma City blast, and the ongoing trial of Ramzi
Yousef for conspiracy to destroy certain American airliners. Moreover,
it was only 10 days after the crash that the Atlanta Olympics would be
interrupted by a bomb explosion.
In such an environment and with its vastly superior resources, it
should not be surprising that the FBI was instrumental immediately
after the crash. It was also appropriate for the FBI to aggressively
search for evidence of a bomb or missile.
However, the FBI's responsibility is to search for the truth, like
any other agency. I am concerned about reports that the FBI may have
been preoccupied with the theory that the crash was the result of a
criminal act. I am also concerned about press reports of faulty
handling of evidence. If true, these actions may have delayed the
investigation's arrival at the correct conclusions and unnecessarily
postponed corrective measures that were needed to help prevent such
aircraft failures in the future.
It is clear that the FBI and all other investigative and law-
enforcement agencies need to work as closely as possible and conduct
their investigations in a thorough, open-minded, and collaborative
manner. I hope that much has been learned from the complex TWA
investigation that will be beneficial in future disasters.
The FBI's response to problems identified 2 years ago by the
Department of Justice Inspector General regarding its Crime Laboratory
show that the Bureau can address legitimate concerns about its
operations. To its credit, the FBI has made great strides in addressing
the serious weaknesses uncovered in certain aspects of the Lab's
operation. The FBI has undertaken the first major reorganization of the
Crime Lab in 20 years, which will be even more effective once the Lab
moves to its new headquarters in 2001. It now appears that reports
undergo significant peer review to assure accuracy. Even more important
is that many aspects of the Crime Lab have now received long-overdue
accreditation from the American Society of Crime Laboratory Directors.
The reforms are still on-going. For example, in follow-up reviews,
the Inspector General expressed concerns about an apparent preference
to staff the Explosives Operations Group of the Crime Lab with special
agent bomb technicians rather than simply having the most qualified
scientists in these positions. The FBI is working to address concerns
such as these.
I look forward to the testimony of the witnesses regarding the
FBI's investigation of the TWA disaster.
Senator Grassley. We will go now to our first panel. I call
Mr. Hank Hughes, Senior Accident Investigator, the NTSB, also
in charge of one of the hangars; Mr. Michael Marx, former Chief
Metallurgist of the NTSB; and Mr. Frank Zakar, current NTSB
Metallurgist.
I would ask you to raise your right hand. Do you swear to
tell the truth, the whole truth, nothing but the truth, so help
you, God?
Mr. Hughes. I do.
Mr. Marx. I do.
Mr. Zakar. I do.
Senator Grassley. We have asked witnesses, except for the
last panel, not to prepare remarks, so we will be getting the
information from all of you through question and answer. I am
going to start with you, Mr. Marx.
PANEL CONSISTING OF MICHAEL MARX, FORMER METALLURGIST, NATIONAL
TRANSPORTATION SAFETY BOARD; HENRY F. HUGHES, SENIOR ACCIDENT
INVESTIGATOR, NATIONAL TRANSPORTATION SAFETY BOARD; AND FRANK
ZAKAR, METALLURGIST, NATIONAL TRANSPORTATION SAFETY BOARD
Senator Grassley. Were you aware that the FBI had violated
security and brought in a psychic?
Mr. Marx. I was not directly aware of it, but I had--I was
aware that they did. I did not see the psychic come into the
hangar.
Senator Grassley. How were you aware of that?
Mr. Marx. I saw some documentation that indicated that
there was a report of the psychic.
Senator Grassley. What was the reaction by you and others
when you learned about this happening?
Mr. Marx. It is a reaction that it certainly was uncalled
for, especially at that particular point in the investigation.
Senator Grassley. Why would it be unusual for a psychic to
be brought in on the scene at this time?
Mr. Marx. Well, I do not know what the--at the Safety Board
itself, we would never bring in a psychic to do any
investigation because it is the scientific examination of
wreckage and the overall investigation that determines the
causes or at least towards the causes. So we would not bring
any--it would be against the grain to bring a psychic in to
find out what happened on the aircraft.
Senator Grassley. In your view, did FBI personnel
unreasonably push the bomb and missile theories, to your
knowledge?
Mr. Marx. Yes.
Senator Grassley. Would you explain your rationale?
Mr. Marx. Well, the rationale behind that statement would
be the fact that there is a period of time when it would be a
possibility that some sabotage, such as a missile or a bomb,
could be on board the airplane, and this was during the initial
portion of the investigation, where we had an airplane that
came out of the sky for no apparent reason. However--and there
was also the fact that most of the wreckage was sitting 100
feet down on the sea floor. So most of the wreckage was not
available, except for flotsam that came up.
So it was after the initial investigation when they started
to get the majority of the wreckage into the hangar and you are
able to look at the wreckage and determine how the airplane
broke up as well as get the information from where they found
it, the actual wreckage. At this particular point, in looking
at all of the physical evidence and not seeing any evidence of
any bomb or missile damage, it became unreasonable to continue
to push that theory.
Senator Grassley. Give us the approximate time frame for
what you have just told me.
Mr. Marx. This would be in the neighborhood of September,
late September, October, and November of 1996. This would be
the year of the accident.
Senator Grassley. Would you please describe for me the
difficulties that you encountered from the FBI with your
photography?
Mr. Marx. The FBI set up the security at the Calverton
hangar. As an organization, it had it clearly marked that no
cameras were allowed inside the Calverton hangar, and the only
way that procedures could be produced to get photography was
through the FBI directly. In other words, the FBI photographer
had to take the photographs. Any photographs that were taken at
that particular time had to be developed by the Federal Bureau
of Investigation, and all photographs, as I understand it, that
were returned back had to stay within the hangar, could not go
outside the hangar.
Senator Grassley. You are describing a situation where you,
in your work, normally take lots of pictures----
Mr. Marx. That is correct.
Senator Grassley [continuing]. And use them as part of your
scientific investigation, right?
Mr. Marx. That is correct.
Senator Grassley. They were going to allow you to take
pictures, but they had to develop them, or they did not even
allow you to take pictures?
Mr. Marx. In the case, initially, there was--the procedures
sort of changed from one point to another, but, basically, the
photographs basically had to be taken initially by the FBI, as
I understood it. Then, if you did take photographs, you had to
then have a certain procedure, but all the film had to be
developed by the FBI.
Senator Grassley. What sort of a reason did they give you,
that you could not develop your own pictures?
Mr. Marx. They did not give me any reason.
Senator Grassley. They did not give you any reason? That is
just the way it is going to be? How did this impede your work?
Mr. Marx. Well, in the case of the--on the second time that
I was there, this was in October, and when I was taking
photographs, having the FBI photographer take photographs, he
had a film, of course, which he then took and went back to the
New York field office to get developed. And I was there for a
period of time of 3 to 4 days at that particular time, and then
a month later, when I came back to get the photographs, they
also said that it would take a week to 2 weeks to get these
photographs. These photographs never showed up. To this day, I
do not have those particular photographs.
So how does it impede the investigation is that there was
no apparent record of the photographs that was taken and it was
not disseminated properly so that we could get these particular
photographs later on.
So it was--then, after that, I challenged the FBI in the
photographic arena. Since I could not get photographs, I then,
even though the signs said not to take a camera in there and do
photographic by yourself, I ended up doing it, since I was the
chief of the materials lab for the NTSB at that particular time
and that is part of our duties. We were looking at the
structural break-up of this particular airplane.
I ended up challenging that procedure, that the FBI was to
do all their own photography, in other words, do all the
processing of the film. And eventually, I got that to come
through. But there was a threat that I was not supposed to be
doing this, and eventually it came back from a higher-up in the
FBI that I would be allowed to do it.
Senator Grassley. The FBI brought in a company called
Brookhaven Laboratories. What do you know about the company and
why were they brought in?
Mr. Marx. Brookhaven National Laboratories is a government
facility that is close by to the Calverton hangar. The people
that were ahead of the investigation for the FBI were pushing
to get an outside expertise, so to speak, to look at some of
the wreckage and they were mainly looking at areas that had to
do with penetrations, small penetrations that were in the
fuselage, and they wanted to get somebody that apparently they
thought was independent or somebody to check what we would be
doing or do something that is separate than what we would be
doing during the accident investigation. They were looking for
evidence of some type of sabotage or some type of penetration
that was in the fuselage.
Senator Grassley. I probably should have done this before I
asked you your first question, but I think I am going to ask
you, and each of you before you answer questions, and I will
give you the opportunity now, you should supply for the
committee orally now your background, expertise, and what your
role was in the TWA investigation.
TESTIMONY OF MICHAEL MARX
Mr. Marx. Well, I have a Bachelor of Science and Master's
of Science from Michigan Technological University, which I
obtained in 1966 and 1967. I then worked for 2 years at the
Boeing Aircraft Company in Seattle, WA. And then following
that, I worked 1 year at the Bell Helicopter Company in Fort
Worth, TX, all in failure analysis of aircraft components.
Since November of 1970, I worked continuously for the
National Transportation Safety Board, start off as a
Metallurgist, going to Senior Metallurgist, going to the Chief
of the Materials Laboratory Division, and eventually the Chief
Technical Advisor for Metallurgy for the Safety Board.
During the time of the investigation of TWA, I was the
Chief of the Materials Laboratory Division, and at that time,
one of the other gentlemen here that is going to testify, Mr.
Frank Zakar, I was his supervisor at that particular time.
Frank had been on-scene since very shortly after the accident
until approximately--for about 3 months, when the wreckage was
starting to come in.
In late September, I went into the--I got involved in the
investigation when we had a lot of the wreckage that was
already recovered. I was the principal person that was involved
in looking over the reports that dealt with the investigation
as far as metallurgical engineering is concerned, metallurgy in
general, but I also was involved with the structure metallurgy
sequencing group that was formed, and that was formed and put
into effect in around the first of December 1996 and lasted for
most of the time during December, and it was a pivotal point to
analyze the structure of the airplane from a sequencing
standpoint.
The reason being is that even though there was evidence
that there was an explosion that was in the fuel tank, there
was still a need to find out whether anything else could have
caused that explosion in that fuel tank other than some source
that was on the airplane or some secondary type of damage that
could have caused the explosion in the fuel tank. It was not
the idea to have this sequencing group determine the exact
reason why--what the specific reason for the explosion, but
only to indicate through its analysis whether it could be the
initiating event that caused the structural damage.
So I was imminently involved in that, set up the sequencing
group, and that is how I got involved. After that, I was more
or less involved in various other aspects of the investigation,
including some of the stuff that dealt with the holes and with
the FBI wanting to solicit other expertise.
Senator Grassley. I would assume that it has got to be
incredible to you that a person with your background in this
area and working for as long as you have with the key agency
that is involved in transportation safety, that you would have
these problems with the FBI doing your job, the very same
agency bringing in a psychic to see why a plane went down. Does
that not seem kind of odd to you?
Mr. Marx. Well, yes. As I understand it, the NTSB, the
National Transportation Safety Board, is the lead agency for
aircraft accident investigation, and until there is a criminal
act that was declared, I mean, it was my understanding that we
should be doing the investigation of that aircraft accident.
Senator Grassley. What did Brookhaven do that the Federal
Government could not do, and did Brookhaven add anything to the
investigation?
Mr. Marx. Brookhaven did not have the--they have very
intelligent people that work at Brookhaven. It is a very good
organization. But they have neither the expertise nor the
experience to do any aircraft accident investigation. They have
never looked at any wreckage. They had basically a very poor
background to do any forensic-type investigation or any kind of
an accident investigation in this particular case because the
Safety Board had all the expertise that is needed to do that
and was advising the FBI that this was not--we were just kind
of like stand-by, looking at what they were trying to produce,
but we more or less discouraged this type of an operation.
Senator Grassley. Mr. Hughes, before I ask you your first
question, would you give us your background, your expertise,
and what was your role in this investigation?
TESTIMONY OF HENRY F. HUGHES
Mr. Hughes. Yes, sir. I started my career in investigative
work in 1967. I was trained by the Army as a military
intelligence specialist. In 1972, I joined the Fairfax County
Police Department in Virginia. Subsequent to my completion of
training and a few years on the job, I served as a staff member
and instructor at the Northern Virginia Criminal Justice
Academy, for 8 years on the instructional staff at Virginia
Commonwealth University, and I have also served for 4 years at
the University of Southern California teaching accident
investigation.
I came to the Safety Board in 1985 and joined as a member
of the Highway Division. Approximately 3 years later, I
transferred to the Bureau of Technology, where I cross-trained.
I have been with the Safety Board, as I said, since 1985, and
during the course of my tenure there, I have investigated 109
major transportation accidents in all five modes of
transportation.
On the TWA investigation, I was assigned initially with the
Go Team as the team's survival factor specialist. Upon arrival,
it was quite clear that my expertise in that area was limited
in terms of need. At that time, I was directed by the
investigator in charge to find a suitable place to try to
reconstruct the airplane, and along with some of our folks from
management, they found a suitable place, the Calverton
facility, which was a former Grummond Aircraft plant, and it
was my responsibility to set up the reconstruction area, the
layout of the aircraft, and then about 3 weeks into the
investigation, I was transferred and led the team that
reconstructed the interior of the aircraft.
Senator Grassley. I am going to have my staff bring a sheet
of paper to you, and the purpose of bringing this to you is to
ask you to verify if those are notes that you provided my
subcommittee investigators.
Mr. Hughes. Yes, sir, it certainly is.
Senator Grassley. OK. Let me ask, do those notes reflect
the handwritten contemporaneous notes that you kept in the
diary during the TWA investigation?
Mr. Hughes. Yes, they do.
Senator Grassley. Would you tell the subcommittee why you
felt compelled to take those notes?
Mr. Hughes. From a professional standpoint, I was greatly
distressed and disturbed with the professional working
relationship we had with the FBI, along with my observations of
the working relationship with the FBI and the other
organizations, to include the Bureau of Alcohol, Tobacco, and
Firearms and the Federal Aviation administration and TWA and
the other parties. But it was a matter of professional concern.
Senator Grassley. Would you summarize, in general, the
nature of the problems that you saw and why you believe they
occurred, for example, from the standpoint of inadequate
training, that and anything else that you can lend to our body
of information we need.
Mr. Hughes. Yes, sir. The FBI has a group called the
Evidence Recovery Team, or I should say several groups. To my
knowledge, there were about 30 to 32 that participated in the
TWA investigation. It is also my understanding that 28 of the
32 had absolutely no or very little forensic science training
whatsoever. It got to a point where, after a few months, I was
asked by the FBI to teach a 4-hour class on basic forensic
procedures and biohazard protection to the newly-arriving
emergency--or, I should say, Evidence Recovery Teams to provide
them with a basic knowledge of how to perform their duties at
the accident reconstruction area.
Senator Grassley. Would you go down the list and briefly
describe each of these points and indicate the proper way to do
them, what the proper way would have been?
Mr. Hughes. Yes, sir. I think, early on, part of my job in
survival factors is crash worthiness and basically
investigating the deaths of the passengers and crew. Part of
that job is to coordinate with the medical examiner's office,
in this case, the Suffolk County Medical Examiner's Office. Dr.
Charles Wattley is in charge.
It was distressing to me when I first went to the ME's
office to see that the FBI agents, although there were several,
in fact, probably dozens at the ME's office, there was little
or no consideration to establishing the chain of custody on the
clothing of the victims, and for that matter, some of the
particulate matter that had been extracted from the victims and
the clothing. Clothing and particulate matter were commingled
and the documentation as to what came from where was spotty, at
best.
Another concern that I had initially was that in terms of
our investigative effort, it was very important to know where
the victims had been recovered from, yet little or no effort
was made to do a GPS fix on the victims, and subsequently, we
know little in a lot of cases as to where people came from.
That is the first item. There are about 16 of them.
I mentioned that the clothing was stored--was collected and
commingled. Stated procedure for any clothing in a crime scene
or other accident site--and the procedures are basically the
same, there is no difference between a crime scene and an
accident scene investigation in terms of the handling of
evidence--but wet clothing, whether it is wet by chemicals,
body chemicals, blood, or water, salt water in this case, the
proper procedure is to air dry the clothing, wrap it in clean
butcher paper after it has been photographed, catalog it, and
put it away for safekeeping.
In the case of TWA, all of the clothing was taken to a
refrigerator truck marked ``Anderson'' on the side, which had
been towed to the accident site. Unfortunately, about 7 or 8
weeks into the investigation, the refrigerator truck
refrigeration unit ran out of diesel fuel, and for
approximately a day-and-a-half, the clothing got warm and began
to mold, along with the other material stored in this trailer,
and was destroyed as far as any evidentiary value.
Seat covers on the seats were another issue. Again, if
there had been an explosion, whether it is a mechanical or
structural problem or an intentional event, any damage to any
part of the airplane has to be scrutinized closely. Many, many
of the seat covers--there were 430 passenger seats and 21 crew
seats--had the seat covers removed and they were commingled in
a dumpster. About 2 months into the investigation, I went to
the dumpster with the assistance, I have to say, of an FBI
agent and tried to sort out the materials in there. We found,
in addition to the seat covers, actually seats that had been
missing that were mistakenly thrown in there.
Senator Grassley. Before you go on, whose decision was that
on the point you just made?
Mr. Hughes. That was a decision made by the FBI, sir.
Another area of concern with regard to the reconstruction
of the interior was the chemical swabbing of the seats, and, as
well, when you are especially looking for projectile shrapnel,
like debris, would be to x-ray the seats. However, there was
never any consistency in either the x-raying of the passenger
seats or the chemical swabbing of the seats, although as the
seats were collected, my team and I went to great pains to
specifically tag the seats to identify those that had not been
examined. Yet, to this day, those tags are still there because
they have not--the FBI never went back and did a subsequent
exam, either by chemical swab or x-ray examination.
Another problem that occurred, and it was recognized about
2 months into the investigation, was the disappearance of parts
from the hangar. I complained about it at several of our
nightly investigative progress meetings, yet it fell on deaf
ears for a long time. Finally, the group that I worked with--
there were 10 of us, I might add, including ATF and three New
York State Troopers as well as TWA personnel--scoured our
hangar, verified exactly what was there 1 day, and not to our
surprise, I might add, we found that seats were missing and
other evidence had been disturbed.
The FBI, on my last complaint, did act and they found at
3:00 a.m. on a Saturday morning, two or three of their own
agents were in our hangar. It was not authorized. I supervised
that project and these people had no connection to it. After
that----
Senator Grassley. Do you know who those two agents would
be?
Mr. Hughes. No, sir, I do not.
On another occasion, in the main hangar, when I was working
there, an agent from the FBI was brought in from Los Angeles.
Apparently, from what I understood from other agents I talked
to, subsequent to my observation of this individual, he had
arrived from the West Coast, had some experience in bomb
investigations, and I saw him in the middle of the hangar with
a hammer in the process of trying to flatten a piece of
wreckage. In investigative work, you do not alter evidence. You
take it in its original state and preserve it. But I actually
saw this man with a hammer, pounding on a piece of evidence,
trying to flatten it out.
Senator Grassley. What was the purpose of his doing that?
Mr. Hughes. I have no idea, sir.
Senator Grassley. Was that agent Mr. Ricky Hahn?
Mr. Hughes. I believe his name is Hahn.
Another problem that I observed was that there were--
probably, I guess, the ratio in the hangar between Safety Board
investigators and FBI and other folks was about 100-to-one. But
I noticed during the course of documentation that the bomb
technicians did not seem to use the conventional method of
documenting the evidence.
When you look at a piece of potential evidence, it should
be photographed, measured, and then collected safely. On one
occasion, I observed an agent walk up to a seat back, a tray
table, if you can envision where they might be mounted on the
back of the seat, and instead of looking at this piece of
metal--it was a piece of plastic that was embedded in metal--
and documenting it properly, the individual took out a pair of
pliers, a leatherman tool, and put tool marks on that piece of
evidence and attempted to pull it out of the seat back to
examine it--totally unacceptable procedure.
Senator Grassley. Do you know the name of that individual?
Mr. Hughes. No, sir, I do not.
Another problem that occurred, and I think it was
administrative, but it did affect the investigation, was the
FBI's reluctance to commit its agents to participate on
investigative groups. As you know, the Safety Board, when we
send a Go Team, has specialists. Each one of those specialists
form an investigative group. Those groups are comprised of
people from the FAA, from the airplane manufacturer, from the
carrier, and any other agencies that might help lend expertise
to the investigation. They were certainly welcome to
participate, but at no time were they offered to participate on
groups.
Conversely, for a period of about a month, five ATF agents
worked on my group and I have to say that they did contribute
significantly to assisting in the reconstruction of the
interior of the airplane.
I think the other area of concern, and it is an
administrative one, is the unkind, I guess is the best way I
can put it, attitude that FBI management displayed toward the
Bureau of Alcohol, Tobacco, and Firearms agents. I can
understand because of some of the past history that there may
be some friction, but I can remember several days where ATF
agents were basically told to sit at picnic tables in the
hangar and not allowed to actively participate in the
investigation. Those were the exact times when we needed all
the help we could get. Fortunately, I got five folks to help me
in my hangar because I was in a separate facility.
But I do not think it was an efficient use of manpower. The
Bureau of Alcohol, Tobacco, and Firearms is a very fine agency
in terms of explosives investigation and not to have that
talent available, especially in my hangar with the
reconstruction of the interior, did lead to some difficulties.
I think the other two items, the release of personal items
without consultation of the Safety Board, had this been a
criminal act, and there is no evidence to suggest that it is, I
would think that every piece of material on that airplane, to
include personal items, should have been documented and
inventoried, and before any release was authorized, it should
have been with the consensus of the NTSB and other parties to
the investigation.
Senator Grassley. That is the end of your list?
Mr. Hughes. Yes, sir, it is.
Senator Grassley. My staff was hoping you had one more
thing on your list, about the psychic.
Mr. Hughes. Yes. That was already mentioned by Mr. Marx, my
colleague, but I did not see the psychic. I arrived at the
hangar about 10 minutes after the fact and there was quite a
bit of commotion. From what I understand, the visit to the
hangar by the psychic was not authorized by any of the FBI
supervisory personnel at the hangar.
I have to say that, for the most part, the FBI supervisors
I worked with, they were pretty reasonable people, but I can
remember they were extremely distraught and concerned about the
psychic. As a matter of fact, at our progress meeting that
night, all of the folks that represented the parties to the
investigation, and there were probably 80 in the room, in the
interest of public, discussed it and everybody expressed their
concern. But it did happen.
Senator Grassley. Thank you, Mr. Hughes.
Mr. Zakar, would you please give us your background, your
expertise, and what role you played in the TWA investigation?
TESTIMONY OF FRANK ZAKAR
Mr. Zakar. Yes. My name is Frank Zakar. I am a Senior
Metallurgist at the National Transportation Safety Board. I
have been working there for approximately 11 years now. My
educational background basically is a Bachelor of Science in
metallurgical engineering, which I earned in 1980, and a Master
of Science in metallurgic, which I earned in 1984. My expertise
is in performing failure analysis of components involved in
transportation-related accidents.
My first 2 years with the Safety Board basically involved
investigating airplane accidents, where I would go out to the
field and document wreckage and document any failures that
might be related to, basically--that might be related to
structural failures, major structural failures. My major work
is involved in the materials laboratory, and at times, I am
requested to go out to the field and perform examinations. Our
laboratory basically examines 150 cases a year and I
approximately work on about 30 cases.
Prior to coming to the Safety Board, I worked as a
materials engineer for Lockheed Martin for a period of 4 years.
My participation in the Flight 800 investigation was the
first 3 months of the investigation, I reported to the
investigation in the hangar approximately 3 days after the
accident occurred and the purpose was to examine for evidence
of preexisting structural failures in the airplane, looking for
clues for corrosion, manufacturing defects, improper
maintenance, and explosion damage, and second, to assist any of
the investigators and the Safety Board with issues regarding
materials used in manufacturing the airplane.
Senator Grassley. In a very general way, for my first
question, I would like to have you give us your recollections
and thoughts on the way that the FBI recovered and handled the
wreckage.
Mr. Zakar. Well, first of all, I felt that there were some
restrictions during the course of the investigation which
impeded our ability to perform our examinations. The first
policy was, as Mr. Marx already indicated, restriction on
photography. The problem was that the FBI was concerned with
safety and the information that might leak from the hangar, so
restrictions were imposed on photography.
At that time, it was decided that in documenting evidence
in the hangar, photographs were to be taken by FBI agents. We
thought that was impractical and we were able to work out an
agreement that would allow us to take photographs, and in such
case, we were allowed to take photographs only when we were
wearing red vests in the hangar. That would indicate to the FBI
that basically there was a person with a camera on the scene
and it was part of the investigation. Of course, there was a
double standard there in that the FBI photographer did not wear
any red vests.
Another issue that I would like to bring out was the
developing of film. Again, this is relating to basically the
first 2 weeks of the investigation. It was agreed upon that if
we wanted to have film developed, they were to be taken to the
command post within the hangar, the FBI command post, and that
they would basically have the film processed for us and the
turnaround rate would be 1 day.
I recall during my first submission, I submitted one roll
of film and that roll of film was not returned. I had a second
submission of photographs, which I submitted two or three rolls
of film that documented the wreckage. There was something very
critical that I wanted to have on the second submission and
those were photographs that I took within the hangar of the
entire layout of the operation. Our management had basically
asked--they were interested in finding out how the operation
had gone in the hangar and I felt at that time that it was
important to get an overall photograph of the entire layout.
Because that film was given to the FBI and it was not returned,
I was not able to make a presentation to our headquarters
office concerning the operation within the hangar.
Senator Grassley. It just disappeared?
Mr. Zakar. Yes. Basically, I delivered the film to an FBI
agent at the command post within the hangar, and there were
several of them, of course. That contributed to a problem. I
gave my name. I gave the roll of film. He jotted down my name,
put the roll of film next to that piece of paper, and I walked
away, assuming that the film would be processed and returned
the following day.
Senator Grassley. Who is that person?
Mr. Zakar. I do not recall the name of the agent. I had a
question whether or not that film had been developed. I had
asked that question to a FBI photographer. He said he would
look into it and----
Senator Grassley. To this day, you do not know?
Mr. Zakar. To this day, I----
Senator Grassley. You do not know if it was ever developed?
Mr. Zakar. To the best of my knowledge, the film has not
been recovered. I would like to add that when the film and
prints were delivered, they were supposed to be delivered to a
specific metal hangar within our command post. Our name would
be on the envelope, and all we had to do was pick them up. I
remember the first 3 weeks after the submission of these rolls
of film, I checked every one of those envelopes in the metal
file cabinet and they were not to be found.
Senator Grassley. Did you read into this a message from the
FBI that we do not need you as an employee of the NTSB, that,
somehow, your work was not respected, your work was not needed,
we really do not need you around, or do you not read a signal
like that into that sort of activity?
Mr. Zakar. I feel that possibly there were too many people
involved in the proceedings and the procedure and that possibly
the film was mishandled. And, of course, that brings other
suspicions as to why photographs of the entire operation could
not be delivered to the NTSB. It raises concern.
Senator Grassley. I interrupted you, so please continue.
Mr. Zakar. The other problems we had in the hangar was
difficulties in exchanging of information. I found that there
were many levels of management involved in handling
information. There was the New York office of the FBI, the DC
office. There were several agents running the FBI command post.
That made it difficult for information to be transmitted to the
proper offices.
I found that to be quite different than our organization.
At the NTSB, we have a list of investigators who are
predetermined, prior to being launched to the investigation.
Each investigator has a specialty and we feel that because this
organization is predetermined prior to the launch, our goal is
very specific, it is detailed, and there is no quarrel who is
in charge of the specific areas of the investigation.
The other problem I encountered in the hangar was getting
information in regard to how much of the wreckage was
recovered. At times, inquiry would come up to our hangar
regarding how much of the wreckage have you recovered. I found
that, for example, the FBI had an evidence room which locked up
personal items and other objects from the wreckage.
