[Senate Hearing 106-534] [From the U.S. Government Printing Office] S. Hrg. 106-534 ADMINISTRATIVE OVERSIGHT OF THE INVESTIGATION OF TWA FLIGHT 800 ======================================================================= HEARING before the SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SIXTH CONGRESS FIRST SESSION on THE INVESTIGATION OF TWA FLIGHT 800 __________ MAY 10, 1999 __________ Serial No. J-106-24 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 65-055 CC WASHINGTON : 2000 COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware JON KYL, Arizona HERBERT KOHL, Wisconsin MIKE DeWINE, Ohio DIANNE FEINSTEIN, California JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York BOB SMITH, New Hampshire Manus Cooney, Chief Counsel and Staff Director Bruce Cohen, Minority Chief Counsel ______ Subcommittee on Administrative Oversight and the Courts CHARLES E. GRASSLEY, Iowa, Chairman JEFF SESSIONS, Alabama ROBERT G. TORRICELLI, New Jersey STROM THURMOND, South Carolina RUSSELL D. FEINGOLD, Wisconsin SPENCER ABRAHAM, Michigan CHARLES E. SCHUMER, New York Kolan Davis, Chief Counsel Matt Tanielian, Minority Chief Counsel (ii) C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Grassley, Hon. Charles E., U.S. Senator from the State of Iowa... 1 Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina....................................................... 4 CHRONOLOGICAL LIST OF WITNESSES Panel consisting of Michael Marx, former metallurgist, National Transportation Safety Board; Henry F. Hughes, senior accident investigator, National Transportation Safety Board; and Frank Zakar, metallurgist, National Transportation Safety Board...... 5 Testimony of William A. Tobin, former chief metallurgist, Federal Bureau of Investigation; accompanied by Charles A. DeMonaco, Dickie, McCamey and Chilcote, Pittsburgh, PA; and Stephen M. Kohn, Kohn, Kohn and Colapinto, Washington, DC................. 21 Testimony of Andrew Vita, assistant director, field operations, Bureau of Alcohol, Tobacco, and Firearms....................... 34 Panel consisting of Donald M. Kerr, assistant director, laboratory division, Federal Bureau of Investigation; and Lewis D. Schiliro, assistant director in charge, New York Division, Federal Bureau of Investigation................................ 44 ALPHABETICAL LIST AND MATERIAL SUBMITTED Hughes, Henry F.: Testimony...................................... 8 Kerr, Donald M.: Testimony.................................................... 44 Prepared statement........................................... 47 Marx, Michael: Testimony......................................... 7 Schiliro, Lewis D.: Testimony.................................................... 51 Prepared statement........................................... 53 Attachment to Statement of Lewis D. Schiliro, Overview of FBI Investigation of TWA Flight 800, dated Janurary 20, 1997... 55 Tobin, William A.: Testimony.................................................... 21 Prepared statement........................................... 32 Vita, Andrew: Testimony.......................................... 34 Zakar, Frank: Testimony.......................................... 12 APPENDIX Questions and Answers Questions of Senator Thurmond for: Michael L. Marx.............................................. 71 Henry H. Hughes.............................................. 72 Frank P. Zakar............................................... 72 William A. Tobin............................................. 73 Andrew Vita.................................................. 74 Lewis D. Schiliro............................................ 77 Questions of Senator Grassley for: Donald M. Kerr............................................... 76 Lewis D. Schiliro............................................78, 82 Additional Submissions for the Record Documents and memos of various investigative organizations submitted by Hon. Charles E. Grassley.......................... 84 GAO, Office of Special Investigations, Briefing Paper, submitted to Hon. Charles E. Grassley, dated Aug. 13, 1999............... 162 GAO, Office of Special Investigations, letter to Hon. Charles E. Grassley, dated Nov. 13, 1999.................................. 166 Letter from National Transportation Safety Board, to James Roth, Chief Division Counsel, New York Federal Bureau of Investigation, dated Aug. 20, 1999............................. 170 GAO, Office of Special Investigations letter to Michael DeFeo, Office of Professional Responsibility, Federal Bureau of Investigation, dated Sept. 13, 1999............................ 171 Letter to Hon. Louis J. Freeh, Director, Federal Bureau of Investigation from Hon. Charles E. Grassley, dated June 3, 1999 174 Letter to Hon. Charles E. Grassley, from FBI's New York Office, dated May 25, 1999............................................. 178 ADMINISTRATIVE OVERSIGHT OF THE INVESTIGATION OF TWA FLIGHT 800 ---------- MONDAY, MAY 10, 1999 U.S. Senate, Subcommittee on Administrative Oversight and the Courts, Committee on the Judiciary, Washington, DC. The subcommittee met, pursuant to notice, at 1:05 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Charles E. Grassley (chairman of the subcommittee) presiding. OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. I call the hearing to order. I am Senator Chuck Grassley, chairman of this subcommittee, and I welcome everybody to the hearing and particularly welcome our witnesses, many who had to go out of their way to be here. We appreciate it very much. Today's hearing is the result of a 2-year review by the subcommittee into how Federal agencies handled the investigation of what caused the crash of TWA Flight 800. The subcommittee conducted dozens of interviews of professionals from various agencies who were either on the crash scene or were at high levels within the various headquarters of the various agencies. A consensus emerged from the interviews, supported by documentary evidence, about the conduct of the investigation. The collective testimony from today's witnesses will leave a very clear picture of that conduct, and, of course, it is a troubling picture. This investigation was run by the Federal Bureau of Investigation. There is much doubt about whether the FBI had statutory authority as the lead agency. There will be more on that point later. What the public knows about the crash and its cause is what they know through countless press conferences and leaks to the press. The public also has heard numerous conspiracy theories and myths or disinformation. The purpose of this hearing is to provide a much more real picture of what happened and, hopefully, why it happened. The motivation for the subcommittee's efforts is to continue to help restore public confidence in Federal law enforcement. It is my intention to examine some very basic and systemic problems uncovered in this investigation. The goal is to have a constructive dialogue with the FBI to ensure similar problems are not repeated in the future. No one will be fingered as a scapegoat. However, if the FBI says today that its problems are of the past and it is now fixed, I will not buy that, and I warn the public not to buy it, either. There is a whole lot more to be done before the root causes of the problem are fixed. It is a systemic cultural problem that transcends any simplistic fix. I would like to give a word about today's witnesses, because it is not easy for them to be critical of questionable actions that they saw by FBI personnel. These witnesses will likely have to work with the FBI again, and the FBI is bigger and more powerful than their agencies. So there is an intimidation factor here. But that is not why these witnesses are coming forward. They are coming forward because of what they saw and what they saw offended them, both from a law enforcement standpoint and from the standpoint of public safety. They are coming forward because they truly believe it will serve the public interest and will improve the way that we investigate future incidents. This is an honorable thing for these people to do. The subcommittee appreciates their testimony and I am confident that the public will, as well. This is a story about how the world's preeminent law enforcement agency, at least in terms of image and expectation, sometimes acted like it did not even have a clue. I believe that each and every FBI agent and employee who showed up on the scene of that tragic crash did the best job they could and had the best motives. The same goes for the employees of the other agencies and groups that worked so hard. Many volunteered to do that, and they sacrificed their time and their commitment to a greater and humanitarian good. There was a basic problem, however. In my view, it was one of leadership. FBI leadership in the case of the TWA Flight 800 was a disaster. The FBI says that its investigation in this case is a model for the future. The FBI believes that even now. I say that because of their testimony they submitted for this hearing. If the FBI still believes that after this hearing, then I think the American people should be very alarmed about whether or not the FBI gets the message, because this investigation, which by statute was supposed to be run by the NTSB but which was commandeered by the FBI, is a model of failure, not success. And anyone who doubts that is not confronting reality. The testimony that we will hear today will describe three things. First, it will show how the FBI lacked the proper training to handle an investigation of this type and violated the most basic standards of forensic science in terms of collecting evidence, handling that evidence, and preserving the evidence. It is the kind of thing that would make even rookie cops wince. Second, we will try to understand the culture within the FBI that allows this sort of thing to happen. Why does the world's preeminent law enforcement agency make the kinds of mistakes that even rookies do not make? And third, why is it that the FBI would try to prevent critical public safety information from getting to the proper authorities? A January 1997 ATF report, which will be discussed today, showed that the cause of the crash of the TWA Flight 800 was a mechanical failure. The FBI did not want that report out. It tried to suppress it. The FBI feared that if the case became a criminal case and went to court, the ATF report would be discoverable through Brady doctrine and might help exculpate the potential suspects. But the FBI had the cart before the horse. You cannot start suppressing information when there is no crime. The vast majority of explosions like TWA are due to accidents, not to sabotage. For the FBI to assume first that an explosion is sabotage reveals its lack of experience in dealing with explosion incidents. Indeed, the FBI rarely investigates explosions and fires. Other law enforcement agencies, most notably the ATF, investigate many explosions and have lots of experience. The proof is in the pudding. The ATF called the cause of the crash correctly, 10 months before the FBI did. In fact, it is fair to say that the FBI hindered the investigation and the public's and the families' right to know, and in the process, in my view, the FBI risked public safety. Before we begin, I would like to clarify one critical issue. The FBI's suppression of the ATF report is a serious matter. In testimony from the third panel today, we will hear how the top FBI manager on this case, Mr. Jim Kallstrom, did not want crucial public safety information to go to public safety officials, and that is the National Transportation Safety Board. He succeeded in bottling it up. The NTSB has told us and told us all along that they never received a copy of the report. Last Friday, pursuant to a document request of the FBI by the subcommittee, we discovered a draft letter dated March 17, 1997, from Mr. Kallstrom to the Chairman of the NTSB, Mr. Jim Hall. The unsigned draft letter said that a copy of the ATF report was enclosed. The FBI is claiming that this draft letter lets them off the hook, saying that they did, indeed, send the ATF report to the NTSB. The fact is, it does not let them off the hook. I have been through too many Ruby Ridges and Wacos and Richard Jewel investigations to buy into that argument. I suspect that maybe the American public will be equally skeptical. When the draft transmittal