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THE TREND TOWARD CRIMINALIZING AVIATION ACCIDENTS
Thursday, July 27, 2000
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Aviation, Washington, D.C.
The subcommittee met, pursuant to call, at 9:30 a.m. in room 2167, Rayburn House Office Building, Honorable John J. Duncan, Jr. [chairman of the subcommittee] presiding.
Mr. DUNCAN. I would like to go ahead and call this hearing to order.
Today we are going to explore a topic that has been in the news for some time. The ValuJet crash in 1996 spurred one of the most public criminal prosecutions of any air crash in aviation history. The NTSB investigated the accident and found that the FAA, ValuJet, and SabreTech—a maintenance company—each bore some responsibility. Based in part on information gleaned in the NTSB investigation, criminal charges were brought against SabreTech.
This hearing is not intended to focus on the ValuJet crash or explore issues that have been or will be decided by a court. However, the crash and resulting criminal charges are illustrative of the situation we are exploring today. In more and more instances, criminal charges are being brought when an aviation accident occurs.
Much of the information shared in today's aviation community is voluntary. The NTSB's investigations depend largely on information voluntarily given by those associated with the investigation. Safety programs, such as the flight operations quality assurance and the aviation safety action plan, are based on voluntary reporting. The industry is concerned that the recent trend to criminalize aviation accidents could act as a deterrent to the voluntary cooperation and reporting that is prevalent in the industry today.
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The NTSB has encountered problems in its investigation in Bellingham, Washington. Although this was not an aviation accident—it was a pipeline rupture—this investigation was apparently impeded by witnesses refusing to cooperate with the investigators for fear of self-incrimination. Prosecutors will argue, understandably, that it is good and in fact a necessary public policy to prosecute even negligent actions that can result in such tragic results.
No matter which side of the argument with which you agree, there is no doubt that there is a tension between the criminal prosecution of these accidents and the desire for voluntary cooperation and a full and detailed investigation with respect to safety in the aviation industry. Corporations may be reluctant to offer information that may be used against them. Employees of corporations may be extremely reluctant to offer information. This may stand in the way of safety.
The question for us is--what if anything can or should be done about this? Some people believe that the NTSB should be given some sort of limited use immunity to use in its investigations. Others think that this is too great a power to be given.
We are going to hear from several interested parties today and my hope is that we will leave this hearing with a better understanding of the potential problem and any possible solutions.
Dan Campbell, former General Counsel and current Managing Director of the NTSB, is here with us today and has been with us at several hearings. He will discuss this issue.
We are also pleased to have Mr. Guy Lewis, the U.S. Attorney for the Southern District of Florida, to give his views. He was involved in the ValuJet investigation in Florida.
Mr. Bob Warren, General Counsel from the Air Transport Association, is here to give the airlines' views.
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Mr. Paul McCarthy from the Air Line Pilots Association, is here for his second straight hearing. He was here with us last week and he will talk about the perspectives of the pilots.
Mr. Marshall Filler, former Republican counsel to this subcommittee, is here as counsel to the Aeronautical Repair Station Association.
Mr. Kenneth Quinn, former FAA chief counsel and counsel to SabreTech, is here to give his views on the criminal prosecutions.
Finally, Mr. Stuart Matthews, president of the Flight Safety Foundation, is here to talk about the potential impacts of this trend on safety.
I thank all of the witnesses for their participation in this hearing. I would like to now recognize the ranking member of the subcommittee, Mr. Lipinski.
Mr. LIPINSKI. Thank you, Mr. Chairman.
Thank you very much for holding this hearing today on the criminalization of aviation accidents.
This is a difficult issue. On one hand, in the interest of aviation safety, we need to bring to trial and punish individuals guilty of truly criminal conduct as well as those who willfully and consistently disregard safety laws and regulations. On the other hand, also in the interest of aviation safety, we do not want to criminalize human error.
The National Transportation Safety Board has many tools at its disposal while it is investigating an aviation incident. One of their most important tools, however, is the ability to gather information from aviation employees involved in the incident.
During the subcommittee's hearings on the reauthorization of the NTSB, we learned that aviation accident investigations are becoming more and more complex and are taking longer and longer to complete. Given this already challenging environment, the NTSB cannot afford to lose one of their most important investigative tools.
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However, if legitimate accidents continue to be criminalized, this is exactly what will happen. If they fear criminal prosecution, aviation employees, who are now willing to cooperate with the NTSB in the investigation of aviation safety, will instead exercise their Fifth Amendment right. Without information from employees, the NTSB will have to look elsewhere for answers to aviation accidents, which they may or may not find.
Again, I think we can all agree that truly criminal conduct, such as an act of terrorism or gross negligence, should and must be punished. However, if every aviation accident investigation also becomes a criminal investigation, more individuals would be punished, but it will be aviation safety that suffers.
Finding out all we can about aviation and aviation safety requires cooperation and a free flow of information. Criminal investigations do not foster a cooperative environment. The free flow of information stops when individuals fear for their freedom if they admit a mistake. As a result, criminalization has a chilling effect on accident investigations. We should not make it more difficult to find the answers to aviation accidents. Safety is and should be our top priority.
However, it is difficult to find a balance between prosecuting truly criminal behavior and finding out all that we can about aviation safety. I look forward to hearing from our knowledgeable witnesses here today about how we can find that delicate balance.
Again, thank you, Mr. Chairman, for holding this hearing. I yield back the balance of my time.
Mr. DUNCAN. Thank you very much, Mr. Lipinski.
We are very pleased and honored to have this first panel with us, very distinguished gentleman all. We have on the first panel Mr. Robert P. Warren, Senior Vice President and General Counsel and Secretary, Air Transport Association of America; Mr. Marshall S. Filler, Counsel, Aeronautical Repair Station Association; Captain Paul McCarthy, Executive Air Safety Chairman, Air Line Pilots Association; and Mr. Kenneth Quinn, Partner, Winthrop, Stimson, Putnam & Roberts.
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Thank you very much for being here. We do proceed with the witnesses in the order listed on the call of the hearing. That means, Mr. Warren, that you will go first. You may begin your statement.
All the statements of all the witnesses today—the full statements will be placed in the record, so people can summarize if appropriate to do so.
Mr. Warren?
TESTIMONY OF ROBERT P. WARREN, SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY, AIR TRANSPORT ASSOCIATION OF AMERICA; MARSHALL S. FILLER, COUNSEL, AERONAUTICAL REPAIR STATION ASSOCIATION; CAPTAIN PAUL MCCARTHY, EXECUTIVE AIR SAFETY CHAIRMAN, AIR LINE PILOTS ASSOCIATION; AND KENNETH P. QUINN, PARTNER, WINTHROP, STIMSON, PUTNAM AND ROBERTS
Mr. WARREN. Thank you, Mr. Chairman.
I am Robert Warren, senior vice president of the Air Transport Association of America. ATA greatly appreciates the opportunity to present its views on the subject of the trend towards criminalization of aircraft accidents. This difficult, but critical, subject involves the intersection of two important public policies: the promotion of aviation safety; and the discouragement of criminal conduct. Both are important public policies, but after an accident, governmental and institutional tensions can arise, either directly or indirectly. When this occurs, these tensions may pose substantial difficulties in achieving either of these public policy goals.
ATA believes that this issue should not be resolved by a public policy that always encourages criminal prosecution first and safety second. We believe that in the aviation arena, there are situations where criminal prosecution is necessary and appropriate. That being said, the employment of criminal investigations and prosecutions in the context of aviation accident investigations or other aviation safety investigations is a matter of serious concern.
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The aviation community has a long and cherished tradition of cooperating in governmental aviation safety efforts, including investigations and voluntary disclosures as long as they are not used for punitive purposes. There are those in society who have come to believe that the criminal justice system uniquely is equipped to solve society's problems. They look to the judicial system to find the answers to what went wrong and who must be punished. Unfortunately, this general sentiment directly conflicts with FAA's responsibility for regulating and enforcing aviation safety, and with the NTSB's responsibility for investigating transportation accidents, determining their probable cause, and making recommendations to prevent their recurrence.
If criminal prosecutions become a permanent fixture in accident investigation, the judgment may be made that in certain circumstances that cooperation is no longer worth the risk.
ATA would like to recommend several steps that could be taken to preserve the valuable tradition of cooperation with Government authorities in the aviation arena, while at the same time preserving the ability of criminal prosecution authorities to pursue prosecutions where appropriate.
ATA would recommend that the Congress should require closer coordination between the NTSB, FAA, Justice Department, and other Government criminal authorities to ensure that the concerns and needs of each are adequately considered by the others when taking actions relating to aviation accidents or other safety investigations. Moreover, decisions to prosecute should be exercised with the concurrence of the FAA and should be centralized within the Department of Justice in Washington, D.C.
Congress should require the Justice Department to sensitize prosecutors to the potential damage that criminal investigations can do to the cooperative environment in the aviation community on safety matters. If, for example, the Government safety authorities are viewed as being a front for the investigative activities of the criminal authorities, then cooperation with the NTSB may well be at risk in the future.
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Congress should address the tensions between promoting the public policies of aviation safety and discouraging criminal conduct by drawing from other situations where similar tensions have been addressed. Congress should consider keeping the tradition of cooperation with Government authorities in accident investigations paramount by providing protections against the use in criminal prosecutions of any safety-related information that is provided directly to either the NTSB or the FAA.
In doing so, criminal prosecutorial authorities would still be able to bring criminal prosecutions, and still could use certain evidence if it was derived from a source independent of information provided to the NTSB or FAA in the course of their investigations. Such a doctrine would advance the strong public policy of encouraging participation in Government safety activities, but would not prevent Government criminal authorities from bringing criminal prosecutions where justified.
And finally, Congress should establish and codify a mechanism to encourage companies and other organizations to be proactive with respect to aviation safety and aviation safety regulatory compliance. Such a mechanism, known as the self-critical analysis privilege, has been adopted in certain circumstances in a number of jurisdictions.
ATA looks forward to discussing these and other ideas with the committee and other interested parties.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you, Mr. Warren.
Mr. Filler?
Mr. FILLER. Good morning, Mr. Chairman and members of the subcommittee. My name is Marshall Filler and I am counsel to the Aeronautical Repair Station Association, known as ARSA. I very much appreciate the invitation to appear before you today.
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ARSA is a trade association comprised of several hundred members, most of whom are FAA-certificated repair stations. The association's primary mission is education and our focus is on regulatory compliance matters.