I also found out, at times, we were interested in finding
out what wreckage or what pieces of components from the
airplane were being sent between the hangar and the FBI
headquarters for laboratory examination. I found that to be a
difficult subject. It took several days for us to find out what
was being sent between the hangar and the headquarters in
Washington, DC. When inquiring about getting a list of items
that were sent to the headquarters office, the response was,
basically, we cannot give you a list, but we will verbally give
you the information that we have available and you jot it down
on a piece of paper. I thought that was a rather awkward way of
conducting business.
The other concern is altering of physical evidence. As Mr.
Hank Hughes has indicated earlier, this is in regard to the
examination of a passenger seat. I recall several agents
working on a chair of a passenger and pulling out fragments
from within the chair. There was some tearing involved and
rather sloppy handling of the material that was removed from
within that seat.
Senator Grassley. I would ask you at this point if you know
who that individual or individuals may have been. Do you have
the names of those people?
Mr. Zakar. No, not at--I do not recall. One of the
interesting points that I would like to make is that during the
first several weeks of the operation, it was rather difficult
to focus on one specific area. Wreckage was coming in by the
truckload. In countering some of these problems, I was needed
in the area where the unloading occurred so we could examine
the wreckage, because it was rather difficult to keep focus on
several of the problem areas within the hangar.
But what I do want to stress is that we have expertise
within the Safety Board which handles the area of seating, and
one of them is Hank Hughes, and I think it would have been
proper at that time if anybody was going to handle any part of
the wreckage that they would notify the specific investigator
at the NTSB what the activities were being performed and to
what extent.
One of the problems we faced is that after the wreckage is
moved from one side of the hangar to the other, the evidence
could be altered and that could at the end cause a problem in
interpretation of what will come out of the investigation.
Another problem I had with observation at the hangar was a
specific person, a special agent of the FBI, who rushed to
judgment in looking at some evidence in the hangar. One of them
was specifically--as I recall, this special agent was raising
above his head a leg portion of a chair, and because he noted
that the piece was severely damaged, he concluded that the
damage was a result of bomb damage, without any scientific
evidence, and this was in front of other investigators.
Senator Grassley. Did you see that yourself?
Mr. Zakar. I saw that myself. I walked up to this gentleman
and I asked him what basis did he have for this, and his answer
was, basically, if it is that badly damaged, what else could
cause that damage?
Senator Grassley. That is what he said?
Mr. Zakar. Right.
Senator Grassley. Who was that individual?
Mr. Zakar. I do not remember. And the interesting thing
about it is, I approached this gentleman and specifically told
him, I think it is important to realize that it is important to
keep an open mind and to also leave open the possibility that
this damage could be caused by the airplane from a high
altitude impacting the water, and sure enough, several weeks
after I talked to this gentleman, the seats were laid out in
the hangar in a position similar to what you would find inside
the airplane and it was concluded that the seats did have
damage as a result of impact with the water.
Another observation I made was that there was a specific
attitude on the part of the FBI to continue the bomb and
missile theory. There was a fixation on the bomb and missile
case. I feel that this was not open-minded thinking and that
was not a professional manner to conduct the investigation. We
at the Safety Board, when we examine wreckage, we keep an open
mind and we look for factual information which will develop a
case, regardless of what the outcome is. We did not
particularly care if the examination was going to be leading to
a bomb theory or complete catastrophic failure of the airplane.
Senator Grassley. Was this approach really unreasonable, in
your point of view?
Mr. Zakar. I think because of the overwhelming number of
agents in the case and because of possible motivation that it
was bomb damage, that the large mass of agents at the hangar
overshadowed the fact that we had an accident investigation and
that there was basically a domino effect from the very
beginning, and the philosophy just continued down through the
entire operation. As I indicated earlier, it overshadowed the
fact that the NTSB was conducting an accident investigation.
Senator Grassley. When you say it continues through the
entire investigation, would you give me approximate dates, from
the start of the investigation until what time?
Mr. Zakar. Well, I could only specify that I was in the
hangar for the first 3 months, so during the first 3 months of
the investigation----
Senator Grassley. Very dominant?
Mr. Zakar. Very dominant from the very beginning. One more
item.
Senator Grassley. Yes.
Mr. Zakar. I would like to say that the situation, in the
case of the FBI, was not whether someone was going to find
evidence of a bomb, it is a matter of when, and there is a
differentiate between whether and when. I believe that possibly
the FBI had knowledge of something that we were not aware of
that possibly could have led them to believe there was missile
damage and that information was not shared with us early in the
investigation.
Senator Grassley. But in hindsight, then, you think that
that was an unreasonable supposition on their part?
Mr. Zakar. I think it is important we all have a specific
job. I feel that the FBI had a job to look for a missile, any
criminal wrongdoing, but to not keep an open mind and to not
realize that there is another agency of the government
performing investigation is rather unprofessional.
Senator Grassley. I would ask you, Mr. Zakar, as well as
Mr. Hughes, did you have any contact with a person by the name
of Tom Thurman, and if so, what kind of contact?
Mr. Hughes. Yes, sir, I did. Mr. Thurman, at the time, was
the Chief of the FBI Explosives Unit. I, in fact, arrived with
some of his agents at the accident site. Early on, we worked
for a period of several weeks. I will not say we worked with
them, because they would not work with us, but we worked in
close proximity with Mr. Thurman and his colleagues.
Senator Grassley. Were his actions consistent with the
criticism that we have heard thus far?
Mr. Hughes. Yes, sir. As a matter of fact, I think in Mr.
Thurman's case--I am trying to pick my words carefully because
I want to be accurate, but it was almost caustic. He showed no
respect or no regard for our concerns in many cases, and a lot
of our concerns and questions that we raised went ignored.
Senator Grassley. Mr. Zakar, would you answer the same
question about knowing Mr. Thurman and what sort of contact you
had with him.
Mr. Zakar. I have not met Mr. Thurman before or have worked
with him before, so I cannot go any further in describing that.
Senator Grassley. That is OK. Mr. Hughes, then maybe you
can tell me a little more specifically, how did Mr. Thurman's
actions impede your work?
Mr. Hughes. Mr. Thurman represented what, from a practical
standpoint, at least to the Safety Board investigators on
scene, and basically, there were two, Dr. Merrett Birky and I,
one-third of the--it is almost like there were three different
FBI's. We had the FBI Explosives Unit, the FBI Manhattan
office, and FBI headquarters.
Mr. Thurman's group basically got to the scene and when we
started to assemble the parts and catalog them for later
reconstruction, began to do the chemical screening and
examination, looking for what they believed was an explosive
device, you know, a bomb or missile. The problem was, we have
an organized, systematic approach to reconstructing aircraft,
as well as trucks, buses, and trains, that has worked very well
for many years, and when that conflicted with Mr. Thurman's
operation, we clashed. We wanted to do it in a systematic,
organized way. Their job, from what I could see, was more of a
shotgun approach, trying to look at as much as possible in as
short a time as they could, and it caused some problems and
friction.
Senator Grassley. Thank you. Mr. Zakar, I think I will go
back to you on the next question. You touched on it here or
there, but I just kind of want to bring it together, all in one
answer, and that is your impression of FBI leadership at the
scene.
Mr. Zakar. I would like to add that I did not have specific
problems with the individuals in the FBI. It was more a
philosophy and policy. I think that, just to be open-minded,
just to give an opinion, I think that the operation would
probably have been better if the agency kept an open mind that
another agency was in the hangar and was involved in TWA Flight
800.
Senator Grassley. My last question, did you know about or
hear about the FBI bringing in a psychic and what was your
reaction?
Mr. Zakar. I learned about the psychic during the hangar
operation, but was nowhere near the psychic. My original
impression is that, basically, it's an unscientific approach
and, basically, if it did not interfere with my job, I
basically did not have any feelings towards it. But I thought
it was a rather unscientific approach on the part of the FBI
and possibly a desperate attempt to further look at the
possibility that the bomb did hit the airplane.
Senator Grassley. A final question to all of you, but maybe
all of you do not want to answer it, but it just a simple
summation, whether or not any of you have anything you would
like to add in the interest of how to avoid problems like this
in the future.
Mr. Hughes. Yes, sir, I have some ideas.
Senator Grassley. Please go ahead.
Mr. Hughes. The idea of professional respect, I think, is
the first thing that needs to be considered. I know since the
on-scene investigation has been completed, the Safety Board has
initiated meetings with the FBI forensic folks, but I think the
cultural attitude of turf fighting and that sort of thing has
got to be done away with. We have one job and that is an
objective search for the truth.
The only way we can do that is to respect each other and
work in partnership, and I think from the top down in both
organizations, if we adopt that philosophy, on an individual
basis, we are going to get along fine. The FBI agents in the
hangar that we worked with on a day-to-day basis were excellent
people. They did the best they could. They worked their heart
out.
But I agree with what Mr. Zakar said. There is an
institutional philosophy that is very troubling. It is not new
to me. I spent 14 years in police work before I came to the
Safety Board, so I am familiar with it, but it is not
constructive and it needs to go.
Senator Grassley. Mr. Marx.
Mr. Marx. Well, the comments that were just made by Hank
are--I can second those. Basically, I think that there was just
too many people that were involved from the FBI in this
particular case. That overshadowed anything else in the
investigation.
I think that there is a need to have a presence of the FBI
and ATF or whatever, but not such an overbearing presence in a
particular case, and, of course, in the future, I think that it
would be better to have the overall lead agency be the ones
that do know how to investigate the accident from the
standpoint of the scientific and professional manner, and that
being the National Transportation Safety Board.
Senator Grassley. Mr. Zakar, would you like to add
anything?
Mr. Zakar. Yes. I feel that some of the difficulties within
the investigation could be improved with increasing the speed
of information that is traveled from one agency to another. I
feel that we may have to have a designated representative work
closer to our organization early on and, somehow or another,
allow exchange of information in a much quicker manner without
going through the different layers of management that we found
within the investigation.
Senator Grassley. I know that you have been here just with
us in this official environment for a little over an hour,
talking to the American people and to the Congress about the
issue before this committee, this investigation and the
mishandling of the TWA Flight 800 investigation, but I want the
American public to know that you have been working with the
committee staff and other interested people over a long, long
period of time.
So I want to thank you very much for your testimony, for
the benefit of your knowledge into these matters, and we
greatly appreciate your cooperation, your contribution in
educating us about how we can avoid these problems in the
future. Because everything we talked about here is what can we
do to make sure that when people step onto an airplane, they
know that their government has been fully behind them in
efforts to make for safe transportation. I know you know that
is what your job is about, all forms of transportation, for
that matter, for you. They expect that, and when we have these
sorts of bureaucratic and turf battles that you have talked
about, it really does not give the American public the
satisfaction that everybody in government is concerned about
their safety. I think you have shown that you have, but you ran
into too many obstacles to do your work.
We thank you for the work you do, and I will dismiss you
now. Thank you very much. You are welcome to stay if you want
to stay through the entire hearing.
Senator Grassley. Our next panel consists of Mr. Bill
Tobin, former Chief Metallurgist of the FBI and one of the
world's most renowned metallurgists. Mr. Tobin testified before
this committee in September 1997. He was still an FBI employee
in the laboratory at that time. I would like to have Mr. Tobin
give the committee his background, and I would like to ask the
two people who are with you, who are attorneys, their purpose
for accompanying Mr. Tobin, and anything that they would like
to say.
It does not matter whether Mr. Tobin wants to speak first
or the attorneys speak first. Maybe it would be better if we
would have the attorneys say why you are here, and then we will
go to Mr. Tobin for his background and expertise. Please
introduce yourself.
Mr. DeMonaco. Yes. My name is Charles A. DeMonaco. I am an
attorney in Pittsburgh with the law firm of Dickie, McCamey and
Chilcote. We, along with Attorney Stephen Kohn, co-represent
Mr. Tobin.
Prior to joining the law firm of Dickie, McCamey and
Chilcote, I was with the U.S. Department of Justice for 15
years. I served as an Assistant Chief of the Environmental
Crime Section here in Washington, DC, for about 9 years, and
then prior to that, I was an Assistant U.S. Attorney in
Pittsburgh for about 6 years. Prior to that, I was a prosecutor
in the local district attorney's office for about 7 years. So
my background is primarily that involved in criminal
prosecutions.
While I was an Assistant Chief of the Environmental Crime
Section in Washington, DC, I had the honor of serving the
United States of America as the counsel in the criminal
prosecution relating to the Exxon Valdez oil spill. The
National Transportation Safety Board played a very vital role
in that investigation and the result for the United States was
tremendous, with a settlement in criminal and civil litigation
in excess of $1 billion.
I also had the honor of serving as Senior Counsel in a
criminal prosecution of a major oil spill in San Juan, PR, and
that resulted in a jury conviction of three corporations, as
well as a criminal fine imposed of $75 million.
William A. Tobin served as the Chief Metallurgist at the
FBI and he played an important role in determining the cause
and the failure and provided expert testimony to the jury. He
was extremely thorough in his analysis and clear in his
testimony. He was professional at all times.
We are here providing counsel to Mr. Tobin because we
understand the science is extremely important in disaster
investigations. Without a proper scientific analysis that
serves as a bedrock, investigative theories may be flawed and
subsequent prosecutions, if any, may be problematic, and the
coordination is the key to successful investigations and
prosecutions.
It is an honor for Attorney Stephen Kohn and me to
represent William Tobin in this proceeding. His only objective
is to be cooperative and helpful to the subcommittee and we
would like to thank the chairman and the subcommittee for
inviting William A. Tobin to provide testimony to the
subcommittee in this important matter.
Senator Grassley. Mr. Kohn, do you have anything you want
to say?
Mr. Kohn. Yes, Senator. My name is Stephen Kohn. I am an
attorney with the firm of Kohn, Kohn and Colapinto, and also I
am the chairman of a nonprofit group, the National
Whistleblower Center. In these capacities, I represent a number
of current and former FBI agents.
Unfortunately, the rules and regulations which govern FBI
agents' speech are, at best, unclear, at worst, very
restrictive, and part of my reason for being here is to provide
counsel to Mr. Tobin. The FBI requires even its former agents
to submit various testimony or public documents to the FBI,
essentially to a censor, for pre-publication clearance. It is
our position that this requirement concerning communications
with Congress is illegal and inappropriate. However, because
there is some ambiguity in the law, we believe that Mr. Tobin
does need representation here to ensure that his presentation
complies with both the Constitution and the FBI regulations.
Thank you.
Senator Grassley. Mr. Tobin, would you please stand. Would
you raise your right hand. Do you promise to tell the truth,
the whole truth, and nothing but the truth, so help you, God?
Mr. Tobin. I do.
Senator Grassley. Thank you. Do you have any sort of a
statement that you would like to make? I do want you to tell us
about your background and your role with the TWA investigation,
but any sort of statement you want to make beyond that is OK,
as well, and then I will ask you questions.
Mr. Tobin. No, Mr. Chairman, I do not.
Senator Grassley. Would you please give us your background,
then.
TESTIMONY OF WILLIAM A. TOBIN, FORMER CHIEF METALLURGIST,
FEDERAL BUREAU OF INVESTIGATION; ACCOMPANIED BY CHARLES A.
DeMONACO, DICKIE, McCAMEY AND CHILCOTE, PITTSBURGH, PA; AND
STEPHEN M. KOHN, KOHN, KOHN AND COLAPINTO, WASHINGTON, DC
Mr. Tobin. I have a Bachelor of Science degree in
metallurgy from Case Institute of Technology in Cleveland. I
continued my formal education in graduate school at Ohio State
University, in George Washington University, and in the
University of Virginia. I have studied and authored a number of
publications in the forensic metallurgy arena and I have been
the guest speaker for all of the prominent professional
societies throughout this country and in Canada.
Senator Grassley. For my first question, what was your
position at the FBI?
Mr. Tobin. At that time, I was the civilian equivalent of
the Chief Metallurgist for the FBI laboratory.
Senator Grassley. And then your role in the TWA 800 crash
investigation.
Mr. Tobin. My role was to evaluate whether there could be
or was any criminal activity associated with any of the--as to
the cause or the materials' deformation or damage issues
related to the crash.
Senator Grassley. When did you arrive at the hangar in
Calverton, NY, where the plane was being reconstructed?
Mr. Tobin. I arrived on August 4, 1996.
Senator Grassley. At that time, did you have any
inclination as to whether or not a bomb was the cause of the
crash?
Mr. Tobin. From what I had seen and heard in the media, it
did have the earmarks, potentially, of having been a bomb.
Senator Grassley. Generally, what were the scientific
issues you confronted in order to be able to reach any valid
conclusions concerning the cause of the crash?
Mr. Tobin. This air crash, in particular, was a very
dynamic interaction of materials and forces that resulted in a
massive amount of fractured and otherwise damaged metal
aircraft components, known to have been subjected to three of
the most hostile circumstances that materials can undergo.
In this particular case, there was a midair fuel explosion,
there was impact of the pieces from approximately 2.5 miles in
the air with the water's surface, and subsequent undersea
saltwater corrosion. The results were fractures, punctures,
fragmentations, tears and rips, deformation, and thermal,
mechanical, chemical, and electro-chemical damage processes,
including unavoidable recovery damage. This was an
extraordinary combination of material interaction and
degradation processes, each of which can serve to mask
characteristics of the other processes. So, in short, this was
a massive and technically complex metallurgical undertaking.
Senator Grassley. Was your initial inclination that the
cause of the crash was a bomb, was it confirmed by your
evaluations?
Mr. Tobin. No, Mr. Chairman, they were not.
Senator Grassley. Why not?
Mr. Tobin. The materials just lacked, completely lacked any
of the characteristics that would support impulsively loaded
materials from within the aircraft. The various
characteristics, and there are numerous, that would indicate
the presence of a bomb resulting in impulsive loading were
absent in the component.
Senator Grassley. What was it about the crash debris which
disproved a bomb or missile theory?
Mr. Tobin. Well, the bomb--disproved the bomb theory
because of the complete absence of any of the characteristics
associated with the type of behavior that bombs can cause. As
to the missile component, the same arguments would apply
because that is also generally considered impulsive loading.
But in addition, there were penetration problems. Admittedly,
100 percent of the aircraft was not recovered, but every time
there was a portion of material missing, I could actually track
through the multi-layered structures and actually find a
component that existed in the path of what could have been
viewed as an external penetration.
Further, I would add that in some of those areas where
there did appear to be a hole, the holes were from within
outward rather than from outward in. That was another
characteristic, and that the material behavior was consistent
with the fuel explosion known to have occurred.
Senator Grassley. Now I would like to have you tell me what
there is about your area of scientific expertise which
qualified you to reach these conclusions that the cause of the
crash was not a bomb.
Mr. Tobin. Metallurgy or material science is the most
appropriate scientific discipline to make the evaluations as to
the material behavior and the deformation and damage associated
with the various degradation and destructive processes.
Senator Grassley. Did you work with any other branches of
the Federal Government during your years of disaster
investigations?
Mr. Tobin. Yes, Mr. Chairman, I did.
Senator Grassley. How did you find working with the NTSB?
Mr. Tobin. In my view, they are unsurpassed in their
expertise, in their competence, and in their professionalism.
Senator Grassley. Within 30 days of arriving at Calverton,
what was your professional assessment as to whether the cause
of the crash was a bomb?
Mr. Tobin. It progressed from an inclination of viewing the
earmarks as possibly a bomb, but it changed rather quickly to
confirmation within my mind that there was no indication of a
bomb, and unlikely to be that of a missile, within the first 30
days.
Senator Grassley. Did you discuss that assessment with
members of the National Transportation Safety Board? If so, how
did they respond?
Mr. Tobin. I did. We were--I have a very intimate
relationship with them from having worked these disasters for
approximately 25 years with them at that point. That, of
course, would include derailments and maritime disasters, but
we were in daily and I would almost--I probably could safely
say hourly contact in our very intimate working relationship.
So there was not really any proactive discussion needed because
we were in a constant information exchange mode while we were
working together.
Senator Grassley. Did there come a time when explosive
residues were found on crash pieces of the plane, and what was
your reaction to this discovery?
Mr. Tobin. Yes, there were three separate incidents, or
instances, of the finding of high-explosive residues on various
parts. The first incident, I was quite skeptical, but when I
reexamined the areas from which the residues were recovered, I
confirmed that the surrounding materials showed no evidence
whatsoever of any damage processes caused by a bomb.
So at that point, I began to urge, partially because of my
Marine Corps combat experience, urged that the history of this
research--that this aircraft be researched, because when I was
in combat, we all carried basically some C-4, which is a high
explosive, and it is very easy to transfer the residues, so I
thought the possibility existed that this aircraft may have
been used to ferry troops to the Middle East for the Middle
East war, or that another possibility for the deposition was
that the aircraft was used in drug-sniffing exercises for
canines.
Senator Grassley. When the second incident of explosive
residues was found on a piece of the plane, what was your
reaction?
Mr. Tobin. I again repeated the process of confirmation as
to the site and location from which the residues were recovered
and confirmed, again, no indication whatsoever of impulsive
loading or bomb or missile damage. I strengthened and
reiterated my suggestion that the history of this aircraft be
researched.
Senator Grassley. How did Mr. Kallstrom inform you when the
third incident, the high-explosive RDX was found on a piece of
the recovered plane? What did he say?
Mr. Tobin. When I was advised of that third finding of the
residues, I was approached in a very excited manner and the
statement was, ``We have got it. We have got it. It is
confirmed.'' And I asked what was confirmed, and he says, ``We
got it, proof of the bomb.'' And I saw in the very agitated or
hyper-emotional state that he was in that I needed to do some
significant calming, or try to bring it back down to earth, or
to urge prudence and caution in interpretation of those RDX
residues.
I then decided that I probably should--I used the analogy
of a cardboard box at that particular time and what I was
trying to convey to him was a simple materials analogy. My
representation was, I said, Jim, basically, from a materials
science standpoint, this is what you have got. You have got a
cardboard box. Your chemists are finding residues inside the
cardboard box and the sides of the box are not even bulged out.
In my business, that is called a clue.
That did not sit well, and at that point, he got about 6
inches from my face and proceeded to advise me in rather
graphic terms that it was a bomb, and that is the most suitable
presentation I can put on for prime time right now.
Senator Grassley. Was the insinuation when he is 6 inches
away from your face is that he says it is a bomb and you, as a
scientist, had better say it is a bomb?
Mr. Tobin. I do not know what he intended to insinuate or
intended for me to--how he intended for me to use that. I do
know that he was rather graphic in his approach that it was a
bomb, and, in fact, I ended up wearing several particles of his
saliva from that presentation, but----
Senator Grassley. Did you tell Mr. Kallstrom that if there
was to be a public pronouncement that Flight 800 crashed due to
a bomb, that you would not support that announcement from a
material science standpoint?
Mr. Tobin. Yes, Senator, that is correct.
Senator Grassley. Why did you say this to Mr. Kallstrom?
Mr. Tobin. After the finding of the third explosive residue
hit and I saw the reaction and the fervor and the intensity and
the frenzied reaction, and I also saw the clothes that he had
that day and his--I recognized the behavior immediately
preceding most of the press conferences. And at that particular
time--I am sorry, I have something in my eye here--at that
particular time, I saw that a major PR gaffe was imminent, was
in the making, and I think in large part due to my loyalty to
the FBI, I decided at that point that, as we would say in
Vietnam, I needed to throw my body on the grenade at that
particular time.
I wanted to preclude or prevent a major, major PR gaffe
that, in my view, was about to happen, from which I do not
believe the FBI would have recovered for a very long time. I
then thought the last tool in my arsenal at that point was to
indicate--to basically put the emperor without clothes, that if
he was going to proceed to make an announcement that there was
a bomb, that he would not be supported from the material
science standpoint. So that was, at that point, the last tool
in my arsenal.
Senator Grassley. My next point is kind of a summation,
maybe, of what you said, but I want to ask it very directly.
Based upon your direct personal observations, your direct
contacts with Mr. Kallstrom and Mr. Maxwell, and your
discussions with bomb tech and chemical analysts at the crash
site, at the investigation site, had you not forcefully
protested directly to Mr. Kallstrom, do you believe that the
FBI would have publicly declared the cause of the TWA Flight
800 crash to have been a bomb, and why do you think so, if you
think so?
Mr. Tobin. It is my opinion that that was imminent and
would have occurred. But even if there was not a 100 percent
probability that it was going to occur, the odds were so high,
based on the actions and the demeanor and the tension, that for
the Bureau's sake, I decided it was not worth the chance. So
I--that is when I interceded, at that point, and tried to put
him in a position exposing him that--to give him pause to think
about any announcement that may be imminent.
Senator Grassley. I am told that on August 13, 1996, you
wrote in a memo to your supervisor, ``I am underwhelmed by the
finding of RDX.'' Why did you write this?
Mr. Tobin. Several reasons. One is I, in fact, was
underwhelmed by the finding of RDX, as I have already
indicated. But I--it is partially my style to introduce some
humor to try to get a point across, so I think I made up my own
word in that particular time, but I decided after that
proclamation from Mr. Kallstrom to me that it was a f-ing bomb
that I needed to start a documentation, because I could foresee
claims of malfeasance from the material science side or that
the metallurgist never communicated his findings or--there was
no recording of my opinions, my positions.
So at that point, I decided--and that was August, mid-
August, I believe--I think it was August 13, only several weeks
after I arrived. And I also needed to try to start reversing
the tide, to try to introduce back to headquarters the crack in
the dam that--to start trying to opening the focus of causes.
Senator Grassley. Did you have occasion to have to deal
with an order for 1,000 random samples to be carved out of the
aircraft?
Mr. Tobin. Yes, I did.
Senator Grassley. What were your reasons for refusing to
comply?
Mr. Tobin. Throughout the whole interaction, except maybe
the first week, I had some serious problems with statutory
authority, title 49 versus title 18 issues. I throughout the
investigation felt, and particularly in view of having worked
so many of these with the NTSB in the past, that this was not
our aircraft to be carving up. I also saw that that would have
an effect, from the material science standpoint, a significant
impeding effect on their carrying out their chartered mission
under title 49. I did not feel that it was our place to be
carving up their aircraft.
Second, I had a problem. I and my colleague have spent
almost our entire lives in metallurgy classrooms and in the
practice of metallurgy and material science issues and we were
being told, basically, what samples we needed, how many samples
we needed to draw our conclusions, and what tests would be
conducted, albeit the test that was insisted that we--by an
individual who had not spent a minute in a metallurgy
classroom.
I would also add that the request was so absurd on its
face, in part because we were ordered to put 1,000 random
samples in a metallurgy machine, and to this day, we are not
real sure what a metallurgy machine is, but that was the order
at the time.
Senator Grassley. Did you ever----
Mr. Tobin. I am sorry. May I amend my----
Senator Grassley. Please do.
Mr. Tobin. Part of the issues in that were that they were
dissatisfied with the examinations we had conducted. They were
dissatisfied with my lack of note-taking and there were five
reasons that I enunciated as to why I was not taking detailed
notes on the examination of these fragments, and there was
dissatisfaction of the techniques that we were using to conduct
these examinations, again, by the individual who had not spent
a minute in a material science classroom.
We were--basically, they were dissatisfied with the visual
examinations. We were doing macroscopic examinations and
microscopic--stereo-microscopic evaluations, but the supervisor
in charge of the on-site investigation was dissatisfied with
those investigations and was insisting that we put 1,000 random
parts through a metallurgy machine.
I would also add that those were the same techniques used
by the financially interested parties, the parties who had
billions of dollars at stake. They were using the--not only
using the same examination techniques that my colleague and I
were doing, in fact, they asked where I was able to--if they
could purchase one of the items that I used for my examinations
to help their examination.
Senator Grassley. Did you ever hear the phrase, ``bomb
techs three, Tobin zero,'' and what did that mean if you heard
it?
Mr. Tobin. I was not aware you had that information. That
was basically an analogy to a baseball game. The first week or
so, I kept trying to urge prudence and caution in the
interpretation of these explosive residue hits. When the third
one came, I was basically told in this baseball game that
metallurgy had no runs and that the bomb techs had three runs,
and how was there any credibility to be attached to my urgings
of prudence and caution in the material science issues? I, at
that point, tried to explain that NTSB and my joint materials
data stream or data flow was a long, a very long, complex,
drawn-out process, that we could not just walk up to an
aircraft and take a swab and then get an instant hit.