letter came to the subcommittee's attention, I asked the NTSB to verify if such a letter had indeed been received by them. The computerized mail system that logs in all letters to the Chairman showed that no such letter came in. An interview of the appropriate handlers of such letters showed no recollection of that letter. Moreover, the FBI says that, pursuant to the subcommittee's document request, all relevant documents have been produced. Since no signed, finalized letter appears in the document production, I think it is wise to be skeptical that the ATF report was ever sent to the NTSB. And, in fact, that is what the NTSB has stated. In my view, that means the FBI is still not off the hook in terms of risking public safety in this case. Once again, the purpose of this hearing is to continue the subcommittee's efforts to help restore public confidence in Federal law enforcement. As the Nation's preeminent Federal law enforcement agency, the FBI, under the scrutiny of the public's eye, has an obligation to ensure that the egregious problems that we will hear about today never happen again, and I will do all that I can to help us through that process. I would like to include in the record a statement from Senator Strom Thurmond. [The prepared statement of Senator Thurmond follows:] Prepared Statement of Senator Strom Thurmond, U.S. Senator from the State of South Carolina Mr. Chairman: At the time TWA Flight 800 exploded, there was a great deal of uncertainty, and one of the primary fears was that the disaster was intentionally caused by a bomb or missile. There was much speculation in the media and in other public forums about the possibility that terrorists were involved and that they might strike again. Public awareness of the unpredictability and severity of domestic terrorism had already been heightened by the 1993 World Trade Center bombing, the 1995 Oklahoma City blast, and the ongoing trial of Ramzi Yousef for conspiracy to destroy certain American airliners. Moreover, it was only 10 days after the crash that the Atlanta Olympics would be interrupted by a bomb explosion. In such an environment and with its vastly superior resources, it should not be surprising that the FBI was instrumental immediately after the crash. It was also appropriate for the FBI to aggressively search for evidence of a bomb or missile. However, the FBI's responsibility is to search for the truth, like any other agency. I am concerned about reports that the FBI may have been preoccupied with the theory that the crash was the result of a criminal act. I am also concerned about press reports of faulty handling of evidence. If true, these actions may have delayed the investigation's arrival at the correct conclusions and unnecessarily postponed corrective measures that were needed to help prevent such aircraft failures in the future. It is clear that the FBI and all other investigative and law- enforcement agencies need to work as closely as possible and conduct their investigations in a thorough, open-minded, and collaborative manner. I hope that much has been learned from the complex TWA investigation that will be beneficial in future disasters. The FBI's response to problems identified 2 years ago by the Department of Justice Inspector General regarding its Crime Laboratory show that the Bureau can address legitimate concerns about its operations. To its credit, the FBI has made great strides in addressing the serious weaknesses uncovered in certain aspects of the Lab's operation. The FBI has undertaken the first major reorganization of the Crime Lab in 20 years, which will be even more effective once the Lab moves to its new headquarters in 2001. It now appears that reports undergo significant peer review to assure accuracy. Even more important is that many aspects of the Crime Lab have now received long-overdue accreditation from the American Society of Crime Laboratory Directors. The reforms are still on-going. For example, in follow-up reviews, the Inspector General expressed concerns about an apparent preference to staff the Explosives Operations Group of the Crime Lab with special agent bomb technicians rather than simply having the most qualified scientists in these positions. The FBI is working to address concerns such as these. I look forward to the testimony of the witnesses regarding the FBI's investigation of the TWA disaster. Senator Grassley. We will go now to our first panel. I call Mr. Hank Hughes, Senior Accident Investigator, the NTSB, also in charge of one of the hangars; Mr. Michael Marx, former Chief Metallurgist of the NTSB; and Mr. Frank Zakar, current NTSB Metallurgist. I would ask you to raise your right hand. Do you swear to tell the truth, the whole truth, nothing but the truth, so help you, God? Mr. Hughes. I do. Mr. Marx. I do. Mr. Zakar. I do. Senator Grassley. We have asked witnesses, except for the last panel, not to prepare remarks, so we will be getting the information from all of you through question and answer. I am going to start with you, Mr. Marx. PANEL CONSISTING OF MICHAEL MARX, FORMER METALLURGIST, NATIONAL TRANSPORTATION SAFETY BOARD; HENRY F. HUGHES, SENIOR ACCIDENT INVESTIGATOR, NATIONAL TRANSPORTATION SAFETY BOARD; AND FRANK ZAKAR, METALLURGIST, NATIONAL TRANSPORTATION SAFETY BOARD Senator Grassley. Were you aware that the FBI had violated security and brought in a psychic? Mr. Marx. I was not directly aware of it, but I had--I was aware that they did. I did not see the psychic come into the hangar. Senator Grassley. How were you aware of that? Mr. Marx. I saw some documentation that indicated that there was a report of the psychic. Senator Grassley. What was the reaction by you and others when you learned about this happening? Mr. Marx. It is a reaction that it certainly was uncalled for, especially at that particular point in the investigation. Senator Grassley. Why would it be unusual for a psychic to be brought in on the scene at this time? Mr. Marx. Well, I do not know what the--at the Safety Board itself, we would never bring in a psychic to do any investigation because it is the scientific examination of wreckage and the overall investigation that determines the causes or at least towards the causes. So we would not bring any--it would be against the grain to bring a psychic in to find out what happened on the aircraft. Senator Grassley. In your view, did FBI personnel unreasonably push the bomb and missile theories, to your knowledge? Mr. Marx. Yes. Senator Grassley. Would you explain your rationale? Mr. Marx. Well, the rationale behind that statement would be the fact that there is a period of time when it would be a possibility that some sabotage, such as a missile or a bomb, could be on board the airplane, and this was during the initial portion of the investigation, where we had an airplane that came out of the sky for no apparent reason. However--and there was also the fact that most of the wreckage was sitting 100 feet down on the sea floor. So most of the wreckage was not available, except for flotsam that came up. So it was after the initial investigation when they started to get the majority of the wreckage into the hangar and you are able to look at the wreckage and determine how the airplane broke up as well as get the information from where they found it, the actual wreckage. At this particular point, in looking at all of the physical evidence and not seeing any evidence of any bomb or missile damage, it became unreasonable to continue to push that theory. Senator Grassley. Give us the approximate time frame for what you have just told me. Mr. Marx. This would be in the neighborhood of September, late September, October, and November of 1996. This would be the year of the accident. Senator Grassley. Would you please describe for me the difficulties that you encountered from the FBI with your photography? Mr. Marx. The FBI set up the security at the Calverton hangar. As an organization, it had it clearly marked that no cameras were allowed inside the Calverton hangar, and the only way that procedures could be produced to get photography was through the FBI directly. In other words, the FBI photographer had to take the photographs. Any photographs that were taken at that particular time had to be developed by the Federal Bureau of Investigation, and all photographs, as I understand it, that were returned back had to stay within the hangar, could not go outside the hangar. Senator Grassley. You are describing a situation where you, in your work, normally take lots of pictures---- Mr. Marx. That is correct. Senator Grassley [continuing]. And use them as part of your scientific investigation, right? Mr. Marx. That is correct. Senator Grassley. They were going to allow you to take pictures, but they had to develop them, or they did not even allow you to take pictures? Mr. Marx. In the case, initially, there was--the procedures sort of changed from one point to another, but, basically, the photographs basically had to be taken initially by the FBI, as I understood it. Then, if you did take photographs, you had to then have a certain procedure, but all the film had to be developed by the FBI. Senator Grassley. What sort of a reason did they give you, that you could not develop your own pictures? Mr. Marx. They did not give me any reason. Senator Grassley. They did not give you any reason? That is just the way it is going to be? How did this impede your work? Mr. Marx. Well, in the case of the--on the second time that I was there, this was in October, and when I was taking photographs, having the FBI photographer take photographs, he had a film, of course, which he then took and went back to the New York field office to get developed. And I was there for a period of time of 3 to 4 days at that particular time, and then a month later, when I came back to get the photographs, they also said that it would take a week to 2 weeks to get these photographs. These photographs never showed up. To this day, I do not have those particular photographs. So how does it impede the investigation is that there was no apparent record of the photographs that was taken and it was not disseminated properly so that we could get these particular photographs later on. So it was--then, after that, I challenged the FBI in the photographic arena. Since I could not get photographs, I then, even though the signs said not to take a camera in there and do photographic by yourself, I ended up doing it, since I was the chief of the materials lab for the NTSB at that particular time and that is part of our duties. We were looking at the structural break-up of this particular airplane. I ended up challenging that procedure, that the FBI was to do all their own photography, in other words, do all the processing of the film. And eventually, I got that to come through. But there was a threat that I was not supposed to be doing this, and eventually it came back from a higher-up in the FBI that I would be allowed to do it. Senator Grassley. The FBI brought in a company called Brookhaven Laboratories. What do you know about the company and why were they brought in? Mr. Marx. Brookhaven National Laboratories is a government facility that is close by to the Calverton hangar. The people that were ahead of the investigation for the FBI were pushing to get an outside expertise, so to speak, to look at some of the wreckage and they were mainly looking at areas that had to do with penetrations, small penetrations that were in the fuselage, and they wanted to get somebody that apparently they thought was independent or somebody to check what we would be doing or do something that is separate than what we would be doing during the accident investigation. They were looking for evidence of some type of sabotage or some type of penetration that was in the fuselage. Senator Grassley. I probably should have done this before I asked you your first question, but I think I am going to ask you, and each of you before you answer questions, and I will give you the opportunity now, you should supply for the committee orally now your background, expertise, and what your role was in the TWA investigation. TESTIMONY OF MICHAEL MARX Mr. Marx. Well, I have a Bachelor of Science and Master's of Science from Michigan Technological University, which I obtained in 1966 and 1967. I then worked for 2 years at the Boeing Aircraft