U.S. GOVERNMENT PRINTING OFFICE

65–055 CC WASHINGTON : 2000

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

(

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

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

STROM THURMOND, South Carolina

SPENCER ABRAHAM, Michigan

ROBERT G. TORRICELLI, New Jersey

RUSSELL D. FEINGOLD, Wisconsin

CHARLES E. SCHUMER, New York

KOLAN DAVIS, Chief Counsel

MATT TANIELIAN, Minority Chief Counsel

(II)

(III)

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

Page

IV

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

(1)

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

2

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

3

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

4

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.

5

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 proceVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
6

dures 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.

7

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 onscene 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

8

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

9

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.

10

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.

11

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 welVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
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come 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 engiVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
13

neering, 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 interVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
14

ested 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.

15

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?

16

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.

17

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.

18

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 organiVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
19

zation 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

20

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.

21

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.

22

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

23

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

24

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

25

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,

26

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.

27

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,

28

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

29

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 11⁄2 inches

of material missing.

30

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

31

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

32

1The 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.

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.

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/

33

2These 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.

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

In addition, the regulations do not provide the right to a hearing on retaliationrelated 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.

34

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 291⁄2 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 31⁄2 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

35

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.

36

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

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37

vided, 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.

38

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 acVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
39

cept 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

40

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.

41

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 travVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
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eled. 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

43

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 21⁄2 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

44

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

45

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.

46

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:]

47

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 perVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 65055.TXT SJUD2 PsN: SJUD2
48

sonnel. 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 interVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 65055.TXT SJUD2 PsN: SJUD2
49

disciplinary 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 postblast 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 deployVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 65055.TXT SJUD2 PsN: SJUD2
50

ment 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.

51

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 21⁄2 hours after the

plane went into the ocean, and I can tell you that everyone inVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
52

volved 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 workVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 65055.TXT SJUD2 PsN: SJUD2
53

ing 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

54

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 breakup 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

55

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

56

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°. 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.

57

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.

58

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.

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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

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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

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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

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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.

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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

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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.

65

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

66

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

67

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.

68

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 loadout 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.

69

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.]

(71)

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.

72

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?

73

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

74

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.

75

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.

76

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, FirearmsToolmarks, 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

77

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

78

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

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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

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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, instiVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00084 Fmt 6601 Sfmt 6621 65055.TXT SJUD2 PsN: SJUD2
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gated, 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 inVerDate 11-MAY-2000 10:36 Aug 23, 2000 Jkt 000000 PO 00000 Frm 00085 Fmt 6601 Sfmt 6621 65055.TXT SJUD2 PsN: SJUD2
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1 It should be noted that the proposed amendments would also eliminate the Coast Guard’s

concurrent jurisdiction in major marine casualty investigations. 2 In fact, the family assistance amendments enacted by congress in 1996 supports this view.

49 U.S.C. § 1136(h), for purposes of the family assistance authority conferred on NTSB, specifistances, 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. § 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. § 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. § 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.

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

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cally 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).

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.

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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