But in answer to your question, Senator, that was a
baseball game analogy that was demonstrated to me.
Senator Grassley. At some point, did the bomb techs agree
with yours and the NTSB's assessment that the cause of the
crash was not a bomb?
Mr. Tobin. Yes, Senator. I would estimate that probably 4
to 6 weeks, after about 4 to 6 weeks, we were all unanimously,
or near unanimously, on the same page, and all being the bomb
techs, the National Transportation Safety Board, and the
metallurgy or the material science interest in the FBI
laboratory. We were all unanimously--or we were united in our
observations and conclusions that there was no bomb or missile
damage evident on those aircraft parts.
Senator Grassley. The term 4 to 6 weeks brings you to what
date on the calendar, approximately--just approximately?
Mr. Tobin. My guess would be mid-September, early to mid-
September.
Senator Grassley. Were you aware of the visit of a psychic
at the investigation site?
Mr. Tobin. Yes, I was.
Senator Grassley. What was your reaction to this visit?
Mr. Tobin. I was very disturbed.
Senator Grassley. Tell me how disturbed you were.
Mr. Tobin. That was at a very sensitive time in the
investigation. Up to that point, there had been no release of
scientific information to the American public. I felt--I am
sorry.
Senator Grassley. Go ahead.
Mr. Tobin. I felt that that was a very wrong signal to be
sending out to the American public, that two of the foremost
agencies charged with being guardians of the public safety had
to resort to a psychic to resolve this aircraft--these aircraft
issues, that their scientists were not sufficiently competent
to deal with it. I also took it as a collective slap in our
scientific and investigative faces in view of the mountain of
experience that the NTSB and I had had working these things,
that they felt the need to resort to a psychic at that
particular time.
Senator Grassley. Go ahead.
Mr. Tobin. I did understand and learn eventually that it
was not an authorized visit by the psychic, but then that
brings the next question, raises the next question, of if we
were so----
Senator Grassley. Why?
Mr. Tobin. Yes, Senator. If we were so controlling of
another agency's personnel, why could we not control our own
personnel?
Senator Grassley. Do you think someone was thinking in
terms of getting brownie points by bringing in a psychic?
Mr. Tobin. I cannot address the motives for bringing a
psychic in. I do not have any firsthand information.
Senator Grassley. Did you learn what the psychic's findings
were?
Mr. Tobin. I believe I did.
Senator Grassley. Do you want to say what those findings
were?
Mr. Tobin. I do not recall. They went in one ear and out
the other, but that may have been the catalyst, and I did not
even put this together until recently, that may have been the
catalyst for the pristine overhead bin incident that----
Senator Grassley. Let us talk about that.
Mr. Tobin. I was ordered to, in a rather frenzied manner,
to go conduct an exhaustive search and contact with my NTSB
liaison, in liaison capacity, to find a certain overhead bin
that was characterized as in pristine condition, but it was in
a very emotional, very frenzied manner, so I inquired as to why
I was looking for this particular pristine overhead bin on the
port side of the aircraft, that was from the left-hand side of
the aircraft. I was told that that was proof that NTSB was,
``squirreling away evidence'' and ``stashing evidence,'' which,
again, flies in the face of my interpretation of whose aircraft
this was.
So I inquired as to why the pristine overhead bin was of
such significance. I was told that that was demonstrative proof
that they were squirreling away evidence, that the recovery had
been captured on a videotape from the USS Grapple or the USS
Grasp, one of the recovery ships, and on the videotape, it
showed this overhead bin being raised or set on the deck.
And I said, well, I am still missing some critical
information. Why is this important? Why is this critical? To
which I was advised that it had a suitcase, a badly charred and
damaged suitcase inside the overhead bin. My response at that
point was, well, I am still missing some critical information.
Why are we looking for this, ``pristine overhead bin''? Are you
suggesting that there was a bomb in the suitcase that went off?
Yes. Well, that went off, instantaneously brought down a 747
with no recording on the FDR or CVR, the flight data recorder
or the cockpit voice recorder, and did not put a scratch in the
overhead bin, and I was told, yes. We want that overhead bin.
And I was told to go find that overhead bin.
Senator Grassley. Did you ever hear the expression that
260-some witnesses cannot be wrong, referring to various
eyewitness accounts which supported the bomb and missile
theory?
Mr. Tobin. Yes, I did.
Senator Grassley. Under what circumstances did you hear
that position and how did you respond to those comments?
Mr. Tobin. That was the continual argument advanced when I
continued to try to use the cardboard box analogy, that,
basically, NTSB, in my position, in a material scientist
position, is that the box fragments--if you have a bomb in a
box, the box fragments will tell the story. And my position
was, I do not care how many witnesses say what. The box--the
container has to tell the story, and I was continually told
that 260-some witnesses cannot be wrong.
Well, I repeatedly tried to convey the physics involved in
the materials interactions, No. 1, the velocity of sound and
air and why, from my experience from having worked the streets
as an agent, why eyewitness testimony can be flawed, and I
conveyed that the speed of light--I am sorry, the speed of
sound and air and the problems with audible and visual stimuli
from witnesses that--260-some witnesses whose focus would have
been brought to the same XYZ coordinates in space, that there
were reasons why that those 260-some witnesses could not have--
highly unlikely that they would have all seen the initial
conflagration or explosion of that aircraft, a position which
was ignored for a very long time, but which eventually was
confirmed by CIA analysis.
Senator Grassley. What was the reaction of the FBI
officials to your scientific position?
Mr. Tobin. Well, I would--the officials on site after--when
I first got there, I basically walked on water, but after about
a week to 10 days, when it became clear that I was not
supportive of the bomb or the missile proponents, I began to
methodically get excluded from any input in the decision making
process with regard to bomb or missile or even mechanical
failure causes.
Senator Grassley. Was your position ever validated, and if
so, by whom and how?
Mr. Tobin. My position of--oh, with regard to the reasons
why 260 witnesses could be wrong?
Senator Grassley. Yes.
Mr. Tobin. Yes. In fact, as I indicated, the CIA did a very
excellent study and videotape showing the effects of audible
and visual stimulation and external stimuli and that they, in
fact, confirmed that those witnesses, it was highly unlikely
that they would have seen the original event. And again, there
were logical reasons why. When one's attention is drawn over to
that--to an omni-directional explosion, individuals will
probably see fragments or something proceeding in an upward
direction, trailing smoke and flames, particularly if it is
from the fuel tank. So there were reasons why some of the
characteristics that were described probably were seen.
Senator Grassley. Was there any scientific support
justifying the missile theory cause of the crash?
Mr. Tobin. No.
Senator Grassley. What were some of the characteristics
which negated the missile theory?
Mr. Tobin. Well, probably the most prominent--actually,
there were two main areas negating the missile theory. One, of
course, again, is the absence of impulsive loading, or very
high-speed fracture and failure mechanisms.
But second was there were serious issues with every theory,
or almost every theory, as to access of an external missile to
the fuel, to the fuel tank. Even with, as I indicated earlier,
if one would focus on an area where we did not recover all of
the fuel tank, there were components nearby that would have
blocked or at least recorded passage of any externally
penetrating object. And if that were not the case, there were
many layers, including the external underbelly of the aircraft,
and that was recovered almost--a huge portion of that was
recovered.
So that, basically, the only plausible theory for some of
the missiles to have occurred would have been if there were
missiles such that could maybe get through a 1- or 2-inch
opening, make an immediate left, go 90 degrees through a seam,
and then maybe take another 90-degree right, and then maybe
reverse itself and come back over. But those were some of the
considerations.
Senator Grassley. Like the single bullet theory. Despite
the scientific explanations, did any FBI officials with
responsibility over the crash scene continue to advance the
missile theories?
Mr. Tobin. Yes.
Senator Grassley. Did they continue to pursue these missile
theories in a scientifically responsible manner, and please
explain your answer, and particularly, I would like to have you
explain the pickle fork missile theory.
Mr. Tobin. The answer to the first portion of that is no,
they were not scientifically responsible. The pickle fork area
or theory was a continued thorn in our sides. I tried to negate
it and brunt it, but it reared its head in about the third or
fourth day.
That was an area on the starboard side of the aircraft, the
right side of the aircraft, that had the appearance of a
significant amount of material missing. Now, I would also add
that what is important in the evaluations of the damage was the
missile size that was the most prevalent and available to have
penetrated the aircraft or was of the most reasonable threat
was 3.5 to 4 inches in diameter. That is a critical dimension.
This pickle fork area, I overheard the supervisor running
the operation in briefings, again, of dignitaries and other
officials, indicating that there was material missing about
like this. Well, the hands, I first of all noted, were in a
curved manner, which was not consistent with the damage, but
second, it was also roughly 3.5 to 4 inches or 6 inches in
diameter. So I saw that several times and I thought I probably
should step in and try to clarify this, to nip this in the bud,
because that was, I saw, fueling--no pun intended--the
perception and drawing out the theory that the missile caused
the damage.
So I went to the supervisor and I said, let me, if you have
got a few minutes, let me describe to you the process by which
a metallurgist or material scientist, or in this case, I
conclude that there is not--there was only about an inch to an
inch-and-a-half of material missing from this site. So I
proceeded to take him through the logic processes. I actually
used cardboard and cut-outs and got him to agree that the
fracture here was of this shape and we cut the cardboard to the
fracture shape.
We went to another portion of the hangar and I got an
agreement that these fractures, in fact, matched. This is where
it is from, in the front portion of the fuel tank and the
starboard side, and proceeded to then show, OK, now, if we
unfold this folded material, there is an additional 3 inches. I
went through the whole process and got him to agree that there
was only 1 to 1\1/2\ inches of material missing.
The very next day, I heard the same story to the next group
of dignitaries he was briefing, so I thought, well, I will try
this again. So I went back that day or the next day and went
through the same process again, and 2 days later, the same 3.5
to 4 inches of material was missing from this pickle fork area.
At that point, both the bomb techs and I threw up our hands
and----
Senator Grassley. Can you give me the name of the
individual involved?
Mr. Tobin. That would be SSA Ken Maxwell.
Senator Grassley. Thank you. Did they continue to--I think
you have answered that. Let me ask you if you have any
recommendations as to how transportation disasters should be
investigated by the forensic communities in the future.
Mr. Tobin. I would have several recommendations in that
regard. First, let me clarify, if you do not mind, just one
sentence before I answer that. I would like to make clear that
this was not a usual course of events for FBI-NTSB interaction.
The 25 years that I had been working this and my colleagues had
been working this with the NTSB was a beautiful system. It
worked very, very well. This particular investigation was the
aberration, in my experience. So I would be reticent to suggest
some coarse tuning but rather some fine tuning. So the
observations that I would offer, I would suggest be taken in a
fine-tuning mode.
My first observation is that the outcome or practice of
science for public safety issues of such magnitude should not
be dependent on a single individual's agenda, biases,
idiosyncracies, or the strength of their personality, which it
clearly was in this case.
My second observation or suggestion is that scientists are
not on an equal footing inside the law enforcement community
with the strategic--in the strategic decision making process.
There are a number of examples of that, but, basically,
scientists are, I will not say viewed as second-class citizens,
but, basically, what happens inside the forensic community is
if we corroborate or validate the prevailing theory, we walk on
water. If the science does not validate the prevailing theory,
then the science is just basically ignored.
There are some other issues. I think the third would be
that if there is some fine tuning to be--additional fine
tuning, I would suggest that we revert back to the way that FBI
and NTSB have worked these cases in the past, that the FBI's
interest can be preserved by the presence of a materials
scientist, who is experienced in materials deformation and
damage, working alongside the NTSB, whether it is rail,
maritime, or aircraft disasters, represent the FBI's interest
in determining whether there is or could be potential criminal
activity involved in the cause, and then allow that contingent
to ratchet up whatever additional support or FBI involvement
that there should be.
So that would be my--basically, that the--I think part of
the problem that occurred here was that with the process and
the system being so singularly dependent upon a single
individual, a strong personality individual, that what I was
seeing there in the first 4 to 6 weeks is what psychologists
have found or concluded to be basically what was called group
think, what they called group think, and I saw that very
evident there, where--and that was, if I may explain the term,
was after the Bay of Pigs failure, psychologists determined
one, if not the, major cause of that disaster was that the
decision making process was comprised of individuals of very
similar backgrounds, similar training, similar careers. In that
strategic decision making process, there was no dissenting
opinion within that process.
I saw that there was such a unanimity of opinion that it
was a very--I felt like I was trying to stop a train
singlehandedly going 90 miles an hour there, but that is part
of why I am suggesting that if there is a way of fine tuning,
or if fine tuning is desired, that it should be somehow or
other--and I think the resolution I am offering is by allowing
the materials scientists and a very small contingent to liaison
and represent the FBI's interest. I believe that could go a
long way in reducing the vulnerability of group think, because
NTSB clearly, in my personal experience, are the world renowned
experts in disaster investigation.
Senator Grassley. What you just described here are some of
the same problems that we found in Waco. The experts' advice is
not given a voice. The negotiators and the HRT was in hard
control at that particular time, in that event.
Let me ask you something along the same line, and that is
about advice and about how this went and what needs to be done
for the future. We have had FBI officials claim that the TWA
Flight 800 investigation was so good that it is a model for the
future. Is it a model for the future?
Mr. Tobin. I can only address the materials science and the
scientific issues, but I would say, yes, it is a model, but it
is a model how not to integrate proper science and how not to
integrate the scientific conclusions into the strategic
decision making process. But, clearly, that is on the opposite
end of the spectrum from the term that I believe the model was
intended.
Senator Grassley. Are the problems you encountered during
the TWA Flight 800 investigation characteristic of other
disaster investigations that you have conducted for the FBI?
Mr. Tobin. No, Senator. I will underscore that this was a
singular aberration that was not characteristic of my prior
working arrangement with NTSB or on behalf of the FBI. It was a
beautiful synergy and relationship in every other situation
that I represented the FBI's material interests in.
Senator Grassley. This is my last question, for your
observations or recommendations you might have of what went
wrong with the system with regard to the flow of scientific
information.
Mr. Tobin. A major flaw that I do see in the system is that
it is too easily ignored by the strategic decision makers. I
think if you look at the Unabomber situation, the Richard Jewel
Centennial Park bombing, the TWA 800, the common thread is that
the scientific flow of information is ignored when it does not
support the prevailing theory. And again, that is the basis by
which--part of the basis by which I suggest that scientists are
not on an equal footing in the decision making process within
the law enforcement, or at least within the FBI.
Senator Grassley. You are a breath of fresh air, Mr. Tobin.
You have been very helpful to us for not only appearing today,
but for our getting the necessary background that needs to be
done to make this a valuable contribution to the process of
constitutional oversight by the Congress. I do not know how to
thank you other than just to say thank you. Obviously, you set
an example for a person who was trained to seek the truth, to
work for an organization that is always supposed to seek the
truth and let the truth determine guilt or innocence, and I
think you have lived up to that very well, and particularly you
shine in this otherwise black hole of investigation that we had
in regard to the TWA case. I thank you very much and I will
dismiss you at this point.
Mr. Tobin. Thank you, Mr. Chairman.
Mr. DeMonaco. Thank you, Mr. Chairman.
Mr. Kohn. Thank you.
Senator Grassley. Thank you all.
[The prepared statement of Mr. Tobin follows:]
Prepared Statement of William Tobin, Submitted By Stephen M. Kohn,
Counsel for William Tobin
Mr. William A. Tobin, a former Supervisory Special Agent (``SSA'')
for the Federal Bureau of Investigation (``FBI'') was requested by the
Chairman of the Subcommittee on Administrative Oversight and the Courts
to testify and provide pre-filed testimony for hearings on the
``Administrative Oversight of the Investigation of TWA Flight 800.'' As
a former FBI Supervisory Special Agent Mr. Tobin is required by his FBI
employment contract to submit any written material, including written
testimony before the U.S. Congress, to the FBI for prior review of its
content. This rule remains in effect even though Mr. Tobin retired from
the agency on March 31, 1998.
Because of the FBI's pre-publication rules, Mr. Tobin, at this
time, is not able to submit written testimony to the Subcommittee.\1\
This statement was prepared by Counsel for Mr. Tobin and is submitted
on Mr. Tobin's behalf. Mr. Tobin will testify before the Subcommittee
and will answer questions posed by members of the Subcommittee.
---------------------------------------------------------------------------
\1\ The FBI's pre-clearance regulations appear to conflict with the
Lloyd-La Follette Act of 1912, which ``guaranteed the right of federal
employees to communicate with members of Congress.'' Arnett v. Kennedy,
416 U.S. 134, 150 (1974). The FBI's refusal to recognize the right of
agents to communicate with members of Congress is very troubling and is
not in accordance with either the laws of Congress and the United
States Constitution.
---------------------------------------------------------------------------
Mr. Tobin shall be joined by his two attorneys, Mr. Charles A.
DeMonaco of Dickie, McCamey & Chilcote and Mr. Stephen M. Kohn of Kohn,
Kohn & Colapinto, P.C. Mr. DeMonaco is a former Assistant Head of
Environmental Crimes at the United States Department of Justice
(``DOJ'') and is very knowledgeable concerning the role of professional
scientific conduct in disaster investigations. Mr. Kohn has represented
a number of employees employed at the FBI who have raised science and
management related concerns within the FBI crime lab, including Dr.
Frederic Whitehurst. Mr. Kohn also represents three former FBI
employees in a federal law suit concerning proposed DOJ regulations
related to FBI employee protection.
william a. tobin
On June 27, 1971, Mr. William A. Tobin was appointed a Special
Agent for the FBI. Before joining the Bureau, Mr. Tobin served three
years in the Marine Corps--two in active combat duty in the Republic of
South Vietnam. While in the Marines he received the Bronze Star with
Combat ``V,'' two crosses of Gallantry and twenty additional military
combat decorations. After joining the FBI he worked organized crime and
police corruption in Chicago, and general crimes in Detroit. In
September, 1974 Mr. Tobin was assigned as a forensic metallurgist in
the FBI crime laboratory in Washington, DC. In 1976 he was promoted to
a Supervisory Special Agent and in 1986 became the civilian equivalent
of the FBI's Chief Forensic Metallurgist. In this position, Mr. Tobin
was the leading expert, nationwide, in the law enforcement community on
forensic metallurgy (i.e. the examination and analysis of material's
deformation and damage).
In this position, Mr. Tobin was qualified as an expert witness on
behalf of the FBI or the U.S. Government in over 200 local, state and
federal courts. He served as the FBI's leading forensic metallurgist on
thousands of cases, such as the UNABOM, Judge Robert S. Vance mail bomb
murder case and numerous accident/disaster cases (i.e. the Escambron.
Beach Puerto Rico Oil Spill, the Willow Island West Virginia Scaffold
Collapse, the Wilberg Coal Mine Disaster in Utah, the Panama City
Florida Train Derailment, the USS Iowa explosion and the Mobile,
Alabama Train Derailment). In his 24 years in the crime lab Mr. Tobin
provided forensic analyses in approximately 75-100 aircraft incidents
(i.e, ranging from mechanical failures to suspected sabotage to actual
crash damage examinations).
In regard to the July 17, 1996 crash of TWA Flight 800, Mr. Tobin
arrived in New York at the crash reconstruction site on August 4, 1996.
He devoted his efforts as the FBI's chief metallurgist at the crash
reconstruction site for 89 straight days, and as necessary thereafter.
The science of metallurgy is the only scientifically appropriate
discipline to evaluate metal damage and causes of the metal damage of
the recovered parts of Flight 800. Mr. Tobin was the most
scientifically qualified and experienced metallurgist involved in the
evaluation of the crash damaged materials in the law enforcement
community.
Mr. Tobin repeatedly raised concerns to FBI personnel and officials
who were in control of the ``criminal'' investigation of the crash of
TWA Flight 800. Mr. Tobin will answer questions regarding the concerns
he raised, the bases for these concerns, the administrative response to
these concerns and the impact of these concerns on future disaster/
public safety investigations.
For three decades Mr. Tobin loyally and effectively served the
American public, first, in combat, second as an agent for the FBI and
then as a scientist for the FBI. He continuously obtained
``exceptional'' or ``outstanding'' performance ratings and was the
recipient of numerous awards and recognitions, including five separate
commendations and cash awards issued by two directors for the FBI and a
personal commendation from the U.S. Attorney General. At the TWA crash
investigation site in Calverton, New York, Mr. Tobin stressed the
importance of strict adherence to the professional scientific process,
despite the pressures from federal law enforcement officials in charge
of the investigation. The actions of Mr. Tobin, and other investigators
at the crash scene, prevented a false identification of the cause of
the crash. Had Mr. Tobin and others succumbed to the pressure to
validate the ``bomb'' or ``missile'' theories, the public safety of the
American people would have been betrayed.
freedom to raise concerns
The ability of FBI employees, such as Mr. Tobin, to freely raise
concerns within the FBI is of particular concern to counsel for Mr.
Tobin. At the time Mr. Tobin raised concerns to the FBI officials
responsible for overseeing the TWA Flight 800 crash investigation, the
FBI/DOJ internal operating rules prohibited FBI supervisors from taking
adverse action against an FBI employee who raised such concerns.
However, the Department of Justice has proposed new ``whistleblower''
regulations for the FBI. These regulations do not protect FBI employees
from retaliation for concerns raised to their supervisors or other
officials within the Bureau.\2\
---------------------------------------------------------------------------
\2\ These regulations are seriously deficient and are currently
being challenged by three former FBI employees in U.S. District Court.
The regulations only protect employees who contact the DOJ Office of
inspector General, DOJ Office of Professional Responsibility or the
FBI's Office of Professional Responsibility. The proposed regulations
not only fail to protect FBI employees who raise concerns directly to
supervision, they fail to protect FBI employees who report concerns to
the U.S. Congress, the Attorney General, the Director of the FBI or
even the President of the United States.
---------------------------------------------------------------------------
In addition, the regulations do not provide the right to a hearing
on retaliation-related issues, do not provide for judicial review and
do not mandate that an independent judge or agency review retaliation
cases. In short, under the new regulations, an FBI employee, such as
Mr. Tobin, could be fired merely for informing his supervisor that
``bad science'' is involved in a case. In order to insure that FBI
employees in the future will be free to raise concerns, such as the
concerns Mr. Tobin will testify to during this hearing, the proposed
DOJ regulations must be substantially changed.
conclusion
On behalf of Mr. Tobin and his co-counsel, I thank the Chairman and
members of the Subcommittee on Administrative Oversight and the Courts
for the opportunity to share our views and present testimony before
this Subcommittee. The importance of effective oversight cannot be
underestimated in insuring the effective operation of government in its
law enforcement and public safety capacities.
Senator Grassley. At this point, I would like to ascertain
if a Mr. Andrew Vita, our next witness, is in the audience. He
is here? Then we are going to proceed with Mr. Vita. Would you
come forward, please.
As I said, Mr. Vita is our third panel. Andrew Vita is his
entire name. He is Assistant Director of the ATF for Field
Operations. Mr. Vita's testimony is of great value to the
subcommittee. He has many years of experience as a Federal law
enforcement officer and as a senior manager within the ATF. He
also has a reputation for high integrity, and I thank you for
that. He was directly involved in the issues surrounding the
ATF CFI report.
Mr. Vita also rushed back to Washington, and this is why I
owe him a particular thank you, because he did it at much
inconvenience to him and his family. He had previously had a
weekend planned over Mother's Day, and so, obviously, it is an
inconvenience not only to him, but his family. So we are very
appreciative of your being here, Mr. Vita.
I have sworn other witnesses, so I would like to have you
rise and raise your right hand and say, do you promise to tell
the truth, the whole truth, and nothing but the truth, so help
you, God?
Mr. Vita. I do.
Senator Grassley. Thank you. As I have asked everybody
else, an opportunity to say whatever they want to, but at the
very least, I would like to have you share your background,
your expertise, and what your role was in the TWA
investigation.
TESTIMONY OF ANDREW VITA, ASSISTANT DIRECTOR, FIELD OPERATIONS,
BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS
Mr. Vita. Senator, I have been with ATF for 29\1/2\ years.
I began my criminal investigative career in Chicago as a
Special Agent and have moved up through the organization in
various positions of increasing responsibility.
During that tenure, I have also been the supervisor of one
of our national response teams. I had that responsibility for
3\1/2\ years while I was the ASAC in Philadelphia, during which
time I had an opportunity to conduct a number of investigations
of major explosive and fire scenes that have occurred around
the country.
In addition to that, since coming into headquarters, I have
overseen the development of the majority of our criminal
enforcement programs, both in the firearms and explosives
areas, as well as our other areas of responsibility, and
currently, I oversee all of our field operations.
Senator Grassley. Before I ask questions, do you have
anything you would like to open with?
Mr. Vita. No, sir. I do not have an opening statement.
Senator Grassley. We have just delivered the copy of the
ATF report. Is this the report that was prepared by the ATF
certified fire investigators in 1997?
Mr. Vita. Yes, Senator, it appears to be.
Senator Grassley. Could you explain the bottom line of the
report?
Mr. Vita. I think, Senator, it probably can be best
explained through one section of the synopsis, probably in
better words than I could summarize, and then another section
on the last page of the report.
This document was prepared by our certified fire
investigators, a team of investigators, along with our fire
protection engineer, who reviewed the facts and circumstances
and the evidence that was available on the date on which they
prepared this report. It was to document our investigative
findings and our kind of capturing in time what our opinion was
as to what may have caused the downing of this aircraft.
The report itself was developed over a period of time in
collaboration with representatives from the NTSB and other
investigators who worked on the TWA 800 flight investigation.
The report itself is a documentation of their opinion, based on
theory and scientific evidence. It is critically important any
time we document our findings or our opinion that we not only
provide what we believe to be an accurate representation of the
element that caused this event to occur, but in our process, we
also try and make sure that we investigate as many of the other
potential theories as possible so that we cannot find that
there is a conflict between theories.
As important as it is for us to prove what we believe did
happen, it is equally as important to make sure that we can
show that other theories are not equally as convincing or
compelling. So we will try not only to prove our position, but
will also look to try and disprove other potential positions.
This report was done by three very experienced
investigators who had a great deal of past experience and had
an opportunity to work at the scene in Long Island for a number
of weeks and it really documents their findings. What they say
is that their investigation shows that the center fuel tank
failed as a result of a fuel air explosion. The event occurred
at an altitude of approximately 13,800 feet. The air speed of
TWA 800 at the time was approximately 400 miles per hour. This
explosion caused structural failures of parts of the aircraft
which compromised its airworthiness.
At the time, Senator, you must realize that there was still
investigation going on. There was a number of investigative
pursuits that had to be explored. But what they were trying to
do was document what they saw after evaluating the physical
evidence recovered from that scene and thoroughly examining the
airplane itself, what remained from the airplane, to capture at
that moment what they believe to have been the cause of that
crash.
It also leaves enough room so that there were a few parts
that were missing, as in any puzzle. In this particular case,
there were a couple of electronic components that were not
recovered. There were some pumps and some probes and some other
electronic elements of the system that controlled the fuel
exchange within that aircraft that had not been recovered for a
whole host of reasons.
This report basically documented what we believe most
probably did happen, but that we also had the opportunity that
if those other components were recovered at a later date, or if
additional evidence came to light that was not available at the
time the report was written, that we would be able to explore
the evidentiary value of those new findings to further revise
and refine the final opinion of the reporters.
Senator Grassley. How convinced was ATF that the cause was
a mechanical failure as opposed to sabotage?
Mr. Vita. At the time that the investigators wrote this
report, they saw evidence of a mechanical failure. You bring up
the point sabotage. I would think that if there was an effort
to sabotage this aircraft, there is always the possibility that
the saboteur would try and make whatever event caused the
downing of this airplane to appear to be a mechanical or
accidental nature. That would be a very realistic possibility.
Because we say there was a mechanical failure, to then
further explore the possibility that this mechanical failure
may have been influenced by human intervention was another
issue that had to be explored, as well, and I know as the
investigation continued, we are always looking for evidence of
such behavior. I am not aware that any was found in this
particular case, but it is something that needs to be explored
to its full extent.
