Text of Letter from Kallstrom to Hall on Baltimore Hearings as Reported in the Flight-800 Discussion List
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Date: 97-12-21 20:27:49 EST
"I have carefully monitored the public reaction to our announcement. To date, that reaction has been almost uniformly positive and there has been no serious questioning, public or otherwise, from any source regarding our investigative conclusions".
James K. Kallstrom
December 3, 1997
26 Federal Plaza
New York 10278
December 3, 1997
Honorable James E. Hall
National Transportation Safety Board
490 L'Enfant Plaza East, SW
Washington, DC 20594
Dear Chairman Hall,
I write to express again my views, concerns and objections to those portions of the public hearing, scheduled to begin December 8, 1997 in Baltimore, that address the criminal investigation into the TWA Flight 800 tragedy. As we have discussed previously, the FBI, exercising its jurisdiction and responsibility under the law, conducted an exhaustive and thorough investigation to determine if the Flight 800 tragedy was caused by a criminal act, particularly a bomb or a missile. After sixteen months, having exhausted all avenues of investigation, we found no evidence that this tragedy was the result of a criminal act and we placed the investigation in a pending inactive status. As we have discussed, the FBI has not closed the criminal investigation because of the possibility that new evidence could be discovered in the course of the continuing National Transportation Safety Board (NTSB) accident inquiry, from intelligence sources or wreckage that heretofore has not been found. The possibility of this occurring is, admittedly remote. Nevertheless, until the NTSB has definitely determined an accidental cause for the crash, I believe it is prudent to withhold from public disclosure or discussion the identities of witnesses and the raw investigative details of the criminal investigation.
Simultaneous with the FBI's criminal investigation, the National Transportation Safety Board (NTSB), exercising its authority and responsibility under the law to investigate civil aviation accident investigations, conducted and continues to carry out a massive, thorough and exhaustive examination to identify a non-criminal cause for the flight 800 tragedy. It is our understanding that the results of the NTSB's accident investigation, to date, will be presented at the public hearing in Baltimore. The FBI is the primary criminal investigative agency of the government and decisions regarding the presence or lack of evidence of criminal activity are committed to and made by the FBI and the Department of Justice. I do not believe it is appropriate for the NTSB, and agency whose jurisdiction is to conduct aviation accident investigations and which has no criminal investigative jurisdiction, to examine the particulars of and to present the results of the criminal investigation at a public hearing, particularly when there is a possibility, albeit remote, that the criminal investigation could be reactivated based on new information.
Due to the enormity of the tragedy and the intensity of the public interest regarding the possibility of criminal activity in connection with the crash, the FBI took the extraordinary step of detailing the scope of the Criminal investigative effort, announcing our conclusion and answering questions about the investigation at a news conference at a news conference as well as providing briefings to the appropriate Congressional committee and Subcommittee Chairs, ranking members of the minority, representatives of the families of the victims of Flight 800 and representatives of the governments of the foreign victims. At my press conference, which you attended, and at each of the briefings I reiterated what I said above regarding the status of the criminal investigation and concluded the press conference by inviting anyone with any information of possible criminality to contact the FBI. Since then, I have carefully monitored the public reaction to our announcement. To date, that reaction has been almost uniformly positive and there has been no serious questioning, public or otherwise, from any source regarding our investigative conclusions. Thus, from the standpoint of public information, I see no need to again examine and present the results of the criminal investigation.
Set forth below are the specific parts of the hearing, as set forth in the 11/29/97 5:56 AM draft Witness list, to which we object and the bases for our objections.
3. Presentation CIA Video
For the reasons noted above, the FBI objects to the use of the CIA video at the hearing if the purpose is to examine the eyewitnesses? observations or negate the possibility that a missile caused the crash. Because they are the product of a criminal investigation and the remote possibility that the criminal investigation could be reactivated, the FBI also objects to requests to disclose or include in the public docket of any FBI FD-302s or summaries of FD-302?s prepared by the NTSB that report the results of any interviews or reinterviews of the 244 eyewitnesses whose reports were examined by the CIA in connection with it?s analysis and to calling any eyewitnesses to testify at the public hearing.
4. Review of Witness Statements Panel
As noted above, the FBI objects to the use of any of the 244 eyewitness FD-302?s or summaries prepared from those FD-302s by the NTSB in connection with this hearing. As I have discussed with you previously, the FBI has serious reservations about the presentation by NTSB of expert testimony regarding the limitations of eyewitness observations. The FBI is well aware of the general issues relating to the reliability of eyewitness observations and testimony and factors those limitations into our criminal investigations. Many of the factors that affect the reliability of eyewitness testimony , e.g., age, visual acuity, position, stress, focus, etc. are peculiar to the individual eyewitnesses as well as the actual event viewed, e.g., lighting conditions, violence etc. I believe that it is inappropriate to use ?experts? to present general observations about eyewitness reliability and to apply those general observations to the particular situation presented by TWA Flight 800 when the ?experts" have not had the opportunity to review the eyewitness reports or to evaluate the various factors as they relate to the particular eyewitnesses. In addition, because the experts have not had the opportunity to review/evaluate the particular eyewitnesses whose accounts were analyzed by the CIA and have not discussed with the CIA its evaluations of the witnesses? accounts, there is a risk that the expert presentations questioning eyewitness reliability will have the unintentional effect of undermining the CIA?s work. As you know, I have always stated that the eyewitnesses are good people who told us what they saw. I believe that the presentation of expert testimony that could cast doubt on the eyewitness? veracity does not further the accident investigation and could complicate our efforts if the criminal investigation were to be reactivated.
The witness list does not explicitly indicate that you desire to use summaries prepared by the NTSB from FBI FD-302?s reporting the results of interviews of individuals other than the 244 eyewitness reports analyzed by the CIA. While we object to the use of any of the FD-302s or summaries prepared from those FD-302s by the NTSB of the 244 eyewitnesses whose reports were reviewed by the CIA in connection with its analysis, we do not object to the use of and inclusion in the public docket of summaries prepared by NTSB of FBI interviews of other individuals to the extent their information may relate to mechanical or similar issues, e.g., fuelers, aircraft mechanics, passengers on the flight from Athens, etc. , provided that the names of those individuals are deleted to protect their privacy and this office has the opportunity to review those summaries prior to their disclosure.
5. Investigation For Missile/warhead Impact
6. e.,f.,g. Bombs/Explosives; Residue Examination (exhibit 20I); PETN Findings j, k. Small Explosive Charges
Because each of these items address matters addressed by the criminal investigation, the FBI believes, for the reasons stated above, that it is not appropriate for the NTSB to address them at the public hearing. In addition to the general objection, we particularly object to discussion of the residue examination and the use of exhibit 20I, an FBI Laboratory report on the chemical analysis of the red residue found on the seats. As you know, this office and the office of the United States Attorney, Eastern District of New York is vigorously investigating a conspiracy to steal and the actual theft of pieces of the seats that contained this red residue in support of an "investigation" by an author/journalist We fully expect this investigation to result, shortly, in a prosecution of those responsible. The residue examination and the FBI Laboratory report of the results of that examination will likely be evidence in this prosecution.
We do not object to the presentation of the metallurgical findings and are willing to allow Dr. Shabel, the outside expert retained by the FBI, to testify regarding his factual observations and his conclusion that his observations are consistent with an over pressurization of the center fuel tank, he break-up of the aircraft and the aircraft impact with the ocean.
Finally, I have discussed these concerns with Director Freeh and the United States Attorney for the Eastern District of New York, Zachary Carter, and they are in agreement with the position and concerns set forth above.
James K. Kallstrom
Assistant Director in Charge