I have been practicing aviation regulatory law for 27 years, of which the first 12 were in Government. I served in the FAA Chief Counsel's office and, as the chairman pointed out, as the minority counsel to this subcommittee before entering private practice in 1985. Since that time, I have represented companies who were involved in several criminal investigations—all in aviation—some of which resulted from fatal accidents.
The NTSB accident investigation process has worked remarkably well, in large part because people genuinely want to cooperate with the Safety Board. These procedures have been the catalyst for some of the most important safety advances in aviation. They have produced time-critical NTSB recommendations, FAA safety bulletins and airworthiness directives to alert the industry and the public to a problem that really could not wait until the investigation is over and the probable cause determined.
Until recently, it was highly unusual for a criminal investigation to be opened after an airline accident. The criminal authorities typically left these matters to those who knew the most about them, the NTSB and the FAA. This is no longer the case and as a result I believe the Safety Board will see many more people unwilling to cooperate in its investigations.
Mr. Chairman, the people being criminally investigated in these cases have often devoted their entire professional lives to aviation safety. Unfortunately, when they make a mistake, the results can be tragic. Does this make them or their companies criminals? In the vast majority of cases, based on my experience, the answer is no.
When a person's actions are questioned following an aircraft accident, this is what they face. Initially, they will be asked by the NTSB to submit to an interview and later testify at the public hearing on the accident, with its live television coverage and standing-room-only crowds. If they violated FAA regulations, they may have their certificates suspended or revoked, making them potentially unable to earn a living in their chosen profession. Companies may be forced to cease operations—the lucky ones temporarily, some of them permanently. Employees will have to endure civil depositions, sometimes for days at a time, being interrogated by skilled trial lawyers. They may even be sued personally. If the media believes their actions were potentially significant, they will park news trucks outside their homes and write articles that mention their names. At best, it is a very unpleasant experience. At worst, it produces stress and anxiety, which makes it almost impossible for them to function normally. Having to live with the realization that your actions might have contributed to an accident is a different kind of punishment altogether.
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I might add that I have also witnessed these same pressures and reactions on the part of air traffic controllers and FAA inspectors whose actions were also questioned during the investigation.
Add to this a criminal investigation—because what I just mentioned is all regulatory and civil—and you can readily see why people may want to consider a different career, especially if they are in maintenance where there are attractive options in other industries.
As the chairman pointed out, there are many situations in our industry where the FAA has decided that it is more important to obtain critical safety information than it is to punish people who may have violated the regulations. The self-disclosure program, aviation safety reporting, the two programs the chairman mentioned—there is obvious tension between the desire to get information and the pursuit of criminal law enforcement we are seeing today.
Mr. Chairman, there are two measures which ARSA recommends for dealing with this problem. The first is to adopt legislation prohibiting any testimony provided in an NTSB accident investigation from being used against that person in a criminal case, except in a prosecution for perjury or giving a false statement. Second, we urge the NTSB, the FAA, and the Justice Department to jointly develop a policy to address this problem. This is largely a matter being left up to the prosecutorial discretion of local Assistant U.S. Attorneys and their respective U.S. Attorneys in their districts. A person whose actions cause or contribute to an accident, whether that person is a pilot, mechanic, or other employee should not have to fear a criminal investigation unless those acts were deliberate and done with the intent to cause injury or bodily harm, or are otherwise so egregious that prosecution is warranted, such as the production of a counterfeit part which leads to a fatal accident.
Unless such a policy is developed, this is what we believe will happen. Indeed, it has already happened. As soon as an accident occurs, the first thing the affected company will do is hire not only regulatory counsel and litigation counsel, but criminal counsel as well. They will offer employees the opportunity to be represented by counsel at company expense. Because it will be in the best interests of these employees not to talk to investigators, their lawyers will advise them accordingly and they will follow that advice. I believe this will seriously undermine the NTSB investigation, potentially delaying the issuance of critical safety information.
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Mr. Chairman, ARSA does not believe we should go down this road, in spite of the fact that it may be very tempting to do so. We do not believe it will lead to safer skies.
Thank you very much for the opportunity to testify here today. I will be happy to answer any questions the subcommittee may have.
Mr. DUNCAN. Thank you very much, Mr. Filler.
Captain McCarthy?
Captain MCCARTHY. Good morning, Mr. Chairman and members. My name is Captain Paul McCarthy, the executive air safety chairman for the Air Line Pilots Association. ALPA represents the professional interests of over 58,000 pilots who fly for 50 airlines in the United States and Canada.
It is not by chance that the United States enjoys such an admirable safety record in air transportation. That we lead the world in this regard is primarily due to two key factors: the dedication to safety by the manufacturers, operators, and the personnel directly involved with flight operations, and the ability of this industry to learn from its errors. The recent trend towards the criminalization of aircraft accidents is extremely alarming in that it has the potential to cripple industry's ability to learn from incidents & accidents, essentially guaranteeing that we will repeat them.
An analysis of accident reports shows that nearly 75 percent of aircraft accidents that occur in the United States involve some form of human error. These can be errors of omission or commission, and can be by pilots, air traffic controllers, designers, loaders, mechanics, and others. In virtually all of these situations, the personnel involved were performing their duties to the best of their ability, in order to ensure the safe completion of the flight. Nevertheless, even under these circumstances, accidents do occur. One reason that the accident investigation process has been so effective in identifying safety deficiencies is the ability of investigators, through cooperative means, to obtain complete and accurate information from those who were directly involved in the conduct of the flight.
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The statements of the surviving flight crew members are of critical importance to accident investigations. ALPA continues to rely on the tradition that in the United States, when a pilot acts in what he perceives to be in the best interest of the safe operation of the aircraft, he will not be criminally prosecuted. Based upon this reliance, and in spite of concerns about the potential negative impact of full disclosure, ALPA advises the pilots we represent that they should fully cooperate and aid in the investigation. Flight crew statements are freely given, even when the statement may reveal error on the part of the crew member. Additionally, the flight crew members continue to cooperate and provide additional information during all stages of the investigation.
If the potential for criminal prosecution of flight crew members does become a realistic possibility, it will end the current cooperative spirit of pilots in accident investigations. Certainly, no lawyer would allow his client to willingly provide incriminating evidence against himself if it were likely to be used in a criminal prosecution of the client. Clearly, this also applies to all others whose testimony is necessary for a better understanding of the events leading to the accident. It is in the public's interest that such information continues to be available to accident investigators. Criminalization will stanch this information flow.
Similarly, it has been recognized that the reactive approach—that is, investigation of accidents—to air safety had reached its limits in its ability to further significantly decrease the accident rate, and that a more proactive approach is required. Extremely capable flight data recording and analysis tools are seen as the next logical step in driving the accident rate down. The rationale is to amass and analyze large amounts of flight data in order to detect trends and occurrences before they become accidents. By identifying and correcting these deficiencies, the concept of proactive safety was implemented. Examples of these proactive safety programs include Flight Operations Quality Assurance, Aviation Safety Action Plan, and the Global Aviation Information Network.
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The primary components of this proactive safety strategy are voluntarily supplied recorded flight data, voluntarily supplied safety reports, and the voluntary sharing of data between organizations that collect and analyze it. On-board recorders include the crash-protected flight data recorders and the maintenance-oriented quick access recorder. The collection and sharing of this data has significant potential business, financial, and legal implications for the operators, the manufacturers, and the flight crews.
Unfortunately, the FAA has just released a notice of proposed rulemaking which would expose this data to the threat that it will be used against individuals and organizations which voluntarily provide it. The result should be obvious.
The United States is currently at a crossroads when it comes to aviation safety. We need proactive safety to further decrease the accident rate. The trend towards deterrents as our main safety tool is threatening to paralyze this proactive approach. It must be recognized that people are an integral element of the air transport industry, and people always have and always will make errors.
As professionals, we are not asking for freedom to exercise willful misconduct. We fully recognize our obligations. We are asking for protection from overzealous prosecution.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much, Captain McCarthy.
Mr. Quinn?
Mr. QUINN. Thank you very much, Mr. Chairman. And thank you for the opportunity to testify before you today. I have had the privilege of appearing before the subcommittee on a number of occasions in both the private and public sector experience and working with you and other members, particularly the distinguished ranking member of the subcommittee, Mr. Lipinski. It is a real honor and a privilege.
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Since SabreTech has become really the poster child for the overreaching exercise of prosecutorial discretion, I believe it is appropriate to share with you directly some experiences that ought to give pause about turning every accident into a crime scene. I think Mr. Lipinski was eloquent and hit it right on the button that we really do not want to be criminalizing human error and bad judgment, yet that is exactly what happened in the SabreTech case.
But let me just step back for a moment. I began my career at Sidley and Austin in Chicago practicing antitrust and financial litigation and white collar criminal defense with Sam Skinner. I saw a lot of interesting crimes. When he brought me into Washington to be counselor to the Secretary of Transportation and later as FAA chief counsel, we had to struggle with PanAm 103 immediately and Lockerbie. But that is a great case for the prudent exercise of prosecutorial discretion. I chaired the Task Force on Aviation Security and Intelligence to go after the culprits and am very pleased to see that they are being brought to justice today.
But other examples of truly bad judgment, egregious errors exist: USAir/Skywest and a controller vectoring an airplane right on top of another one; United 232 and problems with severing the aileron and the design; not understanding corrosion and fatigue in Aloha. A lot of these things that we saw as accidents, which I think today prosecutors, seeing the headlines, would go in and try to open an investigation. I think that is just wrong.
I think no one could justifiably accuse me of being soft on enforcement at the FAA—I brought a record fine, I think, during the Bush Administration—or being soft on terrorism or acts of sabotage. Go after the people, go after the companies. But if it is bad judgment, if there are mistakes and errors, what we need to have in this system is a climate of cooperation and candor, Mr. Chairman, as you indicated, to come forward and admit those things because it is a lot more important to find out what happened and why and prevent a reoccurrence than it is to try to put someone behind bars.
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And I must tell you that I am very chagrined. I once had a lot of faith in the exercise of prosecutorial discretion. I really don't today. Let me tell you why.
To those who would say, ''Trust us, rely on the prudent exercise of prosecutorial discretion,'' if you look at the tactics, the charges and the sentencing position down in Miami, I believe, it is an exercise of overreaching, no restraint, raiding the facility with 50 FBI agents, seizing and holding onto privileged documents until a judge told them it was improper, homicide detectives going to people's homes at night, banging on the door saying ''I need to talk to your husband, Metro Dade Homicide,'' talking to numerous employees and former employees that they knew were represented by counsel.