Senator Grassley. How qualified were the experts who worked
on this report?
Mr. Vita. The three CFI's that worked on this report, as
well as other people that contributed to it, are probably as
skilled criminal investigators in the fire science and
explosive investigation as there is in Federal Government. I
think these people are the renowned experts, at least within
our organization.
As we progressed through this investigation, I had an
opportunity to travel to New York in late September 1996 and I
had a chance to watch the processing of the evidence that was
there. I had a chance to go through the hangars that were being
used for the reconstruction of various systems that comprised
that aircraft.
While I was there, I had a number of the investigators that
were working from ATF, from the NTSB, from the FBI, and the
other contributing agencies give me a series of briefings on
the progress of that investigation. As I watched and listened
and made my own personal observations, as well as processed the
information that they were providing, it was very important for
me personally to understand the theories that were being
provided so that I could understand and that I would feel
comfortable with conveying a final report on behalf of ATF as
to the origin and cause of this matter.
When I supervised the National Response Team, I tried in
every investigation to remain neutral as our investigators, our
scientists, and all of our other technicians reviewed the facts
and circumstances of their investigation, and only at the end
of that investigation did I allow each of them to kind of brief
me and try and explain to me and convince me that this is, in
fact, what actually did happen in the series of events.
I did the same thing with this report. As the investigators
proceeded with it, I had periodic briefings, and then when they
kind of concluded with the investigation, at least as far as
processing the evidence that was available, I had them come
into Washington and provide a briefing for me and explain to me
their theories, and I listened and I asked a lot of questions
about some contrary opinions and some other views that may have
conflicted with their theory.
Throughout their examination and discussion, they were able
to provide a very compelling argument for the theory that they
provided, and I think even on one of the reports that I saw
from them, I had written a note that it appears that the
conditions are very ripe for the theory that you have
described, but it is critically important that you are able to
say exactly what caused the spark that may have been the
initiator that caused this event to occur.
At the time we discussed this, the key elements of that
decision were not available, and those were some of the pumps
and some of the probes that were a part of that system. Because
they were not available, we could not actually analyze those
elements, which could be very important to the final decision,
but the conditions certainly existed at that time in that
center fuel tank of that aircraft that it appeared that a
mechanical cause was probably the cause of the downing of that
airplane.
Senator Grassley. When the report was concluded, you
attempted to deliver one copy to the NTSB and one copy to the
FBI. I am going to send something up for you to look at, but my
general question is, would you tell us what happened subsequent
to that? What we are delivering to you, are these your
handwritten contemporaneous notes that were made, and could you
walk us through the sequence of events as reflected in this
chart here?
Mr. Vita. Yes, Senator, this does appear to be my
contemporaneous notes. As we concluded our portion of that
investigation, we discussed how the information should best be
conveyed to the appropriate authorities who were responsible
for that investigation. Those deliberations include not only
representatives from ATF, but also representatives from the
Department, so that we could properly and most professionally
deliver our findings and our opinions at that time to the
appropriate authorities.
We briefed the Under Secretary's office, the Under
Secretary of Treasury's office, in February 1997. At that time,
I had the same team that briefed me in December come back with
the answers to the questions that I had presented to them, as
well as any more additional or conclusive findings that they
may have developed, and provide a briefing to the Under
Secretary's office.
At the time, the Assistant Secretary for Enforcement was
Mr. James Johnson, who was present during that briefing. I
believe Under Secretary Kelly was unavailable on the date that
we brought our people in. But we went over and discussed the
issues and talked about our findings and the status of our
review and report and how it should best be conveyed to the
appropriate authorities.
During the same time, I had an opportunity to talk both by
phone and in person with Bill Esposito. Bill was, at the time--
I am not sure if he was the Assistant Director for their
investigators or he had been promoted to the Deputy Director,
but at some point during our very cordial relations, that
promotion occurred, and I am not sure where he was at the time
we had our discussions.
But during those discussions, I had mentioned to him what
our people were doing on scene and what this report that we
were going to put together was going to be. I explained to Bill
that it was, again, as I mentioned, kind of a snapshot in time
and documentation of what we had viewed and kind of what our
opinions of as to the cause and origin of that explosion.
I had asked Bill--I had advised Bill that we would be very
happy to provide a similar briefing for the Director of the
FBI, as well as Bill and other representatives of NTSB and the
FBI at any time on our findings and our recommendations. We
were working to convey and kind of put that session together,
and I kind of left it in Bill's hands to set that up. The last
discussion that he and I had had on that topic was that he was
going to look into the availability of the people that would
like to participate.
Once our investigation, at least that point of the
investigation, had concluded, we finally decided that it was
important to convey that report as quickly as possible to the
appropriate authorities, and at the time, the FBI out of the
New York office was in charge of the investigation, as we
understood. So we had asked that our Special Agent in Charge in
New York, who was Jack Balles at the time, convey that report
to the Assistant Director for the FBI, who was Jim Kallstrom. I
believe that occurred on about--right around March 13, 1997.
In Jack's initial attempt to deliver the report, he met
some resistance from the FBI as to accepting the report, and
eventually, I had to intervene and directed Jack to make sure
that that report was delivered to the FBI.
Prior to coming to ATF, I was a designer and my background
and training were such that as I reviewed the findings of our
investigators that was documented in the report, that I had an
understanding of the possibility that perhaps there could be a
design flaw, if the opinions that were reflected in this report
were accurate, that there could be a design concern within the
construction of that aircraft that could be common to other
airplanes made by that same company at or around the same time.
I know in most products, as they go through an evolutionary
design, they are improved periodically as the product is
remanufactured, and I would be sure that, as time went on, that
design that may have been present in the airplane that was made
when this plane was may not have been consistent for a great
amount of time after that airplane was kind of readdressed or
maybe redesigned.
So I wanted to make sure that if this design characteristic
that was found in this airplane, if that was present in other
planes of that same vintage, that the appropriate authorities
would have an opportunity to examine those aircraft to ensure
that the same occurrence that happened on July 17 did not
reoccur on another aircraft of similar design.
So it was very important to me, both from a criminal
investigative perspective and from my past design background,
that the appropriate information was delivered to the
appropriate authorities so they could make those judgments, and
if there was corrective action required, take that corrective
action.
Senator Grassley. Following up on what you just said, and
not disputing anything that you said, I want to, in regard to
how these notes would have been received, ask in regard to Mr.
Kallstrom, is it true that he would not take them at first, but
later was kind of forced to take them?
Mr. Vita. Well, I had gotten most of my feedback from one
of my deputies who was in discussions and consultation with the
SAC in New York and he conveyed to me that the FBI was
reluctant to accept the report that we had written. It was my
opinion that it was so important, that that was unacceptable to
me, and that is when I directed our Special Agent in Charge to
ensure that the FBI did get a copy of that report on the date
that we were trying to convey that to them.
Senator Grassley. Then is it your understanding that Mr.
Kallstrom called Assistant Secretary Kelly in order for the
report not to be released?
Mr. Vita. Well, I can only interpret that from occurrences
that came about after that first contact was made. I had
received information from Director John Magaw, the Director of
ATF, from conversations that I understood him to have had with
Under Secretary Kelly about the delivery of the report. In my
past conversations with Jack Balles, it appears that after he
delivered the report to Mr. Kallstrom, that Mr. Kallstrom may
have contacted Under Secretary Kelly directly about that
report, and I do not know exactly what was discussed in that
conversation.
Senator Grassley. Do you have reason to believe that Mr.
Magaw conveyed public safety concerns to Mr. Kelly but that Mr.
Kelly disagreed?
Mr. Vita. Well, I know that the Director, Director Magaw,
and I discussed this matter throughout this chain of events and
we both were very concerned about the safety of the flying
public and we wanted to make sure that the information was
conveyed to the appropriate authorities.
Senator again, I make a distinction between the report and
the information. It was most important for me that the
information got to the appropriate authorities. If it was
conveyed formally through that report, that would have been
fine. But if it was not, as long as the information got to the
appropriate authorities, that was the critical point for me.
Senator Grassley. So in the final analysis, the NTSB never
did get the report officially, but it did get a bootlegged copy
of it, and the information was shared with the National
Transportation Safety Board?
Mr. Vita. Immediately upon finding that there was some
difficulty in getting that report to the FBI, I made contact
with the investigators that wrote the report, the three CFI's.
I talked to one of the three CFI's and asked him how involved
the NTSB was in developing the theory that they had documented
in their report. They convinced me that the NTSB had
collaborated in a lot of the investigative work that had been
done and were very familiar with the information that was
documented in their report. As long as I was comfortable with
the fact that the NTSB officials were familiar with the
information, I was comfortable with the fact that that had been
timely referred to that authority.
Senator Grassley. Could I ask you to refer to your first
notation, quote, as I read your handwriting, ``Kallstrom upset
with report, locks him into eliminating missile.'' Would you
explain that, your handwritten note?
Mr. Vita. Yes, sir. The notations to the left of the quote
that you just referred to is a time, a phone number, and
another name. The name there is Donnie, which would have been
Donnie Carter, who is one of my Deputy Assistant Directors, who
would have been in direct contact with Jack Balles. That was a
note that I had kind of scribbled, scratched to myself after I
had talked with Donnie, who had advised me that, from the
conversation that he had with Mr. Balles, that this was the
impression that was given to him, that a reflection of Mr.
Kallstrom's response to the report.
Senator Grassley. Do you think insinuated in that is that
if that were true, if you eliminated the missile, then the FBI
would not have a case?
Mr. Vita. I do not know if I would say that, Senator, but I
just documented what the response was, that Mr. Kallstrom had
some concerns about the report.
Senator Grassley. OK. Now, could I ask you to look at your
second memo and explain that. You also have that in front of
you.
Mr. Vita. Yes, sir. That is a contemporaneous note that I
wrote to myself as we went through this process. If I can,
because of the glare, I will refer to a copy that I have here
before me.
Senator Grassley. Could you just read No. 2 there, in your
handwriting?
Mr. Vita. Yes, sir.
Senator Grassley. It goes also over to page three.
Mr. Vita. No. 2 says that, ``We have what we believe,
whether right or wrong, evidence of possible design flaws in
Boeing 727 airplanes''--now, 727 is a mistake, sir. It should
be 747, but as I was writing here, I wrote the wrong number
down.
Senator Grassley. OK.
Mr. Vita [continuing]. ``Which, again, we believe to be
responsible to be responsible for the downing of TWA Flight
800. This same configuration exists in possibly 100 similar
planes in the United States, which could result,'' it looks
like--I am having trouble reading my own handwriting, Senator.
Senator Grassley. I think it is ``result.''
Mr. Vita [continuing]. ``Result in another similar air
disaster.'' This is a xerox copy and it is a little bit tough
to read.
Senator Grassley. Yes.
Mr. Vita. Then going on to the next page, ``and we are
being ordered not to release that information to the
appropriate authorities for no compelling good reason to risk
hundreds of human lives.'' That is what it says, sir.
Senator Grassley. Did your agency agree with this
assessment?
Mr. Vita. When you say my agency, I can only express that I
believe that this was kind of my documentation of my thoughts
at the moment, after discussions with Director Magaw. I believe
he shared a lot of the same feelings.
My real concern was that the information, again, Senator,
was given to the appropriate authorities, and at the time,
Under Secretary Kelly was a member of the Presidential
Commission on Aviation Safety and Security, and I was of the
understanding that if the Under Secretary saw that there was
some concern for the safety of the flying public, his role in
that commission would certainly have been an excellent
opportunity for him to share that with the appropriate
authorities. So I was confident that that would be done, and in
my discussions with our agents about the drafting of their
report, I was also confident that the NTSB was aware of the
information that we had developed.
Senator Grassley. What is the difference in the
methodologies between the way that the FBI investigates an
incident and the way the ATF does? For instance, ATF
investigates accidents, but the FBI does not. How did this
difference affect the TWA investigation?
Mr. Vita. There are probably several differences in our
methodology in approaching those type investigations. Any major
event, whether it is a major fire or an explosion, we go to the
scene and try and get to the heart of where and how the
explosion occurred, whether it was an explosion that may have
caused a fire or if it was a bomb of some type, or even an
accidental explosion.
We have authority under title 18 to examine not only
criminal locations or criminal acts, but also accidental
explosions, where there is a reasonable cause to believe that
explosives could have been present.
When we approach that investigation, we have no
preconceptions whether it was the hand of a criminal act or if
it was an accidental cause to that particular situation. We try
and examine the scene from the heart out. We go to the heart of
the scene and follow the scientific evidence that we recover
and evaluate to lead us to follow-up investigation, whether it
be interviews or additional scientific work that needs to be
done.
We try and focus our investigation at the scene of the
crime, or scene of the occurrence. Oftentimes, I have seen the
FBI's approach being differently in that they will try and take
evidence from the scene to a separate location where they will
reconstruct the situation as best they can. That is a little
different approach than we take. We try and keep everything
right there.
But, of course, when you deal with a mid-air crash such as
this or mid-air explosion, there was no way possible that
anyone could examine the evidence recovered at the location it
was found. It had to be taken up off the ocean floor and
brought to someplace where it could be examined. So that is a
little bit of a difference there.
But we try and focus our investigation on the heart and
cause of the investigation in place and then follow the
evidence to wherever it leads us as far as processing that
evidence and any interviews that we develop.
Senator Grassley. Then how did this difference in
methodology you have just explained affect the TWA
investigation?
Mr. Vita. As I mentioned, Senator, this is one of those
rare circumstances that you could not examine the evidence
where it was found. It is extremely difficult to first locate
all the debris fields that would have resulted from that mid-
air explosion and then retrieve that evidence, bring it up, and
then bring it and catalog it as far as location that it was
found.
As I remember, when I was in Long Island examining the
evidence that had been recovered, the Navy, I believe, had used
some side-scan sonar equipment to help locate the various
pieces of the aircraft that laid at the ocean floor and did, I
thought, an exceptional job. I thought that was a terrific use
of technology to try and identify where pieces of that airplane
ended up at the bottom of the ocean floor.
Those debris fields often--in this case, did provide the
investigators some very valuable information as to what may
have broken away from the airplane first in the course that the
airplane traveled. They found pieces of the nose in one place.
They found pieces of wing and side panels of the fuselage at
another place. And then they found the wings and the engine
farther down course, which gave the impression, certainly, that
the nose of the airplane was blown free of the aircraft in mid-
air and fell as the rest of the plane proceeded down its
course. There is some extremely valuable information gained
from that. But the side-scan sonar that the Navy provided was
invaluable in trying to document the location of all those
pieces of evidence.
Senator Grassley. Is it your view that the criminal nature
of the FBI's methodology prolonged finding the cause of the
crash?
Mr. Vita. Senator, when you say prolonged, I know that as
you conduct an investigation, there are numerous theories that
evolve during that investigation. There will be theories that
agents within your own agency feel very strongly about that you
need to further examine and totally explore until you exhaust
all the potential for those leads.
Only when everyone is of the common understanding of the
cause of that explosion can I feel comfortable with the final
determination made by ATF. I have been on some very complex
investigations where there have been a number of competing
theories that evolve during the early stages of the
investigation. So to say that they prolong the investigation
would be unfair without knowing all the information that they
potentially had. I would expect that they had information of
perhaps a national security concern that I would not be privy
to, nor would I expect them to share directly with me.
But I would expect and hope that if they did have that
information, that they would thoroughly explore those leads
until they were exhausted so that we could be absolutely sure
that the findings that we did come to were accurate and
properly represented the Federal Government's investigation of
that matter.
Senator Grassley. Would you compare for me the FBI and
ATF's methodology in ruling out accidental and/or mechanical
failure?
Mr. Vita. Well, I have not had much experience in dealing
with the FBI in investigating an accidental explosion. Our work
has been--when we have worked with them, in every case that I
can recall, other than TWA 800, it was more from a criminal
investigative nature.
We go in there and try and be as objective as we possibly
can, Senator, as we approach that, and again, not have a
preconception as to what may have caused the fire or the
explosion that we are looking at. We do not go to an explosive
scene and say, this is a bombing. We go to the explosive scene
and say that there was an unexplained explosion here that we
are going to have to determine how it happened, and that could
have been a mechanical cause, that could have been an
accidental cause, it could have been an act of God. There are
all kinds of different events that may have occurred that
triggered the explosion that ultimately caused the plane to
crash. You look at lightning. Was there a possibility that
lightning could have caused it?
Even though we have found what we believe to be the
mechanical cause, we were never able to precisely explain the
arc or the sparking that was the initial detonator to the
explosion. That is something that is done through science and
theory without any firsthand experience or eyewitness accounts.
Senator Grassley. You have advocated pre-incident protocols
as a way to help future investigations. Could you explain what
they are and why you feel they are so darn important?
Mr. Vita. Senator, interestingly enough, every time ATF
responds to a major fire or explosive scene anywhere in the
country, there are other agencies that also have jurisdictional
concerns with those investigations. Invariably, you will have
several agencies responding to a scene and bringing with them a
tremendous amount of expertise, resources, ideas that would be
of great value to the overall impact of that investigation.
We have seen, over time, especially in areas--perhaps I can
use an example of national church arson task force. When there
is a fire at a church or a house of worship anywhere in the
country, ATF, the FBI, and State and local authorities will
most likely be responding to those situations. It is very
important for the efficiency of operations and the public's
trust in the confidence of law enforcement that when we do
respond, we operate very efficiently in a collaborative way and
take advantage of the value that each agency brings to that
scene.
For the last 2\1/2\ years, I have been trying to work--I
started to work with Bill Esposito in developing pre-response
protocols that both ATF and the FBI could use when we respond
to major incidents. Too often, there is a dispute over who has
lead agency status when we arrive at the scene, and that lead
agency status oftentimes dictates to which laboratory evidence
that is recovered is going to go for processing.
We need to have protocols in place so that when we do
respond to those major incidents, that all responding agencies
are working together, bringing the valuable assets and
expertise that they have to that scene, and work together
toward dealing with and identifying the source and the cause of
that explosion or fire, whichever the case may be. It is
important that we have these pre-incident protocols so that we
do not have to rely on agency relationships in the field,
personalities that may sometimes influence the way people work
together. It is really critically important that we have this
plan in place for the efficiency and effectiveness of our
operations.
Senator Grassley. Is the ATF explosives unit accredited?
Mr. Vita. Our laboratory is, sir, if that is the question.
Senator Grassley. Yes.
Mr. Vita. Our laboratory is accredited, yes, sir.
Senator Grassley. When was that done?
Mr. Vita. I believe that we were accredited in 1984.
Senator Grassley. And is the FBI explosives unit
accredited?
Mr. Vita. I do not know, sir. Not that I know of.
Senator Grassley. I am done asking questions. Once again, I
know you have gone way out of your way to be with us today and
we really appreciate it. You and the ATF have been very
cooperative, and most importantly, you have expressed from the
early days of the investigation your concern about public
safety and the work with the National Transportation Safety
Board and the airlines to get that information out. Everybody
that travels by air owes you a great deal of gratitude for that
approach. We thank you very much for your testimony.
Mr. Vita. Thank you, Senator.
Senator Grassley. Our final panel, we have representatives
of the FBI. We have Dr. Donald Kerr, Assistant Director of the
FBI in charge of the Laboratory Division, and we have Mr. Lewis
Schiliro, Assistant Director in Charge of the New York office.
I have had the occasion to work with Dr. Kerr and he has
made many much-needed changes in the FBI lab, and not only for
myself but for the American people, we thank Dr. Kerr for that.
Mr. Schiliro is Mr. Kallstrom's successor in the New York
office and we welcome both of you here.
Before you get seated, if I could go through the process of
asking you to raise your right hand and say, do you promise to
tell the truth, the whole truth, and nothing but the truth, so
help you, God?
Mr. Kerr. I will.
Mr. Schiliro. I do.
Senator Grassley. Thank you. Be seated. I assume, Dr. Kerr,
in your position as Assistant Director, we should start with
your testimony and then go to Mr. Schiliro, and then we will
have questions afterward.
PANEL CONSISTING OF DONALD M. KERR, ASSISTANT DIRECTOR,
LABORATORY DIVISION, FEDERAL BUREAU OF INVESTIGATION; AND LEWIS
D. SCHILIRO, ASSISTANT DIRECTOR IN CHARGE, NEW YORK DIVISION,
FEDERAL BUREAU OF INVESTIGATION
STATEMENT OF DONALD M. KERR
Mr. Kerr. Thank you, Mr. Chairman. I will assume that the
rather long statement could be submitted for the record.
Senator Grassley. Yes. Let me make it clear for both of
you. We are aware of the fact that you have a long statement.
It will be included in the record as submitted, and the most
recent revision will be included, as well, and the same for Mr.
Schiliro, if you could summarize.
Mr. Kerr. That is good. We have saved a lot of your time,
Mr. Chairman.
Senator Grassley. Normally, in 5 minutes, we ask you to
summarize.
Mr. Kerr. What I would like to do is just quickly hit a few
points about the present status of the FBI laboratory, our
plans for responding to major crime and the scenes of other
incidents, and a few other points that I think are material to
the interests you have today.
First of all, with respect to accreditation, the FBI
laboratory has been accredited in all eight of the disciplines
for which accreditation is offered by the American Society of
Crime Lab Directors, and that took place last September.
In areas where no accreditation is offered by ASCLD, such
as digital evidence and certain areas of explosives
investigation, we, in fact, are leading international efforts
to try to come up with standards, guidance, and protocols that
would support that. In the case of digital evidence, we chair
the Interpol group, as well as the standards working group in
the United States. In the case of explosives, we are working
with colleagues from ATF, and more importantly, with people
from the United Kingdom, Ireland, Israel, Germany, and
Australia in order to build up a body of knowledge to which
people could be tested and shown proficient.
Last, with respect to the laboratory's current structure,
we have, in fact, divided it into three branches, one of which
deals with the traditional work with evidence and provides
forensic examinations in all the disciplines. A second provides
investigative technology support to our field offices and
investigators. And the third includes, among other things, the
response capabilities of the laboratory, which I will explain.
Those latter are driven by our experience during the East
Africa bombing investigations, after the embassy explosions,
informed, as well, by the TWA 800 involvement that we had and
prior major bombings, as well.
The FBI now has five rapid deployment teams with people
identified by name. They are teams of investigators,
scientists, and engineers. Each is based on one of our field
offices, for example, New York, with Mr. Schiliro has one of
them. Two are based on our Washington field office, one on
Miami, and one on Los Angeles.
The Laboratory Division provides the scientific and
technical component of that deployment team. They are, when on
duty, expected to be able to move in a period of 4 to 8 hours.
It includes a senior section chief from the Laboratory Division
who then becomes the agent in charge scientific advisor on
scene, backed up by Laboratory Division people here in our op
center, just as we did it during the African Bombing case.
The roughly 20 people as part of the technical team, they
are chosen from the disciplines that fit the incident. So, in
fact, if it is a bombing, it would be rather heavier in
chemists and explosives examiners and trace examiners. On the
other hand, if it was another kind of event, it would have a
different makeup, including people, for example, from the DNA
Unit.
The other response capabilities that we include are drawn
from our Bomb Data Center, which not only trains the bomb techs
for State and local police forces across the country, but also
the FBI bomb techs. Our senior bomb techs within the Bomb Data
Center also have rendered safe authority for improvised
explosive devices. They work closely with the Hazardous
Materials Unit, which deploys when weapons of mass destruction
are suspected. They are the people who deal with the chemical
and biological threats, the majority of which, you are aware,
have been hoaxes in the last months.
We have mobile laboratories that we can deploy, designed by
the Army, actually, for treaty monitoring purposes, but it is a
flyaway laboratory to support this kind of thing.
The last part of our deployment capability is one that came
into play during TWA 800, as well. You have spoken so far about
the people from the forensic examination part of the division.
We are also responsible for the FBI disaster squad, which is
used for disaster victim identification, largely based on
latent prints as a discipline, increasingly using mitochondrial
DNA techniques, as well. So those people deployed in addition
to the roughly 60 who deployed on TWA 800 from the Laboratory
Division.
The first examiners on site were from what is today the
Materials and Devices Unit, which encompasses a lot of what
used to be the explosives group, and at the same time, the
disaster squad appeared to work in conjunction with the medical
examiner to help with identifying the victims as the remains
were brought back.
Two of the laboratory staff members received significant
recognition for their participation. One was Bob Heckman, who
was, in fact, the examiner in charge of the case for the
Laboratory Division and had a lot to do with the day-to-day
interaction with the New York Field Office. The other was Steve
Burmeister. Dr. Burmeister is head of the Chemistry Unit, and
they are the people who did the work examining the explosive
residues and determining what they were. It was a difficult
piece of work to do because those pieces of debris had been in
the ocean, so finding it at all was a major scientific feat.
A number of other people were recognized at a somewhat
lesser level for their performance, among them, Mr. Tobin, who
just testified to you.
We now plan for some of the coordination that you are
concerned with joint training with NTSB. In fact, there is work
ongoing for cross-training between the NTSB crash investigation
courses and the courses that our evidence response teams get to
be trained. We are responsible for training some 1,000 members
of the evidence response teams in the field offices. It is a
thing that started a few years ago. It is coming to a greater
level of maturity today. But it is, in fact, the people who are
most likely to be working the crime scene for the FBI before
laboratory people arrive, and so the concern is that they be
well-versed in discovering, recovering, preserving, properly
packaging evidence for shipment for examination.
And lastly, a specific follow-up, again, from TWA 800, is
the work we are doing with the Department of Energy's Pacific
Northwest laboratory, together with the Naval Air Warfare
Center, and, in fact, to do a specific set of field tests
involving man-portable air defense systems fired at
aerostructures to determine, in fact, what those aircraft
structures look like after missile impact and also to look at
what forensic information might be available from the firing
position, because it turns out, for all the talk about these
sorts of things in the past, that fundamental data is missing.
And while metallurgists and others had some sense of what
they might look for in the debris from the airplane, in fact,
at the firing position, people have rarely, if ever, looked for
specific information that would be probative in terms of
investigation. And even with respect to the damage to the
aircraft itself, in most of the studies conducted by the
Department of Defense, their concern ends when the airplane is
hit and not so much with looking at damage mechanisms that
might have forensic value to us. So we are trying to remedy
that lack of knowledge at this point in time.
And that, Mr. Chairman, completes the update I wanted to
give you and we can go on.
Senator Grassley. Thank you, Dr. Kerr.
[The prepared statement of Mr. Kerr follows:]
Prepared Statement of Donald M. Kerr
Good Afternoon, Mr. Chairman and Members of the Committee. Thank
you for the opportunity to appear before you this afternoon to address
the role of the FBI Laboratory in the investigation of TWA 800.
As you may know, I did not become Assistant Director of the FBI's
Laboratory Division until October 1997, more than a year after the
explosion of TWA flight 800 off the Long Island shore. I am familiar
with the performance of Laboratory personnel in that investigation,
however, and am happy to answer any questions you may have in that
regard. Before discussing the details of the Laboratory involvement in
that investigation, I would first like to provide a brief overview of
current Laboratory operations.
I. Current Overview Of The FBI Laboratory
First, and foremost, the FBI Laboratory is stronger, more
efficient, and better organized than it has ever been before. This is
due in part to the important role of oversight, including that provided
by this Committee, in ensuring the effective performance of all
components within the Laboratory. Perhaps the most significant
achievement during my tenure as Assistant Director has been the formal
accreditation of the Laboratory by the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB).
Even before it became an official recommendation by the Department
of Justice, Office of the Inspector General (OIG), accreditation by
ASCLD/LAB was among the top priorities of Director Freeh. During the
past several years, the Laboratory has undergone numerous internal and
external reviews, enhanced its quality assurance system, and modified
its policies, practices and procedures in preparation for
accreditation. The FBI Laboratory includes eight disciplines for which
accreditation is available through ASCLD/LAB. Those disciplines--
Controlled Substances, DNA, Serology, Firearms/Toolmarks, Latent
Prints, Questioned Documents, Toxicology, and Trace Evidence--were all
fully accredited by ASCLD/LAB on September 11, 1998.
