To: TWA Flight 800 Eyewitnesses
From: John Clarke
Dear Eyewitness,
If you reported to the FBI your account of the TWA Flight 800 tragedy, we hope that you will now help private citizens prove that the government purposely misrepresented the eyewitnesses’ descriptions of what they saw. Kindly consider signing a privacy waiver authorizing complete release of the government’s reports of your account of the tragedy, under the Freedom of Information Act, or FOIA.
Although most of the government’s reports of its interviews with eyewitnesses, and studies based on eyewitness interviews, have been disclosed, under legal precedent established in a 2009 FOIA decision regarding Flight 800 records, the government continues to withhold all eyewitness names from all Flight 800 government reports and studies.
I am assembling releases to use in Freedom of Information Act litigation seeking additional disclosure of TWA Flight 800 investigative records. The more releases obtained, the more weight to be accorded the legal argument that the names of all eyewitness should be disclosed. Also, full disclosure will permit complete comparisons of the FBI’s version of eyewitnesses’ accounts, with the CIA’s and NTSB’s descriptions, and would permit all eyewitnesses to review all reports and studies about their accounts, should they choose to do so.
Background. My first exposure to the Flight 800 tragedy was in 2000, when I had the pleasure of representing investigative journalist James Sanders, and his wife, Elizabeth, along with co-counsel Mark Lane, in the Sanders’ civil rights lawsuit against the United States and eight individuals. The lawsuit alleged “an illegal conspiracy to obstruct justice in connection with the federal investigation into the downing of TWA Flight 800, and the illegal use of the power of the executive branch to cover up and halt the dissemination of the assertion that a missile punched through Flight 800 and caused it to explode.”
From 2003 through 2010, I had the pleasure of representing Ray Lahr in his FOIA lawsuit against the CIA, NTSB, and NSA, seeking records underlying the government’s “zoom-climb” conclusion. In its 2006 decision, based on the affidavits of seven eyewitnesses and 20 experts, the trial court concluded that “this evidence is sufficient to permit Plaintiff to proceed on his claim that the government acted improperly in its investigation of Flight 800,” and ordered disclosure of eyewitness names, as well as other materials.
But, in a surprise 2009 ruling, the 9th Circuit US Court of Appeals reversed the trial court’s decision to order disclosure of eyewitness names, permitting the government to withhold the names of all eyewitnesses, even those who had submitted affidavits in Ray’s case.
FOIA Action. Because the appellate court’s reasoning is flawed, this issue of whether the names of the eyewitnesses should be disclosed is nicely “teed up,” so to speak, for court action challenging the 9th Circuit’s interpretation of the FOIA’s privacy protections.
A signed release authorizes the FOIA plaintiff to demand release of your name as it appears in government reports, including your FBI 302 interview report, the corresponding FBI handwritten interview notes, the CIA’s summary of your account, and various government eyewitness studies. A sample release appears below.
Release
1. My full name is ______________________________________________.
2. The FBI interviewed me regarding the July 17, 1996, crash of TWA Flight 800.
3. I hereby authorize release of my name, under the Freedom of Information Act, on any report of any nature regarding the demise of TWA Flight 800, including but not limited to FBI 302 interview reports, the corresponding handwritten notes, the CIA’s summary of my account, and all government studies.
4. This release does not authorize the release of my other identifying information, such as my date of birth, telephone number, social security number, or address.
I declare under penalty of perjury that the foregoing is true and correct.