Then bringing charges of conspiracy to falsify documents, willful violations of the hazardous materials regulations, a charge of placing an incendiary device on board an aircraft--an act reserved for terrorists-- murder/manslaughter charges brought without even talking to counsel, without even interviewing key witnesses—all of it spectacularly brought with a tipped-off media to endure adverse publicity that ultimately put this company, SabreTech, out of business, that caused them to a position today of a $21 million negative net worth and over $14 million in unreimbursed costs directly associated with the tragedy.
Thankfully, a Federal jury saw through most of those charges. They acquitted the individuals of all counts, they acquitted the company of all the serious charges, in two-thirds of the charges the company was found not guilty.
But now look at the position of sentencing. For a defunct company, these prosecutors are seeking over $289 million in restitution and a max fine of $4.5 million. I believe, respectfully, that this calls into question those who would simply say, ''Rely on the reasonable judgment of prosecutors in the wake of an accident.'' Now with SunJet and Alaska, it is becomingly increasingly difficult to square a prosecutors' statements of prudence and caution with these media orchestrated trials, raids, and charges.
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I think what we need to do in the country is to do something that Bob had suggested and I think Paul, and that is to afford protection for those who provide truthful statements to the NTSB and FAA investigators. To the extent that there are bad judgment and bad mistakes, they ought to be protected and they shouldn't even open up an investigation. If they lie, they should be prosecuted. If there is evidence of willful behavior, evil purpose, bad motive, then go after them hammer and tong.
But they ought not to chill the very keys to unlocking an aviation accident. It is far more important to honor the victims of the tragedy, in my opinion, by preventing the reoccurrence of the tragedy than by putting someone behind bars and further punishing an individual or a company that has to spend the rest of their days haunted by the fact that something that they did or didn't do contributed to the death of a number of people. That is a very profound thing to live with. It puts companies and individuals out of work. It destroys careers, destroys their lives. I believe that is punishment enough. I believe you can rely on the FAA to exercise prudent, regulatory oversight and enforcement and let the civil justice system take care of compensation in terms of the tort laws.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much, Mr. Quinn.
We will go for the first round of questions to Mr. Isakson.
Mr. ISAKSON. Thank you very much, Mr. Chairman.
I would like to ask Mr. Filler—and maybe Captain McCarthy would like to comment on this question—in your testimony, Mr. Filler, your primary recommendation, if I remember correctly, was to prohibit any testimony on the investigation side from being used in a criminal case. Is that correct?
Mr. FILLER. Yes, sir, it is.
Mr. ISAKSON. Would you agree with that, Captain McCarthy?
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Captain MCCARTHY. Yes, sir.
Mr. ISAKSON. My second question is—I am not an attorney—quite frequent user of airlines, I might add, but I am not an attorney—I believe SabreTech was a subcontractor. Is that correct? They were not an employee of AirTran or ValueJet?
Mr. FILLER. That is correct.
Mr. ISAKSON. Would you extend the prohibition of use on testimony except in the cases of perjury and the exceptions to anybody involved, whether they be an employee of the airline, a member of the crew, or any subcontractor of the airline?
Mr. FILLER. Absolutely, Congressman. I think what we are really after here is the information. Sometimes the information is in the hands of an airline employee. Sometimes it is in the hands of a repair station employee or some other employee of some other contractor. I think what is important is that we get the information. To me, it wouldn't make a difference who their actual employer was.
Mr. ISAKSON. Again, not being an attorney, but from everything I have seen in some of the tragedies we have experienced in America and air travel in other instances—there is a lot of difference in investigating a crime scene and trying to determine the cause of an accident, is there not?
Mr. FILLER. Absolutely.
Mr. ISAKSON. Mr. Quinn, do you concur with their responses on those questions?
Mr. QUINN. Generally, yes. All truthful statements given to FAA or NTSB investigators ought to be inadmissible in a criminal proceeding just as NTSB probable cause determinations are inadmissible in a civil proceeding. You have clear precedent in the statute today and in the NTSB's rules of practice. I believe Congress ought to direct that in a similar manner for criminal proceedings.
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Mr. ISAKSON. I have one last question.
In that same vein, to any of the members of the panel, would you share with me any precedents that exist in the law for such a prohibition in things other than an aircraft accident?
Mr. WARREN. I think there has been a longstanding procedure that has been used in circumstances where you have an internal affairs—for example—investigation of a police—the Garrity case—in which internal affairs is investigating police misconduct. They have certain public policy goals which they are trying to achieve. Criminal prosecution authorities are also looking at whether the officer committed a crime or if he was involved with others who committed a crime. The particular circumstances in this case was a statute that if you didn't cooperate with internal affairs in fact you would be discharged and fired.
The way the courts came out on this was that statements made during the course of an internal affairs investigation would in fact not be able to be used in a criminal proceeding. This way, you are able to accomplish both goals at the same time. You are able to conduct your internal affairs investigation while at the same time being able to pursue the criminal case if in fact the evidence you received was from an independent source, other than that within the internal affairs investigation.
That has worked successfully for I think over 20 years.
Mr. ISAKSON. Mr. Chairman, I want to follow up because there was one other question I had for Mr. Warren.
Thank you for that answer.
In your testimony, you stated that the FAA should be required to give concurrence before a criminal prosecution went forward. I assume that would be as far as an agency of the Federal Government bringing that prosecution. FAA could not preclude a private individual, could they?
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Mr. WARREN. No. My concern is that those people who are involved in criminal prosecution are sensitized to the various issues involved in terms of FAA regulatory and other concerns that they have and that there be some formalized contact between prosecuting authorities and the FAA before prosecutors go ahead and bring a criminal prosecution against parties or a company.
Mr. ISAKSON. Thank you.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you, Mr. Isakson.
Mr. Lipinski?
Mr. LIPINSKI. Thank you, Mr. Chairman.
Mr. Warren, one of your suggestions is for Congress to ask the Department of Justice to sensitize prosecutors at all levels of Government to the potential damage criminal investigations can have on aviation safety. Could you give me a little more detail about what you mean by that?
Mr. WARREN. Yes. In various U.S. Attorneys' offices across the country—I think there are 94—along with the main Justice, all of whom are in a position, if there is a jurisdiction and venue, to prosecute a particular aviation case. Many times those particular U.S. Attorneys are in particular divisions within the offices and are assigned—the fraud division or other things—where they would be involved with the FBI in an investigation.
I am suggesting that those people who are specifically assigned to those kinds of responsibilities fully understand what is the system with the NTSB, how Congress has put together and crafted the whole safety mechanism that the NTSB employs today, and be able to better understand the FAA's responsibilities so that they don't just go out and, looking to prosecute somebody for reckless or criminally negligent conduct, without fully understanding the impact that that would have.
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Mr. LIPINSKI. In your testimony, you indicate that the ATA currently believes that public policy encourages criminal prosecution first and safety second. Can you explain that a little further?
Mr. WARREN. I think what I said, Congressman, was that we should not have a public policy which encourages criminal prosecution first and safety second.
Mr. LIPINSKI. It seemed like you were implying that that was the policy that we had.
Mr. WARREN. No. I think that all of us here on the panel are concerned that there is a slippery slope here, and that may well become the trend. I think what is of critical importance—I compliment the committee for having the hearing—is what happened in Bellingham, Washington. If in fact this kind of circumstance were to find itself throughout the entire system, the whole safety mechanism that Captain McCarthy and others have talked about will be severely impacted.
Mr. LIPINSKI. I ask each member of the panel if there were a National Transportation Safety Board investigation starting today and you had a client involved in that—Captain, if there was a member of your union involved in it—what advice would you give to that client?
Mr. Quinn, we will start with you.
Mr. QUINN. Mr. Lipinski, if my client had any exposure whatsoever in an accident and was asked to be interviewed by FAA and NTSB investigators, I hold the belief now that it is borderline malpractice not to tell the client that he has a Fifth Amendment right against self-incrimination, he has a right to have his own lawyer, and he ought to seriously consider not cooperating. It pains me to say that because of the chilling effect it has, but unless this Congress or the NTSB or the Justice Department is willing to provide protection for his or her truthful statement, then he or she gives statements at great peril.
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I have three people who I know—one of whom has fled the country—who were prosecuted for their truthful statements before the NTSB and the FAA. Thankfully, they were all found not guilty of all charges, but their lives have been ruined as a result.
Mr. LIPINSKI. Captain?
Captain MCCARTHY. Assuming they survive, Mr. Lipinski, our standing policy since the accident of USAir 5050 in LaGuardia where the Queens District Attorney made very serious criminal overtures, we reevaluated our entire policy. Prior to that time, we did not provide counsel. Now we provide staff counsel for ALPA for every pilot that survives an accident.
However, we have reached an accommodation with the FAA and our policy is to stabilize the pilot, because of the post-traumatic stress—that usually takes about 24 hours, make sure he is medically up to it—and then allow him to be fully interviewed by the NTSB. The standing agreement with the FAA is that if the FAA is in the room, nothing that is testified to in front of the NTSB will be used by the FAA in a subsequent certificate action. That has worked now since 1990 and it is a fairly robust policy that we are happy with.
In a situation where we would have a District Attorney arguing about a crime scene, I think we would probably take a significantly different posture. But up until now, that has not happened. So our policy is for full and absolute disclosure on the part of the flight crew. Without that, we aren't really ever going to figure out what happened.
Mr. LIPINSKI. Mr. Filler?
Mr. FILLER. Congressman, in the situation I am usually confronted, I am the counsel for the airline after the accident. It may very well be in my client's best interest to cooperate with the Safety Board, typically—
Mr. LIPINSKI. Excuse me. The chairman says that we are going to stop right now and go to vote. I would like to hear your testimony in total and time is running down.
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Mr. Chairman?
Mr. DUNCAN. Thank you very much. I apologize to the witnesses and to everyone. We do have three votes, unfortunately, so it will be a fairly lengthy recess, but we will get back as soon as we can. We will be in recess for a few minutes.
[The information received follows:]
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[Recess.]
Mr. DUNCAN. I apologize. I believe that is the longest delay or break we have had in one of our hearings for several years now.
Let me ask the panel—Mr. Filler, maybe you know—I understand the FAA has some authority and that most of the investigative agencies have some authority to grant some type of immunity now with the approval of the attorney general but that it has never been used.
Is that correct?
Mr. FILLER. Essentially, that is right, Mr. Chairman. I don't know that I would say it has never been used. I can tell you that I am not aware of any circumstance in which it was used. My understanding is that it is consistent with existing law whereby an executive agency can ask the attorney general for approval to grant immunity in such circumstances.
It just has not occurred in aviation in spite of the fact that we have had more than one case—Bellingham only being one—but in another case witnesses declined to testify at a public hearing and the NTSB did not press the issue I think for fear that Fifth Amendment privileges would be sustained. But that certainly would have been another option to get their testimony and to also grant immunity at the same time.