Two of the scientific disciplines that I believe are of particular
interest to the Committee--explosives examinations and metallurgy--are
not accreditable by ASCLD/LAB. With regard to explosives examinations,
however, the chief of the FBI's Materials and Devices Unit, Dr. Tom
Jourdan, has been tirelessly pursuing a program to provide for
accreditation of explosives and hazardous devices examinations. Toward
that end, Mr. Jourdan has examined protocols and policies of forensic
laboratories worldwide and engaged in the exchange of information with
France, England, Ireland, Israel, and Australia. As a result of these
efforts, Dr. Jourdan hopes to present ASCLD/LAB with an accreditation
program for explosives and hazardous devices at its annual meeting this
September.
As for metallurgy, it is not presently an accreditable discipline
under ASCLD/LAB for several reasons. First, forensic metallurgy is a
narrow field of science with a very limited number of qualified
experts. Second, metallurgical examinations are varied and often
require a number of novel examination approaches. Since examination
protocols must necessarily be general in their application, ASCLD/LAB
has not developed a program for certifying the metallurgical
examination procedures.
Although only eight of the Laboratory's disciplines were subject
to, and approved for, ASCLD/LAB accreditation, all of the other
disciplines throughout the Laboratory, including explosives and
metallurgy, are held to similar standards.
a. restructuring of the laboratory division
In February, 1997, the FBI Laboratory sought approval from the U.S.
Department of Justice and the Office of Personnel Management to
establish four senior-level scientists positions in the following
disciplines: biological sciences, chemical sciences, physical/materials
sciences, and computer/information sciences. Due in large part to the
exemption from Title V hiring restrictions granted by the Congress, the
Laboratory was able to select individuals who possess exceptional
qualifications for these positions.
In addition, the Engineering Sections at the Engineering Research
Facility at Quantico, Virginia have recently been assimilated into
Laboratory operations. This restructuring will be particularly
beneficial following the relocation of the FBI Laboratory to its new
facility in Quantico. Construction is currently underway with a target
relocation date of 2001.
b. expansion and upgrading of programs
During the past several years, the nation has witnessed several
major catastrophic events which have required the immediate deployment
of Laboratory personnel. The explosion aboard TWA 800, as well as the
bombing of the federal building in Oklahoma City, highlighted the
critical need for immediate assistance of scientific experts and
evidence technicians at such mass disaster scenes. As a result, the FBI
Laboratory established five Rapid Deployment Teams (RDT's) to respond
to future crises.
Each of the teams includes Laboratory examiners and technicians, as
well as a senior-level Laboratory manager who serves as Team Leader and
liaison with the on-scene commander. Although the teams are configured
primarily to address bombing and hazardous materials incidents,
personnel from any discipline may be assigned depending on the type of
event requiring their assistance.
The FBI's Evidence Response Team Program has continued to expand
and Evidence Response Teams have been deployed around the world to
major bombing crime scenes, most recently in East Africa. There are
presently over 100 teams located in the various FBI Field offices.
Approximately 700 Agent ERT members have received post-blast bombing
crime scene training.
In February, 1997, the Explosives Unit of the FBI Laboratory was
restructured, separating the Bomb Data Center (BDC) from the unit and
merging the remainder of the unit with most functions of the Materials
Analysis Unit to form the Materials and Devices Unit (MDU). The Chief
of the MDU, Dr. Tom Jourdan, holds a Master's Degrees in Synthetic
Organic Chemistry and Nuclear Chemistry, a Ph.D. in Chemistry, and has
completed the U.S. Navy's Explosive Ordnance School, Basic Demolition
Course.
Under Dr. Jourdan's leadership, the MDU has increased its personnel
resources and technical capabilities. The MDU has four broad areas of
responsibility: examinations of evidence associated with bombing
matters, elemental analyses, scanning electron microscopy, and
metallurgical/materials science examinations.
The bombing matters examinations involve the identification and
intended function of recovered bomb components, as well as direct field
support in bombing crime scenes. During the last couple of years, the
following individuals have been added to the staff of the MDU.
Five bomb component and reconstruction examiners who have recently
joined the MDU:
John K. Underbakke, B.S. in Criminal Justice, over 12 years of
explosives training and experience in the military. Chief of the Army
EOD Training Department and the Hazardous Devices School. Experience as
field Evidence Response Team member.
Rex A. Stockham, B.S. in Chemistry, formerly worked as a Physical
Science Technician in the MDU prior to going to Agent's Training.
Michael W. Hughes, B.S. in Chemistry, formerly worked as a Physical
Science Technician in the MDU prior to going to Agent's Training.
John W. McSwain, B.S. in Accounting, Special Agent Bomb Technician
(SABT) for over 5 years. Extensive experience in major bombing matters
to include OKBOMB, SOURGAS, and East Africa Embassy Bombings.
Mark Withworth, B.S. in Aeronautical Engineering, SABT for four
years. Extensive experience in bombing matters, to include a number of
international bombing scenes.
Metallurgists:
Dr. Mike Smith, Senior FBI metallurgist who is presently receiving
cross-training as an explosives device examiner.
Eric Jensen, M.S. in Physics.
In addition to its present staff, two applicants have been selected
to join the MDU and are currently in a background investigation phase.
One individual has a Ph.D. in Inorganic Chemistry and postdoctoral work
in the areas of energetic materials, as well as analytical chemistry.
This individual directs research and development for the testing of
energetic materials and has conducted contract research for a number of
domestic and international agencies. He brings with him significant
hands-on experience with explosives. The other applicant has an M.S.
degree in Physics. He is also a research scientist who has directed
operations and research programs which involve the field testing of
improvised explosives. In addition, he has managed the mathematical
modeling of these energetic materials.
The staffing concept of the MDU has been to meld together
individuals who possess extensive experience in hands-on, post- blast
bombing crime scene search and component recognition/reconstruction
with scientists who possess strong explosives backgrounds and academic
credentials that complement and support the collection and examination
processes, as well as research and development activities. It should be
noted that in any major bombing investigation, the Laboratory employs
an interdisciplinary team approach in which the MDU examiners work with
colleagues from the Chemistry Unit and other forensic units of the
Laboratory, as well as field crime scene search and bomb technician
personnel.
In furtherance of its training mission, the MDU has centralized the
FBI's post-blast investigations training and staffed it with the SABT
instructors who also conduct the forensic bomb device examinations and
reconstructions.
As a separate unit, the BDC has expanded and upgraded a number of
its programs. SABT's have received expanded training and now, upon
request, can assist as well as provide training to state and local bomb
squads. The BDC provides program management and oversight to the
Hazardous Devices School (HDS), at Redstone Arsenal, Alabama, which is
the only source of certification for public safety bomb technicians. It
also recently hosted a National Bomb Squad Commanders' Conference which
was attended by over 130 participants. In addition, the BDC has been
actively involved in a variety of research and development projects
seeking to increase the technical capabilities of public safety bomb
squads to safely detect, diagnose, and defeat bombs, with an emphasis
on chemical and biological devices and large vehicle bombs. As part of
its mission, the BDC provides planning and operational assistance to
public safety bomb squads during special events, such as the recent
NATO 50th Anniversary Summit in Washington, D.C.
The Hazardous Materials Response Unit (HMRU), which was formed in
1986, has expanded its programs to counteract the threat of terrorism
involving nuclear, biological and chemical weapons. The HMRU has
provided on-scene field support and special event support on an ever-
increasing basis. It has provided training and equipment to FBI agents
so that they can respond to criminal acts involving the use of
hazardous materials.
As a result of its emphasis on nuclear and mitochondrial DNA
programs, the FBI Laboratory has personal identification capabilities
that can materially assist in the identification of remains. Such
capabilities are available to support the identify of victims of mass
disasters, such as bombings and air crashes and complement the
capabilities of the FBI Disaster Squad.
c. partnerships
The FBI Laboratory is committed to and has long promoted
interaction with other Laboratories on specific cases and in technical
working groups examining broader issues. The Laboratory has established
working partnerships with other forensic laboratories, including the
New York State Police, the Texas Department of Public Safety, the
Illinois State Police, and the Minnesota Bureau of Criminal
Apprehension. These partnerships provide for bilateral exchanges in
areas of quality assurance, audits, and training, resulting in stronger
forensic programs for all.
The Laboratory has also been instrumental in the formation and
technical leadership of numerous scientific working groups within the
forensic community. The purpose of the scientific working groups is to
develop and standardize protocols and analytical practices in
disciplines such as materials analysis; friction ridge analysis, study
and technology; imaging technologies; digital evidence, bombing and
arson matters. Many FBI Laboratory examiners serve in leadership roles
in these groups as they seek to bring together national and
international experts to develop procedures, protocols, training and
accreditation guidelines.
Similar arrangements have been developed between the FBI Laboratory
and members of the Federal scientific community. Through partnerships
with the Department of Energy, the Department of Defense, and the
Environmental Protection Agency, the FBI has been able to share
information and enhance forensic applications, the transfer of
technology, research and development, and specialized training.
The FBI Laboratory's involvement in the TWA 800 investigation was
an outstanding example of good quality assurance practice. The same
procedures that are routinely utilized to ensure the integrity of
evidence and guard against contamination in the FBI Laboratory were
employed during the examinations at the Calverton Hangar, where the
aircraft examination and reconstruction efforts took place. The FBI
Laboratory assumed responsibility for preparing the hangar, and
utilized examiners from the Chemistry Unit for analysis of control
swabbings taken from the walls and interior portions of the hangar. The
Laboratory arranged for a hazardous material contractor to cover the
hangar floor with protective material to guard against contamination.
During and since the TWA 800 investigation the FBI Laboratory has
been acquiring the most modern laboratory equipment and instrumentation
to support forensic analyses, particularly those relating to bombings
and weapons of mass destruction matters. In addition, Mobile Modular
Laboratories have been configured for deployment to support on-site
forensic analyses and examinations in a wide spectrum of environments.
As part of its research and development mission, the Laboratory has
targeted critical areas which will enhance its support of major crime
investigations. These efforts presently involve 16 internal research
and development activities, as well as 30 counterterrorism research
projects that have been outsourced to DOE national laboratories,
private sector vendors and academic institutions. These initiatives
focus on:
1. Field Portable Explosives Detection Technology
2. Forensic Evidence Analysis and Crime Scene Technology
3. Information Infrastructure Technology
4. Specialized and Examiner Training
5. Victim and Terrorist Identification
6. Remote, Render-safe Technology, Detection of Explosives and
Neutralization Techniques
7. Hazardous Materials Response
8. Computer Analysis Response Team (CART)
9. Latent Print Automation
II. Laboratory, Support of TWA 800 Investigation
The FBI Laboratory responded quickly to the TWA 800 disaster on
July 17, 1996. That evening, the Evidence Response Team (ERT) from the
Newark Division of the FBI arrived at the scene. The following morning,
three examiners from the Materials and Devices Unit at FBI Headquarters
arrived in Calverton and were joined later that morning by three
examiners from the Chemistry Unit.
The first week following the crash was devoted to the recovery of
bodies. This was the first priority of all personnel who arrived at the
scene. As a result, the only debris recovered was that which contained
bodies and that which was floating and washed up on the beach.
During the course of the investigation, approximately 5,000 hours
of on-site support was provided by Laboratory examiners. Laboratory
support was maintained by teams who were rotated in and out during the
investigation. Over a million pieces of debris were recovered.
Explosive residue chemists conducted an exhaustive survey of wreckage
that entailed over 9,000 swabbings and examinations. Tens of thousands
of pieces of debris were visually inspected by bomb technicians, with
116 subsequently submitted to the Laboratory for further analysis.
It is important to note that the FBI Laboratory's on-site support
was provided despite numerous other demands on its resources. Several
examiners and evidence technicians were reassigned to New York from the
ongoing investigation of the Kobar Towers bombing in Saudi Arabia.
Others reported to New York from Atlanta where the Olympic Games were
underway. Approximately one week after the TWA 800 crash, the bombing
of Centennial Park in Atlanta occurred.
One of the major issues which arose during the recovery phase, was
the storage of the quickly accumulating evidence. An FBI Agent from the
Long Island Resident Agency arranged for the use of an empty Grumman/
U.S. Navy hangar for evidence storage and ultimately for reconstruction
of the aircraft. The FBI and ATF then provided mobile equipment for use
in analyzing evidence at the site, while the U.S. Navy engaged a
private contractor to map out the location of the debris on the ocean
floor.
Security in and around the testing areas of the hangar was tight.
Only designated laboratory personnel were allowed access and no weapons
or ammunition were allowed inside the hangar. Personnel from the FBI's
Chemistry Unit manned the testing area of the hangar from July 18,
1996, the day after the crash, until November 8, 1996. Throughout that
time, all ships and vehicles used to transport evidence were swabbed to
ensure that no pre- existing residues were present. In addition, over
9000 swabs and vacuum samples were collected and tested, including all
recovered seats and floorboards and over 500 swabs were taken of the
center fuel cell alone.
Over 60 Laboratory Division employees from the Evidence Response
Team, Materials and Devices, Bomb Data Center, Chemistry, Trace
Evidence, Latent Fingerprint and Special Photographic units worked on
the case back in Washington, providing many additional thousands of
hours of support.
On August 23, 1996, we announced that scientific analysis conducted
by federal examiners had found microscopic explosive traces of unknown
origin relating to flight 800. We also advised, however, that based
upon all of the scientific and forensic evidence analyzed up to that
time, we could not conclude that the flight had crashed as a result of
an explosive device.
Shortly thereafter, on August 30, 1996, we announced that
additional microscopic explosive traces of unknown origin had been
found. We again reiterated that we still could not conclude that the
aircraft was brought down by an explosive device.
These announcements came after extensive discussions among senior
level scientists and the on-scene commanders. The Laboratory personnel
noted that the finding of explosives residue without the corresponding
blast damage could not yet be explained and cautioned against jumping
to false conclusions.
The New York Office management carefully weighed the information
provided by the Laboratory and, together with Director Freeh, decided
to issue the above announcements. These events portray a careful,
deliberative process in which scientific findings were given proper
consideration and, ultimately, an appropriate public release of the
information was made.
During the initial months, continued scientific testing continued
to confirm that there was evidence of explosives residue with no
evidence of bomb blast or missile effects. It was not until September
1996, that the Federal Aviation Administration (FAA) announced that in
June 1996, the Boeing 747 known as TWA flight 800 had been used in a
Bomb Dog training exercise. Although this announcement solved the
anomaly of the bomb residue, it did not solve the mystery of the cause
of the explosion.
The Laboratory's finding and reporting of these residues
constituted the consummate double blind test. Through the practice of
good science and protocol, the Laboratory confidently reported its
findings at a time when there was no explanation for the presence of
such residues.
A number of metallurgists from a number of different organizations
worked on, or were consulted about, the TWA 800 crash. These
metallurgists worked well together and were in agreement with the
Laboratory explosives examiners that there was no indicia of blast
effects or missile strike.
II. Lessons Learned
Earlier this year, an after-action meeting was held at Calverton to
discuss the events surrounding the investigation of TWA flight 800 and
to identify optimal practices for a future major aircraft downing
investigation. The agencies attending the meeting were as follows: the
FBI, the National Transportation Safety Board, the Bureau of Alcohol,
Tobacco and Firearms, the Federal Aviation Administration, the
Department of Defense--Office of Special Technology, Defense
Intelligence Agency--Missile and Space Intelligence Center, Naval Air
Warfare Center, Air Force Research Laboratory, and the Pacific
Northwest National Laboratory. I would like to note that all attendees
expressed satisfaction with the meeting and found it to be very
constructive and productive. There was no sign of hostility, nor
disagreement, among the participants.
At this meeting the need for a Memorandum of Understanding (MOU)
between the FBI and the NTSB was recognized. This MOU would set forth
each agency's role and responsibilities and define the interaction that
should occur between the two agencies during the investigation of a
transportation disaster.
The FBI and the NTSB also agreed to pursue cross-training of
personnel in order to provide investigators with a better understanding
of each agency's mission and responsibilities. As a result, the FBI's
Evidence Response Teams will participate in NTSB Crash Investigation
Courses and NTSB investigators will attend FBI ERT training. This
cross-training will commence next month.
In closing, I would like to say that in the TWA 800 investigation
and the more recent East Africa bombings, the FBI has demonstrated its
ability to address major challenges wherever they may occur. The
lessons learned have enhanced our capabilities and identified optimal
practices that will help the FBI Laboratory to meet the challenges of
the future.
Senator Grassley. Mr. Schiliro.
TESTIMONY OF LEWIS D. SCHILIRO
Mr. Schiliro. Mr. Chairman, thank you so very much for
having me today. I will just explain briefly, at the time of
the TWA disaster, I was the Agent in Charge in New York of the
Criminal Division and I was directed to report to Moriches
Coast Guard Base some 2 hours after the flight went down.
And I flew out over the flight scene about 2\1/2\ hours
after the plane went into the ocean, and I can tell you that
everyone involved in that task that night believed at first
that it would be a search and rescue mission, that, in fact, we
would find survivors. The response that we received from the
Suffolk County Police Department, the Coast Guard, the New York
City Police and Fire Department, and a lot of private craft was
just absolutely phenomenal within the first few hours.
I can also tell you that as the Agent in Charge at the
Coast Guard station that night that everyone involved was
deeply and emotionally affected by what they saw. Their hearts
went out to the families of those victims, and I have no doubt
that the experience is indelibly etched in their minds. And
having personally witnessed it, I can tell you that it is
something that I will never forget.
I think, as I heard the testimony today, I think that just
one or two points I think that are important to bear in mind,
and that is how we saw the events at the time, or at least my 3
weeks that I spent out there. Certainly, the way that the
aircraft went down, the fact that there was no warning, there
was no radio traffic between the aircraft and the tower, the
fact that it fell off the radar screen. I think the fact, also,
that within a day, the witness accounts that described seeing
the craft go down in a ball of flames, and several saw flare-
like devices heading upwards. At least from the investigators
that were on scene that night, it became a very, very difficult
issue to deal with.
Particularly at the time of the tragedy, Ramzi Yousef was
on trial in the U.S. District Court in the Southern District of
New York and he was charged in a conspiracy to blow up 12 U.S.
airlines simultaneously over the Pacific Ocean. Yousef's plot,
for which he was subsequently convicted, was not the stuff of
science fiction. In fact, he had already tested the theory of
concealing a small-shaped explosive charge on an aircraft, a
test that resulted in the death of a Japanese citizen.
It is against this background, Mr. Chairman, the sudden
disappearance of an aircraft with no distress call in an
explosive fireball, that we did--the FBI undertook a very
massive and aggressive investigation, and we also had a fear,
based on what the witnesses described to us, that if it were a
human intervention, and particularly if it were a missile, that
those responsible were still at large, and the geography of
Suffolk County made that extremely difficult to contain. They,
if, in fact, existed, were under the flight path of one of the
busiest airports in the world and we know we needed to resolve
that issue as quickly and expeditiously as possible.
I have no doubt from the testimony I heard today that there
were issues created, certainly initially and over the course of
that investigation, but I can assure you, today, I represent, I
believe, some of the finest men and women in the FBI, and that
is those of the New York office, and that we traveled some 9
miles out to sea and 150 feet below the ocean floor to recover
over a million pieces of that aircraft in order to come to a
sound both scientific and investigative resolution to that
case.
That office also traveled most recently to East Africa to
resolve the embassy bombings there. We were involved with many
of the agencies represented here today in the World Trade
Center bombing. We have a very proud, I think, tradition in New
York of working terrorism cases and certainly working in a
multi-agency environment.
But I welcome the questions that you have here today. I
think it is an important issue, but I think, certainly, that
there are many, many aspects of TWA 800 that we feel very proud
to have been a part of.
Senator Grassley. I thank you very much for your testimony.
[The prepared statement of Mr. Schiliro follows:]
Prepared Statement of Lewis D. Schiliro
Mr. Chairman, members of the Committee, thank you for inviting me
to appear before you today to discuss the FBI's investigation of the
crash of TWA Flight 800.
On the night of July 17, 1996, I responded to a page and was
advised that a TWA 747 in the sky just off the south shore of Long
Island had disappeared from the radar and was believed to have crashed.
Because I was the Special Agent in Charge of the New York Office
Criminal Division, I was directed to report to the Coast Guard Station
at Moriches, New York and was assigned to oversee and direct the FBI's
efforts for what we initially believed would be a search and rescue
operation.
Upon arrival, additional reports came in that changed the nature of
our mission, including that there had been a large explosion and
fireball, that all communications from the plane had been normal, that
no distress calls had been issued, and that numerous eyewitnesses
reported seeing flarelike objects and other events in the sky. Within a
day, the law enforcement team had interviewed numerous eyewitnesses,
including some who witnessed the events while in the air, and many of
them provided credible accounts of these flarelike objects. Recognizing
the limits of our own capabilities, the FBI contacted the Defense
Intelligence Agency (DIA) and requested assistance in evaluating these
reports of events in the sky.
Two days after the crash, experienced analysts from DIA's Missile
and Space Intelligence Center (MISIC) were on the scene in Long Island
and accompanying FBI Agents on interviews and reinterviews of some of
the eyewitnesses. The MISIC personnel who reported to Long Island are
among the U.S. Government's foremost experts on shoulder launched
surface to air missiles, known as MANPADS. They reported to us that
many of the descriptions given by eyewitnesses were very consistent
with the characteristics of the flight of such missiles.
In addition, at the time of this tragedy, Ramzi Yousef was on trial
in the U.S. District Court in the Southern District of New York charged
in a conspiracy to blow up twelve U.S. airliners, simultaneously, over
the Pacific Ocean. Yousef's plot, for which he was subsequently
convicted, was not the stuff of science fiction. In fact, he had
already tested his theory of that resulted in the death of a Japanese
citizen.
It is against this background--a sudden disappearance of an
aircraft, with no distress calls, in an explosive fireball resulting in
the deaths of 230 men, women and children--with descriptions by
credible eyewitnesses deemed by government experts to be consistent
with the flight of a missile--at the same time that one of the world's
foremost terrorists was on trial in Federal court charged with an
audacious conspiracy to attack American airliners--that the FBI
launched its criminal investigation of the TWA Flight 800 tragedy, an
investigation that would become among the most far reaching and
thorough ever conducted by the FBI. If there was ever a chance, whether
it was 10 percent or 90 percent, that this catastrophe was criminal,
that a terrorist operating under the flight path of one of the nation's
busiest airports had brought down an aircraft with a shoulder launched
missile and could still be at large planning further attacks, it was
critical that a proper and aggressive investigation take place
immediately.
Hundreds of FBI Agents and other law enforcement officers responded
almost immediately, including elements from the FBI/NYPD Terrorist Task
Force, the ATF, Secret Service, U.S. State Department, Naval Criminal
Investigative Service, U.S. Park Police, INS, Port Authority PD,
Suffolk County PD, Suffolk County Park Police, Nassau County PD, New
York City PD, NY State Police, along with the NTSB, the FAA, the Coast
Guard and the United States Navy, whose divers worked around the clock
risking their lives to recover the bodies of the victims and, later,
the aircraft wreckage. In the first days after the crash, many of the
law enforcement team were assigned to the Coast Guard Station in
Moriches receiving the bodies of the victims of the crash and, in the
following days and weeks, witnessing the autopsies conducted by the
Medical Examiners Office. Mr. Chairman, as the Agent in Charge at the
Coast Guard Station, I can tell you that everyone involved in that task
was deeply and emotionally affected by this experience and their hearts
went out to the families of these victims.
As the Committee knows, the FBI's responsibility for conducting
investigations in a case such as TWA Flight 800 flows from a number of
Federal statutes, including, among others, terrorism, destruction of
aircraft, crime aboard aircraft, false statements. In this
investigation, the FBI and the law enforcement team initially focused
on the possibility that the aircraft was destroyed by a missile, either
a direct hit on the plane or a proximity explosion, a bomb placed on
the aircraft, to include in the center fuel tank area. As a result of
some of the initial interviews of mechanics and other information we
received, the FBI also looked at that the possibility of Federal
criminal violations applicable to any intentional violations of
regulations or reporting requirements relating to compliance with
certification procedures for aircraft products and parts, manufacturing
quality control or maintenance and safety procedures. Our investigation
included more than 7,000 interviews, including eyewitnesses,
individuals in contact with the aircraft at both JFK and in Athens,
family members, and passengers from the flight that preceded Flight
800; we reconciled and traced all luggage and cargo placed on the
aircraft; reviewed all unusual event reports, stolen motor vehicle and
boat reports, records of all boats traveling through New York Harbor
and the area of Long Island, records of all drawbridge openings on Long
Island for a three month period; our Laboratory conducted over 3,000
residue examinations and ultimately, together with NTSB, engaged in a
massive reconstruction of portions of the aircraft. An outline of our
investigative efforts is attached to my statement and is submitted for
the record. The result of the FBI's 16 month long investigation was
that no evidence was found which would indicate that a criminal act was
the cause of the TWA flight 800 tragedy.
I understand that there are several issues of particular interest
to the Committee and I would like to address them briefly. In the
recovery effort, the FBI treated all the recovered wreckage as evidence
and endeavored to maintain the best possible chain of custody of the
evidence we could given the large amount of wreckage recovered (over
one million items) and the fact that it had to be recovered, for the
most part, from the ocean floor, 120 feet below the surface. All
evidence was brought to the hangar at Calverton where it was initially
handled by FBI evidence response teams and examined by certified bomb
technicians, metallurgists, and chemists for explosive damage. Pieces
exhibiting any unusual characteristics were referred for subsequent
intensive testing/examination. As investigators, we knew from the
outset that science and the work of scientists would play a crucial
role in the investigation, as it does in many of our investigations.
We, therefore, aggressively sought to locate and use the finest
scientific minds and techniques available to provide insight and
direction to our efforts.
Examinations and analyses were conducted by scientist from the FBI
Laboratory as well as outside experts, including the U.S. Naval Air
Warfare Center Weapons Division, China Lake, California; U.S. Army
Aeromedical Research Lab Fort Rucker, Alabama; U.S. Air Force, Wright
Patterson AFB, Aircraft Accident Investigation Office, Dayton, Ohio;
Armed Forces Institute of Pathology Bethesda, Maryland; Defense
Intelligence Agency, Missile and Space Intelligence Center, Redstone
Arsenal, Alabama; Picatinny Arsenal; Hughes Missile Systems, Hughes
Aircraft Company; a Contract Metallurgist recommended by the FBI
Laboratory and Department of Energy's Brookhaven National Laboratory
and Sandia National Laboratory.
I am well aware that there was some tension and disagreement
between the New York Office Field investigators and metallurgists at
the FBI Laboratory over the need for additional intensive testing of
some of the recovered wreckage. The field investigators were mindful
that the aircraft damage noted as being possibly indicative of a bomb
or a missile could also be attributed to the stresses of the break-up
of the aircraft. However, this investigation, and the possibility that
the aircraft could have been brought down by a missile or a proximity
missile explosion was, in our view, unprecedented.
As I understand it, the FBI, indeed the U.S. Government, had no
baseline forensic data regarding a missile strike on a commercial
aircraft such as a Boeing 747 to use as a basis of comparison. We
sought additional intensive examination of what certified bomb
technicians had identified as unusual pieces to see if there was
anything unusual that could be observed. We firmly believed that we
owed no less than a complete, thorough and exhaustive effort to the
victims and their families. We did not desire to speculate or project
results; we wanted, and the families and the American people deserved,
the best science available to the government.
As I said earlier, we recognize the critical role of science in
many of our investigations and we have a high degree of respect for the
talents and insights provided by FBI scientists, who are among the
finest forensic scientists in the world. They provide insight,
direction and very often, the critical evidence necessary to bring a
case to a logical and just conclusion. However, it is important for all
of us involved in investigations to understand and respect our various
roles. Ultimately, when there is disagreement on whether or how to
proceed, the responsibility for the decision rests squarely on the
shoulders of the investigators in charge of the case.
