TWA Flight 800
The Impossible Zoom Climb

NTSB Clears Up TWA 800 Conspiracy Theory?

By John H Clarke  —  July 8, 2013

A petition to reopen the Flight 800 probe, under NTSB procedures, is central to the documentary, TWA Flight 800, directed by Kristina Borjesson. The NTSB recently telegraphed its response, and strategy, in its July 2 press briefing, which it billed as a way to educate reporters who were not yet journalists at the time of the 1996 disaster, nor during the ensuing four-year probe. The briefing, accompanied by a PowerPoint presentation, was given by Joseph Kolly, Director of NTSB Research and Engineering. Offering the very same excuses for the several instances of suspicious evidence, and anomalies, that had appeared in media reports over ten years ago, the NTSB’s PowerPoint slides even included reprints of New York Times headlines.

Based on a review of press accounts in the one-week period since the NTSB’s briefing, for whatever reason, it appears that the press is mostly on board with the government’s position, again. See, for example, NTSB Clears Up TWA 800 Conspiracy Theory. Thus, the NTSB is not about give up peacefully. The film’s proponents are now being challenged.

Most government officials and pundits opine that the evidence does not warrant a reconsideration of the probable cause finding.

This is true. And immaterial. TWA Flight 800 is highly credible, mostly because the claims of missile fire and ensuing cover-up are championed by four of the probe’s investigators themselves, all of whom appear patently honorable, and authoritative, and all of whom signed the petition. This evidence-based film should not need defending.

Evidence of cover-up adjudicated in Ray Lahr’s FOIA case.

As compelling as the documentary is, it would have been even more so had it recounted the outcome of the only judicial review of the matter. Only one court so far has analyzed much of the evidence showcased in the documentary. On the issue of government impropriety, a relevant inquiry under the Freedom of Information Act, Captain Ray Lahr submitted the affidavits and testimony of 27 fact and expert witnesses — physicists, system engineers, aerodynamicists, six air crash investigators (three of whom were parties to the TWA Flight 800 probe), a retired Admiral (whose opinion is in part based on the opinions of a former Chairman of the Joint Chiefs of Staff), a former NTSB Board member, seven eyewitnesses (four from the air, two CIA-animation featured), and a victim’s family member.

What did the evidence prove in federal court? In his 2006 100-page opinion, Los Angeles District Court Judge Howard Matz, a Clinton appointee, found that this evidence of official misconduct was so compelling that it mandated, under FOIA law, the overruling of two of the five statutory exemptions that the CIA had invoked. The September 2006 edition of the National Law Journal, A rare win in fight for TWA crash records reported:

Lahr, who received some documents with redactions, sought full records. In his ruling, Matz recognized Lahr’s numerous reasons for believing that the government participated in a massive cover-up, such as conflicting eyewitness testimony and the physically impossible “zoom-climb” theory on which the investigation is based. The judge said that “taken together, this evidence is sufficient to permit Plaintiff to proceed based on his claim that the government acted improperly in its investigation of Flight 800 or at least performed in a grossly negligent fashion. Accordingly, the public interest in ferreting out the truth would be compelling indeed.”

Although the documentary's co-producer, Tom Stalcup, has raised the issue of government impropriety in his FOIA suit (Stalcup v. CIA, USDC MA Case 11-11250), that court has yet to rule).

Evidence produced in Ray Lahr’s FOIA case.

As the documentary observed, Ray was unsuccessful in his efforts to obtain the government’s “zoom climb” computer program and data, which he had hoped to analyze to prove the CIA’s dishonesty in selecting the data that it used to simulate the crash. Here too the lawsuit’s record supports the documentary’s theme of the government’s concealing the tragedy’s true cause.

Ray initially sued only the NTSB, based on the statement in the CIA video-animation that its zoom-climb conclusion was based on NTSB-supplied data. When the NTSB responded that it had “no idea” what data the CIA had used, Ray added the CIA as a defendant. While disclosing previously secret “zoom-climb” CIA records, that Agency belatedly revealed that it had used an NSA computer program to conduct its simulation. So, Ray added the NSA as a defendant, and thereafter argued that this spy Agency was tasked, in bad faith, only to avoid disclosure under the FOIA, as courts cannot order disclosure of NSA records. This is how Ray’s case came to be captioned, Lahr v. NTSB, CIA, and NSA.

Significantly, the 2,000 pages of CIA “zoom-climb” records disclosed in the case reveals that the Agency did not conduct its zoom-climb analysis until after the government had decided to produce its zoom-climb video-animation for public consumption.

The absence of contemporaneous whistleblowers.

Some of the documentary’s detractors argue that, had there been a massive cover-up, whistleblowers would have come forward at the time. This is correct. But here, in fact, years ago, the media failed to report on the existence of whistleblowers, much less their smuggled-out evidence. Today, the press publicizes the view of officials and pundits who declare that there were no contemporaneous whistleblowers.