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Mr. DUNCAN. So you think we need to go further and have legislation and make it known to people and so forth. Is that correct?
Mr. FILLER. Yes, sir, I do.
Mr. DUNCAN. Mr. Quinn?
Mr. QUINN. Two quick points, Mr. Chairman.
Number one, the FAA does have the authority to provide special enforcement consideration, which is their own immunity against an enforcement case, suspension or revocation of a certificate, or civil penalty. But that is not going to shield that individual from a Federal or State criminal investigation.
As to Bellingham, while that may be the one instance where we have people actively invoking Fifth Amendment rights and shielding the NTSB from the true facts, you don't know today or certainly in the future what kind of lack of candor you are going to get. It is one thing to say you will remain silent and another to say, ''Mr. Investigator, I simply cannot recall at this time exactly what happened.'' So it is shutting down the information and it is altering the information from the climate of fear and persecution and loss of personal liberty.
Mr. DUNCAN. Captain McCarthy, we will have a witness on the next panel who will tell us that the threat that is out there of criminal prosecution adds to aviation safety. What do you think about that?
Captain MCCARTHY. I will try and restrain my language, Congressman, but that is an ill-considered—at least, from the flight crew, operating personnel point of view, controllers and mechanics. It is probably the least considered.
If I thought that I was going flying with the intention of crashing an airplane, and if I crashed and survived and got caught, I would get thrown in jail, I suppose that would deter me. But if I don't plan to crash, and everything I do is to keep me from crashing, then I won't have a problem.
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But to think that the threat of criminal prosecution—or for that matter certificate action by the FAA—is going to deter me from doing or not doing something is ridiculous. Usually I am going to die if I have a crash, and that is all the motivation I need to do my job right.
Mr. DUNCAN. Mr. Warren, do you think it is more likely that we will have these types of prosecutions in the future?
Mr. WARREN. Well, I certainly hope that this hearing and the public discussion that has surrounded this issue will help us not have increasing prosecutions in the future. I am afraid, however, that if left unchecked, and if there are not some mechanisms in place, we are going to be faced with increasingly the threat of prosecutions, which are going to shut down the NTSB process. It will make parties very concerned about being candid and truthful.
Therefore, I think it is of extreme importance that this committee seriously consider some of the recommendations this panel has provided today so that we can have effective dual track investigations without impairing the safety aspect of aircraft aviation investigations.
Mr. DUNCAN. Mr. Quinn, do you think, as some people do, that high profile or high publicity cases or high profile defendants are prosecuted more vigorously or are much more likely to face prosecution than cases that are not of such high publicity? I guess what I am getting at—I have mentioned many times that unfortunately more people are killed in four and a half months on the highways than have been killed in all U.S. aviation accidents combined since the Wright brothers' flight in 1903, but the 150 or 200 people who will be killed on the highways today—it will merit some little mention in a local newspaper, but there won't be the big publicity there will be when the Concorde crashes or an airplane crashes with 200 people on it.
I am just wondering what you think about that.
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Mr. QUINN. Well, you couldn't be more right, Mr. Chairman.
You can say with a 100 percent guarantee of certainty that SabreTech would not be facing criminal murder/manslaughter and Federal criminal charges had 100 oxygen generators been transported illegally without incident. The Payne Stewart crash, SunJet, down in Orlando would not have 50 FBI agents raiding their facility and be forced to sell a few weeks ago were it not for the spectacular nature of the crash. It is too tempting a target, which is why I believe we need to have some institutional controls so that the more glamorous and more attention-getting crash is not the thing that triggers criminal sanction. I think that is wrong.
Mr. DUNCAN. I remember several years ago the University of Tennessee Law School had Chief Justice Burger down to speak at a luncheon. He made three main points in his speech, all of which I agreed with. He criticized or opposed the advertising by lawyers. He even became more critical about cameras in the courtroom. And thirdly, about trying cases on the steps of the courthouse.
In other words, all of it is that the legal profession used to be more private and restrained. Now it seems that a lot of cases and even a lot of law enforcement is done for the publicity. This has nothing to do with aviation, but David Koresh could have been arrested easily many, many times, but the ATF apparently wanted to make a raid that would make the national news.
It is unfortunate that we do things based on their publicity value rather than the traditional way it would have been done many years ago.
Mr. QUINN. I think you have a unique vantage point with your background, Mr. Chairman, to see that.
What was quite interesting and quite sad, too—despite my criticism, I have a high degree of respect for the U.S. Attorney in Miami and the professionalism generally of the Bureau, but we had on the same day the Federal charges were announced—what was stunning was what we learned in a few hours.
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Without ever having met with us and without ever giving allegations, and without ever having interviewed a key witness, the State's attorney got to the media first and announced a 220-count indictment for murder/manslaughter, replete with an enormous press conference, hugging the families.
It was a very untoward spectacle, I thought, and a sad statement about the exercise of prosecutorial discretion. At least with the Federal charges, we had quite a long give-and-take in discussions about the charges and about possible pleas and about what would ultimately happen and dispose of the charges. But the State's attorneys and local political prosecutors, who have an even greater tendency to play to the press when they're publicly elected officials, versus experienced career prosecutors—as quite often U.S. Attorneys are—have a more knee-jerk reaction playing to the media.
What we are suggesting today could be very difficult to put a restraint on a local State's attorney. It is one thing to say that you can't bring Federal charges in a Federal statute to protect the NTSB truthful statements. I think you have to cover the whole ground so that truthful statements of cooperating witnesses cannot be prosecuted in any form unless they have obtained an independent means of establishing criminality.
Mr. DUNCAN. Thank you very much. I apologize that you had to wait. We will go ahead and close with this panel.
We thank you very much for your very informative testimony.
Excuse me. I thought Dr. Cooksey was here, but I looked over there—
Mr. COOKSEY. Thank you, Mr. Chairman.
I would like to ask each of you a question—just give me a percentage of 25, 50, 75, or 100 percent—and I will preface this by saying that my youngest daughter is taking the third day of her bar exam today and she said that I am worse on lawyers than ever. I don't intend to give them any slack.
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But tell me, of these cases—and I really would like an estimate—
Mr. DUNCAN. I have to tell you, since we have three lawyers on this panel—Dr. Cooksey is a friend of mine, but I have gotten the impression that he absolutely hates lawyers.
[Laughter.]
Mr. DUNCAN. And I have been fascinated by the fact that his daughter is now becoming a lawyer. I am so thrilled with that that you just can't imagine.
[Laughter.]
Mr. COOKSEY. It reminds me of something a friend of mine used to say who was an old battalion surgeon for battalion Marines in Vietnam. His youngest son went to law school. A young lawyer came through and said, ''Dr. Wheat, I see you are going to have a lawyer in your family.'' He said, ''Yes, we have had whores and horse thieves in the family. We survived that and I suppose we will survive having a lawyer.''
[Laughter.]
Mr. COOKSEY. Anyway, just briefly, because I feel that a lot of these charges of criminal activity are done for political reasons and they are done by people who are grandstanding.
Give me an estimate of what percentage of them you think are done for political self-promotion, political self-advancement, by some prosecutor, maybe some trial lawyers that anticipate other litigation—just ballpark figure—25, 50, 75, or 100 percent—in aircraft accidents where they are criminalized.
Mr. QUINN. Congressman, there has only been one to my knowledge.
Mr. COOKSEY. The one you referred to earlier in the testimony?
Mr. QUINN. Yes, unfortunately, my client. I would say that I think on the Federal side they had a good faith belief of criminality and are professionals. We just respectfully disagree that bad mistakes and even egregious bad judgment ought to be criminal. Other criminal charges, like on PanAm 103, there is no question that it was not done for any political reason whatsoever other than to catch culprits for a dirty deed.
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Mr. COOKSEY. Right.
Mr. FILLER. Congressman, I would say that—and I was involved in the same matter that Mr. Quinn was involved in—I certainly would agree with that assessment. I would tell you that I have been involved in another accident investigation shortly after that one where I felt that there were definitely political overtones to it.
I think there are probably political overtones to almost every one of them. Obviously, I know you want a direct answer. There are a lot of different facts and circumstances. But I absolutely agree with the premise that we are encouraging, through the media climate, overzealous prosecution, and that is what is very disturbing.
If I could just sharpen one thing, sir, that I think is maybe a good illustration of what we all up here are afraid of, I represented a company that had a cargo loading accident that resulted in five fatalities. I also represented a company that had a maintenance accident that resulted in 14 fatalities.
Both were similar in this respect: the people performing the maintenance and the people loading the aircraft were probably anywhere from six to eight different people; they all had something to tell the Safety Board; and they all had valuable information. As a result of this information, the FAA put out guidance material almost immediately following the crash alerting the industry to what might happen if these things are done and to let them know that this kind of thing needs to be addressed. Very, very critical safety information.
If those six to eight people involved in those two situations had not cooperated with the Safety Board, that information never would have gotten out. It might have gotten out later, but it wouldn't have gotten out when it did. I think there is a very, very serious danger.
Mr. COOKSEY. Absolutely.
When I was in the Air Force, I participated in two or three aircraft accident investigations. Of course, these were military aircraft. You really can find some useful information that saves lives, that prevents further accidents. But unfortunately, these people are short-sighted and self-serving and it works to the detriment of everyone that is either a participant in flying aircraft or a participant in riding in aircraft. It is really unfortunate.
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Mr. FILLER. One more very quick point.
I think if you look at the big picture, what we are seeing with respect to accidents is being replicated with respect to aviation in general. There are more aviation criminal cases pending today in this country than there ever were before. And some of those prosecutions I believe are unwarranted. I have had two clients that were nearly ruined by investigations that have turned up nothing. But what ends up happening is that their customers hear about the investigation and they run the other way. Just because there is an investigation.
I had one distributor who lost almost $2 million because his biggest customer said they didn't want to deal with them anymore because the criminal authorities subpoenaed some of their records—no proven wrongdoing there at all.
So I think what we are seeing here with accidents is the worst example of criminalization, but by no means is it the only example.
Mr. COOKSEY. Well, just the accident that occurred this week—and I am a pilot. In fact, I was over at Charles de Gaul on my way back from Sierra Leone about 3 weeks ago. It is terrible when these accidents occur, but when you look at the number of aircraft that are flying and the number of moving parts that exist in an airplane, I think we have a very enviable track record in this country. In other countries, it is not so good, but it is good because we have had good accident investigations and we have corrected the problems.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much.
Thank you, gentlemen, for being with us.