The FBI conducted the TWA Flight 800 investigation in a
professional, responsible, and methodical manner. We worked to ensure
that we were thorough and complete before coming to a conclusion as to
whether this tragedy was the result of a criminal act. Can you imagine,
Mr. Chairman, if we had not pushed to look at every possibility, no
matter how remote; if we had relied on cursory examinations by
magnifying glass and not sought to use every sophisticated tool of
science available to us to reach a decision in this case and later
found out that this was a very sophisticated criminal act or had
overlooked something that may have brought us to a different
conclusion. I and all of the law enforcement people who worked on this
would not have been doing our jobs and would have been, rightly,
subject to harsh criticism.
Let me briefly address the issue of jurisdictional disputes with
the NTSB. Mr. Chairman, you cannot have an investigation of this
magnitude, with the level of media attention this case attracted, with
the number of people and the number of agencies involved that ran for
as long as this one did without from time to time having disagreements
or differences of opinion that need to be resolved. When we had
differences of opinion, we sought to, and, usually did, resolve them
amicably. Some of these disagreements were the result of our very
different methods of conducting investigations. The FBI had no problem
in sharing investigative results with NTSB and the morning after the
crash, we offered to have NTSB personnel participate in all our
interviews. Overall, the cooperation between the FBI and the NTSB was
excellent at every level. All of us who were involved never lost sight
of the reason we were there, of the goal of our efforts, which was to
determine what caused TWA Flight 800 to plunge in a fireball into the
ocean with the terrible loss of 230 lives.
I would also like to address the issue of the ATF report dated
January 20, 1997, concluding that the cause of the crash was a
mechanical malfunction. ADIC Kallstrom received that ATF report on
Thursday, March 13, 1997. On Monday, March 17, 1997, ADIC Kallstrom
forwarded a copy of the report to NTSB Chairman, Jim Hall, as evidenced
in the transmittal letter, a copy of which is attached to my statement.
Allegations that the FBI attempted to hide the report from NTSB are
ludicrous. It is also inexplicable that NTSB now fails to recall
receiving Mr. Kallstrom's letter.
Finally, Mr. Chairman, I want to state for the record that the
FBI's investigation of the TWA Flight 800 was one of the most thorough
and finest ever conducted by this agency. We have learned much from the
experience of TWA Flight 800 and have been working, under the
leadership of the FBI Laboratory along with NTSB to institutionalize
what we have learned, to incorporate it into our procedures so that we
improve our response and investigative product in the event a tragedy
like this recurs in the future.
In early March, in furtherance of this effort, we held a meeting at
Calverton that brought together representatives of virtually all the
agencies that participated in the TWA investigation. The meeting was
productive and additional meetings will take place in the future.
Separate from that effort, we have held several preliminary discussions
with NTSB in an effort to write a Memorandum of Understanding between
our respective agencies, to formalize and structure our relationship in
a manner that leads to improved training, better understanding of our
respective missions and investigative requirements and, better service
to the American public.
______
U.S. Department of Justice,
Federal Bureau of Investigation,
New York, NY, March 17, 1997.
Mr. James E. Hall, Chairman,
National Transportation Safety Board,
Washington, DC.
Dear Mr. Chairman: Enclosed please find one copy of a ``Statement
of ATF Certified Fire Investigator'', I/N 63122 96 0060 Z, dated
January 20, 1997. This report was provided to me on March 13, 1997 by
the ATF Special Agent in Charge in New York.
The publication of this unsolicited and premature report by the ATF
violates the agreement made by them regarding their participation in
this investigation. I believe it is unfortunate that ATF, for reasons
that are unknown to me, chose to prepare a report expressing an opinion
regarding the cause of this tragedy before the investigation has been
completed. It is an extraordinary violation of investigative protocol.
I have provided the original and a copy to FBIHQ and requested that
the FBI Laboratory review the information in the report and contact ATF
to obtain all information they relied upon to produce this document. I
have also asked Director Freeh to express the FBI's displeasure
regarding this incident to the highest levels of the ATF.
Sincerely,
James K. Kallstrom,
Assistant Director in
Charge.
Attachment to the Statement of Lewis D. Schiliro: Overview of FBI
Investigation of TWA Flight 800
I. TWA 800 Explosion
TWA 800 was on the tarmac at JFKIA for approximately 3 hours and 48
minutes prior to departure. The outside temperature was approximately
81 deg.. The flight arrived from Athens at 4:31 p.m. and lifted off the
ground at 8:19 p.m. At approximately 8:31 p.m. the flight experienced a
mid-air explosion.
II. Response To Event
a. fbi resources
Initial response to scene: Hundreds of Agents.
Command centers established: New York Office, U.S. Coast Guard East
Moriches, Westhampton Fire Department, Grumman--Calverton, Long Island.
b. federal/local law enforcement resources
Response to the tragedy of Flight 800.
Federal response
FBI, ATF, NTSB, FAA, Secret Service, U.S. State Department, Naval
Criminal Investigative Service, U.S. Park Police, INS, U.S. Navy.
Local law enforcement response
Port Authority PD, Suffolk County PD, Suffolk County Park Police,
Nassau County PD, New York City PD, NY State Police and local town
police.
c. other agencies
1. NY Fire Department and local Volunteer Fire Department.
2. Red Cross.
3. Suffolk County Medical Examiner's Office.
4. Clergy.
III. Recovery Efforts--Victims/Aircraft
First 3 days: Massive on the water recovery of bodies/plane parts.
Dive Efforts: 4,600 dives.
Search Area: 40 square miles.
Trawling Operation: 75 square miles.
a. recovery of victims
Two hundred and thirty victims recovered and positively identified.
b. recovery of aircraft
Ninety-six percent of aircraft recovered, approximately 1 million
pieces.
c. recovery of personal effects
Thirty-nine thousand and six hundred items recovered.
IV. Airport Investigation--JFK Airport--TWA 800
One hundred and eighty-six interviews were conducted with all
individuals who had access to TWA Flight 800. All met with negative
results.
1. Security personnel.
2. Mechanics and fuelers.
3. Luggage/Cargo handlers.
4. Caterers/Food service.
5. Cleaners.
6. Customer service.
7. Ogden food service.
8. Outside contractors--i.e., in-flight movie, special
catering, linen, dry cleaning.
b. passenger/baggage reconciliation
All passengers flight coupons were matched to the passenger
manifest. All checked baggage was accounted for prior to departure.
c. cargo reconciliation
All cargo was identified from point of origin until placement on
Flight 800. All shippers were identified as legitimate.
d. faa/air traffic controllers
Air traffic controllers interviewed.
Radar tapes duplicated and analyzed.
Air Traffic Controller transcripts obtained and reviewed.
Analysis determined no unusual activity.
V. Airport Investigation--Athens, Greece--TWA Flight 881
Four hundred and fifty-two interviews were conducted with all
individuals who had access to TWA Flight 881, information requesting
unusual person(s), events, objects, met with negative results.
a. passenger interviews
Three hundred and forty-nine passengers interviewed.
b. crew interviews
Seventeen crew members interviewed.
c. airport personnel
Eighty-six airport personnell interviewed.
1. Security personnel.
2. Mechanics.
3. Luggage/Cargo loaders.
4. Caterers/Food service.
5. Customer service employees.
6. Fuelers.
7. Outside Contractors--i.e., duty free merchandise, in-flight
movies, linen, dry cleaning, etc.
d. passenger/baggage reconciliation
All passenger flight coupons were matched to the passenger
manifest. All passenger baggage was identified.
e. cargo reconciliation
The authenticity of all cargo and shippers was verified. No cargo
from Flight 881 was placed on TWA Flight 800.
VI. Bomb Investigation
a. victim family interviews
Two hundred and thirty-six victim family members from the USA,
France, Italy, Sweden and Norway were interviewed. The results of all
interviews met with negative results regarding possible sabotage,
conspiracy to bomb or criminal acts. Five victim families refused to be
interviewed.
b. previous aircraft bombings
Investigators reviewed ten previous airline bombings covering a
period of fourteen years. The purpose of this review was to identify
vulnerable areas for the placement of explosive devices and modus
operandi of individuals involved in bombings.
c. review of cockpit voice recorder
The cockpit voice recorder tape contains 31:47 (thirty-one minutes
and forty-seven seconds) of cockpit crew/ATC conversation. This tape
starts while the aircraft is positioned at the gate prior to takeoff
and ends at the time of the explosion. The CVR review disclosed no
evidence of a criminal act.
d. investigation of claims of responsibility
All claims of responsibility were without credibility.
e. commercial history of aircraft
The 25 year old Boeing aircraft was sold to Iran in 1975. Iran
never took physical possession. The aircraft never left hangar in the
United States and was never touched by Iranian personnel. The aircraft
was returned to the TWA fleet.
f. military history of the aircraft
Military records reflect that the aircraft was utilized for troop
transport on April 1-2, 1996, including 8 Explosive Ordinance Disposal
(EOD) personnel were onboard. Records reflect that all troops were
issued new uniforms and gear. Little potential for explosive residue
transfer.
g. training conducted on aircraft
On June 10, 1996, the St. Louis Airport Police Department conducted
canine explosives training aboard the victim aircraft. The residue
collected after the explosion of Flight 800 was consistent with the
explosives utilized during the exercise.
Overseas law enforcement agencies routinely conduct canine training
utilizing explosives with little or no documentation.
VII. Missile Investigation
a. witness event interviews/plotting
Two hundred and forty-four eyewitness accounts were analyzed.
Witnesses' observations and their location in relation to the event
were recorded, plotted and mathematically analyzed.
b. roadside checkpoints
Roadside checkpoints established in the vicinity of East Moriches
to identify potential witnesses to the event or suspicious persons or
activity. Investigation met with negative results.
c. canvass of marinas
Tri-state area marinas were canvassed for any witnesses or
suspicious activities related to the explosion. Investigation met with
negative results.
d. police departments unusual event/person's complaints
Police Departments provided all 911 telephone calls and person's
complaints reporting suspicious behavior/cars/boats in all precincts
bordering waterways and JFK Airport for a period of two months prior to
the event. Investigation met with negative results.
Twenty-nine 911 calls received by Suffolk County Police were
investigated and met with negative results.
e. reported stolen/abandoned boats
Reported stolen or abandoned boats in the tri-state area were
identified and held for forensic examination. This investigation was
met with negative results.
f. previous rocket attacks
Investigators reviewed nine missile attacks on aircraft during a
fourteen year period. Those attacks occurred in the former Soviet
Union, Afghanistan and Africa. The purpose of this review was to
identify potential missiles utilized and launch sites. Forensic
evidence from those aircraft were not available for comparison to
Flight 800, therefore prompting our own testing.
g. review of vessel travel through new york harbor
During the 24-hour period--371 vessells identified, area of
Long Island.
One month period--20,000 records, area New York Harbor.
Investigation met negative results.
h. investigation of suffolk county bridge openings
Twenty thousand records obtained for every vessel that passed under
three Suffolk County Drawbridges for 3 months prior to the crash and 2
weeks after the crash. Investigation met with negative results.
i. radar analysis
Radar data was collected, reviewed and analyzed by the FAA and an
independent radar consultant who examined radar tapes and determined
that what was depicted on the screen was NORMAL AIR TRAFFIC and NOT A
MISSILE.
Sources of Radar Tapes
Nine FAA locations: Islip, JFK, Newark, White Plains, Stewart's
Field, Riverhead New York, Trevose PA, North Truro MA, Cummington, MA.
Three other radar sources: Sikorsky Aircraft, National Oceanic and
Atmospheric Administration--Boston and New York.
VIII. Calverton Investigation
a. evidence collection
Law Enforcement Team personnel supervised evidence collection and
transportation from the crash site to the Calverton facility, always
mindful of contamination and chain of custody.
b. evidence review and analysis
All evidence received at the Calverton facility was initially
examined by certified bomb techs, metallurgists, and chemists for
explosive damage with negative results. Subsequent intensive testing/
examination of pieces exhibiting any unusual characteristics was
conducted by law enforcement, military, and independent experts and was
met with negative results.
The following agencies/personnel provided additional expertise:
1. U.S. Naval Air Warfare Center Weapons Division, China Lake,
California
2. U.S. Army Aeromedical Research Lab Fort Rucker, Alabama
3. U.S. Air Force, Wright Patterson AFB, Aircraft Accident
Investigation Office, Dayton, Ohio
4. Armed Forces Institute of Pathology Bethesda, Maryland
5. Defense Intelligence Agency, Missile and Space Intelligence
Center, Redstone Arsenal, Alabama
6. Picatinny Arsenal
7. Hughes Missile Systems, Hughes Aircraft Company
8. Independent Radar Consultant
9. Contract Metallurgist
10. Department of Energy Laboratories, Brookhaven National Lab,
Sandia National Lab
c. aircraft reconstruction effort
FBI/NTSB projects resulted in extensive reconstruction of areas of
the aircraft deemed to be vulnerable to a missile and/or explosive
device.
The reconstruction project included the following:
1. Main 92 Foot Forward Fuselage
2. Aft Cargo Bay
3. Left and Right Wing Spars (front and rear)
4. Cabin Interior
5. Cargo Containers
6. Underbelly Fairing
7. Power Cable Routing
8. Left and Right Leading Edge Wing Structure
9. Nose Wheel Well and Surrounding Structure
10. Top Skin-Left Wing
11. Cabin Interior Carpet/Flooring over the Center Wing Fuel
Tank
12. Flight Data Recorder (FDR)/Cockpit Voice Recorder (CVR)
Wire Routing
13. Center Wing Fuel Tank Section
d. damage analysis
Combined metallurgical and engineering review of aircraft debris
(reconstructed and non-reconstructed) IDENTIFIED OVER 1,400
PENETRATIONS and 259 AREAS OF MISSING FUSELAGE MATERIAL that WERE
CLOSELY EVALUATED.
An alternate light examination (blacklight) of all aircraft
wreckage for the purpose of identifying latent material deposits was
conducted with negative results.
All wreckage was also inspected by industry experts for any
evidence of drone aircraft impact with negative results.
e. recovery analysis
The logged recovery location of all debris from the wings and the
cabin structure was verified.
f. forensic bomb/missile analysis conducted at calverton
Over ONE MILLION PIECES of aircraft debris VISUALLY INSPECTED by
bomb technicians and laboratory personnel. This screening process
included taking over 2,000 CHEMICAL SWABBINGS, x-raying all seat
cushions and utilizing explosive detection canines on site.
Examination and analysis at DAVIS MONTHAM AIR FORCE BASE at Tucson,
Arizona with STATIC DETONATIONS of man pads in pressurized and non-
pressurized aircraft fuselage produced DAMAGE which was NOT SIMILAR to
any WRECKAGE observed AT CALVERTON. ALL WRECKAGE was REVIEWED.
Inspection of missile damaged aircraft at the NAVAL AIR WARFARE
CENTER (CHINA LAKE) revealed NO SIMILARITIES to the wreckage AT
CALVERTON. ALL WRECKAGE was REVIEWED.
g. laboratory analysis
Man hours: 5,000
Examiners: 12
Residue examinations: 3,000
FBI/ATF Laboratory Conclusion:
No Evidence: High Explosive Damage
No Evidence: Explosion of a Missile Warhead
No Evidence: Missile Impact
Independent Experts Conclusions:
No Evidence: High Explosive Damage
No Evidence: Explosion of a Missile Warhead
No Evidence: Missile Impact
Metallurgical Examiners Conclusions Damage Consistent With:
OVER PRESSURIZATION of the CENTER FUEL TANK;
BREAK UP of the aircraft;
FIRE;
IMPACT of the aircraft into the ocean.
IX. Military Investigation--Friendly Fire
a. signed certifications received from each chain of command
All military assets within 200 Nautical Miles
Documentation of all training exercises.
Accounting of all armaments capable of reaching Flight 800.
b. interviews and inspections
The crew of the following vessels/aircraft were interviewed and
their ships inspected, due to their immediate vicinity to the crash
site. Investigation determined the crafts were either out of range,
unarmed or did not have the vertical launch capability of reaching
Flight 800.
USS NORMANDY--U.S. NAVY CRUISER
USS TREPANG--U.S. NAVY SUBMARINE
USS ALBUQUERQUE--U.S. NAVY SUBMARINE
USS WYOMING--U.S. NAVY SUBMARINE
U.S. NAVY P-3 ORION
NY AIR NATIONAL GUARD--HH-60 HELICOPTER
NY AIR NATIONAL GUARD--C-130 AIRCRAFT
NY AIR NATIONAL GUARD--CC-10
CALIFORNIA AIR NATIONAL GUARD--C-141 (TRANSITING AIR SPACE)
X. Criminal Act/Non-Terrorist
Investigation was not limited strictly to terrorist motives. All
avenues of potential criminality were explored with negative results.
XI. Public Response
Over 3,000 leads were generated through the establishment of the
FBI 800 lines, Internet and U.S. Mail.
XII. Depth of the Investigation
There were a total of over 7,000 INTERVIEWS CONDUCTED in this
investigation.
XIII. Issues
a. russell tape (richard russell): ``salinger's missile''
The SPLITT (GHOSTING) from the Russell tape IS FROM JET EXPRESS 18.
Analysis by experts determined that the OBJECT WAS NOT A MISSILE, since
it was positively identified. Object was a ``Ghost'' of Jet Express 18
which was at a different location.
b. the linda kabot photo
The photo taken by Kabot depicts a bearing of north/northeast. TWA
Flight 800 was south/southwest almost directly behind her.
Photograph analyzed by CIA National Imagery and Mapping
Administration (NIMA) advised that:
1. There is object in photo
2. Object is not a missile
3. Object appears to be an aircraft, not possible to id
aircraft because:
Not possible to determine distance of object from
camera.
Exact time of photo unknown: (time frame only is known).
Insufficient detail in photo to determine type of
aircraft.
4. Object is not a drone
No drone-exercises conducted near Long Island July 17,
1996.
c. heidi krieger photograph (streak in sky)
Negative was sent to FBIHQ for analysis, which determined that
there was DEBRIS ON THE FILM SURFACE.
d. seat cushion residue (reported in riverside california press)
The residue appeared red and flaky and was subjected to microscopic
and chemical examination. The analysis determined the items were
consistent with a chlorinated polymeric material, commonly used as
CONTACT ADHESIVE. The red material is NOT ROCKET FUEL OR RESIDUE OF
ROCKET FUEL. Three people convicted in U.S. District Court (one
misdemeanor, 2 felony after trial) of charges related to theft of parts
of the seat cushion from the hangar.
e. u.s. navy activity in w. 105-106-107--areas closest to the
shores of long island
The warning areas mutually co-exist with commercial air traffic and
were open for COMMERCIAL USE ON JULY 17, 1996.
There were NO MISSILE FIRINGS FOR TWO YEARS prior to July 17, 1996,
in the Whiskey 105-106-107 areas.
Military Search and Rescue Exercise conducted July 17, 1996. NO
WEAPONS UTILIZED. NO WEAPONS ON BOARD.
NO TRAINING EXERCISES UTILIZING ANY WEAPONS were conducted in those
areas on JULY 17, 1996.
There are designated live firing areas within the Whiskey areas.
Artillery and small caliber weapons fire are authorized in these areas.
The closest area of this type is 86 miles east of the crash site. There
was no Navy firing on July 17, 1996 in that area.
f. salinger/goddard statement
``I believe promoting the Navy-missile theory was a big mistake. I
believe that the evidence is not sufficient to blame the Navy, and I
wish to move away from that and all areas of conspiracy inquiry
forever.''
(Ian Goddard's E-mail to the New York Office dated 11/6/97 5:40
a.m.)
Senator Grassley. Mr. Schiliro, in your new testimony that
was submitted today, you attached an unsigned letter
purportedly from Mr. Kallstrom that you refer to as a
transmittal letter used to send the ATF report to the NTSB.
Apparently, no signed letter exists, and according to the NTSB,
no letter was received. Also, if you read the letter, it seemed
to me the main purpose was to undermine and criticize the ATF
report, not to transmit it as an official document.
So any objective reading of the evidence tells me that no
official transmittal took place, and certainly an unsigned
letter is no proof of anything. As an agent who collects
evidence, I would hope that you would agree. What proof do you
have that an official transmittal of the report was made?
Mr. Schiliro. Mr. Chairman, if I could respectfully
disagree. In our original files, the original letter is signed
out, as indicated by the block stamp on this file and a file
number having been put in. The file copy, the one you have
before you today, the one that was used for documentation, is
not signed. That is usually the case in how the FBI maintains
their files.
Having reviewed this, the transmittal letter, I would find
it very unusual for the report not to have been transmitted to
the NTSB on the date of March 17, 1997. But the file copy, the
file you received, would not have been signed.
Senator Grassley. Do you maintain a correspondence log?
Mr. Schiliro. The file copy that you see is our log. It is
dated, or it is stamped with the file number 265-A.
Senator Grassley. Where is the signed letter, then?
Mr. Schiliro. The signed letter would have been the
transmittal letter, the one sent to NTSB. The copy letter, the
file copy, would not have been signed.
Senator Grassley. That was my next question. The NTSB does
not have a record----
Mr. Schiliro. There is no doubt in my mind that this letter
was sent and the copy was forwarded to NTSB.
Senator Grassley. Then let me ask you, why do you think the
NTSB never received it?
Mr. Schiliro. I have no idea, Senator.
Senator Grassley. There are some heavy slashes and strokes
through here. What is the meaning of that?
Mr. Schiliro. That was indexed into our file system in
order to allow us to retrieve the document.
Senator Grassley. Did Mr. Kallstrom tell you that he signed
and sent the letter and report?
Mr. Schiliro. Not on this particular letter, but I have had
conversations with Mr. Kallstrom about that report and I do
recall hearing him speak of his conversations with the NTSB
about it.
Senator Grassley. I would say that it is my opinion that a
lack of a valid copy lacks credibility. Of all the hundreds of
documents that we have from Mr. Kallstrom, this is the only one
that is not signed. That is a fact. This is the only one that
is not signed, and we had boxes of documents delivered on
Friday to us.
Does the FBI confirm that a psychic was brought to the
scene of the TWA 800, and if so, why?
Mr. Schiliro. It is my understanding that that did occur,
yes, sir. That was an inadvertent mistake on the part of the
agent. He was out at Calverton at the time the psychic called
in and asked to be allowed to appear and he allowed that to
happen. But, again, as previously testified to, that was
unauthorized.
Senator Grassley. OK. Let me ask you, Mr. Kerr, is that
your understanding, as well, that a psychic was there?
Mr. Kerr. That occurred prior to my joining the FBI in mid-
October 1997, so I cannot comment on it.
Senator Grassley. Let me ask you from the standpoint of
your being an outstanding scientist, still are, but before you
took over, as well, what do you think of that, if that did
happen?
Mr. Kerr. Well, I sympathize with the position that Mr.
Schiliro and Mr. Kallstrom were in. It was an unauthorized
visit, and, I suspect, quite inappropriate at the time, and had
they known of it, I expect it would not have happened.
Senator Grassley. To both of you on another question, does
the FBI acknowledge that the NTSB under title 49 has the lead
on investigating accidents until there is a determination of a
criminal act? Would you start out, Mr. Schiliro?
Mr. Schiliro. I do agree with that, Senator, obviously. I
think, though, that each case has to be looked at individually,
certainly the circumstances and the initial factual predicate
that we usually undertake or attempt to undertake any
investigation that we participate in. Certainly, specifically
at TWA, the circumstances surrounding the way the craft went
down and the possible involvement of a terrorist act on any one
of them, but I think you have to balance that on each occasion
and a separate determination made.
Senator Grassley. How would you respond to the proposed
legislation which would establish that all transportation
accidents be investigated by the NTSB until evidence of
criminal activity arose?
Mr. Schiliro. Well, I think the predication that you
suggest is a valid one. However, I also think it is important
to bear in mind that, certainly in TWA and other cases, there
is a great deal of information that comes in to us outside of
the actual crime scene, or accident scene, as the case may be,
to include both human intelligence, international information
that we receive regarding terrorist threats, and certainly
electronic information that we are receiving, and I think there
is a great need to balance all those things so that we can come
to a just and expeditious resolution. To the extent that the
public is in danger as a result of human intervention, that
also needs to be taken into account, and I think it was
certainly in this case.
But my experience, just as a caveat, at Calverton and
certainly at Moriches, was a very positive one. The number of
agencies that were involved, I think for the most part, the
reaction, the bringing to bear of a great amount of expertise,
both within the government and outside the government, and I
think, for the most part, it worked pretty well. So I think
that, basically, the system did work as it should have worked.
Senator Grassley. Was there any disciplinary action imposed
because of the unauthorized visit by the psychic?
Mr. Schiliro. To my knowledge, no, although I believe the
agent was spoken to about it.
Senator Grassley. Dr. Kerr, when investigating a plane
crash, does the FBI first rule out mechanical failures or
design flaws in the aircraft?
Mr. Kerr. In the part of the FBI that I am associated with
and responsible for, we do not rule in or rule out. Our job,
basically, is to collect and examine whatever physical evidence
there might be and to reach whatever conclusions that evidence
might allow.
The other thing we do is provide some of our technical
people to support searches and other aspects of the
investigation. They are typically not people who would be
subsequently involved in examining the evidence.
Senator Grassley. Mr. Schiliro, the same question for you.
Mr. Schiliro. Yes, basically, Senator, although I do think
our focus is one of a criminal nature. I mean, our job is to
determine whether or not there is evidence of a criminal act,
to make that determination as fairly and as objectively as we
can, and to the extent that the evidence rules that out,
certainly, there are other agencies in this government that
have the responsibility to determine the cause of that crash.
Senator Grassley. In the case of your answer being yes, why
was it not done, then, in the case of the TWA 800?
Mr. Schiliro. I think it was done, Senator. I think that
the fact that over a million pieces of that craft needed to be
recovered, the fact that it was 9 miles out and 120 feet below
the ocean took some time to do. The fact of reconciling the
manifests, the cargo manifest, the passenger manifest, the
number of outside agencies we brought to bear to determine the
best science that we could possibly bring to the resolution of
that case, the fact that it took 16 months from the beginning
until actually a final resolution was made, I do not find to be
that extraordinary under these circumstances. And I think as
soon as enough evidence was determined that there was no
criminal cause, the FBI did remove itself, for the most part,
from this investigation.
Senator Grassley. I think that it is fair to say that
today's witnesses disagree with you on that point.
Let me start with Dr. Kerr. Why were basic evidentiary
procedures so clearly violated in the following: The removal of
a seat cover without regard to blast damage location, the
mishandling of the victims' clothing in a refrigerated truck,
pulling fragments out of seat cushions without photographing
and documenting alterations, and that is just three examples of
a lot I could give, and I will not give any more, but you get
the gist of the question.
Mr. Kerr. No, I get the gist of the question. I am afraid
that I have to plead ignorance. I was not there. I was not in
charge at the time.
Senator Grassley. Then I will ask Mr. Schiliro.
Mr. Schiliro. Senator, certainly, I do not dispute those
renditions of what could have occurred in the handling of over
a million pieces of evidence. There may have been some mistakes
along the way. But I disagree to the extent that the number of
pieces that we brought in, the fact that we had agents on each
of the recovery craft that cataloged it. We did take GPS of the
bodies recovered. The initial bodies, as you are aware, were
not taken from beneath the sea. They were brought in from the
surface. But the others were. I think it is a tribute to that
effort that every one of the victims were recovered. The number
of items that we logged in exceeded a million. To the extent
that there were errors made in several of those, I mean, I do
not disagree with that, but we made every attempt to maintain a
chain of custody.
The issue on the photographs, I know that that became an
issue early on in the investigation, but the reason, the simple
reason for that was that if any of those photographs became
evidentiary in nature, that we needed to maintain the
negatives. It was no more or less than that.
And I think that, for the most part, the investigators out
there did get along and did maintain a dialogue on those
issues, and as they came up, there were every attempt made to
resolve them. I kind of think that there is a sense that there
was a great deal of animosity out there and I did not see that
at all.
Senator Grassley. Dr. Kerr, even though you were not there,
so you could not answer my question, I assume that there is an
understanding that the procedure does not follow scientific
protocol, so what would you be doing to make sure that it does
not happen in the future, then?
Mr. Kerr. One reason we have invested so much effort both
in training our own people in the Laboratory Division with
regard to chain of custody and proper treatment of evidence and
are extending that as quickly and as completely as we can to
the Evidence Response Team is to avoid any question in the
future about proper handling of evidence.