Company in Seattle, WA. And then following that, I worked 1 year at the Bell Helicopter Company in Fort Worth, TX, all in failure analysis of aircraft components. Since November of 1970, I worked continuously for the National Transportation Safety Board, start off as a Metallurgist, going to Senior Metallurgist, going to the Chief of the Materials Laboratory Division, and eventually the Chief Technical Advisor for Metallurgy for the Safety Board. During the time of the investigation of TWA, I was the Chief of the Materials Laboratory Division, and at that time, one of the other gentlemen here that is going to testify, Mr. Frank Zakar, I was his supervisor at that particular time. Frank had been on-scene since very shortly after the accident until approximately--for about 3 months, when the wreckage was starting to come in. In late September, I went into the--I got involved in the investigation when we had a lot of the wreckage that was already recovered. I was the principal person that was involved in looking over the reports that dealt with the investigation as far as metallurgical engineering is concerned, metallurgy in general, but I also was involved with the structure metallurgy sequencing group that was formed, and that was formed and put into effect in around the first of December 1996 and lasted for most of the time during December, and it was a pivotal point to analyze the structure of the airplane from a sequencing standpoint. The reason being is that even though there was evidence that there was an explosion that was in the fuel tank, there was still a need to find out whether anything else could have caused that explosion in that fuel tank other than some source that was on the airplane or some secondary type of damage that could have caused the explosion in the fuel tank. It was not the idea to have this sequencing group determine the exact reason why--what the specific reason for the explosion, but only to indicate through its analysis whether it could be the initiating event that caused the structural damage. So I was imminently involved in that, set up the sequencing group, and that is how I got involved. After that, I was more or less involved in various other aspects of the investigation, including some of the stuff that dealt with the holes and with the FBI wanting to solicit other expertise. Senator Grassley. I would assume that it has got to be incredible to you that a person with your background in this area and working for as long as you have with the key agency that is involved in transportation safety, that you would have these problems with the FBI doing your job, the very same agency bringing in a psychic to see why a plane went down. Does that not seem kind of odd to you? Mr. Marx. Well, yes. As I understand it, the NTSB, the National Transportation Safety Board, is the lead agency for aircraft accident investigation, and until there is a criminal act that was declared, I mean, it was my understanding that we should be doing the investigation of that aircraft accident. Senator Grassley. What did Brookhaven do that the Federal Government could not do, and did Brookhaven add anything to the investigation? Mr. Marx. Brookhaven did not have the--they have very intelligent people that work at Brookhaven. It is a very good organization. But they have neither the expertise nor the experience to do any aircraft accident investigation. They have never looked at any wreckage. They had basically a very poor background to do any forensic-type investigation or any kind of an accident investigation in this particular case because the Safety Board had all the expertise that is needed to do that and was advising the FBI that this was not--we were just kind of like stand-by, looking at what they were trying to produce, but we more or less discouraged this type of an operation. Senator Grassley. Mr. Hughes, before I ask you your first question, would you give us your background, your expertise, and what was your role in this investigation? TESTIMONY OF HENRY F. HUGHES Mr. Hughes. Yes, sir. I started my career in investigative work in 1967. I was trained by the Army as a military intelligence specialist. In 1972, I joined the Fairfax County Police Department in Virginia. Subsequent to my completion of training and a few years on the job, I served as a staff member and instructor at the Northern Virginia Criminal Justice Academy, for 8 years on the instructional staff at Virginia Commonwealth University, and I have also served for 4 years at the University of Southern California teaching accident investigation. I came to the Safety Board in 1985 and joined as a member of the Highway Division. Approximately 3 years later, I transferred to the Bureau of Technology, where I cross-trained. I have been with the Safety Board, as I said, since 1985, and during the course of my tenure there, I have investigated 109 major transportation accidents in all five modes of transportation. On the TWA investigation, I was assigned initially with the Go Team as the team's survival factor specialist. Upon arrival, it was quite clear that my expertise in that area was limited in terms of need. At that time, I was directed by the investigator in charge to find a suitable place to try to reconstruct the airplane, and along with some of our folks from management, they found a suitable place, the Calverton facility, which was a former Grummond Aircraft plant, and it was my responsibility to set up the reconstruction area, the layout of the aircraft, and then about 3 weeks into the investigation, I was transferred and led the team that reconstructed the interior of the aircraft. Senator Grassley. I am going to have my staff bring a sheet of paper to you, and the purpose of bringing this to you is to ask you to verify if those are notes that you provided my subcommittee investigators. Mr. Hughes. Yes, sir, it certainly is. Senator Grassley. OK. Let me ask, do those notes reflect the handwritten contemporaneous notes that you kept in the diary during the TWA investigation? Mr. Hughes. Yes, they do. Senator Grassley. Would you tell the subcommittee why you felt compelled to take those notes? Mr. Hughes. From a professional standpoint, I was greatly distressed and disturbed with the professional working relationship we had with the FBI, along with my observations of the working relationship with the FBI and the other organizations, to include the Bureau of Alcohol, Tobacco, and Firearms and the Federal Aviation administration and TWA and the other parties. But it was a matter of professional concern. Senator Grassley. Would you summarize, in general, the nature of the problems that you saw and why you believe they occurred, for example, from the standpoint of inadequate training, that and anything else that you can lend to our body of information we need. Mr. Hughes. Yes, sir. The FBI has a group called the Evidence Recovery Team, or I should say several groups. To my knowledge, there were about 30 to 32 that participated in the TWA investigation. It is also my understanding that 28 of the 32 had absolutely no or very little forensic science training whatsoever. It got to a point where, after a few months, I was asked by the FBI to teach a 4-hour class on basic forensic procedures and biohazard protection to the newly-arriving emergency--or, I should say, Evidence Recovery Teams to provide them with a basic knowledge of how to perform their duties at the accident reconstruction area. Senator Grassley. Would you go down the list and briefly describe each of these points and indicate the proper way to do them, what the proper way would have been? Mr. Hughes. Yes, sir. I think, early on, part of my job in survival factors is crash worthiness and basically investigating the deaths of the passengers and crew. Part of that job is to coordinate with the medical examiner's office, in this case, the Suffolk County Medical Examiner's Office. Dr. Charles Wattley is in charge. It was distressing to me when I first went to the ME's office to see that the FBI agents, although there were several, in fact, probably dozens at the ME's office, there was little or no consideration to establishing the chain of custody on the clothing of the victims, and for that matter, some of the particulate matter that had been extracted from the victims and the clothing. Clothing and particulate matter were commingled and the documentation as to what came from where was spotty, at best. Another concern that I had initially was that in terms of our investigative effort, it was very important to know where the victims had been recovered from, yet little or no effort was made to do a GPS fix on the victims, and subsequently, we know little in a lot of cases as to where people came from. That is the first item. There are about 16 of them. I mentioned that the clothing was stored--was collected and commingled. Stated procedure for any clothing in a crime scene or other accident site--and the procedures are basically the same, there is no difference between a crime scene and an accident scene investigation in terms of the handling of evidence--but wet clothing, whether it is wet by chemicals, body chemicals, blood, or water, salt water in this case, the proper procedure is to air dry the clothing, wrap it in clean butcher paper after it has been photographed, catalog it, and put it away for safekeeping. In the case of TWA, all of the clothing was taken to a refrigerator truck marked ``Anderson'' on the side, which had been towed to the accident site. Unfortunately, about 7 or 8 weeks into the investigation, the refrigerator truck refrigeration unit ran out of diesel fuel, and for approximately a day-and-a-half, the clothing got warm and began to mold, along with the other material stored in this trailer, and was destroyed as far as any evidentiary value. Seat covers on the seats were another issue. Again, if there had been an explosion, whether it is a mechanical or structural problem or an intentional event, any damage to any part of the airplane has to be scrutinized closely. Many, many of the seat covers--there were 430 passenger seats and 21 crew seats--had the seat covers removed and they were commingled in a dumpster. About 2 months into the investigation, I went to the dumpster with the assistance, I have to say, of an FBI agent and tried to sort out the materials in there. We found, in addition to the seat covers, actually seats that had been missing that were mistakenly thrown in there. Senator Grassley. Before you go on, whose decision was that on the point you just made? Mr. Hughes. That was a decision made by the FBI, sir. Another area of concern with regard to the reconstruction of the interior was the chemical swabbing of the seats, and, as well, when you are especially looking for projectile shrapnel, like debris, would be to x-ray the seats. However, there was never any consistency in either the x-raying of the passenger seats or the chemical swabbing of the seats, although as the seats were collected, my team and I went to great pains to specifically tag the seats to identify those that had not been examined. Yet, to this day, those tags are still there because they have not--the FBI never went back and did a subsequent exam, either by chemical swab or x-ray examination. Another problem that occurred, and it was recognized about 2 months into the investigation, was the disappearance of parts from the hangar. I complained about it at several of our nightly investigative progress meetings, yet it fell on deaf ears for a long time. Finally, the group that I worked with-- there were 10 of us, I might add, including ATF and three New York State Troopers as well as TWA personnel--scoured our hangar, verified exactly what was there 1 day, and not to our surprise, I might add, we found that seats were missing and other evidence had been disturbed. The FBI, on my last complaint, did act and they found at 3:00 a.m. on a Saturday morning, two or three of their own agents were in our hangar. It was not authorized. I supervised that project and these people had no connection to it. After that---- Senator Grassley. Do you know who those two agents would be? Mr. Hughes. No, sir, I do not. On another occasion, in the main hangar, when I was working there, an agent from the FBI was brought in from Los Angeles. Apparently, from what I understood from other agents