Date: _______________________
______________________________________________
Signature
FAQ
| Q. |
If I decide to provide a release will I ever be required to do anything else? |
| A. |
No. |
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| Q. |
Does my signed release make me a FOIA plaintiff? |
| A. |
No. |
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| Q. |
Can I see the government reports regarding my account, after their release? If the government misrepresented my account, will I be given an opportunity to correct it? |
| A. |
Yes. Links to all government disclosures will appear on this website soon after receipt. Thereafter, should you wish to submit a statement for inclusion in the record, I will accommodate, happily. |
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| Q. |
Why was the 9th Circuit's reasoning flawed? |
| A. |
That appellate court ruled that a FOIA privacy exemption designed to protect individuals from the stigma sometimes associated with being a witness in a criminal probe justified the government's withholding of all eyewitness names, and, further, that disclosure of the names would not advance the FOIA's purpose. This reasoning is faulty. First, there is no stigma associated with simply witnessing a tragedy that the government claimed was a freak accident, as evidenced by the fact that many eyewitnesses have already come forward, a number of whom submitted affidavits in Ray Lahr's case. Second, full disclosure of all eyewitness materials would provide additional evidence that the government purposely misrepresented eyewitness accounts, which would advance the FOIA's purpose of opening up the inner workings of government to public scrutiny. |
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| Q. |
Can I follow the progress of the FOIA lawsuit? When do you expect to file it? Who will be the plaintiff? Besides eyewitness materials, will the plaintiff be seeking disclosure of other Flight 800 investigative records? |
| A. |
You can follow the case on this website, where the docket sheet will appear, linked to all court filings. Suit will be filed before the end of the year. Former NTSB Board Member Dr. Vernon Grose, who is one of Ray Lahr's witnesses, will be one of the plaintiffs. Ray will not be a plaintiff. In addition to eyewitness materials, we will be seeking records of the government's discussions of the cause of the tragedy, as well records supposedly supporting its "zoom-climb" theory. |
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| Q. |
Should I draft my own release or do I have to use the one you provided? Suppose I did not witness any stage of the disaster itself, but, rather, have some other knowledge that may be of value, like, for example, information about the government's conduct in its probe? |
| A. |
It is up to you whether to simply cut and paste from the release above, or draft your own. The more information you provide the better. For example, eyewitnesses are encouraged to include the names of the FBI agents who interviewed them. If you do provide information, the document would more accurately be titled an Affidavit, rather than a Release. Other evidence of government wrongdoing is relevant, and welcome. See, for example, the affidavits of Flight 800 ALPA Investigator Jim Speer, TWA Chief Accident Investigator and Party Coordinator Bob Young, Deputy Director Air Transport Association Jim Holtsclaw, and testimony of NTSB investigator Hank Hughes. |
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| Q. |
Why are you soliciting evidence of government wrongdoing in a FOIA case? |
| A. |
Government misconduct will be relevant in the prosecution of the lawsuit. On the issue of whether to order disclosure of eyewitness names, the personal privacy interests sought to be protected under the FOIA must be balanced against the value that disclosure would bring. To trigger this balancing test, the FOIA plaintiff must first prove government impropriety, as Ray Lahr did in his case. Also, regarding nondisclosure of records withheld under claims of the "deliberative process privilege," plaintiff will argue that the privilege is inapplicable because the government was not deliberating the probable cause of the disaster, but, rather, was deliberating how to cover it up. |
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| Q. |
How many courts have reviewed evidence of a government cover-up of the cause of the Flight 800 disaster? |
| A. |
There have been a number of Flight FOIA cases, but only in Ray Lahr's case was the issue of government impropriety adjudicated, surprisingly. Sadly, Jim and Elizabeth Sanders' lawsuit, which alleged civil rights violations in furtherance of a government cover-up, was dismissed after being transferred from Washington, DC to New York. |
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| Q. |
Does the release need to be notarized? |
| A. |
Probably not, based on my experience in another FOIA lawsuit against the CIA involving privacy waivers. |
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| Q. |
Other than the release or affidavit, can I assist in any other way? |
| A. |
Yes. If you like, at your convenience, please see the Chart of Eyewitness Accounts (Excel spreadsheet), and let me know whether you can identify your account. |
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| Q. |
How should I get my release to you? |
| A. |
Scan and email or mail. Please include your contact information. |
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| Q. |
I still have questions. |
| A. |
Email or call or write me. JohnHClarke@earthlink.net, (202) 332-3030 or cell (202) 344-0776, 2424 Pennsylvania Ave., NW, No. 410, Washington, DC 20037. |