Senator Grassley. Dr. Kerr, why is not the FBI's explosives
group accredited like the ATF lab is? What is it that the
explosives group does that lends itself to not being
accredited?
Mr. Kerr. I do not think that ASCLD has accredited the ATF
lab in the explosives group, either. There are eight
disciplines that are accredited and explosives is not one. A
part of the explosives group that has to do with elemental
analysis is, in fact, part of the accreditation, but there is
no accreditation, for example, for the examiners who work on
explosive components, for example.
Senator Grassley. Is the explosives group ever audited to
make sure that it is following protocols and procedures?
Mr. Kerr. Yes, it is.
Senator Grassley. Mr. Schiliro, why did Mr. Kallstrom
initially refuse to accept the ATF report?
Mr. Schiliro. I do not know, Senator, if I would describe
it as initially refused it. I think the problem was, as Mr.
Tobin referred to the cardboard box theory, was before an
opinion or a conclusion or a theory was finalized or written to
report, that the whole box be looked at. At the time that
report was written, the investigation had not concluded yet,
and I think he felt from our discussions with him that it was
premature in nature.
The issue at that time certainly still could have been that
had a criminal defendant been uncovered, that, of course, all
the information that was going--that we wanted to be consistent
with a final conclusion, and I think his feeling on this was,
from our conversations with him, that it was premature, not
that he was against the actual submission of it.
Senator Grassley. Dr. Kerr, could you share with us the
results of the audit of the explosives group?
Mr. Kerr. Well, we actually have a quality assurance unit
in the laboratory and a separate reporting chain and they,
roughly quarterly, ascertain that the Materials and Devices
Unit is, in fact, adhering to our requirements to follow the
ASCLD procedures for handling evidence, maintaining the chain
of custody. We do proficiency tests of the examiners and they
are subject to the same moot court training that the examiners
in the other disciplines in the laboratory are.
Senator Grassley. I guess I would maybe later on ask you to
brief us on that.
Mr. Kerr. I would be happy to.
Senator Grassley. Thank you. Let me start with you, Dr.
Kerr, and Mr. Schiliro on the same question, why does the ATF
methodology involve ruling out accidents prior to establishing
a criminal act, while the FBI methodology is solely to prove a
criminal act? Let me start with you, Mr. Schiliro.
Mr. Schiliro. I am not so sure I agree that we go into it
attempting to prove or disprove a criminal act as much as it is
an attempt, as ATF does, to objectively go in and determine a
cause. Our focus, admittedly, is the enforcement and
investigation of title 18. That is what we are there for. So I
do not dispute the fact that we focus our efforts and our
resources in a determination as to whether or not a criminal
act occurred, and second, if an act did occur, whether or not a
Federal prosecution will emanate from that.
I do not think, though, that is inconsistent with any of
the agencies represented here today. And, as a matter of fact,
in the TWA case, there were two distinct groups formed. One was
the mechanical failures group and the other one was the law
enforcement group, and I think that under the right
circumstances, the investigative effort from each of those
groups can be conducted in a consistent and objective matter.
The fact that we have a criminal focus does not necessarily
mean that we are not objective in our approach to that. But by
our very nature and by what we are charged with, the
responsibility of, we do have a criminal focus. There is no
dispute with that.
Senator Grassley. Dr. Kerr, anything to add?
Mr. Kerr. I would only add that there were a number of
theories advanced both in the press by individuals who chose to
come forward and, of course, by those who were witnesses to the
event. Within that highly speculative environment, one has to
review the physical evidence and as much of it as possible in
order to rule out a number of the theories that were, in fact,
on the table. So I do not think it unusual at all, nor
representative of a bias, to have the investigation go on for
the period it did.
And, in fact, since I arrived as it was concluding, I did
have the opportunity to talk to Jim Kallstrom. He was preparing
to, in fact, go to the public with the results of the
investigation in November. He was trying to assure himself,
even in October and November 1997, that all of the leads, all
of the possibilities, and all of the expertise that he might
have been able to call on had been consulted. And so we, in
fact, brought in several outside people to assist in reviewing
the reports before he went public.
Senator Grassley. Mr. Schiliro, in light of today's
testimony, does the FBI still feel that the way that the TWA
investigation was handled is a model for the future?
Mr. Schiliro. Senator, having seen the beginnings of it, at
least for the first month or two, I was amazed at the great
expertise that the NTSB was able to bring to bear in terms of
the accident investigation. Truly, never having participated in
an investigation of that nature before, it amazed me in terms
of the expertise, the organizational skills, and how they went
about organizing, actually, the reconstruction effort. It was
just phenomenal in terms of this government, I think, at its
finest.
Certainly, I think, we reacted from the Terrorist Task
Force. I mean, we did send, for the most part, the people who
are associated with that group out to participate that and to,
certainly, if a criminal act had occurred, to investigate it
and to resolve it.
I think, certainly, with the amount of people involved and
absolutely the horrendous nature of that tragedy, there were
issues that were created. I think most of them were resolved
on-site. Some of them still linger, and others that you heard
about here today. But I do not find that distressing. I think
it is a constructive way to look at it. Obviously, if we had to
do it again, there were certain things that we would go ahead
and probably redo differently.
But, I think, bear in mind, we had never, at least in New
York, reacted to a crime scene some distance out to sea and the
distance that it was below the ocean floor. We needed to learn
from that. We now are beginning a cross-training program with
the NTSB, and, hopefully, the cultural differences will become
less as that program proceeds.
But I do believe that that, in many ways, was a good
effort. It brought together a lot of people of varying
backgrounds--I think that was healthy--in terms of a resolution
to this. If there were differences, those differences were
debated and, I think, brought to light.
So I do think that, from what I saw from the agents and the
investigators involved out there, the sacrifice that they put
forth, and, I think, still the emotional issues that remain
today as a result of their dealings out there, I do believe
that it was a good effort. Do I think there were mistakes that
could be improved upon? Certainly.
Senator Grassley. I hope you have an opportunity. I am
going to send you a list of the documents that were released
today and after you study them see if you still have the same
opinion.
Dr. Kerr, have you begun negotiating a memorandum of
understanding with the NTSB for future investigations?
Mr. Kerr. People from the Laboratory Division were involved
in the after-action report, and the specific thing that I
mentioned to you about the cross-training between the NTSB
program and our ERT program is something we will work on. The
agency-to-agency MOU is not something that I am responsible
for.
Senator Grassley. It is my understanding that there has not
actually begun that process of that memorandum of
understanding, and I suppose if I want to know why, I will have
to ask somebody else other than you, then, is that correct?
Mr. Kerr. That is correct.
Senator Grassley. Mr. Schiliro, your statement says, ``The
FBI investigation of TWA Flight 800 was one of the most
thorough and finest ever concluded by the agency.'' I draw a
very different conclusion based upon the testimony and evidence
presented here. I think that the public was ill-served by the
FBI in the TWA Flight 800 investigation and I intend to make
sure that this type of investigation does not take place again.
Dr. Kerr, are the rapid deployment teams the result of
lessons learned from the problems discovered during the TWA
case or any other case?
Mr. Kerr. They are really an outgrowth of looking back at
TWA 800, but more importantly, they were the result of
discussions that Mr. Schiliro, Director Freeh, the Assistant
Director in Charge of the Washington Field Office Jimmy Carter,
and I had on our way to East Africa as we thought through what
we had already been doing to deploy our capabilities and what
we ought to be planning to do in the future. It was decided
that we ought to formally identify these teams, train them,
have their equipment ready for load-out in a short time so that
our response could basically be as fast as finding the
transportation to get there. So it was, yes, learning and
finding a way to improve our response.
Senator Grassley. The Inspector General, Dr. Kerr, last
year raised the red flag that there were still cultural
problems with the explosives group. At a minimum, I think the
groups should be heavily and constantly audited to know if they
are doing their jobs right, and I would like to know if you
have that same concern.
Mr. Kerr. Having watched them perform halfway around the
world at two crime scenes the equivalent of the Oklahoma City
bombing, I am not concerned with their present level of
performance. They are doing it very well.
Senator Grassley. So you disagree with the Inspector
General, then?
Mr. Kerr. He made the statement before that happened, I
believe.
Senator Grassley. Mr. Schiliro, this is in regard to the
films being made by the FBI instead of the National
Transportation Safety Board. If you needed to keep the
negatives, where are those films now?
Mr. Schiliro. My understanding, Senator, is well over 400-
and--and I could get back to you on this, but about 400 outside
rolls of film were processed through our lab. My belief is we
still have all those negatives.
Senator Grassley. Why did you need to keep the whole roll
and not give Mr. Zakar his pictures?
Mr. Schiliro. I am not familiar with Mr. Zakar's pictures,
but the reason to keep the negatives is if any one of those
pictures became evidentiary and we needed to introduce them in
court, the U.S. attorney who did come out and review the
procedures in place would have had to have the original
negative. That was just solely the reason to maintain chain of
custody on that.
Senator Grassley. I thank you all very much for answering
our questions. You are the last panel, so the hearing is over
now. I thank all of the witnesses, and particularly the FBI,
for cooperating with the subcommittee. I think the whole issue
here is the efforts that agencies put forth to make sure that
the traveling safety is there, the public safety is there, and
also increasing confidence in Federal law enforcement.
The hearing is adjourned.
[Whereupon, at 4:22 p.m., the subcommittee was adjourned.]
A P P E N D I X
----------
Questions and Answers
----------
Forensic Engineering International,
June 18, 1999.
Senator Charles E. Grassley,
Hart Senate Office Building,
Washington, DC.
Thank you for your letter of June 8, 1999 regarding my testimony of
May 10, 1999 before the Judiciary Subcommittee hearing on
``Administrative Oversight of the Investigation of TWA Flight 800''.
Response of Michael L. Marx to a Question From Senator Thurmond
Accompanying your letter was a question from Senator Thurmond
asking if I had advised any of my superiors at the NTSB about FBI
errors made during this investigation and if so, what actions did my
superiors take.
From my standpoint the primary impropriety by the FBI was the
handling of photographic evidence for the NTSB. As indicated at the
hearing, I initially was not allowed to take photographs of the
structure. Instead photographs had to be obtained and processed by FBI
representatives. Photographs that I requested were never returned to me
and to this day I have no idea if they were ever processed.
At a group meeting at NTSB headquarters in November of 1996, I
informed the NTSB Office Directors that photographs were not processed
as claimed by the FBI or, if they were, had not been made available to
the NTSB. During that meeting, I was supported by Dr. Bernard Loeb,
Director of the Office of Aviation Safety, to do whatever was necessary
to obtain photographs. It was his support that gave me the courage to
challenge the entrenched procedure of having all photographs processed
by the FBI.
The NTSB had little or no control over the direction the FBI was
taking during its investigation of the airplane structure. In-flight
breakup deformations and holes obvious to investigators experienced in
looking at fragmented aircraft structure were considered suspicious by
management of the FBI investigation team. The FBI would not rely on the
NTSB expertise regarding assessment of this damage. Instead the FBI
brought in representatives of the Brookhaven National Laboratory (BNL)
to do examinations of these holes even though BNL had no experience in
looking at structural deformations of the magnitude involved. I
notified NTSB management that the FBI was soliciting the services of
BNL for these purposes and that I did not believe they were qualified
to make a proper assessment of this damage. NTSB management made it
clear to me that any of these examinations had to be at least overseen
or be produced by NTSB, representatives instead of being left solely in
the hands of inexperienced personnel.
In conclusion, I apprised the NTSB management about any problems or
apparent improper investigative procedures initiated by the FBI and my
management in turn directed or supported any changes that I felt were
necessary to move forward with the investigation.
I appreciate being able to comment to any questions from your
committee regarding this matter. Please feel free to contact me should
you need further clarification.
Sincerely,
Michael L. Marx.
National Transportation Safety Board,
Washington, DC, June 14, 1999.
Senator Charles E. Grassley, Chairman,
Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary U.S. Senate,
Washington, DC.
Dear Chairman Grassley: In response to your letter of June 8, 1999,
requesting that I provide additional information concerning my
testimony before your committee on May 10, 1999, offer the following:
Response of Henry H. Hughes to a Question From Senator Thurmond
Question. You testified that the FBI made errors in the
investigation, handling, and processing of evidence. Did you advise any
of your superiors at NTSB of these errors? If so, what actions, if any,
did they take with respect to them?
Answer. I and others advised Investigator-In-Charge Alfred
Dickenson,Office of Aviation Safety Director Dr. Bernard Loeb, and NTSB
Chairman Jim Hall of the problems related to the collection,
processing, and safeguarding of evidence as well the investigative
process on a continual basis.
Unfortunately, things such as an ``evidence control log'' which
should be used to document all evidence submitted to any laboratory for
examination or testing fell on deaf ears and was not accepted despite
many complaints over a several month period by all the parties to the
investigation. The absence of an evidence control log made it
impossible to know what evidence had been removed from the hangers,
what laboratory it had been sent to or by whom, what the nature and
results or the tests were, and what the final disposition of the
evidence was. To this day there are still unanswered questions
concerning evidence sent for examination.
I saw little positive action taken by the NTSB to address these
problems. In my opinion, we (NTSB) had a serious leadership problem
during the course of the investigation. One of many examples of this
was the Vice Chairman's Robert Francis absence on a daily basis from
all daily investigative progress meetings. These meetings are critical
in charting the progress and direction of an investigation. I have
participated in over 110 major transportation accident investigations
while with the NTSB and the TWA-800 investigation is the only one in
which the NTSB Board Member in charge was never available to the
investigative staff.
During the course of the on scene investigation, which lasted over
a 15 plus month period, the NTSB Vice Chairman in charge of the NTSB
investigation not only never showed up for daily investigative progress
meetings, he gave away the Safety Board's authority, to without, to my
knowledge, consulting the staff or the headquarters managers. It is
easy to see how the FBI just resorted to their usual modus operandi of
taking charge even if they didn't know what they were getting into.
The FBI made several mistakes however, to be fair the NTSB is also
responsible for its share of errors, the most serious of which was the
inexcusable absence of leadership.
In the event I may be of further service please do not hesitate to
contact me at my office.
Sincerely,
Henry F. Hughes.
__________
National Transportation Safety Board,
Washington, DC, June 15, 1999.
Senator Charles E. Grassley, Chairman,
Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary U.S. Senate,
Washington, DC.
Dear Chairman Grassley: This letter is in response to your June 8,
1999, transmittal of a post-hearing question from Senator Strom
Thurmond. Below is the information requested.
Response of Frank P. Zakar to a Question From Senator Thurmond
Question. You testified that the FBI made errors in the
investigation, handling, and processing of evidence. Did you advise
your superiors at the NTSB of these errors? If so, what actions, if
any, did they take with respect to them?
Answer. All of my observations concerning handling of the airplane
wreckage and investigation procedures were verbally shared with other
NTSB investigators and the NTSB investigator-in-charge that were
working in the hangar. My concerns were also verbally transmitted
within the confines of the hangar to the coordinators of the FBI who at
that time oversaw the hangar operation. There was no aggressive effort
on behalf of either agency (FBI and NTSB) to pursue many of the issues
presented in my testimony before the Committee. I believe the control,
organization, and philosophy of future investigations could be
clarified by developing a memorandum of understanding between the two
agencies.
If your office requires additional information, I can be contacted
at my office.
Sincerely,
Frank P. Zakar.
__________
Responses of William A. Tobin to Questions From Senator Thurmond
Question 1. The substance of your testimony appears to be that you
had concluded by mid-September 1996 that the cause of the Flight 800
crash was mechanical. Was your conclusion in mid-September preliminary
or final? Please explain fully.
Answer. My conclusion and testimony were that there was no
indication of criminal activity, not that ``the cause of the Flight 800
crash was mechanical.'' Absence of criminal activity does not, per se,
suggest ``mechanical failure''. In my experience, non-criminal human
performance issues have periodically been found to cause or contribute
to transport, structure and/or system failures.
The terms ``preliminary'' and ``final'' imply a more distinct or
emphatic delineation than warrants for the circumstances. I was very
strong in my opinion as of the end of August 1996 that no criminal
activity was evident. My opinion was sufficiently strong that, to use
FBI resources more effectively, I urged keeping only a small contingent
to represent FBI interests, e.g., one metallurgist and several local
agents, as had been done with almost all other transport disasters I
had worked the prior 25 years. I indicated that the NTSB was quite
qualified and capable of recognizing unusual transport material
deformation and damage and that having an FBI forensic metallurgist on
site would maintain FBI interests and allow for escalating FBI presence
if necessary or desired.
As strong as my opinion was by late August 1996, I was always open
for additional information and data, should unusual circumstances be
discovered. However, I considered that possibility very remote. As my
colleague, Dr. Michael Smith, whom I was training at the time indicated
when he returned from the Bruntingthorpe testing, even the smallest of
charges (used in the tests) was so demonstrative that ``* * * it was so
obvious * * *'' that we had no such indication on any of the pieces
recovered from the TWA 800 crash. And, again, the charge used for the
testing was miniscule compared to what could be expected from bombs or
missiles.
Question 2. You testified that, in September 1996, all the
metallurgists, including those from NTSB, and all the explosives
examiners were united in their opinion that the crash was not the
result of a bomb or a missile. Yet, in June 1997, Chairman Hall,
testifying before the House Committee on Transportation and
Infrastructure Subcommittee on Aviation said that the NTSB was pursuing
six scenarios as the cause of the crash, including a proximity missile
explosion and a small explosive charge placed in or near the center
fuel tank. In addition, NTSB funded a series of tests at
Bruntingthorpe, United Kingdom, that ran for several months from early
to mid-1997 to test various theories, including the small-explosive-
charge theory. Please explain the need for this continued study if
there was no difference in opinion.
Answer. It was my understanding that the Bruntingthorpe testing was
scheduled, among numerous other considerations, primarily to view an
explosion of the center fuel tank. The NTSB was convinced early on that
the initial reason the aircraft lost structural integrity was that the
center wing tank exploded due to ignition of fuel vapor in the tank.
However, they could not explain what ignited the tank and, therefore,
all ``scenarios'' or possibilities had to be entertained until enough
evidence existed to support one to the exclusion of the others. The
additional testing was expected to show that the impulsive loading
scenarios (bombs, missiles, shaped charges) would have left distinct
physical evidence which would be identifiable in the wreckage. Since
such testing was a rare occurrence and few 747's were available for
repeated testing, testing for most of the ``scenarios'' was scheduled
for the Bruntingthorpe tests.
In the light of Mr. Kallstrom's continuing insistence that ``all
the pieces of the wreckage [had] not been recovered'', one of the
reasons supporting scheduling the tests was that the tests would be
useful to convey what was known to the forensic metallurgists: that
characteristics of bomb or missile damage would have been evident even
if substantially less of the aircraft had been recovered.
Question 3. You testified that there were reasons you. did not take
notes or otherwise document your examinations in TWA Flight 800. Please
explain those reasons.
Answer. (1) By Mr. Kallstrom's own public representations, there
were over one million damaged aircraft pieces and parts. Metallurgical
examination notes would likely average two or three full pages per
part, particularly when it would necessarily include a complete
description of the part, its geometry and uniquely identifying
characteristics (for subsequent identification). I would still be
taking notes in Calverton, N.Y. today if in the normal forensic
examination mode. This would have comprised an unduly burdensome and
unwarranted effort, particularly inasmuch as no statutory authority
existed for the FBI to ``determine the cause of the crash'', only
whether any characteristic existed suggestive of criminal activity. The
alternative would have been to record, ``Metallurgical examinations
revealed no characteristic indicative of criminal activity'' one
million times, a notation that would still require a complete
description and measurements of each part to uniquely identify the item
at a later date.
(2) The material damage and component failures were concluded to
have resulted from low order explosion (fuel tank), impact and
corrosion mechanisms, with enough representative parts to effectively
and strongly indicate no FBI metallurgical or materials science
involvement was mandated unless NTSB subsequently developed
characteristics or indications of possible criminal activity or
cause(s). This was obvious to Dr. Michael Smith (my colleague) and I
within the first several weeks.
(3) Every recovered piece was examined at least once and jointly,
by both FBI and NTSB metallurgists. I was part of the fracture
sequencing group and regularly reviewed the logs/reports of the
Metallurgy Group findings, which all parties signed, including
metallurgists from the financially interested parties.
(4) I did not believe the taxpayers should fund duplicitous and
costly note taking, particularly when there existed notes jointly
obtained and agreed upon by all metallurgists involved; there existed a
contemporaneous log and recording of the group's findings, we were all
in agreement, and there was no indication of criminal involvement.
(5) Duplicitous notes have been used in the past to ``muddy the
waters'' or to the serious detriment of interested parties in a
judicial process. Two scientists will generally not take identical
readings or measurements of undamaged and undeformed parts, let alone
badly damaged (extensively bent and crushed) items.
(6) It was my conviction that prima facie statutory authority
rested with the NTSB, and until they, my colleague or I concluded that
material damage suggested a reasonable possibility of criminal
involvement, there was plenty of time to ``crank up'' a forensic
investigation and subject the appropriate pieces to extensive forensic
examinations. There were no time or schedule exigencies which would
have precluded extensive note taking immediately upon observation of a
characteristic suggestive or criminal activity. As far as I am aware,
the aircraft remnants are still in position as reconstructed in
Calverton, New York.
__________
Responses of Andrew Vita to Questions From Senator Thurmond
Question 1. You testified that ATF collaborated with the National
Transportation Safety Board and other investigators in the preparation
of the January 20, 1997, ATF report on Flight 800. Please elaborate on
which agencies collaborated and the extent of such collaboration.
Answer. During the TWA Flight 800 investigation, the role of the
Bureau of Alcohol, Tobacco and Firearms (ATF) was to support both the
Federal Bureau of Investigation (FBI) and the National Transportation
Safety Board (NTSB). Throughout the investigation, ATF worked with
members of various multi-agency teams. The teams included all the
member agencies of the FBI/NYPD Joint Terrorist Task Force, the Federal
Aviation Administration, the Suffolk and Nassau County Police
Departments, the United States Coast Guard, the United States Navy, the
Airline Pilots Association, TWA, and the Boeing Corporation. ATF worked
side-by-side with the other agency teams in the onsite recovery and
examination effort, continuously sharing and exchanging ideas and
expertise among the team members. The ATF Certified Fire Investigators'
Report (CFI report) was based on information previously obtained from
collaboration with other agency investigative teams, and ATF's
conclusions regarding fire progression, independent research, fuel/air
blast patterns and the lack of high explosive blast patterns.
Question 2. Prior to the preparation of the ATF report, did ATF
inform anyone from the FBI at the Calverton facility, the FBI's New
York field office, the FBI Crime Laboratory, or FBI Headquarters in
Washington that ATF was preparing a report on Flight 800? Please
explain.
Answer. After being briefed on December 23, 1996, by the CFI team,
I directed the team to document their findings in a written report. I
later advised Bill Esposito, Deputy Director of the FBI, that we were
concluding our examination of the airplane wreckage and were preparing
a report of our findings, which I offered to brief Mr. Esposito, the
FBI Director, and any other FBI personnel at the earliest opportunity.
Mr. Esposito indicated he would check with the Director's schedule and
get back to me if they wanted a briefing. I believe this conversation
occurred sometime early in 1997. Mr. Esposito never requested the
briefing.
Question 3. You testified that, based on the information in the ATF
report, you were very concerned about air safety and the possibility of
design flaws in the aircraft. The report was dated January 20, 1997,
but apparently there was a considerable delay before the FBI actually
received it. When was the report provided to the FBI? Also, when did
you become aware of the substance of the report's findings, and when
did you become concerned about design flaws and air safety issues?
Answer. I was initially briefed by the Certified Fire Investigators
concerning their findings as to the crash of TWA Flight 800 on December
23, 1996. I subsequently received a draft report of those findings.
Upon my review, I requested clarification of certain technical
references made in the report. The report was revised and signed on
January 20, 1997. Subsequent briefings on the information in the report
were given to Treasury Department officials. ATF delivered a copy of
the CFI report to the FBI Assistant Director in New York City on March
13, 1997.
During the initial briefing in December 1996, I became aware of
possible design flaws and air safety issues. I planned to have the
final written CFI report transmitted to both the FBI and the NTSB. I
was of the belief that NTSB personnel were familiar with the
conclusions contained in the report as the result of ATF's frequent
interaction with the agency throughout the investigation.
Question 4. Did the FBI invite ATF to assist in the investigation?
Answer. Within hours of the crash, the FBI Assistant Director in
New York telephoned ATF's New York Special Agent in Charge and
requested ATF's assistance in the investigation.
Question 5. Given the magnitude of the Flight 800 tragedy and the
need to coordinate the law enforcement investigation and response, do
you believe the FBI's protocols or conditions were reasonable? Did ATF
follow these protocols? Please explain.
Answer. I believe that in any investigation, it is important for
information to be shared among all the agencies to ensure that the
collective knowledge of those involved is used to its fullest. I do not
know of any specific protocols or conditions established by the FBI in
this investigation.
Question 6. You testified that the ATF report was a ``Snapshot''
and that it was issued at a time when ATF was aware the investigation
was continuing with many initiatives underway. Was the ATF report
intended to offer a definitive conclusion about the causes of the
Flight 800 crash?
Answer. The CFI report was completed after most of the aircraft had
been recovered. The CFI report was intended to convey to the FBI and
the NTSB the Certified Fire Investigators' opinions based on the
information then available to them. The CFI report was intended to
assist those agencies in their continuing investigations. The CFI
report documented the opinion of the CFI investigators that a fuel/air
explosion within the plane's center fuel tank caused the crash of TWA
800. The report further documents the lack of evidence regarding a high
explosive initiation of the fuel tank and indicates that the fuel/air
blast patterns identify an area of origin in the second cell from the
rear on the starboard side of the center fuel tank. Investigation
failed to identify any potential spark producing item in that
particular cell except for a fuel indicator probe. Based on the process
of elimination the CFI's concluded that this probe was the probable
source of ignition. Due to the design of the probe it would have had to
have been subjected to some unknown electrical feedback of sufficient
intensity to generate the needed spark. The CFI's were unable to
determine the specific source of the electrical energy, which could
have bled into the fuel indicator system causing the initiation of the
vapor mixture.
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, DC, June 17, 1999.
Honorable Charles E. Grassley, Chairman,
Subcommittee on Administrative
Oversight and the Courts,
Hart Senate Office Building,
Washington, DC.
Dear Senator Grassley: This is in response to your letter of June
7, 1999, which enclosed four follow-up questions concerning my
testimony on May 10, 1999, at the hearing on ``Administrative Oversight
of the Investigation of TWA Flight 800.'' I am pleased to respond to
these questions in an effort to clarify any misconceptions which may
have arisen from the testimony provided by witnesses at the hearing.
Responses of Donald M. Kerr to Questions From Senator Grassley
Your first two questions addressed the accreditation status of the
FBI and ATF Laboratories, specifically in the area of explosives
examinations. The FBI Laboratory was fully accredited by the American
Society of Crime Laboratory Directors--Laboratory Accreditation Board
(ASCLD-LAB) on September 11, 1998, as recorded on Certificate of
Accreditation No. 186. This certificate documents that the FBI
Laboratory is accredited in the disciplines of: Controlled Substances,
Toxicology, Trace Evidence, Serology, DNA, Firearms-Toolmarks,
Questioned Documents and Latent Prints. This accreditation is granted
for a five-year period provided that the laboratory continues to meet
ASCLD-LAB standards and requirements. Thus, the FBI Laboratory's
present accreditation will remain in effect until September 10, 2003,
at which time the FBI will submit a new application for accreditation
and undergo another on-site inspection.
ASCLD-LAB is presently capable of accrediting only the eight
disciplines listed above. Therefore, the FBI enjoys a fully accredited
status. Contact with ASCLD-LAB determined that the ATF Laboratory was
initially accredited in 1984, but is presently accredited in only four
of these disciplines (Trace Evidence, Firearms-Toolmarks, Questioned
Documents and Latent Prints). Therefore, I am somewhat dismayed that an
impression was created that the ATF Laboratory's accreditation status
is superior to that of the FBI Laboratory's in that it is inconsistent
with the facts.