Much of the contemporaneous whistle-blowing was detailed by Jack Cashill and James Sanders in their 2003 book, First Strike:

TWA employee Linda Kunz served on one of the NTSB investigation teams. In the course of her work, she caught certain NTSB officials changing tags on seat parts. By retagging these seats, investigators could redefine the break-up sequence of the airplane to fit a mechanical scenario.

To document this chicanery, Kunz had two New York state troopers take photographs, a common investigative practice…. Over TWA’s protests, she was removed from the investigation and threatened with prosecution***

No fewer than four serious professionals within the investigation made specific allegations of evidence theft or tampering: Linda Kunz and Terrel Stacey of TWA, Jim Speer of TWA and ALPA, and Hank Hughes of the NTSB. Their allegations were taken seriously. Kunz and Speer were suspended from the investigation, Kunz permanently. Stacey was arrested. And Hughes was denounced by the FBI’s Kallstrom for his participation in a “kangaroo court of malcontents,” namely a U.S. Senate subcommittee hearing.

First Strike co-author Jim Sanders himself was indicted for conspiring with TWA’s Captain Terrell Stacey to smuggle out of the probe evidence of a missile strike. Sanders’ account appears in his 75-page civil rights lawsuit filed against eight officials, including NTSB Chairman James Hall, Assistant FBI Director-in-Charge James Kallstrom, and Dr. Merritt Birkey.

In fact, nobody knows how many attempts were made to blow the whistle. For example, Jim Holstclaw, who was the Deputy Director of the Air Transport Association in 1996, received the smuggled out “Radar tape… recorded at the New York Terminal Radar Approach Control…”, as he bravely admitted in his 2003 affidavit. Declining to inculpate his source within the probe, he swears, “I know this tape to be authentic because it was given to me by one of the NTSB accident investigation committee members…. The tape shows a primary target at the speed of approximately 1200 knots converging with TWA-800, during the climb out phase of TWA 800.”

Conclusion. The official conclusion that a center-wing-tank explosion caused the Flight 800 tragedy was repeated over and over during the course of government’s four year probe. It was perhaps the longest sustained press leak in US history. Now, as in years past, the conduct of the news media is what one might expect from a public relations firm. Does the press serve as the eyes and ears of the people, or as a mouthpiece for government?

In any event, to the extent that they are not ignored, proponents of transparency, objectivity and fairness in this matter know to expect to be unfairly denigrated in the press, as they were a decade ago.




Q. What exactly does judge Matz’s decision say about government wrongdoing?
A. The court wrote:

The government altered evidence during the investigation.8 Evidence was removed from the reconstruction hangar.9 The government misrepresented radar data, which does not correspond to the “zoom-climb” conclusion.10 Radar data11 and flight recorder data12 are missing. It appears that underwater Read more…

Q. How might TWA Flight 800 effect future court actions?
A. Under the FOIA’s balancing test, the higher the public interest, the more likely the court is to order disclosure. Here, going forward, the film’s publicity will work in favor of disclosure under the FOIA. Regarding other potential actions, the Chicago Lawyer’s Using FOIA to investigate the TWA 800 crash, observes:

Interestingly, if, in fact, Lahr proves that fraudulent concealment occurred in the investigation on of this crash, will that allow families to re-open their cases and add the government as a defendant? What if it is found that a governmental agency operated in bad faith, or if there is malfeasance? What about those who did not sue at all? Will the statute of limitations be extended for them if they discover from these once-privileged documents that a cover-up of sorts occurred after the crash and in the ensuing years?

The writer is alluding to the doctrine of fraudulent concealment, which extends the running of the statute of limitations until the plaintiff knew or should have known of the defendants’ wrongful conduct. Perhaps the insurance companies that funded the settlements of the family’s wrongful death lawsuits in 2000 should argue the doctrine’s application in support of an insurance fraud lawsuit, for as much as several hundred million dollars.


Q. Who else besides the filmmakers has a history of championing the truth?

A. The late Commander William S. Donaldson, and his brother, Bob Donaldson (ARAP), the late Reed Irvine and Roger Aronoff (AIM), reporter Kelly O’Meara, Jim Sanders and Jack Cashill, and many others. See, e.g., Re-open TWA-800 mystery.


Q. Can a judge order the NTSB to reopen the probe?

A. No. But to be clear, I do not represent the filmmakers.


Q. Why is government malfeasance relevant under the FOIA? Wasn’t Ray’s case reversed on appeal?

A. Government wrongdoing can be a relevant under the FOIA on three issues, (i) to overcome privacy exemptions under the balancing test, (ii) to prove fraud to overcome assertions of privilege, and (iii) to impugn the credibility of government affidavits. The court of appeals reversed one legal aspect of the Judge Matz’s decision, but all findings of fact of the lower court remain undisturbed. The one issue reversed by the 9th Circuit US Court of Appeals was the subject of Ray’s Supreme Court Petition.