I talked to, subsequent to my observation of this individual, he had arrived from the West Coast, had some experience in bomb investigations, and I saw him in the middle of the hangar with a hammer in the process of trying to flatten a piece of wreckage. In investigative work, you do not alter evidence. You take it in its original state and preserve it. But I actually saw this man with a hammer, pounding on a piece of evidence, trying to flatten it out. Senator Grassley. What was the purpose of his doing that? Mr. Hughes. I have no idea, sir. Senator Grassley. Was that agent Mr. Ricky Hahn? Mr. Hughes. I believe his name is Hahn. Another problem that I observed was that there were-- probably, I guess, the ratio in the hangar between Safety Board investigators and FBI and other folks was about 100-to-one. But I noticed during the course of documentation that the bomb technicians did not seem to use the conventional method of documenting the evidence. When you look at a piece of potential evidence, it should be photographed, measured, and then collected safely. On one occasion, I observed an agent walk up to a seat back, a tray table, if you can envision where they might be mounted on the back of the seat, and instead of looking at this piece of metal--it was a piece of plastic that was embedded in metal-- and documenting it properly, the individual took out a pair of pliers, a leatherman tool, and put tool marks on that piece of evidence and attempted to pull it out of the seat back to examine it--totally unacceptable procedure. Senator Grassley. Do you know the name of that individual? Mr. Hughes. No, sir, I do not. Another problem that occurred, and I think it was administrative, but it did affect the investigation, was the FBI's reluctance to commit its agents to participate on investigative groups. As you know, the Safety Board, when we send a Go Team, has specialists. Each one of those specialists form an investigative group. Those groups are comprised of people from the FAA, from the airplane manufacturer, from the carrier, and any other agencies that might help lend expertise to the investigation. They were certainly welcome to participate, but at no time were they offered to participate on groups. Conversely, for a period of about a month, five ATF agents worked on my group and I have to say that they did contribute significantly to assisting in the reconstruction of the interior of the airplane. I think the other area of concern, and it is an administrative one, is the unkind, I guess is the best way I can put it, attitude that FBI management displayed toward the Bureau of Alcohol, Tobacco, and Firearms agents. I can understand because of some of the past history that there may be some friction, but I can remember several days where ATF agents were basically told to sit at picnic tables in the hangar and not allowed to actively participate in the investigation. Those were the exact times when we needed all the help we could get. Fortunately, I got five folks to help me in my hangar because I was in a separate facility. But I do not think it was an efficient use of manpower. The Bureau of Alcohol, Tobacco, and Firearms is a very fine agency in terms of explosives investigation and not to have that talent available, especially in my hangar with the reconstruction of the interior, did lead to some difficulties. I think the other two items, the release of personal items without consultation of the Safety Board, had this been a criminal act, and there is no evidence to suggest that it is, I would think that every piece of material on that airplane, to include personal items, should have been documented and inventoried, and before any release was authorized, it should have been with the consensus of the NTSB and other parties to the investigation. Senator Grassley. That is the end of your list? Mr. Hughes. Yes, sir, it is. Senator Grassley. My staff was hoping you had one more thing on your list, about the psychic. Mr. Hughes. Yes. That was already mentioned by Mr. Marx, my colleague, but I did not see the psychic. I arrived at the hangar about 10 minutes after the fact and there was quite a bit of commotion. From what I understand, the visit to the hangar by the psychic was not authorized by any of the FBI supervisory personnel at the hangar. I have to say that, for the most part, the FBI supervisors I worked with, they were pretty reasonable people, but I can remember they were extremely distraught and concerned about the psychic. As a matter of fact, at our progress meeting that night, all of the folks that represented the parties to the investigation, and there were probably 80 in the room, in the interest of public, discussed it and everybody expressed their concern. But it did happen. Senator Grassley. Thank you, Mr. Hughes. Mr. Zakar, would you please give us your background, your expertise, and what role you played in the TWA investigation? TESTIMONY OF FRANK ZAKAR Mr. Zakar. Yes. My name is Frank Zakar. I am a Senior Metallurgist at the National Transportation Safety Board. I have been working there for approximately 11 years now. My educational background basically is a Bachelor of Science in metallurgical engineering, which I earned in 1980, and a Master of Science in metallurgic, which I earned in 1984. My expertise is in performing failure analysis of components involved in transportation-related accidents. My first 2 years with the Safety Board basically involved investigating airplane accidents, where I would go out to the field and document wreckage and document any failures that might be related to, basically--that might be related to structural failures, major structural failures. My major work is involved in the materials laboratory, and at times, I am requested to go out to the field and perform examinations. Our laboratory basically examines 150 cases a year and I approximately work on about 30 cases. Prior to coming to the Safety Board, I worked as a materials engineer for Lockheed Martin for a period of 4 years. My participation in the Flight 800 investigation was the first 3 months of the investigation, I reported to the investigation in the hangar approximately 3 days after the accident occurred and the purpose was to examine for evidence of preexisting structural failures in the airplane, looking for clues for corrosion, manufacturing defects, improper maintenance, and explosion damage, and second, to assist any of the investigators and the Safety Board with issues regarding materials used in manufacturing the airplane. Senator Grassley. In a very general way, for my first question, I would like to have you give us your recollections and thoughts on the way that the FBI recovered and handled the wreckage. Mr. Zakar. Well, first of all, I felt that there were some restrictions during the course of the investigation which impeded our ability to perform our examinations. The first policy was, as Mr. Marx already indicated, restriction on photography. The problem was that the FBI was concerned with safety and the information that might leak from the hangar, so restrictions were imposed on photography. At that time, it was decided that in documenting evidence in the hangar, photographs were to be taken by FBI agents. We thought that was impractical and we were able to work out an agreement that would allow us to take photographs, and in such case, we were allowed to take photographs only when we were wearing red vests in the hangar. That would indicate to the FBI that basically there was a person with a camera on the scene and it was part of the investigation. Of course, there was a double standard there in that the FBI photographer did not wear any red vests. Another issue that I would like to bring out was the developing of film. Again, this is relating to basically the first 2 weeks of the investigation. It was agreed upon that if we wanted to have film developed, they were to be taken to the command post within the hangar, the FBI command post, and that they would basically have the film processed for us and the turnaround rate would be 1 day. I recall during my first submission, I submitted one roll of film and that roll of film was not returned. I had a second submission of photographs, which I submitted two or three rolls of film that documented the wreckage. There was something very critical that I wanted to have on the second submission and those were photographs that I took within the hangar of the entire layout of the operation. Our management had basically asked--they were interested in finding out how the operation had gone in the hangar and I felt at that time that it was important to get an overall photograph of the entire layout. Because that film was given to the FBI and it was not returned, I was not able to make a presentation to our headquarters office concerning the operation within the hangar. Senator Grassley. It just disappeared? Mr. Zakar. Yes. Basically, I delivered the film to an FBI agent at the command post within the hangar, and there were several of them, of course. That contributed to a problem. I gave my name. I gave the roll of film. He jotted down my name, put the roll of film next to that piece of paper, and I walked away, assuming that the film would be processed and returned the following day. Senator Grassley. Who is that person? Mr. Zakar. I do not recall the name of the agent. I had a question whether or not that film had been developed. I had asked that question to a FBI photographer. He said he would look into it and---- Senator Grassley. To this day, you do not know? Mr. Zakar. To this day, I---- Senator Grassley. You do not know if it was ever developed? Mr. Zakar. To the best of my knowledge, the film has not been recovered. I would like to add that when the film and prints were delivered, they were supposed to be delivered to a specific metal hangar within our command post. Our name would be on the envelope, and all we had to do was pick them up. I remember the first 3 weeks after the submission of these rolls of film, I checked every one of those envelopes in the metal file cabinet and they were not to be found. Senator Grassley. Did you read into this a message from the FBI that we do not need you as an employee of the NTSB, that, somehow, your work was not respected, your work was not needed, we really do not need you around, or do you not read a signal like that into that sort of activity? Mr. Zakar. I feel that possibly there were too many people involved in the proceedings and the procedure and that possibly the film was mishandled. And, of course, that brings other suspicions as to why photographs of the entire operation could not be delivered to the NTSB. It raises concern. Senator Grassley. I interrupted you, so please continue. Mr. Zakar. The other problems we had in the hangar was difficulties in exchanging of information. I found that there were many levels of management involved in handling information. There was the New York office of the FBI, the DC office. There were several agents running the FBI command post. That made it difficult for information to be transmitted to the proper offices. I found that to be quite different than our organization. At the NTSB, we have a list of investigators who are predetermined, prior to being launched to the investigation. Each investigator has a specialty and we feel that because this organization is predetermined prior to the launch, our goal is very specific, it is detailed, and there is no quarrel who is in charge of the specific areas of the investigation. The other problem I encountered in the hangar was getting information in regard to how much of the wreckage was recovered. At times, inquiry would come up to our hangar regarding how much of the wreckage have you recovered. I found that, for example, the FBI had an evidence room which locked up personal items and other objects from the wreckage. I also found out, at times, we were interested in finding out what wreckage or what pieces of components from the airplane were being sent between the hangar and the FBI headquarters for laboratory examination. I found that to be a difficult subject. It took several days for us to find out what was being sent between the hangar and the headquarters in Washington, DC. When inquiring about getting a list of items that were sent to the headquarters office, the response was, basically, we