With respect to the specific accreditation status of explosives
unit personnel, it is important to note that explosive device
construction and function examinations comprise a discipline that is
not accreditable by ASCLD-LAB. However, the FBI and ATF chemists who
conduct explosive and arson residue analyses are accredited by ASCLD-
LAB under the trace evidence discipline.
Recognizing the benefits of operational assessment and conformance
to established standards, the FBI Laboratory elected to have its non-
accreditable functions (e.g. explosive device construction and function
examinations, metallurgical examinations, etc.) operate in the same
framework as its accreditable disciplines. Moreover, Dr. Thomas
Jourdan, Chief of the Materials and Devices Unit, has taken the
initiative to interact with the present and past head of ASCLD-LAB to
plan for future accreditation of explosives and hazardous devices
examinations. In furtherance of this endeavor, Dr. Jourdan and his
staff have visited a number of foreign laboratories which have been
heavily engaged in such examinations. These include: the Defense
Establishment Research Agency Laboratory in Kent, England; the Northern
Ireland Forensic Agency in Belfast, Ireland; the French National
Laboratory in Paris, France; the Israeli National Police Laboratory in
Jerusalem, Israel; and the Victoria Forensic Science Centre in
Melbourne, Australia. The objectives of these visits have been the
exchange of examination protocols and the establishment of consensus on
good laboratory practice. The FBI Laboratory has provided its explosive
device construction and function examination protocols to these
laboratories for review and comment. In addition, the FBI Laboratory
has been an active participant in the establishment of a Technical
Working Group for Fire and Explosive Debris (TWGFEX) in cooperation
with the National Center For Forensic Science, University of Central
Florida, Orlando, Florida.
I would also point out that the FBI Laboratory presently has five
examiners who are certified ASCLD-LAB inspectors who are periodically
called upon to serve on inspection teams detailed to conduct on-site
inspections of other forensic laboratories that are seeking
accreditation.
Your third question dealt with the FBI Laboratory's experience in
the investigation of accidental explosions. The Devices Operations
Group of the Materials and Devices Unit (formerly referred to as the
Explosives Unit prior to a restructuring in 1997) has over the years
conducted a number of suspected explosion investigations which were
determined to be accidental. Some of the more notable of these include:
the USS Iowa explosion in 1989; the explosion at the Navy Research
Laboratory at White Oak, Maryland in 1992; the crash of PSA Flight 1171
in California in 1987, the crash of US Air Flight 427 in Pittsburgh,
Pennsylvania in 1994; and the crash of Tarom Airlines Flight R0371 in
Bucharest, Romania in 1995.
FBI explosive experts have provided forensic support to a number of
aircraft bombing investigations. A listing of suspected/known terrorist
activities targeting civil aviation were provided under Tab No. 15 in
the briefing book that was compiled in response to your letter of April
8, 1999.
Your fourth question pertained to evidentiary protocols, namely the
examination of seat cushions and consideration of their blast damage
placement; as well as, a recommendation attributed to the Royal
Canadian Mounted Police (RCMP) for the rinsing and protective coating
of aircraft debris recovered from sea water.
Having checked with my staff, I am not aware of the removal of seat
cushions without consideration to their blast damage placement. I am
informed that the seat cushions were soaking wet when recovered and
were initially placed in a separate hangar to dry. Many of the seat
cushions were found disengaged from their seat frames and were
recovered as floating debris. Determination of the exact location of
these loose cushions in the aircraft prior to the incident would have
been extremely difficult, if not impossible. Most of these seat
cushions were impregnated with Jet-A fuel, thus posing a biohazard.
Those seat cushions which had not become disengaged from their seat
frames were left attached to the frames and were painstakingly placed
in a hangar and arranged according to seat row and number.
Blast damage effects and placement would have been most evident on
the seat frames, which were thorougly examined. Moreover, it would not
have been possible to positively attribute seat cushion damage
specifically to blast damage, impact with the water, thermal damage, or
recovery, to the exclusion of the other causes.
I and my staff have no knowledge of seat cushions or seats being
removed from the hangar without prior approval of the National
Transportation Safety Board (NTSB). All explosive residue sampling of
the seat frames and cushions was performed on-site and only swabs and
vacuum samples were taken away for laboratory analyses. The FBI had
full authorization from the NTSB to perform such chemical testing on
the seats.
Members of my staff recall consideration of a suggestion to coat
aircraft debris subsequent to its recovery from the ocean to reduce
corrosion of the metal surfaces. The suggestion was attributed to the
RCMP, but it was not clear as to whether this suggestion was
communicated to the FBI by an ATF employee.
The suggestion was not acted upon because of concerns that a fresh
coating of light oil would constitute an additional contaminant that
would have a very negative impact on explosives residue sampling. This
position was communicated to the investigators by Mr. Steven
Burmeister, Chief of the FBI Laboratory's Chemistry Unit. The decision
was made to not coat the debris and was reportedly agreed to by all
parties.
I hope that the above information is of assistance. if I can be of
any further assistance, please do not hesitate to contact me.
Sincerely yours,
Donald M. Kerr,
Assistant Director,
Laboratory Division.
__________
Response of FBI Assistant Director Schiliro to a Question From
Senator Thurmond
Question. Please comment on how the FBI's efforts in the Flight 800
matter assisted and/or expedited the progress of the NTSB investigation
or enhanced air safety.
Answer. The FBI did a number of things that assisted and expedited
NTSB's efforts and enhanced air safety.
Beginning the very night of the crash, the FBI provided significant
communication and logistical support essential to managing a
tremendously chaotic situation. This included ensuring that each
investigative team on land and at sea were equipped with voice privacy
radio communication so that real time accurate information could be
relayed from the various venues to the decision makers within the FBI
and the NTSB. The FBI secured a mobile command post (Winnebago trailer)
for NTSB's use at the Center Moriches Coast Guard station and provided
NTSB telephone communications without which they would have been unable
to effectively manage the investigation. Also, contrary to statements
by some at NTSB, it was the FBI, through its extensive liaison contacts
on Long Island, that located and successfully negotiated with the U.S.
Navy the use of the Calverton hangar, the cost of which was later
funded by an appropriation to NTSB, where the massive amounts of
aircraft debris could be brought and analyzed. The FBI also provided
the telephone communications for NTSB at the hangar. Due in large
measure to the efforts of the FBI with the Department of Defense and
the U.S. Navy, the Navy dispatched a second salvage ship and a flag
officer, Admiral.
The FBI and its law enforcement partners, working closely with the
U.S. Navy and the U.S. Coast Guard, assumed the primary responsibility
for securing the various debris sites, the recovery of victims and the
recovery and transportation of wreckage to the Calverton hangar. This
was a manpower intensive and a complex undertaking due to the ocean
venue. The FBI also ensured that the evidence was collected properly
with a well- established chain of custody in place. The FBI also
provided round the clock security for the recovery operations and for
the Calverton hangar up until mid-February 1998, approximately three
months after the FBI withdrew from active investigation. In addition,
the FBI Disaster squad was dispatched to the scene and worked
tirelessly in the effort to identify the recovered remains of the
victims. These efforts involved hundreds of FBI Agents and Professional
Support employees from New York and throughout the country. Such an
undertaking could not have been accomplished in such a timely,
effective and legally sound manner without the direction of the FBI.
FBI investigation at the scene, at Calverton and throughout the
world accomplished a number of tasks ranging from tracking down and
interviewing all passengers and crew of TWA Flight 881 (Athens to New
York) around the globe, to providing infusions of manpower on numerous
occasions to look for particular items of debris located among the many
thousands of pieces at Calverton or to complete a reconstruction
project. If undertaken by NTSB, such efforts would have seriously
strained their limited resources. It should also be pointed out that
the main 92 foot reconstruction project of the plane's fuselage was
initiated at the insistence and urging of the FBI to identify possible
patterns of damage or directional forces in a three-dimensional
perspective, despite the repeated objection and reluctance of many NTSB
senior managers to take on such an investigative project. FBI Agents
were an integral part of this and other reconstruction projects both in
terms of providing the labor force necessary to build and with respect
to, detailed analyses of the completed projects.
It was also at the urging of the FBI that the evidence collection
effort continued after the cessation of diving operations on November
3, 1996 due to weather conditions. The FBI contracted for the services
of four (4) scallop trawlers to literally ``rake'' the ocean floor for
aircraft debris from November 1996 until the end of April 1997. Each
trawler operated 24 hours a day, weather permitting, and was staffed by
two FBI Special Agents who painstakingly separated sea life from
manmade objects and ensured a proper chain of custody. Through such
arduous and thorough efforts, the FBI and the NTSB and its parties were
afforded an unprecedented opportunity to conduct further forensic and
engineering analyses which assisted in the overall decision making
process.
These are just a few examples of how the FBI not only addressed its
own mission, but provided tremendous assistance and enhancement to the
NTSB's investigation. It should also be mentioned that this view was
shared on numerous occasions by NTSB personnel on the scene and by many
of its corporate parties who not only expressed their sincere
gratitude, but candidly commented that the investigation would have
never proceeded in such a dynamic and thorough fashion had it not been
for the massive infusion of FBI resources.
______
Responses of FBI Assistant Director Schiliro to Questions From
Senator Grassley
Question 1. The NTSB made safety recommendations to the FAA
regarding Center Fuel Tanks of Boeing 747 aircrafts in a report dated
12/13/96. Is it policy of the FBI to condemn NTSB safety
recommendations as ``pre-mature and ill-timed'' as is indicated in the
FBI report of SA Dennis Smith dated 12/15/96? Does the FBI have a
policy of criticizing NTSB safety recommendations in transportation
accidents as indicated in your portrayal of the TWA 800 investigation
as a ``model for the future?''
Answer. Your reference to SA Dennis Smith's ``FBI report'' as a ``*
* * policy of the FBI to condemn NTSB safety recommendations * * *'' is
mischaracterized. SA Smith is one of two specially trained FBI pilots
who had previously attended NTSB aircraft accident investigation
schools and are fully qualified to conduct FBI aircraft accident
investigations. Their primary role in the TWA 800 investigation was to
act as the principal FBI coordinator with the NTSB and each of its
participating parties.
The document that you refer to was not an official FBI report, but
rather an informal note to FBI managers outlining his professional
concerns regarding the methodology and justification supporting the
NTSB's proposed safety recommendation. In SA Smith's view, which was
shared by a number of the parties, the NTSB's proposed recommendation
did not have a sufficient scientific or aeronautical basis to justify
its issuance. SA Smith was also relaying his professional opinion to
FBI managers. It was forwarded to FBI management for information
purposes. At no time did the FBI publicize SA Smith's observations or
try to influence or delay the NTSB's issuance of the recommendations.
Ouestion 2. Were any disciplinary measures taken against the FBI
agents who were unauthorized into the hangar of which Mr. Hughs was a
team member?
Answer. The FBI is not aware of any unauthorized access into the
Cabin Reconstruction Hangar where Mr. Hughs was assigned.
Question 3. You testified that photographic negatives are
``evidentiary in nature. `` I understand the Bureau has reason to
retain the negatives for evidentiary purposes. However, this does not
preclude any prints that the NTSB required from being made. Please
explain in detail why prints of Mr. Zakar's photos were of evidentiary
value and why Mr. Zakar never received them in furtherance of his NTSB
accident investigation. Since our hearing, what efforts have been made
to get these photos to Mr. Zakar.
Answer. When the FBI takes photographs during the course of its
investigations, the negatives are maintained as items of evidence in
the exhibits section of the case file because the negatives are the
``best evidence'' and would be what is used in the event there were
questions as to the validity of any photographs used at trial. While I
have not had the opportunity to review a transcript of the hearing, I
do not believe that I testified that the prints of Mr. Zakar's
photographs were of evidentiary value and could not be provided to him.
To the contrary, I believe that the FBI should have provided the prints
of the film Mr. Zakar testified he submitted to the FBI for processing
to him and I do not believe that I stated in my testimony that the
requirement to maintain the negatives precluded providing prints to Mr.
Zakar for his use in the NTSB investigation.
I have no information why prints of film that Mr. Zakar testified
he submitted to the FBI for processing were not returned to him. The
FBI's New York Office Photo Lab routinely processed thousands of
photographs for the FBI, NTSB and other involved parties during the TWA
investigation. The individual submitting the film to the FBI for
processing had to fill out a short form to accompany the film to the
FBI's photo lab for development. After developing, the photographs were
forwarded to Calverton and turned over to the NTSB where they were
deposited into an NTSB file cabinet divided by investigative group.
There would be no reason to retain Mr. Zakar's photographs and not
follow the established procedure. There were a few occasions when an
NTSB investigator could not initially locate photographs which later
were discovered either in the NTSB file cabinet or within the NTSB's
record keeping system.
As noted above, photographic negatives are maintained as exhibits
to the FBI case file. The TWA case file has an extraordinarily large
number of exhibits. Since the hearing, the FBI has undertaken a review
of the TWA file in an effort to locate the negatives of the film which
Mr. Zakar testified that he provided to the FBI for developing. To
date, that review has not located the negatives of any film submitted
by Mr. Zakar. We will continue this review and notify NTSB of the
results when completed.
Ouestion 4. Why did the FBI initially take the lead in showing the
victim's family their personal items? Describe the use of your photo
album and the subsequent relinquishing of this task to the NTSB. Is it
common practice for the FBI to process victims' belongings in NTSB
accident investigations?
Answer. At the outset of the investigation, all victim clothing and
personal items were considered to be potential evidence in the case and
were processed by the FBI and the participating law enforcement
agencies. After processing, the personal property items were maintained
in a room at Calverton. Valuable items were maintained in a safe at the
Calverton facility. In early August 1996, the FBI established a policy
that all documentary materials (address books, passports, drivers'
licenses etc.) were to be photocopied and all luggage and personal
effects photographed before return. The FBI and the NTSB were in
agreement that personal property should be returned when it had been
established by investigative and forensic personnel that it is of no
forensic, evidentiary or lead value. If there was doubt regarding the
evidentiary or lead value of particular property, the doubt would be
resolved in favor of retaining that property. These procedures were
approved by the United States Attorney's office for the Eastern
District of New York.
At a meeting on September 30, 1996 at the National Transportation
Safety Board (NTSB), which was attended by Mr. Jeffrey Erickson,
President of TWA and other TWA representatives, it was agreed that TWA,
through a contractor, would be responsible for returning personal
property, including the valuables, to the families and/or legal
representatives of the victims of the TWA Flight 800 tragedy. TWA had
engaged Kenyon International Emergency Services, Houston, Texas to
handle this task. In addition, TWA agreed, through their contractors,
to arrange for viewing of a photo album of unassociated items which the
FBI agreed to prepare by the victims' families and/or legal
representative of their estate. The FBI and NTSB agreed that TWA,
through its agent, Kenyon, was responsible for the custody of the
property of TWA's passengers recovered from the wreckage and the
delivery of that property to the families of TWA's passengers once it
had been determined that it was of no further investigative value.
In a letter to Kenyon dated October 28, 1996, a copy of which was
sent to Chairman Hall at NTSB, the FBI advised Kenyon that the
investigative/forensic review of the personal property had been
completed and could be returned to the families and/or legal
representatives of the estates of the victims. The FBI advised Kenyon
that it would deliver to Kenyon's representatives at the Grumman
facility in Calverton, Long Island, associated and unassociated
personal property, including the valuables, recovered from the wreckage
on Friday, November 1, 1998. At the same time, the FBI agreed to
deliver multiple copies of a photo album of the unassociated personal
property which may be used to identify the owners of these items. The
FBI delivered three copies of the photo album to Kenyon on November 1,
1996. However, TWA reneged on the agreement with the FBI and the NTSB
and directed Kenyon to refuse to take possession of the property and to
display photographs of personal property to the families. There were
numerous written and oral follow-ups with TWA and Kenyon by the FBI and
NTSB, separately and jointly, in an effort to resolve the issue of the
return of the property of the victims of Flight 800. The FBI also took
a lead role in pressuring TWA to authorize Kenyon representatives to
appear and discuss the issue with the families in February 1997 when
the families were given a group tour of the Calverton hangar.
Ultimately, TWA, through Kenyon, did return personal items that had
been associated with a victim and reproduced the photo albums of
unassociated personal property supplied by the FBI. TWA eventually
mailed a copy of the photo albums to each family requesting one for
review. Procedures were also established whereby TWA or its contractor
would handle claims for unassociated personal items. At no time during
this process did NTSB ask for or indicate any desire to take custody of
the victim's personal effects or express any objection or concerns
regarding the FBI's role with respect to the victim's belongings. In
early November 1997, NTSB accepted custody of these items from the FBI.
It is not common practice for the FBI to process victims'
belongings in NTSB accident investigations. However, it is the practice
of the FBI to conduct thorough and complete criminal investigations,
which includes processing of all items that may be evidentiary in
nature. It is for that reason that the personal belongings of the
victims were initially processed by the FBI. While the FBI, with NTSB's
agreement, did return some items of personal property that had been
associated with a particular victim to the victim's family, the FBI did
not take a lead role in either exhibiting or returning personal
belongings to the families. As noted above, the FBI, with NTSB's
support, strongly believed that this task was the responsibility of TWA
and we were anxious for them to undertake that task. Contrary to what
is implied by your question, the FBI and the NTSB were in agreement on
the issues of victims' belongings and worked together closely in an
effort to have TWA fulfill its responsibilities to return property to
the families of the victims.
Ouestion 5. On May 22, 1999, a story appeared in the New York Times
stating that the rank and file of the FBI was distributing a strongly
worded letter to Sen. Grassley criticizing the TWA 800 Hearing by this
Subcommittee. This letter has now been sent. Who initiated this letter?
Answer. The idea of sending you a letter from the employees of the
New York Office was initiated by a ``street level'' agent in the New
York Office. The letter you received was a collaborative effort by
several agents, including some supervisory/management level agents whom
the ``street agent'' asked for advice and input. All of those who were
involved in the drafting process signed the letter. Although, as you
know, senior management officials in New York were aware of and, in
their individual capacities, signed the letter, the letter was not
inspired, proposed, instigated, orchestrated or any manner originated
by management officials of the New York Office.
As I testified at the hearing, the enormity of the tragedy of TWA
Flight 800 deeply affected all of us involved in the investigation.
Each of us, management, Agents and Professional Support employees
believed we owed it to the victims, their families and the American
people to give them the most thorough and professional investigation
that the FBI was capable of producing. They believe that is exactly
what they did. These FBI employees are proud of their work and were
offended to hear and read that you, your staff and some of your
witnesses portrayed that effort as one rife with efforts that would
``embarrass a rookie police officer.'' It is, I believe, why they wrote
to you. With all due respect, I ask that as you continue to review this
matter you also keep in mind that not only did we participate in this
case as FBI employees and managers but also as parents, husbands and
wives. It is in this regard that every effort was made to conduct a
thorough and complete investigation ever mindful of the tragedy that
had occurred. The letter presented was an attempt by the personnel in
this office to present an accurate viewpoint and to, hopefully, provide
a basis to understand that the protection of the public safety was our
paramount goal.
Ouestion 5a. I noted that you, Assistant Director Schiliro, signed
the letter in question. Do you think this is appropriate? In other
words, how do you distinguish yourself as a private citizen in the
letter and as an Assistant Director of FBI management in a Senate
hearing?
Answer. Like all citizens, FBI employees enjoy rights protected by
the First Amendment to the Constitution. I am well aware that the FBI
has interests as an employer in regulating speech of FBI employees when
that speech relates to and may affect the FBI's mission. The FBI's
interests in promoting the effective and efficient discharge of its
responsibilities must be balanced against the employee's First
Amendment right to comment regarding issues closely related to the
FBI's mission that may be matters of public concern. I am also fully
aware that as a senior management employee of the FBI, I have a
correspondingly higher duty of loyalty to the FBI; that the level of my
FBI position may preclude me from publicly commenting on some issues of
public concern and that I must be especially careful that there is no
confusion regarding the capacity in which I am speaking when I do speak
regarding issues closely related to the FBI's mission. Not only did I
sign to endorse the position of the working agent, but I also signed to
endorse their right to present this viewpoint. If I did not believe
that signing the letter was an appropriate exercise of my rights under
the First Amendment, I would not have signed it.
Ouestion 6. A Subcommittee interview of the Vice President of the
TWA 800 Victims Association reveals that ADIC Kallstrom allowed many
victims' families to enter the hangar and take pictures of the
evidence. Please answer the following questions regarding this fact:
Why were relatives allowed to enter the hangar and take photos and
the NTSB was not allowed to take photos in furtherance of their
accident investigation?
Was the film taken by the relatives processed by the FBI lab as
required by the FBI in regards to NTSB photographs?
Answers. Contrary to what is stated in your question, the FBI did
allow the NTSB to take photographs in furtherance of their
investigation. Procedures regarding wreckage photography by NTSB,
including the wearing of red ``safety vests'' were agreed to by NTSB
managers at Calverton early in the investigation. At the time, both the
FBI and the NTSB were concerned about unauthorized photographs being
taken and being misused to the detriment of the investigation as well
as such photographs being exploited in the media thereby increasing the
grief of the families of the victims. It should be noted that FBI
personnel taking photographs were also limited in number and were
required by the FBI to be wearing either hats or shirts that clearly
identified them as FBI personnel. The use of the FBI New York photo
laboratory to develop the photographs actually benefited the NTSB which
did not have an available facility for processing and otherwise would
have been taking their film to local commercial establishments for
development, thereby increasing the risk that photographs would have
been misused.
To my knowledge, there were two occasions in which victim's
families were allowed to enter the hangar at Calverton to view the
wreckage. These en-masse tours, the first of which took place in
February 1997, were arranged in coordination with the NTSB. Prior to
the two en-masse tours of the Calverton hangar by the victims'
families, during preliminary briefings, it was made clear that no
photographs were to be taken. I am told, however, that there may have
been an isolated incident or two when during a private tour of the
hangar, a family member may have taken a photograph of the cabin seat
their loved one had last been seated in. In those instances, the film
was not taken or processed by the FBI when assurances were received
that the photographs would not be released and that they would only be
viewed by the immediate family. To have taken the film would have been
an insensitive disregard for the painful emotions of the family and a
disruption of the bereavement process.
______
Response of Lewis Schiliro To An Additional Question From
Senator Grassley
Question. Please comment on legislation proposed by NTSB in the
proposed National Transportation Safety Board Amendments of 1999
regarding accident-scene priority and the impact such legislation may
have should a future Flight 800-type case turn out to be the result of
a criminal act rather than a mechanical failure.
Answer. The FBI strongly opposes the amendments affecting accident
scene and accident investigation priority.
The legislation proposed by NTSB would, among other things,
(1) amend 49 U.S.C. Sec. 1101 by inserting a new subsection b
which would read ``The term accident as used in this chapter
includes damage to instrumentalities of transportation whether
accidental or otherwise.'';
(2) amend 49 U.S.C. 1132(a)(2) by striking the words ``(A)-
(D) or (F)''; and
(3) amend 49 U.S.C. 1131(d) by striking ``1134(b)(2)'' and
inserting in lieu thereof ``1134 (a), (b), (d), and (f).''
The accompanying Statement of Justification for these changes
states that NTSB has, through precedent and international convention,
traditionally undertaken thorough investigation of all downed or
destroyed commercial aircraft within U.S. jurisdiction and that its
obligations under international agreement anticipate that it would
continue to do so. NTSB further states that these amendments ``would
not affect the authorities of any other federal agency'' under 49
U.S.C. Sec. 1131(a)(3) and merely clarify existing NTSB authority. The
FBI believes that NTSB understates the effect of these amendments and
that the amendments, in fact, would dramatically alter the nature of
interagency relationships in non-accidental transportation
investigations. The overall effect of these amendments would be to
afford the NTSB lead agency status in all investigations of any
incident, accidental or intentional, that includes ``damage to
instrumentalities of transportation'' with the exclusive legal
authority to control all aspects of relating to the custody, handling
and testing of evidence, including criminal law enforcement
investigations.
Existing Federal law gives the NTSB has authority to investigate
various transportation accidents and Civil aviation accidents and
provides that such accident investigations (except for major marine
casualties in which they have concurrent jurisdiction with the U.S.
Coast Guard) \1\ shall have priority over investigations by other
departments or agencies. The legislative history of the investigations
priority clause of 49 U.S.C. Sec. 1131(a)(2), which is alluded to in
NTSB's Justification Statement, was designed to give NTSB priority over
other Federal agencies in conducting accident investigations and was
requested by the NTSB ``to reduce duplicate Federal accident
investigations.'' H.R. Rep. 108 (I) , 97th Cong., 1st Sess. 1981,
reprinted in 1981 U.S. Code Cong. and Ad. News 1729 (emphasis added).
The Congress believed it was ``desirable to have one Federal agency
responsible for coordinating accident investigations.'' The amendments
were not intended to prevent the Department of Transportation's
operating administrations, such as the Federal Railway Administration,
from conducting concurrent investigations required by their statutory
responsibilities or from taking necessary regulatory or enforcement
actions. H.R. Rep. No. 108 (II), 97th Cong., 1st Sess. 1981 reprinted
at 1981 U.S. Code Cong. and Ad. News 1734.
---------------------------------------------------------------------------
\1\ It should be noted that the proposed amendments would also
eliminate the Coast Guard's concurrent jurisdiction in major marine
casualty investigations.
---------------------------------------------------------------------------
NTSB is obliged pursuant to conventions of the International Civil
Aviation Organization to investigate not only civil aviation accidents
but, also, occurrences resulting in damage to aircraft. This treaty
obligation is broad enough to afford NTSB, exercising its obligations
to address issues of aviation safety, a role in criminal investigations
of aviation incidents that are the result of intentional criminal acts,
such as a bombing or sabotage. Congress, however, has never given
NTSB's investigations of such incidents or occurrences priority or
assigned the NTSB, a safety agency, lead agency status over criminal
law enforcement investigations of intentional criminal acts resulting
in damage to or the destruction of aircraft.\2\ The amendments proposed
by NTSB would do just that and more by extending NTSB primacy and
control over wreckage evidence to all criminal investigations of acts
that result in damage to any instrumentalities of transportation, not
just aviation, including intentional actions such as a terrorist
incident using a bomb or a missile.
---------------------------------------------------------------------------
\2\ In fact, the family assistance amendments enacted by congress
in 1996 supports this view. 49 U.S.C. Sec. 1136(h), for purposes of the
family assistance authority conferred on NTSB, specifically defined the
term aircraft accident to mean any aviation disaster regardless of its
cause or suspected cause. If Congress had understood the term accident
in the NTSB statutes to include all incidents, including intentional
criminal acts, if would not have been necessary to enact subsection
(h).
---------------------------------------------------------------------------
NTSB cites the TWA Flight 800 investigation with parallel FBI
criminal and NTSB safety investigations as the exemplifying the need
for the accident scene priority investigations. However, an agreement,
dated September 19, 1973, between the FBI and the NTSB and the FBI
regarding Aircraft Accident Investigations, NTSB, after noting the
FBI's criminal investigative jurisdiction, states ``Whenever the FBI
preliminary investigation results in a determination that a criminal
investigation is required, such investigation will be conducted
concurrently and in coordination with the NTSB investigation.'' The
1973 agreement also provides for FBI participation, including
assignment to NTSB investigative groups of FBI personnel, in NTSB
aircraft accident investigations, which participation is in addition to
separate investigative activities conducted by the FBI concurrent with
the NTSB investigation. The agreement also contemplates a complete and
expeditious exchange of information. The FBI submits that the TWA
investigation was carried out in conformity with the existing agreement
and that the manner in which the FBI conducted the TWA criminal
investigation does not provide a basis for such a dramatic alteration
of the FBI/NTSB relationship in non- accidental investigations.
By broadly defining the term accident as it relates to NTSB
investigative authority, the amendments will encroach on the authority
of the Attorney General, through the FBI, to lead and conduct criminal
law enforcement investigations, particularly in those cases in which
the damage to instrumentalities of transportation results from
intentional criminal conduct, in part by ceding to NTSB complete
authority over the handling and testing of wreckage evidence. The FBI
is opposed to the amendments.
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