We have another vote, but I am going to go ahead and find out—I will tell you what. In hopes that this is just one vote, I am going to break and trying to keep this within a 5-minute recess. We will be in recess for a few minutes.
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[Recess.]
Mr. DUNCAN. That was a procedural vote, and hopefully we won't have any more of those. I would like to welcome the second panel, which consists of Mr. Daniel Campbell, Managing Director, National Transportation Safety Board; Mr. Guy Lewis, United States Attorney, Southern District of Florida—and I understand Mr. Lewis grew up in Tennessee, so glad to have you with us—and Mr. Stuart Matthews, President, Flight Safety Foundation.
It is an honor to have each of you gentlemen with us. Mr. Campbell, we will proceed with you. You may present your statement.
TESTIMONY OF DANIEL CAMPBELL, MANAGING DIRECTOR, NATIONAL TRANSPORTATION SAFETY BOARD; GUY LEWIS, UNITED STATES ATTORNEY, SOUTHERN DISTRICT OF FLORIDA; AND STUART MATTHEWS, PRESIDENT AND CEO, FLIGHT SAFETY FOUNDATION
Mr. CAMPBELL. Good morning, Mr. Chairman and members of the Committee. It is a pleasure to appear before you today on behalf of the National Transportation Safety Board. My name is Dan Campbell and I am the Managing Director of the Board. Behind me is Mr. Ronald Battocchi, the Board's General Counsel.
I would like to limit my oral remarks this morning to a brief attempt to define the issues as we see them. First, we would like to thank the Chairman and the Committee for focusing your time and attention on an interplay between accident investigation and criminal inquiry.
In the recent past we have seen parallel investigations in a spade of major aviation disasters. And as notably, there are parallel investigations that are fairly common with respect to pipeline, marine, and railroad accidents. The fact of a parallel criminal inquiry poses two distinct types of questions for NTSB accident investigation. The first are those of coordination between the Federal and local agencies involved. The second is the impact of potential criminal sanction on the willingness of the private sector to cooperate with our work.
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I would like to turn first to the coordination between the Federal agencies and I would like to acknowledge the work of this committee in clarifying the relationship between NTSB and other Federal agencies. As part of our recent reauthorization request, we sought legislation to ensure that the NTSB will continue to be in a position to exercise coordinated leadership in accident investigation. The House of Representatives, following recommendations of this subcommittee, has passed an NTSB reauthorization bill that secures continuing leadership for the NTSB and reinforces the presumption in favor of NTSB priority unless the attorney general, in consultation with the chairman of NTSB, determines and notifies the Board that the circumstances reasonably indicate an intentional criminal act. We think that is the proper balance, that without real evidence of an intentional criminal act, safety investigations should proceed with priority.
There is an additional requirement in your bill that the existing agreement between the FBI and the NTSB be revised. Our reauthorization as reported by the Senate also clarifies and strengthens our authority and contains an identical requirement for revising the interagency agreement. I am pleased to report that the consultation and coordination between the FBI and the NTSB has improved through experience. I may be somewhat ambiguous about the necessity for the experience, but we have had improved coordination and we look forward to memorializing that in a mutual memorandum of understanding.
A most important facet of the interaction between criminal enforcement and accident investigation is timing. The NTSB quite recently hosted a 2-day symposium that addressed many of these issues. We were gratified to hear from some of the seasoned participants on the criminal prosecution side that they were quite content with the proposition that accident investigation—perhaps a better word is safety investigation—that a safety investigation go forward first.
Allowing NTSB to proceed has at least two advantages: it enhances the probability of cooperative behavior by persons involved with the accident—the aircraft or whatever the particular instrumentality may be—and it permits a more informed judgment as to whether or not enforcement activity of any type is actually warranted.
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Indeed, at our symposium the chief of the Department of Justice's Environmental Crimes Division indicated that the Department typically seeks to prosecute deliberate acts that involve a history of corporate noncompliance, high-level decisionmaking with respect to the activity under question, a wide scale level of risk of harm to the public, and/or an obstructionist company. Rarely are all, if any, of these factors evident until well into an investigation. When they do arise, Board procedures require us to notify the appropriate authorities that we have uncovered evidence of intentional criminal behavior—and we do so.
The downside of safety investigation priority, of course, for enforcement is the possibility that evidence of a crime may be compromised or lost through our processes. We understand that and it has been a hallmark of our investigations that we will accommodate our procedures to ensure that evidence is handled in a manner consistent with the expressed need of other agencies. A provision in our proposed reauthorization bill requires as much and we are quite prepared to continue living within this framework.
The second consequence of criminal investigation and prosecution is the potential to jeopardize witness and private sector cooperation. For decades, we have relied on individuals to tell us what happened in an accident. If they don't always get it right—and they may not always want to get it right—we do have a remarkable experience of cooperation. And I want to reiterate that. It is truly remarkable how many times people share with us things that the attorney in me tells me they are advised to think seriously about.
Obviously, criminal prosecutions or even the threat of such prosecutions can result in some witnesses refusing to be interviewed, or to testify, or to testify with full candor. The aftermath of the pipeline accident in Bellingham, Washington, last year underscored that. Following the explosion and fire that killed three young men, a criminal investigation was immediately launched into the accident. More than a year later, we still have not been able to talk to most of the key individuals who were operating the pipeline when it ruptured.
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I have heard the testimony of the several witnesses on the panel earlier and I have heard many similar statements as recently as our symposium in May and elsewhere. It is commonplace among the legal community that advising clients to cooperate with NTSB may no longer be automatic, to say the least. That would be truly regrettable. Several possible solutions have been proposed, and I am unable to say whether any particular approach will cure the perception of a criminal sanction threat. Nor can I speak for the Board as to any of the particulars without first consulting them.
I would, however, for my own part recommend your attention to at least one of the suggestions offered by the Air Transport Association and others. Decisions within the Department of Justice regarding criminal prosecution are often decentralized, owing to the independence of local U.S. Attorneys. Any steps that could be taken to assure consistency based on a sensitivity to the competing needs of different agencies would be welcome, not only because it might make life easier for us at NTSB, but because it might give a greater sense of assurance to the private sector about what to expect. This might help to resolve some of the currently expressed suspicions about the interplay between publicity, politics, and prosecution.
To sum up, we at NTSB recognize the important role played by criminal enforcement in ensuring compliance in a complicated and often expensive regulatory environment. Experience shows, though—and most clearly in aviation—that the need for enforcement is the exception. The need for cooperation and mutual trust is paramount, not just in the context of day-to-day compliance but also and perhaps especially in the immediacy of a disaster and the early days of an accident inquiry. We are looking at ways of ensuring the continued cooperation without compromising the legitimate needs of enforcement.
Again, we thank the subcommittee for focusing on this issue. Mr. Battocchi and myself are available for any questions the committee may have.
Mr. DUNCAN. Mr. Campbell, thank you very much.
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Mr. Lewis, you may begin with your statement, please.
Mr. LEWIS. Good morning, Mr. Chairman. It is an honor and a privilege to appear before this distinguished committee. Thank you for providing me the opportunity to discuss a few thoughts regarding the South Florida aviation safety program, including our recent aviation-related prosecutions.
Mr. Chairman, with your permission, please let me address the issue head on. Some have characterized the efforts of Federal authorities as a misguided attempt to criminalize aviation accidents. I would respectfully suggest that this just is not the case. The clear message I wish to relay today is that the Government's approach has been and will continued to be measured, judicious, and restrained.
In considering whether to proceed with a criminal prosecution, we take a principled and common-sense, reasoned approach. Our goal is to prosecute criminal cases that will enhance the safety and security of the American flying public. In those rare instances—and I repeat, rare instances—when criminal prosecution is appropriate, we do work closely with the leading Federal agencies, as has been indicated, DOT, FBI, DEA in some cases, Customs, FAA, and the NTSB.
In the Southern District of Florida, we are guided by several important principles. First, we have limited, defined Federal jurisdiction in these matters. Second, we have been consistently using traditional Federal criminal statutes that this Congress has enacted—nothing novel or creative. We are using the statutes that preclude false statements to Federal agencies, statutes that preclude obstruction of justice, conspiracy charges, and hazardous materials charges.
Third, we carefully review evidence of intent. Factors such as whether the individual or corporation evidences a pattern and practice of illegal conduct; whether the violations have been occurring over a length of time; whether the conduct is isolated; whether the individual or corporation committed intentional criminal acts that placed the short-term pecuniary interests of the corporation ahead of safety concerns; and whether the individual or corporation is honestly dealing with the regulatory authorities.
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A review of the recent aviation-related criminal prosecutions in South Florida illustrates the even-handed manner in which the prosecutions have been undertaken. We have had successes in the areas of passenger aircraft, freight forwarders, cargo aircraft, airport personnel, repair facilities, parts suppliers, and air rage cases that I know this committee has worked on.
For example—and just briefly, with regard to airport personnel, we charged approximately 60 airline employees, mainly from American Airlines, with smuggling cocaine, firearms and hand grenades through Miami International Airport using their security and access to accomplish this. We have aggressively prosecuted air rage cases where flight attendants and crew members have been assaulted.
The Government has also concentrated its efforts on those companies that provide security in and around Miami International Airport. One corporation, for example, that was supposed to be doing background checks and certifying that the employees that have access to the airline using their passes and their position, that they have had background checks done for criminal records and things like that—in that particular case, the corporation and the general manager pled guilty and were convicted of falsely certifying that the background checks had been done. A key component of that prosecution that we think important is we acquired a compliance safety program at the end of the day. I believe that has been very helpful.
We have further been involved in the non-airworthy and counterfeit parts market. There is a lot of that in South Florida. In 1999, for example, Arrow Air was charged with and pled guilty to falsifying records on engine parts not certified for airworthiness by the FAA. The court sentenced Arrow Air to a $5 million fine and a comprehensive compliance program.
We have also charged and prosecuted an airline involved in cargo handling, as was referred to earlier. In 1999, Fine Air and Aeromar Airlines were charged with obstruction of justice and false statements involving information regarding the weight of cargo laden pallets and cargo payloads. The investigation resulted after the NTSB had done their job—which I emphasize, in both of these cases referred to today, we have gone in after the NTSB has completed and concluded its investigation. But in the Fine Air case, both corporations pled guilty—stood in United States District Court, and their CEOs pled guilty to multiple Federal criminal violations. Again, the court sentenced them and a state-of-the-art compliance program was imposed.
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We did investigate and prosecute some aspects of the ValueJet crash. We prosecuted the Miami repair station, SabreTech. I am kind of constrained in the remarks I can make on that because the case is still pending. Sentencing is set for next week and the local Federal rules require us not to comment on ongoing cases.