cannot give you a list, but we will verbally give you the information that we have available and you jot it down on a piece of paper. I thought that was a rather awkward way of conducting business. The other concern is altering of physical evidence. As Mr. Hank Hughes has indicated earlier, this is in regard to the examination of a passenger seat. I recall several agents working on a chair of a passenger and pulling out fragments from within the chair. There was some tearing involved and rather sloppy handling of the material that was removed from within that seat. Senator Grassley. I would ask you at this point if you know who that individual or individuals may have been. Do you have the names of those people? Mr. Zakar. No, not at--I do not recall. One of the interesting points that I would like to make is that during the first several weeks of the operation, it was rather difficult to focus on one specific area. Wreckage was coming in by the truckload. In countering some of these problems, I was needed in the area where the unloading occurred so we could examine the wreckage, because it was rather difficult to keep focus on several of the problem areas within the hangar. But what I do want to stress is that we have expertise within the Safety Board which handles the area of seating, and one of them is Hank Hughes, and I think it would have been proper at that time if anybody was going to handle any part of the wreckage that they would notify the specific investigator at the NTSB what the activities were being performed and to what extent. One of the problems we faced is that after the wreckage is moved from one side of the hangar to the other, the evidence could be altered and that could at the end cause a problem in interpretation of what will come out of the investigation. Another problem I had with observation at the hangar was a specific person, a special agent of the FBI, who rushed to judgment in looking at some evidence in the hangar. One of them was specifically--as I recall, this special agent was raising above his head a leg portion of a chair, and because he noted that the piece was severely damaged, he concluded that the damage was a result of bomb damage, without any scientific evidence, and this was in front of other investigators. Senator Grassley. Did you see that yourself? Mr. Zakar. I saw that myself. I walked up to this gentleman and I asked him what basis did he have for this, and his answer was, basically, if it is that badly damaged, what else could cause that damage? Senator Grassley. That is what he said? Mr. Zakar. Right. Senator Grassley. Who was that individual? Mr. Zakar. I do not remember. And the interesting thing about it is, I approached this gentleman and specifically told him, I think it is important to realize that it is important to keep an open mind and to also leave open the possibility that this damage could be caused by the airplane from a high altitude impacting the water, and sure enough, several weeks after I talked to this gentleman, the seats were laid out in the hangar in a position similar to what you would find inside the airplane and it was concluded that the seats did have damage as a result of impact with the water. Another observation I made was that there was a specific attitude on the part of the FBI to continue the bomb and missile theory. There was a fixation on the bomb and missile case. I feel that this was not open-minded thinking and that was not a professional manner to conduct the investigation. We at the Safety Board, when we examine wreckage, we keep an open mind and we look for factual information which will develop a case, regardless of what the outcome is. We did not particularly care if the examination was going to be leading to a bomb theory or complete catastrophic failure of the airplane. Senator Grassley. Was this approach really unreasonable, in your point of view? Mr. Zakar. I think because of the overwhelming number of agents in the case and because of possible motivation that it was bomb damage, that the large mass of agents at the hangar overshadowed the fact that we had an accident investigation and that there was basically a domino effect from the very beginning, and the philosophy just continued down through the entire operation. As I indicated earlier, it overshadowed the fact that the NTSB was conducting an accident investigation. Senator Grassley. When you say it continues through the entire investigation, would you give me approximate dates, from the start of the investigation until what time? Mr. Zakar. Well, I could only specify that I was in the hangar for the first 3 months, so during the first 3 months of the investigation---- Senator Grassley. Very dominant? Mr. Zakar. Very dominant from the very beginning. One more item. Senator Grassley. Yes. Mr. Zakar. I would like to say that the situation, in the case of the FBI, was not whether someone was going to find evidence of a bomb, it is a matter of when, and there is a differentiate between whether and when. I believe that possibly the FBI had knowledge of something that we were not aware of that possibly could have led them to believe there was missile damage and that information was not shared with us early in the investigation. Senator Grassley. But in hindsight, then, you think that that was an unreasonable supposition on their part? Mr. Zakar. I think it is important we all have a specific job. I feel that the FBI had a job to look for a missile, any criminal wrongdoing, but to not keep an open mind and to not realize that there is another agency of the government performing investigation is rather unprofessional. Senator Grassley. I would ask you, Mr. Zakar, as well as Mr. Hughes, did you have any contact with a person by the name of Tom Thurman, and if so, what kind of contact? Mr. Hughes. Yes, sir, I did. Mr. Thurman, at the time, was the Chief of the FBI Explosives Unit. I, in fact, arrived with some of his agents at the accident site. Early on, we worked for a period of several weeks. I will not say we worked with them, because they would not work with us, but we worked in close proximity with Mr. Thurman and his colleagues. Senator Grassley. Were his actions consistent with the criticism that we have heard thus far? Mr. Hughes. Yes, sir. As a matter of fact, I think in Mr. Thurman's case--I am trying to pick my words carefully because I want to be accurate, but it was almost caustic. He showed no respect or no regard for our concerns in many cases, and a lot of our concerns and questions that we raised went ignored. Senator Grassley. Mr. Zakar, would you answer the same question about knowing Mr. Thurman and what sort of contact you had with him. Mr. Zakar. I have not met Mr. Thurman before or have worked with him before, so I cannot go any further in describing that. Senator Grassley. That is OK. Mr. Hughes, then maybe you can tell me a little more specifically, how did Mr. Thurman's actions impede your work? Mr. Hughes. Mr. Thurman represented what, from a practical standpoint, at least to the Safety Board investigators on scene, and basically, there were two, Dr. Merrett Birky and I, one-third of the--it is almost like there were three different FBI's. We had the FBI Explosives Unit, the FBI Manhattan office, and FBI headquarters. Mr. Thurman's group basically got to the scene and when we started to assemble the parts and catalog them for later reconstruction, began to do the chemical screening and examination, looking for what they believed was an explosive device, you know, a bomb or missile. The problem was, we have an organized, systematic approach to reconstructing aircraft, as well as trucks, buses, and trains, that has worked very well for many years, and when that conflicted with Mr. Thurman's operation, we clashed. We wanted to do it in a systematic, organized way. Their job, from what I could see, was more of a shotgun approach, trying to look at as much as possible in as short a time as they could, and it caused some problems and friction. Senator Grassley. Thank you. Mr. Zakar, I think I will go back to you on the next question. You touched on it here or there, but I just kind of want to bring it together, all in one answer, and that is your impression of FBI leadership at the scene. Mr. Zakar. I would like to add that I did not have specific problems with the individuals in the FBI. It was more a philosophy and policy. I think that, just to be open-minded, just to give an opinion, I think that the operation would probably have been better if the agency kept an open mind that another agency was in the hangar and was involved in TWA Flight 800. Senator Grassley. My last question, did you know about or hear about the FBI bringing in a psychic and what was your reaction? Mr. Zakar. I learned about the psychic during the hangar operation, but was nowhere near the psychic. My original impression is that, basically, it's an unscientific approach and, basically, if it did not interfere with my job, I basically did not have any feelings towards it. But I thought it was a rather unscientific approach on the part of the FBI and possibly a desperate attempt to further look at the possibility that the bomb did hit the airplane. Senator Grassley. A final question to all of you, but maybe all of you do not want to answer it, but it just a simple summation, whether or not any of you have anything you would like to add in the interest of how to avoid problems like this in the future. Mr. Hughes. Yes, sir, I have some ideas. Senator Grassley. Please go ahead. Mr. Hughes. The idea of professional respect, I think, is the first thing that needs to be considered. I know since the on-scene investigation has been completed, the Safety Board has initiated meetings with the FBI forensic folks, but I think the cultural attitude of turf fighting and that sort of thing has got to be done away with. We have one job and that is an objective search for the truth. The only way we can do that is to respect each other and work in partnership, and I think from the top down in both organizations, if we adopt that philosophy, on an individual basis, we are going to get along fine. The FBI agents in the hangar that we worked with on a day-to-day basis were excellent people. They did the best they could. They worked their heart out. But I agree with what Mr. Zakar said. There is an institutional philosophy that is very troubling. It is not new to me. I spent 14 years in police work before I came to the Safety Board, so I am familiar with it, but it is not constructive and it needs to go. Senator Grassley. Mr. Marx. Mr. Marx. Well, the comments that were just made by Hank are--I can second those. Basically, I think that there was just too many people that were involved from the FBI in this particular case. That overshadowed anything else in the investigation. I think that there is a need to have a presence of the FBI and ATF or whatever, but not such an overbearing presence in a particular case, and, of course, in the future, I think that it would be better to have the overall lead agency be the ones that do know how to investigate the accident from the standpoint of the scientific and professional manner, and that being the National Transportation Safety Board. Senator Grassley. Mr. Zakar, would you like to add anything? Mr. Zakar. Yes. I feel that some of the difficulties within the investigation could be improved with increasing the speed of information that is traveled from one agency to another. I feel that we may have to have a designated representative work closer to our organization early on and, somehow or another, allow exchange of information in a much quicker manner without going through the different layers of management that we found within the investigation. Senator Grassley. I know that you have been here just with us in this official environment for a little over an hour, talking to the American people and to the Congress about the issue before this committee, this investigation and the mishandling of the TWA Flight 800 investigation, but I want the American public to know that you have been working with the committee staff and other interested people over a long, long period of time. So I want to thank you very much for your testimony, for the benefit of your knowledge into these matters, and we greatly appreciate your cooperation, your contribution in educating