I will say, though that the jury in that case—12 men and women from Miami—concluded that SabreTech violated nine different Federal criminal violations involving hazardous material violations and failing to train their employees.
Finally, we recently charged American Airlines with transporting hazardous materials as well. They pled guilty in court, admitting in court that for a 4-year period they were maintaining hazardous material out at MIA in violation of Federal law.
In sum, we have been careful and cautious in deciding when to bring criminal charges when appropriate—but only when appropriate should criminal charges be considered. At the end of the day, I would suggest—and probably agree for the most part with the previous panel that the general rule is and ought to be that you don't charge criminally. But when you find out during the course of an investigation that either a corporation or an individual destroys documents, alters documents, destroys videotape or other evidence, lies to the FAA or lies to the NTSB, obstructs justice or conspires to construct justice—that is when we must act.
I would suggest most respectfully that the American flying public and the families of the victims of some of these tragedies deserve no less.
Thank you very much, sir.
Mr. DUNCAN. Thank you very much, Mr. Lewis.
Mr. Matthews?
Mr. MATTHEWS. Good morning, Mr. Chairman and members of the subcommittee. It is an honor for me to be here today to address you.
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My name is Stuart Matthews. I am the President of the Flight Safety Foundation. The Flight Safety foundation is a long-established organization whose sole mission is to seek the continuous improvement of aviation safety. We were founded in 1947. Today, we have about 850 corporate members from more than 140 countries, representing virtually every sector of the aviation and air transport industries worldwide.
I would like to address some of the wider issues. With due respect, I do take issue with Mr. Lewis here because I think he misses the point.
We all know that aviation is very safe. It has extremely low accident rate. On the other hand, traffic is increasing and expected to double in the next 12 to 15 years. Consequently, unless we can do something about getting accident rates down, we are going to just have more accidents.
Indeed, there is even a national goal—you are well aware of it—to reduce the fatal accident rate by 80 percent over the next 10 years. The 10 years started about 3 years ago. That goal was announced by no less than the President himself. We have achieved the low accident rate we enjoy today by, primarily, accident investigation. The NTSB and others have done a remarkable job in getting the accident rate down, finding out what happened, and moving to correct the problem, so we have what we have today.
But this is a reactive approach. We look at what has happened in the past. If we are going to get anywhere in the future, we have to look ahead. We have to see accidents before they happen. We have to be proactive.
If we examine the statistics over the past 10 years or so, the aircraft itself has only been cited as the prime cause of the accident on about 10 percent of occasions. Other factors account for another 5 percent. However, the same statistics show that on 85 percent of occasions, or even more, human error has been involved as a contributing factor.
Much is being done to further improve the integrity of the aircraft. We all know about the things which are ongoing there. Certainly, the airplanes that are being built today are considerably better than in the past. On the other hand, even if the aircraft were totally perfect—totally perfect, if we never had an accident again because of the aircraft—we wouldn't have done very much to improve the accident rate because it is only worth about 10 percent. If we are going to get anywhere, we have to address human factors, the big number.
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What do I mean by the human factors? I am talking about the mistakes that people make. Most people make inadvertent mistakes, not deliberate mistakes. Everybody makes mistakes. You make mistakes. I make mistakes. But if we don't know what these mistakes are, it is going to be rather difficult for us to do something about it.
In any accident, there are several contributory causes. Invariably, one of those contributory causes is that somebody made a mistake. These causes form together like links in a chain. If we break any one of the links, there won't be an accident. If we could break that human factor link, there wouldn't be an accident.
As I said, mostly somebody has made a mistake. Usually, because he is the last line of defense, it may well be the pilot or the crew who has made the mistake. So, if we can find out what the mistakes of the pilots are and move to correct them, then perhaps we can prevent an accident before it happens. In fact, that is a very powerful way of doing it.
How can we identify pilot errors and mistakes? By use of FOQA systems. This is analysis of the flight data recorders which tell us exactly what is happening on the aircraft, what is happening with systems, and what the crew is doing. By doing that, we can see adverse trends. The data recorders will tell us what is happening but it won't always tell us why. So we need to be able to talk to the pilots and find out why. And to do those two things together, we call them FOQA systems.
I can tell you that these FOQA systems work. In other parts of the world—and even here in the United States where they are being used—we can actually tell you about accidents that have not happened, that are being prevented because of the use of these systems. But to be effective, FOQA programs have got to be confidential and non-punitive. If we are going to use that information to punish people and they think that later on it will come back to bite them, there will be resistance to using those programs. Pilots won't allow FOQA analysis in the aircraft and they won't make reports.
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And I am not talking about egregious errors. Mr. Lewis talked about things which ought to be punished. But I am talking about things which happen all the time, not necessarily because the guy is making a mistake that he knows about, but because he misread a chart, because it was incorrectly written, or something like that. If we do not have FOQA programs and pilot reporting, we are going to lose an invaluable resource.
And attempts to criminalize accidents afterward will have the same effect. People are going to resist FOQA programs; they are going to resist reporting on anything. When they ought to report on what actually happened, they may even plead the Fifth Amendment. We have heard that that has happened. They are just going to clam up. We have seen it happen.
So the bottom line of all this is that the net result is that we are in severe danger of killing one of our most valuable sources of data and sorting out some of the biggest problems we have in human factors. This will severely jeopardize our chances of reaching that national goal. After a crash, if when we worry more about punishing somebody and finding somebody to blame, than we do about finding what went wrong, we are inviting that accident to happen again, possibly with more loss of life. In order to prevent this, we do need to have some protections for the information supplied voluntarily to help improve safety.
Mr. Chairman, that is basically my position.
Mr. DUNCAN. Thank you very much.
We will go for first questions to Mr. Lipinski.
Mr. LIPINSKI. Thank you, Mr. Chairman.
Mr. Lewis, what are your thoughts regarding the suggestion you heard from other witnesses that Congress legislate blanket use immunity from all statements given by witnesses to the National Transportation Safety Board investigators?
Mr. LEWIS. I have some concerns about that, Congressman. I don't think the Department has actually sat down and tried to figure out the good and bad of it. I will say that there is a procedure that we have in place now, for example, where immunity needs to be given to someone who thinks that what they actually say may incriminate them, there is a procedure whereby I go to the attorney general, go to a court, and seek authorization to immunize that person. That happens routinely in criminal investigation.
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Mr. LIPINSKI. But if somebody is coming to appear before the National Transportation Safety Board, they don't necessarily have an attorney. Who is it that would—I would assume that only they, themselves, would make this request to get this immunity. Or does the National Transportation Safety Board or the FAA or a Federal prosecutor think that maybe this individual is getting into trouble and go ahead and initiate that contact for possible immunity?
Mr. LEWIS. That has happened. I can tell you that has happened. We have done that before during the course of investigations where an individual says they are concerned about what they are telling us. It is not unusual that I have gone to a judge and asked that counsel be appointed and the matter is taken up in the context I have described.
Mr. LIPINSKI. Mr. Campbell, do you know if the National Transportation Safety Board—when they are talking to witnesses, do they say anything whatsoever about maybe the individual would want to have an attorney?
Mr. CAMPBELL. We do advise everyone of their right to representation. It is very problematical for us to do much more than tell people that they have a right to representation and that the statements made to us are public. It is commonplace for someone to come back and say that their statements made to NTSB were under compulsion and consequently should have created an implied immunity.
It is a necessity of our doing business that we make it quite clear that the statements made to us are public and that they have a right of representation.
Mr. LIPINSKI. When you tell them that they have a right to have legal representation, what is it that you say to them? How is it presented to them? Is there a standard statement that you make? Or does each investigator make up their own statement?
Mr. CAMPBELL. All the investigators are trained to say pretty much the same thing, but the consequences of circumstances of an accident are that there is likely to be more formality with some and less formality with others. But everyone that goes through our accident investigation training school will be told about the right to representation and the fact that they need to make clear that statements are public.
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Mr. LIPINSKI. But the words that are said are not necessarily the same words all the time, such as the Miranda words that are always the same, but there is no statement that the National Transportation Safety Board has written out for their investigators to take out and read to a person they are interviewing?
Mr. CAMPBELL. Some of the investigators may use a written statement. I am sure that not all of them use the same statement.
Mr. LIPINSKI. Mr. Lewis, in regards to the Fine Air case, the evidence that you came up with—did you come up with all of that independently of the National Transportation Safety Board questioning the witnesses? Or did you get some of that information or all of that information from the National Transportation Safety Board?
Mr. LEWIS. Most of it was independent.
Mr. LIPINSKI. Most of it was independent?
Mr. LEWIS. Yes, sir. That investigation took at least a couple of years for us to conclude and then negotiate for a lengthy period over the result of the case.
Mr. LIPINSKI. Did you go in very early in the case, though, to get the testimony from the National Transportation Safety Board that the witnesses had given to them?
Mr. LEWIS. I think we came in on that case after the NTSB had issued their report.
Mr. LIPINSKI. But did you ever go to the National Transportation Safety Board and get any information from them at all?
Mr. LEWIS. Yes, sir. We reviewed the report and the information provided to the NTSB.
Mr. LIPINSKI. So you did actually have access to all the information that those witnesses had given?
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Mr. LEWIS. Yes, sir.
Mr. LIPINSKI. With regard to the SabreTech case, it is my understanding that a great deal of the information you have compiled came from the National Transportation Safety Board. Is that correct?
Mr. LEWIS. Again, the NTSB had concluded their investigation. We did review the report and have access to that report, sir.
Mr. LIPINSKI. SabreTech and their employees—I believe there were 38 counts?
Mr. LEWIS. I am not sure off the top of my head, sir.
Mr. LIPINSKI. You said there were nine counts on which they were convicted?
Mr. LEWIS. That is correct.
Mr. LIPINSKI. The two individuals were exonerated, correct?
Mr. LEWIS. They were. There were two individuals charged and then the third individual actually never went to trial because he fled the jurisdiction before trial came up. So his case was not adjudicated.
Mr. LIPINSKI. But the two who did stand trial were—
Mr. LEWIS. They were acquitted of all charges.
Mr. LIPINSKI. I know you can't discuss the SabreTech case very much, but can you tell me what the counts were on which they were convicted?
Mr. LEWIS. Yes, sir. They were convicted of, I believe, eight counts of hazardous materials violations and also one count of failing to train employees appropriately in dealing with hazardous materials.
Mr. LIPINSKI. When you say eight counts, can you explain to me what each one of those eight counts were, or at least a couple of those?