us about how we can avoid these problems in the future. Because everything we talked about here is what can we do to make sure that when people step onto an airplane, they know that their government has been fully behind them in efforts to make for safe transportation. I know you know that is what your job is about, all forms of transportation, for that matter, for you. They expect that, and when we have these sorts of bureaucratic and turf battles that you have talked about, it really does not give the American public the satisfaction that everybody in government is concerned about their safety. I think you have shown that you have, but you ran into too many obstacles to do your work. We thank you for the work you do, and I will dismiss you now. Thank you very much. You are welcome to stay if you want to stay through the entire hearing. Senator Grassley. Our next panel consists of Mr. Bill Tobin, former Chief Metallurgist of the FBI and one of the world's most renowned metallurgists. Mr. Tobin testified before this committee in September 1997. He was still an FBI employee in the laboratory at that time. I would like to have Mr. Tobin give the committee his background, and I would like to ask the two people who are with you, who are attorneys, their purpose for accompanying Mr. Tobin, and anything that they would like to say. It does not matter whether Mr. Tobin wants to speak first or the attorneys speak first. Maybe it would be better if we would have the attorneys say why you are here, and then we will go to Mr. Tobin for his background and expertise. Please introduce yourself. Mr. DeMonaco. Yes. My name is Charles A. DeMonaco. I am an attorney in Pittsburgh with the law firm of Dickie, McCamey and Chilcote. We, along with Attorney Stephen Kohn, co-represent Mr. Tobin. Prior to joining the law firm of Dickie, McCamey and Chilcote, I was with the U.S. Department of Justice for 15 years. I served as an Assistant Chief of the Environmental Crime Section here in Washington, DC, for about 9 years, and then prior to that, I was an Assistant U.S. Attorney in Pittsburgh for about 6 years. Prior to that, I was a prosecutor in the local district attorney's office for about 7 years. So my background is primarily that involved in criminal prosecutions. While I was an Assistant Chief of the Environmental Crime Section in Washington, DC, I had the honor of serving the United States of America as the counsel in the criminal prosecution relating to the Exxon Valdez oil spill. The National Transportation Safety Board played a very vital role in that investigation and the result for the United States was tremendous, with a settlement in criminal and civil litigation in excess of $1 billion. I also had the honor of serving as Senior Counsel in a criminal prosecution of a major oil spill in San Juan, PR, and that resulted in a jury conviction of three corporations, as well as a criminal fine imposed of $75 million. William A. Tobin served as the Chief Metallurgist at the FBI and he played an important role in determining the cause and the failure and provided expert testimony to the jury. He was extremely thorough in his analysis and clear in his testimony. He was professional at all times. We are here providing counsel to Mr. Tobin because we understand the science is extremely important in disaster investigations. Without a proper scientific analysis that serves as a bedrock, investigative theories may be flawed and subsequent prosecutions, if any, may be problematic, and the coordination is the key to successful investigations and prosecutions. It is an honor for Attorney Stephen Kohn and me to represent William Tobin in this proceeding. His only objective is to be cooperative and helpful to the subcommittee and we would like to thank the chairman and the subcommittee for inviting William A. Tobin to provide testimony to the subcommittee in this important matter. Senator Grassley. Mr. Kohn, do you have anything you want to say? Mr. Kohn. Yes, Senator. My name is Stephen Kohn. I am an attorney with the firm of Kohn, Kohn and Colapinto, and also I am the chairman of a nonprofit group, the National Whistleblower Center. In these capacities, I represent a number of current and former FBI agents. Unfortunately, the rules and regulations which govern FBI agents' speech are, at best, unclear, at worst, very restrictive, and part of my reason for being here is to provide counsel to Mr. Tobin. The FBI requires even its former agents to submit various testimony or public documents to the FBI, essentially to a censor, for pre-publication clearance. It is our position that this requirement concerning communications with Congress is illegal and inappropriate. However, because there is some ambiguity in the law, we believe that Mr. Tobin does need representation here to ensure that his presentation complies with both the Constitution and the FBI regulations. Thank you. Senator Grassley. Mr. Tobin, would you please stand. Would you raise your right hand. Do you promise to tell the truth, the whole truth, and nothing but the truth, so help you, God? Mr. Tobin. I do. Senator Grassley. Thank you. Do you have any sort of a statement that you would like to make? I do want you to tell us about your background and your role with the TWA investigation, but any sort of statement you want to make beyond that is OK, as well, and then I will ask you questions. Mr. Tobin. No, Mr. Chairman, I do not. Senator Grassley. Would you please give us your background, then. TESTIMONY OF WILLIAM A. TOBIN, FORMER CHIEF METALLURGIST, FEDERAL BUREAU OF INVESTIGATION; ACCOMPANIED BY CHARLES A. DeMONACO, DICKIE, McCAMEY AND CHILCOTE, PITTSBURGH, PA; AND STEPHEN M. KOHN, KOHN, KOHN AND COLAPINTO, WASHINGTON, DC Mr. Tobin. I have a Bachelor of Science degree in metallurgy from Case Institute of Technology in Cleveland. I continued my formal education in graduate school at Ohio State University, in George Washington University, and in the University of Virginia. I have studied and authored a number of publications in the forensic metallurgy arena and I have been the guest speaker for all of the prominent professional societies throughout this country and in Canada. Senator Grassley. For my first question, what was your position at the FBI? Mr. Tobin. At that time, I was the civilian equivalent of the Chief Metallurgist for the FBI laboratory. Senator Grassley. And then your role in the TWA 800 crash investigation. Mr. Tobin. My role was to evaluate whether there could be or was any criminal activity associated with any of the--as to the cause or the materials' deformation or damage issues related to the crash. Senator Grassley. When did you arrive at the hangar in Calverton, NY, where the plane was being reconstructed? Mr. Tobin. I arrived on August 4, 1996. Senator Grassley. At that time, did you have any inclination as to whether or not a bomb was the cause of the crash? Mr. Tobin. From what I had seen and heard in the media, it did have the earmarks, potentially, of having been a bomb. Senator Grassley. Generally, what were the scientific issues you confronted in order to be able to reach any valid conclusions concerning the cause of the crash? Mr. Tobin. This air crash, in particular, was a very dynamic interaction of materials and forces that resulted in a massive amount of fractured and otherwise damaged metal aircraft components, known to have been subjected to three of the most hostile circumstances that materials can undergo. In this particular case, there was a midair fuel explosion, there was impact of the pieces from approximately 2.5 miles in the air with the water's surface, and subsequent undersea saltwater corrosion. The results were fractures, punctures, fragmentations, tears and rips, deformation, and thermal, mechanical, chemical, and electro-chemical damage processes, including unavoidable recovery damage. This was an extraordinary combination of material interaction and degradation processes, each of which can serve to mask characteristics of the other processes. So, in short, this was a massive and technically complex metallurgical undertaking. Senator Grassley. Was your initial inclination that the cause of the crash was a bomb, was it confirmed by your evaluations? Mr. Tobin. No, Mr. Chairman, they were not. Senator Grassley. Why not? Mr. Tobin. The materials just lacked, completely lacked any of the characteristics that would support impulsively loaded materials from within the aircraft. The various characteristics, and there are numerous, that would indicate the presence of a bomb resulting in impulsive loading were absent in the component. Senator Grassley. What was it about the crash debris which disproved a bomb or missile theory? Mr. Tobin. Well, the bomb--disproved the bomb theory because of the complete absence of any of the characteristics associated with the type of behavior that bombs can cause. As to the missile component, the same arguments would apply because that is also generally considered impulsive loading. But in addition, there were penetration problems. Admittedly, 100 percent of the aircraft was not recovered, but every time there was a portion of material missing, I could actually track through the multi-layered structures and actually find a component that existed in the path of what could have been viewed as an external penetration. Further, I would add that in some of those areas where there did appear to be a hole, the holes were from within outward rather than from outward in. That was another characteristic, and that the material behavior was consistent with the fuel explosion known to have occurred. Senator Grassley. Now I would like to have you tell me what there is about your area of scientific expertise which qualified you to reach these conclusions that the cause of the crash was not a bomb. Mr. Tobin. Metallurgy or material science is the most appropriate scientific discipline to make the evaluations as to the material behavior and the deformation and damage associated with the various degradation and destructive processes. Senator Grassley. Did you work with any other branches of the Federal Government during your years of disaster investigations? Mr. Tobin. Yes, Mr. Chairman, I did. Senator Grassley. How did you find working with the NTSB? Mr. Tobin. In my view, they are unsurpassed in their expertise, in their competence, and in their professionalism. Senator Grassley. Within 30 days of arriving at Calverton, what was your professional assessment as to whether the cause of the crash was a bomb? Mr. Tobin. It progressed from an inclination of viewing the earmarks as possibly a bomb, but it changed rather quickly to confirmation within my mind that there was no indication of a bomb, and unlikely to be that of a missile, within the first 30 days. Senator Grassley. Did you discuss that assessment with members of the National Transportation Safety Board? If so, how did they respond? Mr. Tobin. I did. We were--I have a very intimate relationship with them from having worked these disasters for approximately 25 years with them at that point. That, of course, would include derailments and maritime disasters, but we were in daily and I would almost--I probably could safely say hourly contact in our very intimate working relationship. So there was not really any proactive discussion needed because we were in a constant information exchange mode while we were working together. Senator Grassley. Did there come a time when explosive residues were found on crash pieces of the plane, and what was your reaction to this discovery? Mr. Tobin. Yes, there were three separate incidents, or instances, of the finding of high-explosive residues on various parts. The first incident, I was quite skeptical, but when I reexamined the areas from which the residues were recovered, I confirmed that the surrounding materials showed no evidence whatsoever of any damage processes caused by a bomb. So at that point, I began to urge, partially because of my Marine Corps combat experience, urged that the history of this research--that this aircraft be researched, because when I was in combat, we all carried basically some C-4, which is a high explosive, and it is very easy to transfer the residues, so I thought the possibility existed that this aircraft may have been used to ferry troops to the Middle East for the Middle East war, or