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Mr. LEWIS. Yes, sir.
For example, the law as Congress has passed it makes it a violation to transport hazardous material, to improperly store hazardous material, to improperly label hazardous material—along that lines.
Mr. LIPINSKI. And the jury found SabreTech guilty of each one of those?
Mr. LEWIS. Yes, sir.
Mr. LIPINSKI. Mr. Chairman, that is all I have time for at the present time. Thank you very much.
Mr. DUNCAN. Thank you very much.
Dr. Cooksey?
Mr. COOKSEY. Thank you, Mr. Chairman.
Mr. Lewis, you understand my biases, so we will clear the decks on that.
Mr. LEWIS. Good morning, sir.
Mr. COOKSEY. I see you are 38 years old. I was 38 20 years ago.
[Laughter.]
Mr. COOKSEY. I am not from Tennessee. I see you went to the same undergraduate school the chairman of the committee went to and went to the University of Memphis. Have you ever taken any engineering courses or physics courses?
Mr. LEWIS. No, sir.
Mr. COOKSEY. Are you a pilot?
Mr. LEWIS. No, sir.
Mr. COOKSEY. My questions concern how you decide who is indicted. I am concerned about some of the things that have gone on in this particular Justice Department and I am pleased to see that you have been in this particular since 1988 with another Justice Department.
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Incidentally, I read your testimony. I read your testimony about the criminal charges. Some of those are obvious. Those are people who are smuggling drugs and doing bad things. But I am talking about human errors.
Mr. LEWIS. We don't prosecute mistakes. We don't charge mistakes. I can't go to a jury and ask them to convict on intentional, willful, specific misconduct because it was a mistake or an accident. We look to deliberate, intentional violations of existing criminal law.
Mr. COOKSEY. I happen to be on the subcommittee that had the initial hearing and the committee that has oversight of pipelines. Are you familiar with the Bellingham, Washington accident?
Mr. LEWIS. Not really, Congressman. I am sorry.
Mr. COOKSEY. Mr. Campbell had referenced this accident because this came from it. It was a tragedy. All accidents—whether there is a death or an injury—are tragedies. I am a physician and I dealt with these injuries at one time.
Do you believe that a situation like Bellingham is an anomaly, or do you think this could become a pattern? The anomaly I am talking about is the fact that people there, once they found out they were being investigated criminally, just quit answering questions and it basically stymied the investigation.
Mr. LEWIS. I really don't know the situation there, Dr. Cooksey. So I am hesitant to answer your question.
I will say that we haven't experienced in our district this phenomenon where witnesses clam up and don't want to provide any information. We have been able to work through those instances—where a witness has a true belief that if he or she tells an investigator something that is going to subject them to criminal prosecution—we have been able to work through those instances to either provide immunity or work out the situation.
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The typical instance in these criminal cases—whether aviation or anything else—if the person is represented by a lawyer, that helps us. That helps us work through the situation and acquire the person or the witness protection, if they so need it, if they want to be a witness.
Mr. COOKSEY. How do you feel about the proposal to give the NTSB immunity power for use in its investigations? Would your particular office accept that? Do you think it would be good? Do you think it would make it easier for you to do your work after they had done theirs or simultaneously accomplish your goals?
Mr. LEWIS. I am generally concerned about it, Congressman. I don't think the Department has really sat down and started trying to figure out the good and the bad of this. But many years ago the Department kind of concentrated its immunity-granting power in the Department and that seemed to work pretty good because it has been uniform and regular and consistent in the way the practice has been.
Mr. COOKSEY. Mr. Chairman, in closing, as a pilot—and I am really not flying anymore and the public is better off that I am not flying, probably. The two most dangerous things in the world are a doctor with an airplane and a lawyer with a chain saw.
[Laughter.]
Mr. COOKSEY. But anyway, in closing, there is too much of a tendency here and I think around the country—and particularly the last several years with all the litigation that has gone on—we have seen more litigation in the last 8 years than in the last 80 years, it seems—certainly larger amounts of money.
But there is a group of people that are out there strictly to find fault when they should be seeking solutions to the problems that cause accidents, the problems that cause injuries, the problems that cause loss of life.
I have been intrigued by the accident that happened at Charles de Gaul. It is an airplane that has had a great safety record, but they had some catastrophic problem in that engine, probably. It was a tragedy. But seeking the solution will better serve the public than finding fault and then spending a lot of time in the courtrooms.
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I appreciate your coming. I will say that I came in a little bit skeptical about what I was going to hear from you, but I think you are sincere and I compliment you for that.
Mr. LEWIS. Thank you, sir.
Mr. DUNCAN. Thank you, Dr. Cooksey.
Mr. McGovern?
Mr. MCGOVERN. Mr. Chairman, I am sorry I arrived late. I don't really have any questions except to follow up on what Mr. Cooksey just asked Mr. Lewis. If Mr. Campbell could comment on that, I would be curious to see what you see as the benefits and the pitfalls to the blanket use of immunity for witness statements made to investigators.
Mr. LEWIS. We have seen, for example, that it creates additional litigation in terms of trying to do our fact-finding and truth-finding process. We may argue in court for days, weeks, and months over immunity issues where really what we are trying to do is to find the truth.
But I don't think the Department has taken a particular position or really considered the idea of blanket immunity in the NTSB context, Congressman.
Mr. MCGOVERN. Mr. Campbell, would you comment on that, too, please?
Mr. CAMPBELL. There are a lot of difficult issues that surround either privilege or immunity to statements that are made and the notion of a blanket immunity to NTSB would probably state the case in its broadest fashion. We at NTSB would certainly not want to hazard a guess on how that should come out without consultation with the Department of Justice in thinking through some of the very difficult legal issues about what is entailed in that.
There are other types of privilege that can exist for statements that are made. There have been different approaches to this in the different contexts. One of the things we learned at our symposium related to the New Zealand experience where a prosecution went forward on an aviation accident, vis a vis, a surviving crew. The determination in New Zealand was that there should be a limited privilege given to statements made in the context of a safety investigation. I would be interested and will endeavor to learn from the New Zealand Transportation Safety Board what they think the outcome of it is.
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We don't have a great history of people seeking to take the Fifth Amendment in the context of aviation investigations. I think one of the things that all the panels agree on is that there has been a remarkable level of cooperation to date. There have been some occasions where one questions the candor that one sees in statements, particularly after witnesses have lawyered-up, where determinations have been made that there may be some criminal risk. It is very unfortunate to see that happen because it delays the point in time at which we will know some of the things that we need to know.
But for me, as a representative of a multi-member board, to say that we are either in favor or against a blanket grant of immunity would be quite presumptuous. There are some very significant issues that attend to that that would need to be worked through before one could give you a good answer.
Mr. MCGOVERN. I appreciate the answers.
No further questions, Mr. Chairman.
Mr. DUNCAN. Thank you very much.
Mr. Isakson?
Mr. ISAKSON. Thank you, Mr. Chairman.
I would like to ask Mr. Lewis a couple of questions. I think I know the answers to a couple of them, so I am going to ask the third one first.
In your opinion, in general—not thinking about a specific incident—is it true that what appears to be patently an accident and what appears to be just a crime, the investigation process, would you agree, is quite different?
Mr. LEWIS. Yes, sir.
Mr. ISAKSON. Would you agree that what is obviously a criminal investigation on the part of those that would be asked either to testify, give depositions, or otherwise participate, that their attitude toward that participation—or at least how they prepare to do it—is quite different than if they are being interviewed with regard to circumstances surrounding what appears to be patently an accident?
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Mr. LEWIS. That is probably right.
Mr. ISAKSON. Then let me ask you this question.
As I understand it from the previous panel, what I heard is the suggestion that employees, subcontractors, participants—whatever you want to say—that any testimony they gave in an accident investigation could not be used against them in a criminal prosecution. That was one of the recommendations.
Again, I am not an attorney, but as a layman, it would appear to me that in an environment that is more forthcoming in terms of information—which I think an accident investigation is—if in fact a crime took place, it would be easier for that information probably to flow to the top in the atmosphere of an accident investigation than it would be at the outset of a criminal investigation. If that is true—and you are nodding your head that in general that is true—I did not hear anything in what I believe Mr. Filler proposed that didn't allow when that became true a prosecution to take place because they accepted perjury and those other things that would normally used in a cover-up.
I guess my question is this—for me—and I have been involved enough in courtrooms or called in for depositions and things in my life to know that your attitude is totally different, depending on where they are coming from. In an accident investigation—although it is a traumatic experience—you are far more forthcoming, trying to get to the truth, not under nearly the duress you are when you think somebody might be out to get you.
If in that environment in general the information is going to flow to the top faster, then why wouldn't it be a reasonable idea in an aviation accident to allow the investigation, at its outset, to be premised on an accident and with the understanding that the information one gives could not be used against them in a subsequent criminal prosecution unless evidence of perjury or some other normal violation of the law took place?
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I don't understand why that is a problem.
Mr. LEWIS. The way I would respond, Congressman, is that we generally do not come in—at least from our experience in South Florida—in the two cases we have been talking about, we didn't come in until after the NTSB had completed their work. And not until, as Mr. Campbell said, it appears through the course of their investigation that something smells—that either people are lying or destroying documents or that kind of thing—do we really get involved.
I think the other comfort, if you will, is that in the vast, vast majority of these cases we are going to have no involvement. There is not going to be a Federal prosecution. There shouldn't be a Federal investigation. But in those instances where it appears to the NTSB or the FBI or some other investigative—DOT or EPA—they make it clear that there are criminal violations of law occurring here, I think that is when we have to start investigating.
Mr. ISAKSON. Mr. Lewis, I would feel very comfortable—I am very impressed with your testimony and your attitude and what is obvious sincerity. However, I would have to think of all this in the context of everybody I have ever talked to in the same position as yours or others.
It just appears to me that if you have an aviation incident similar to the one where there was almost immediate allegations that a missile was fired off New York—TWA—and I can think of a few others where from the outset there were things that clearly pointed towards some type of either international or domestic crime. It still seems like to me that even in that incident, if the initial premise of the investigation is an atmosphere is the most forthcoming for information that you still are not precluding yourself from the ability to prosecute if in fact you do learn that a crime has taken place.
Which way do you lean? It is not whether you trust Mr. Lewis, but it is rather, in these unfortunate incidents, which way do you lean to get the most information the quickest? From what I have heard and from what a lot of people have said, it appears that the accident investigation premise makes it far more forthcoming for the information to come forward than does the opportunity for the initial investigation to be totally criminal.
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I guess that was a statement, so I apologize.