that another possibility for the deposition was that the aircraft was used in drug-sniffing exercises for canines. Senator Grassley. When the second incident of explosive residues was found on a piece of the plane, what was your reaction? Mr. Tobin. I again repeated the process of confirmation as to the site and location from which the residues were recovered and confirmed, again, no indication whatsoever of impulsive loading or bomb or missile damage. I strengthened and reiterated my suggestion that the history of this aircraft be researched. Senator Grassley. How did Mr. Kallstrom inform you when the third incident, the high-explosive RDX was found on a piece of the recovered plane? What did he say? Mr. Tobin. When I was advised of that third finding of the residues, I was approached in a very excited manner and the statement was, ``We have got it. We have got it. It is confirmed.'' And I asked what was confirmed, and he says, ``We got it, proof of the bomb.'' And I saw in the very agitated or hyper-emotional state that he was in that I needed to do some significant calming, or try to bring it back down to earth, or to urge prudence and caution in interpretation of those RDX residues. I then decided that I probably should--I used the analogy of a cardboard box at that particular time and what I was trying to convey to him was a simple materials analogy. My representation was, I said, Jim, basically, from a materials science standpoint, this is what you have got. You have got a cardboard box. Your chemists are finding residues inside the cardboard box and the sides of the box are not even bulged out. In my business, that is called a clue. That did not sit well, and at that point, he got about 6 inches from my face and proceeded to advise me in rather graphic terms that it was a bomb, and that is the most suitable presentation I can put on for prime time right now. Senator Grassley. Was the insinuation when he is 6 inches away from your face is that he says it is a bomb and you, as a scientist, had better say it is a bomb? Mr. Tobin. I do not know what he intended to insinuate or intended for me to--how he intended for me to use that. I do know that he was rather graphic in his approach that it was a bomb, and, in fact, I ended up wearing several particles of his saliva from that presentation, but---- Senator Grassley. Did you tell Mr. Kallstrom that if there was to be a public pronouncement that Flight 800 crashed due to a bomb, that you would not support that announcement from a material science standpoint? Mr. Tobin. Yes, Senator, that is correct. Senator Grassley. Why did you say this to Mr. Kallstrom? Mr. Tobin. After the finding of the third explosive residue hit and I saw the reaction and the fervor and the intensity and the frenzied reaction, and I also saw the clothes that he had that day and his--I recognized the behavior immediately preceding most of the press conferences. And at that particular time--I am sorry, I have something in my eye here--at that particular time, I saw that a major PR gaffe was imminent, was in the making, and I think in large part due to my loyalty to the FBI, I decided at that point that, as we would say in Vietnam, I needed to throw my body on the grenade at that particular time. I wanted to preclude or prevent a major, major PR gaffe that, in my view, was about to happen, from which I do not believe the FBI would have recovered for a very long time. I then thought the last tool in my arsenal at that point was to indicate--to basically put the emperor without clothes, that if he was going to proceed to make an announcement that there was a bomb, that he would not be supported from the material science standpoint. So that was, at that point, the last tool in my arsenal. Senator Grassley. My next point is kind of a summation, maybe, of what you said, but I want to ask it very directly. Based upon your direct personal observations, your direct contacts with Mr. Kallstrom and Mr. Maxwell, and your discussions with bomb tech and chemical analysts at the crash site, at the investigation site, had you not forcefully protested directly to Mr. Kallstrom, do you believe that the FBI would have publicly declared the cause of the TWA Flight 800 crash to have been a bomb, and why do you think so, if you think so? Mr. Tobin. It is my opinion that that was imminent and would have occurred. But even if there was not a 100 percent probability that it was going to occur, the odds were so high, based on the actions and the demeanor and the tension, that for the Bureau's sake, I decided it was not worth the chance. So I--that is when I interceded, at that point, and tried to put him in a position exposing him that--to give him pause to think about any announcement that may be imminent. Senator Grassley. I am told that on August 13, 1996, you wrote in a memo to your supervisor, ``I am underwhelmed by the finding of RDX.'' Why did you write this? Mr. Tobin. Several reasons. One is I, in fact, was underwhelmed by the finding of RDX, as I have already indicated. But I--it is partially my style to introduce some humor to try to get a point across, so I think I made up my own word in that particular time, but I decided after that proclamation from Mr. Kallstrom to me that it was a f-ing bomb that I needed to start a documentation, because I could foresee claims of malfeasance from the material science side or that the metallurgist never communicated his findings or--there was no recording of my opinions, my positions. So at that point, I decided--and that was August, mid- August, I believe--I think it was August 13, only several weeks after I arrived. And I also needed to try to start reversing the tide, to try to introduce back to headquarters the crack in the dam that--to start trying to opening the focus of causes. Senator Grassley. Did you have occasion to have to deal with an order for 1,000 random samples to be carved out of the aircraft? Mr. Tobin. Yes, I did. Senator Grassley. What were your reasons for refusing to comply? Mr. Tobin. Throughout the whole interaction, except maybe the first week, I had some serious problems with statutory authority, title 49 versus title 18 issues. I throughout the investigation felt, and particularly in view of having worked so many of these with the NTSB in the past, that this was not our aircraft to be carving up. I also saw that that would have an effect, from the material science standpoint, a significant impeding effect on their carrying out their chartered mission under title 49. I did not feel that it was our place to be carving up their aircraft. Second, I had a problem. I and my colleague have spent almost our entire lives in metallurgy classrooms and in the practice of metallurgy and material science issues and we were being told, basically, what samples we needed, how many samples we needed to draw our conclusions, and what tests would be conducted, albeit the test that was insisted that we--by an individual who had not spent a minute in a metallurgy classroom. I would also add that the request was so absurd on its face, in part because we were ordered to put 1,000 random samples in a metallurgy machine, and to this day, we are not real sure what a metallurgy machine is, but that was the order at the time. Senator Grassley. Did you ever---- Mr. Tobin. I am sorry. May I amend my---- Senator Grassley. Please do. Mr. Tobin. Part of the issues in that were that they were dissatisfied with the examinations we had conducted. They were dissatisfied with my lack of note-taking and there were five reasons that I enunciated as to why I was not taking detailed notes on the examination of these fragments, and there was dissatisfaction of the techniques that we were using to conduct these examinations, again, by the individual who had not spent a minute in a material science classroom. We were--basically, they were dissatisfied with the visual examinations. We were doing macroscopic examinations and microscopic--stereo-microscopic evaluations, but the supervisor in charge of the on-site investigation was dissatisfied with those investigations and was insisting that we put 1,000 random parts through a metallurgy machine. I would also add that those were the same techniques used by the financially interested parties, the parties who had billions of dollars at stake. They were using the--not only using the same examination techniques that my colleague and I were doing, in fact, they asked where I was able to--if they could purchase one of the items that I used for my examinations to help their examination. Senator Grassley. Did you ever hear the phrase, ``bomb techs three, Tobin zero,'' and what did that mean if you heard it? Mr. Tobin. I was not aware you had that information. That was basically an analogy to a baseball game. The first week or so, I kept trying to urge prudence and caution in the interpretation of these explosive residue hits. When the third one came, I was basically told in this baseball game that metallurgy had no runs and that the bomb techs had three runs, and how was there any credibility to be attached to my urgings of prudence and caution in the material science issues? I, at that point, tried to explain that NTSB and my joint materials data stream or data flow was a long, a very long, complex, drawn-out process, that we could not just walk up to an aircraft and take a swab and then get an instant hit. But in answer to your question, Senator, that was a baseball game analogy that was demonstrated to me. Senator Grassley. At some point, did the bomb techs agree with yours and the NTSB's assessment that the cause of the crash was not a bomb? Mr. Tobin. Yes, Senator. I would estimate that probably 4 to 6 weeks, after about 4 to 6 weeks, we were all unanimously, or near unanimously, on the same page, and all being the bomb techs, the National Transportation Safety Board, and the metallurgy or the material science interest in the FBI laboratory. We were all unanimously--or we were united in our observations and conclusions that there was no bomb or missile damage evident on those aircraft parts. Senator Grassley. The term 4 to 6 weeks brings you to what date on the calendar, approximately--just approximately? Mr. Tobin. My guess would be mid-September, early to mid- September. Senator Grassley. Were you aware of the visit of a psychic at the investigation site? Mr. Tobin. Yes, I was. Senator Grassley. What was your reaction to this visit? Mr. Tobin. I was very disturbed. Senator Grassley. Tell me how disturbed you were. Mr. Tobin. That was at a very sensitive time in the investigation. Up to that point, there had been no release of scientific information to the American public. I felt--I am sorry. Senator Grassley. Go ahead. Mr. Tobin. I felt that that was a very wrong signal to be sending out to the American public, that two of the foremost agencies charged with being guardians of the public safety had to resort to a psychic to resolve this aircraft--these aircraft issues, that their scientists were not sufficiently competent to deal with it. I also took it as a collective slap in our scientific and investigative faces in view of the mountain of experience that the NTSB and I had had working these things, that they felt the need to resort to a psychic at that particular time. Senator Grassley. Go ahead. Mr. Tobin. I did understand and learn eventually that it was not an authorized visit by the psychic, but then that brings the next question, raises the next question, of if we were so---- Senator Grassley. Why? Mr. Tobin. Yes, Senator. If we were so controlling of another agency's personnel, why could we not control our own personnel? Senator Grassley. Do you think someone was thinking in terms of getting brownie points by bringing in a psychic? Mr. Tobin. I cannot address the motives for bringing a psychic in. I do not have any firsthand information. Senator Grassley. Did you learn what the psychic's findings were? Mr. Tobin. I believe I did. Senator Grassley. Do you want to say what those findings were? Mr. Tobin. I do not recall. They went in one ear and out the other, but that may have been the catalyst, and I did not even put this together until recently, that may have been the catalyst for the pristine overhead bin incident that---- Senator Grassley. Let us talk about that. Mr. Tobin. I was ordered to, in a rather frenzied