Mr. CAMPBELL. Congressman, if I might add a quick point of clarification so the record here is clear on a point, the involvement of Mr. Lewis' office through the U.S. Attorney and the prosecution will come at one point in time in an investigation. But the presence of the Federal Bureau of Investigation may come quite earlier. Indeed, in the context of the ValueJet accident, we had to enter into negotiations with some of the potential defendants to criminal prosecution at the time of our hearing in order to elicit testimony that we might not otherwise have been able to get.
It turned out to be something that was a soluble problem, thanks to some of the work of the counsel for the defendants. We got the matter brought before us. But there was a concern about whether or not a direct statement from an individual, which would be subsequently available for criminal prosecution, could be used. So we had to take the information diluted through hearsay as a method of producing it. It was a workable outcome, but it was one that we did have to work through.
I think the implications of that and the notoriety of that is what we are really dealing with now because these are now known paradigms that we will very likely have to work through in the next case.
Mr. ISAKSON. Thank you, Mr. Campbell.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you.
Ms. Norton?
Ms. NORTON. I have no questions, Mr. Chairman.
Mr. DUNCAN. Thank you.
Mr. Matthews, you have heard Mr. Lewis say that he does not want to ever prosecute anybody for an honest mistake. What he is talking about is prosecuting people for intentional, willful, malicious actions.
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You have made a very strong and reasonable statement against criminalization of aviation accidents. Tell us how you differ from the position Mr. Lewis has taken.
Mr. MATTHEWS. I don't differ from him in the sense that we should be prosecuting illegal acts, egregious acts, where people have deliberately violated the law or done something like that. He mentioned falsifying documents and things like that. But I would contend that these were things that were done after the accident in an attempt to perhaps cover up what had actually happened and therefore hiding the cause of that accident.
In the Fine Air accident, they faked the documents afterward. The basic cause of the accident was the fact that the cargo had been loaded incorrectly or hadn't been secured properly in such a way that it shifted.
But much of the focus was on the fact that these people fixed all the paperwork and they falsely said that they weren't carrying as much load. As a matter of fact, that had absolutely nothing to do whatsoever with the accident.
So my point is that we want to know what happened so that the accident doesn't happen again. Yes, if somebody has falsified documents afterward, by all means go after them. But please don't let them falsify the documents just because they think they are going to be penalized if they, in the first place, created an inadvertent situation. And we have to investigate whether it was an inadvertent situation or not.
But one of the things I said in my own testimony was that I was concerned about how pilots and other people giving information freely are frightened off from doing this if they think that, later on down the line, it is going to come back and bite them.
Let's think about the ASAP Program being operated by American Airlines. I know it was a civil case, but nevertheless, there is concern that it might happen in a criminal case. But as a result of the accident, in the civil prosecution, the plaintiff's lawyers went to American Airlines and, under discovery, asked for all the ASAP data. This is information which the airline had been collecting from their pilots, information collected in confidence which had been demonstrated to be showing them where things were going wrong and where they were taking steps to improve things. But with all this ASAP data, what might have happened if it had been released?
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In the event, the judge sat on the fence, in my opinion. He didn't allow it to be released. On the other hand, he said he would take a look at it himself and decide. So that is where it sits today. But another court, another judge, another time, another place—who knows? All that information might have been out anywhere.
This is what is making pilots and other people nervous about making this voluntary reports for us to find out what is going on. And if we don't find out what is going on, we can't move to correct it. And human factors are 85 percent of our problem. That is why I focused on-how we are going to reach the national goal of a five-fold reduction in accident rate unless we hit the big numbers?
Mr. DUNCAN. You know that sometimes people are prosecuted for accidents that involve reckless or negligent conduct on their part that arise out of automobile accidents where one or two people are killed. Do you think there should be a higher standard that should apply here when you are talking about aviation accidents where there may be 200 people killed?
Mr. MATTHEWS. I do think the numbers of people and—shall we say—the dramatic effect of an airplane crashing has a large part to play. The previous panel discussed this a little bit in that the media and everybody else hypes these things up far more.
In the end, I think that although we are focusing on aviation, in any accident, anywhere, any time, there has always been someone who has made a mistake which has contributed to it. Perhaps it wouldn't be such a bad thing if other industries took note of what is being done in aviation and try to improve their safety record.
We heard about the medical industry a couple of months ago and some recommendations there.
So your point about road accidents I think equally applies. But we have a very big hurdle to overcome. Number one, people are not so excited about one or two people being killed on the road, regrettably. Number two, there is this culture that we always have to have somebody to blame. But if we are going to stop accidents, we have to look beyond punishing somebody and find out what really happened, preferably before it happens.
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Mr. DUNCAN. You have members from 140 countries. Are there other countries that handle this situation differently or better than what we are doing here in the United States?
Mr. MATTHEWS. I think it is fair to say that in the United Kingdom and in some other European countries and in Japan where these FOQA systems are widely accepted, they have been in operation for many, many years. They can tell you, as I said earlier, about accidents which they have actually avoided. But I do recognize they operate in slightly different legal systems, not quite so litigious an environment, which leads to some of the problems that we have here.
Oddly enough—and this is very distressing—one sees what is happening here now migrating over there. There are now growing concerns that programs in the U.K., for instance, which have been going for many, many years—30 years or so—are themselves coming under jeopardy as lawyers become involved by what they see happening here.
Of course, part of that is damages.
Mr. DUNCAN. Mr. Lewis, you testified that you didn't want to prosecute somebody for a mistake. But you know people can disagree about what SabreTech might regard as an innocent mistake—although with horrible consequences—someone else might regard as being criminally negligent or intentional in some way.
What are you comments about that?
What I am getting at more specifically is, Why do you think those two SabreTech employees were acquitted? I am sure in your office you have done some kind of analysis or you have had some discussions about that.
Mr. LEWIS. Without specifically regarding to SabreTech—for example, the Fine Air matter that has been closed out and sentence—in that case, for example, false forms or alterations that occurred where a person comes to you and says, ''Mr. Chairman, you have to fill out the form like this.'' You receive training on it, you have been told about it, and you fill out the form otherwise knowing that that is not the truth, knowing that the particular item—for example, one of the counts in that case as some corrosion that occurred on one of the airplanes.
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You could sit there and look at it, take pictures of it, and see it. Yet a mechanic who had been trained, knew about this, was told to look at it, told to check it out, said he checked it out and said there was no corrosion. At that point, it is hard to say that that is a mistake.
Mr. DUNCAN. Just to be fair to you, because we had some discussion on the first panel about it—a lot of people think that many prosecuting attorneys are more likely to prosecute high-publicity, high-profile type cases.
Do you think that is a fair criticism? Do you see that? Or do you think that is totally unfair?
Mr. LEWIS. Well, I guess I would say that in that particular case, for example, in SabreTech, the U.S. Attorney was recused from the matter because he had represented SabreTech at some point. He had actually represented them as a lawyer. He had recused from it and couldn't have anything to do with it.
I had been the first assistant at the time, the chief assistant in the office, and was the acting U.S. Attorney on the case. It was reviewed by career prosecutors up and down the chain.
Mr. DUNCAN. I will say that you have had a very distinguished career as a law clerk to two different Federal judges and involved in the Noriega case and many other famous cases there. So you have done real well.
Mr. LEWIS. Thank you, Mr. Chairman.
Mr. DUNCAN. I commend you for that.
Mr. Campbell, if the NTSB was given some type of immunity authority, should there be any limitations or restrictions on it? What do you think about this authority that some of these other enforcement agencies have that they can grant that immunity but it has to be approved by the attorney general?
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Apparently, either they feel that approval would be so hard to get or these cases are rare or something because it is very seldom used. But do you think that the NTSB should be granted some kind of power like that? And do you think the attorney general should have to approve your actions?
What do you say in that regard?
Mr. CAMPBELL. Let me start by explaining exactly where we are today. Like many Federal agencies, we can request of the attorney general some assistance in immunizing testimony. In fact, in the Bellingham pipeline accident, we are presently involved in just such an engagement.
The issue from the standpoint of the individuals involved is that before NTSB is going to receive approval from the Department of Justice to immunize anyone that it compels testimony from, the Department of Justice will have had to make determinations about where they believe their criminal case is going to go.
So there is a horse before a cart and them sometimes a cart before the horse. Until such time as the Department of Justice has satisfied the private sector concern from particular defendants, we are not going to be able to do that.
So as I understand the proposals that have been recommended to you, the privilege that would attend to statements made before NTSB would be automatic and that that is a significant difference. It is just that we would need to think about it very carefully.
One of the things NTSB clearly does not want to do is to be in the position of having second-guessed a criminal enforcement and to have done so wrongly, to have found out late in the game that these are intentional, willful, destructive, terrorist-type acts that we would all agree need to be prosecuted, and to find that the evidence has somehow been polluted through our processes.
Whether there is some form of limited privilege that would work in that context is really a matter I haven't explored, and I definitely haven't explored it with the Board. I would want to think long and carefully about crafting it in a way that does not put in jeopardy what I think all the panelists have agreed are legitimate necessities for enforcement in those cases where we have willful, terribly reckless, or intentional acts of destruction.
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Mr. DUNCAN. Well, I agree with what you have said. If and when you go through that process, we would appreciate a recommendation or your thoughts as to where we should go from here, if there is legislation that would be appropriate in this regard.
I want to thank each of you for being here with us today. You have made a really outstanding panel and I appreciate your informative and helpful testimony.
Before I close out this hearing, though, I want to say that the young man seated next to me, Rob Chamberlin, is leaving us. This is his last hearing. He has done what I think all of us here on this committee regard as a really outstanding job. I told him a while ago that I think he is really going to miss us when he moves to the other body. He is going to work for Senator McCain in the United States Senate. Some people move up to bigger and better things; some people move down in life.
[Laughter.]
Mr. DUNCAN. I guess only time will tell.
Rob has done a really fine job, especially for me because he has worked very closely with me and helped me in more ways than I could ever begin to say and has conferred with me on just about a daily basis, sometimes several times a day, and has done a great, great job.
I think one of my favorite stories of all time came from the other body. A little over 3 years ago, I read in the Knoxville News Sentinel when Senator Thurmond was running for reelection, one month short of his 94th birthday, they actually found a 105-year-old woman who had been his baby sitter at one point. She endorsed him for reelection and said, ''He is a fine young man.''
[Laughter.]
Mr. DUNCAN. I will say that Rob is a fine young man and I have been proud to have been associated with him.
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Rob, thank you very much for all you have done for all of us.
With that, we will conclude this hearing. Thank you very much.
[Whereupon, at 12:40 p.m., the subcommittee was adjourned.]
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