manner, to go conduct an exhaustive search and contact with my NTSB liaison, in liaison capacity, to find a certain overhead bin that was characterized as in pristine condition, but it was in a very emotional, very frenzied manner, so I inquired as to why I was looking for this particular pristine overhead bin on the port side of the aircraft, that was from the left-hand side of the aircraft. I was told that that was proof that NTSB was, ``squirreling away evidence'' and ``stashing evidence,'' which, again, flies in the face of my interpretation of whose aircraft this was. So I inquired as to why the pristine overhead bin was of such significance. I was told that that was demonstrative proof that they were squirreling away evidence, that the recovery had been captured on a videotape from the USS Grapple or the USS Grasp, one of the recovery ships, and on the videotape, it showed this overhead bin being raised or set on the deck. And I said, well, I am still missing some critical information. Why is this important? Why is this critical? To which I was advised that it had a suitcase, a badly charred and damaged suitcase inside the overhead bin. My response at that point was, well, I am still missing some critical information. Why are we looking for this, ``pristine overhead bin''? Are you suggesting that there was a bomb in the suitcase that went off? Yes. Well, that went off, instantaneously brought down a 747 with no recording on the FDR or CVR, the flight data recorder or the cockpit voice recorder, and did not put a scratch in the overhead bin, and I was told, yes. We want that overhead bin. And I was told to go find that overhead bin. Senator Grassley. Did you ever hear the expression that 260-some witnesses cannot be wrong, referring to various eyewitness accounts which supported the bomb and missile theory? Mr. Tobin. Yes, I did. Senator Grassley. Under what circumstances did you hear that position and how did you respond to those comments? Mr. Tobin. That was the continual argument advanced when I continued to try to use the cardboard box analogy, that, basically, NTSB, in my position, in a material scientist position, is that the box fragments--if you have a bomb in a box, the box fragments will tell the story. And my position was, I do not care how many witnesses say what. The box--the container has to tell the story, and I was continually told that 260-some witnesses cannot be wrong. Well, I repeatedly tried to convey the physics involved in the materials interactions, No. 1, the velocity of sound and air and why, from my experience from having worked the streets as an agent, why eyewitness testimony can be flawed, and I conveyed that the speed of light--I am sorry, the speed of sound and air and the problems with audible and visual stimuli from witnesses that--260-some witnesses whose focus would have been brought to the same XYZ coordinates in space, that there were reasons why that those 260-some witnesses could not have-- highly unlikely that they would have all seen the initial conflagration or explosion of that aircraft, a position which was ignored for a very long time, but which eventually was confirmed by CIA analysis. Senator Grassley. What was the reaction of the FBI officials to your scientific position? Mr. Tobin. Well, I would--the officials on site after--when I first got there, I basically walked on water, but after about a week to 10 days, when it became clear that I was not supportive of the bomb or the missile proponents, I began to methodically get excluded from any input in the decision making process with regard to bomb or missile or even mechanical failure causes. Senator Grassley. Was your position ever validated, and if so, by whom and how? Mr. Tobin. My position of--oh, with regard to the reasons why 260 witnesses could be wrong? Senator Grassley. Yes. Mr. Tobin. Yes. In fact, as I indicated, the CIA did a very excellent study and videotape showing the effects of audible and visual stimulation and external stimuli and that they, in fact, confirmed that those witnesses, it was highly unlikely that they would have seen the original event. And again, there were logical reasons why. When one's attention is drawn over to that--to an omni-directional explosion, individuals will probably see fragments or something proceeding in an upward direction, trailing smoke and flames, particularly if it is from the fuel tank. So there were reasons why some of the characteristics that were described probably were seen. Senator Grassley. Was there any scientific support justifying the missile theory cause of the crash? Mr. Tobin. No. Senator Grassley. What were some of the characteristics which negated the missile theory? Mr. Tobin. Well, probably the most prominent--actually, there were two main areas negating the missile theory. One, of course, again, is the absence of impulsive loading, or very high-speed fracture and failure mechanisms. But second was there were serious issues with every theory, or almost every theory, as to access of an external missile to the fuel, to the fuel tank. Even with, as I indicated earlier, if one would focus on an area where we did not recover all of the fuel tank, there were components nearby that would have blocked or at least recorded passage of any externally penetrating object. And if that were not the case, there were many layers, including the external underbelly of the aircraft, and that was recovered almost--a huge portion of that was recovered. So that, basically, the only plausible theory for some of the missiles to have occurred would have been if there were missiles such that could maybe get through a 1- or 2-inch opening, make an immediate left, go 90 degrees through a seam, and then maybe take another 90-degree right, and then maybe reverse itself and come back over. But those were some of the considerations. Senator Grassley. Like the single bullet theory. Despite the scientific explanations, did any FBI officials with responsibility over the crash scene continue to advance the missile theories? Mr. Tobin. Yes. Senator Grassley. Did they continue to pursue these missile theories in a scientifically responsible manner, and please explain your answer, and particularly, I would like to have you explain the pickle fork missile theory. Mr. Tobin. The answer to the first portion of that is no, they were not scientifically responsible. The pickle fork area or theory was a continued thorn in our sides. I tried to negate it and brunt it, but it reared its head in about the third or fourth day. That was an area on the starboard side of the aircraft, the right side of the aircraft, that had the appearance of a significant amount of material missing. Now, I would also add that what is important in the evaluations of the damage was the missile size that was the most prevalent and available to have penetrated the aircraft or was of the most reasonable threat was 3.5 to 4 inches in diameter. That is a critical dimension. This pickle fork area, I overheard the supervisor running the operation in briefings, again, of dignitaries and other officials, indicating that there was material missing about like this. Well, the hands, I first of all noted, were in a curved manner, which was not consistent with the damage, but second, it was also roughly 3.5 to 4 inches or 6 inches in diameter. So I saw that several times and I thought I probably should step in and try to clarify this, to nip this in the bud, because that was, I saw, fueling--no pun intended--the perception and drawing out the theory that the missile caused the damage. So I went to the supervisor and I said, let me, if you have got a few minutes, let me describe to you the process by which a metallurgist or material scientist, or in this case, I conclude that there is not--there was only about an inch to an inch-and-a-half of material missing from this site. So I proceeded to take him through the logic processes. I actually used cardboard and cut-outs and got him to agree that the fracture here was of this shape and we cut the cardboard to the fracture shape. We went to another portion of the hangar and I got an agreement that these fractures, in fact, matched. This is where it is from, in the front portion of the fuel tank and the starboard side, and proceeded to then show, OK, now, if we unfold this folded material, there is an additional 3 inches. I went through the whole process and got him to agree that there was only 1 to 1\1/2\ inches of material missing. The very next day, I heard the same story to the next group of dignitaries he was briefing, so I thought, well, I will try this again. So I went back that day or the next day and went through the same process again, and 2 days later, the same 3.5 to 4 inches of material was missing from this pickle fork area. At that point, both the bomb techs and I threw up our hands and---- Senator Grassley. Can you give me the name of the individual involved? Mr. Tobin. That would be SSA Ken Maxwell. Senator Grassley. Thank you. Did they continue to--I think you have answered that. Let me ask you if you have any recommendations as to how transportation disasters should be investigated by the forensic communities in the future. Mr. Tobin. I would have several recommendations in that regard. First, let me clarify, if you do not mind, just one sentence before I answer that. I would like to make clear that this was not a usual course of events for FBI-NTSB interaction. The 25 years that I had been working this and my colleagues had been working this with the NTSB was a beautiful system. It worked very, very well. This particular investigation was the aberration, in my experience. So I would be reticent to suggest some coarse tuning but rather some fine tuning. So the observations that I would offer, I would suggest be taken in a fine-tuning mode. My first observation is that the outcome or practice of science for public safety issues of such magnitude should not be dependent on a single individual's agenda, biases, idiosyncracies, or the strength of their personality, which it clearly was in this case. My second observation or suggestion is that scientists are not on an equal footing inside the law enforcement community with the strategic--in the strategic decision making process. There are a number of examples of that, but, basically, scientists are, I will not say viewed as second-class citizens, but, basically, what happens inside the forensic community is if we corroborate or validate the prevailing theory, we walk on water. If the science does not validate the prevailing theory, then the science is just basically ignored. There are some other issues. I think the third would be that if there is some fine tuning to be--additional fine tuning, I would suggest that we revert back to the way that FBI and NTSB have worked these cases in the past, that the FBI's interest can be preserved by the presence of a materials scientist, who is experienced in materials deformation and damage, working alongside the NTSB, whether it is rail, maritime, or aircraft disasters, represent the FBI's interest in determining whether there is or could be potential criminal activity involved in the cause, and then allow that contingent to ratchet up whatever additional support or FBI involvement that there should be. So that would be my--basically, that the--I think part of the problem that occurred here was that with the process and the system being so singularly dependent upon a single individual, a strong personality individual, that what I was seeing there in the first 4 to 6 weeks is what psychologists have found or concluded to be basically what was called group think, what they called group think, and I saw that very evident there, where--and that was, if I may explain the term, was after the Bay of Pigs failure, psychologists determined one, if not the, major cause of that disaster was that the decision making process was comprised of individuals of very similar backgrounds, similar training, similar careers. In that strategic decision making process, there was no dissenting opinion within that process. I saw that there was such a unanimity of opinion that it was a very--I felt like I was trying to stop a train singlehandedly going 90 miles an hour there, but that is part of why I am suggesting that if there is a way of fine tuning, or if fine tuning is desired, that it should b