Flight 800: Breakthrough!

One cannot underestimate the impact of what has just transpired in James and Elizabeth Sanderses' ongoing civil suit against the federal government and seven named individuals. The case number is federal EDNY, #01-CV-5447 JS.

The United States government has declined to respond to the Sanderses' summary judgment motion – "Rule 56.1 Statement." Incredibly, by so declining, U.S. Attorney Kevin Cleary has conceded that the Sanderses' 32 damning charges against his clients cannot be rebutted.

In so conceding, the Justice Department tacitly acknowledges that, yes, the TWA Flight 800 investigation has been corrupted and, no, we are not prepared to contest this fact.

In sum, Cleary has thrown in the towel on a case that ranks among the most egregious violations of a reporter's constitutional rights in the history of American journalism.

From the beginning, the story of TWA Flight 800, the one that James Sanders chronicled, has been a story of humanity betrayed – none more so than the 230 good souls aboard that doomed plane.

Fifty-three of the dead were TWA employees. James' wife, Elizabeth Sanders, had trained many of the attendants on board and knew several of the pilots. Their deaths wounded the sweet, vulnerable Elizabeth deeply. In the weeks afterward, she and her TWA colleagues passed numbly from one memorial service to another, their grief matched only by their growing anger at the obvious misdirection of the investigation. One of those colleagues, 747 pilot and manager Terry Stacey, would become James Sanders' best source within that investigation.

From the beginning, too, James Sanders has recognized the humanity of those who have tried to block him from telling this story. In his civil suit, as in his reporting – including the book he and I have co-authored, "First Strike, TWA Flight 800 and the Attack on America" – Sanders has never shied from putting a human face on injustice.

What makes Sanders' legal case so powerful is that he targets not merely the anonymous monolith of "government," but seven named defendants within. These are real people with real fears who, for a variety of reasons, yielded to those fears and betrayed the trust of the American people. For several years now, Sanders is all that has stood between them and knowledge that they got away with it. No doubt, they are anxious about this turn of events. One hopes major media will seek them out and exploit that anxiety.

As Sanders argued in his summary judgment motion, the named defendants used their legal authority not to protect the federal Flight 800 investigation, but to thwart Sanders' reporting on their own lawlessness. In the process, the defendants knowingly violated the First, Fourth and Fifth Amendments to the U.S. Constitution.

The persecution of Sanders can be traced to March 10, 1997, when California's Riverside Press-Enterprise headlined its front page with an article titled, "New Data Show Missile May Have Nailed TWA 800." Written by Loren Fleckenstein, the story identified James Sanders as an "investigative reporter," provided information on his previous non-fiction books, and described his inquiry into the FBI and NTSB Flight 800 investigation over the preceding five months.

This story created a significant problem for the Justice Department. The article's text confirmed that Sanders was on the trail of potential criminal activity within the Flight 800 investigation. As to those charged with containing the investigation, their worst nightmare had been realized. Forensic evidence had left the hangar. Some unknown person within the investigation had removed a pinch of material from the plane as telling and potentially damaging as Monica's famed "blue dress." That person was Terry Stacey. He removed it of his own volition and sent it to Sanders.

This piece of seatback was laced with the DNA of the crash, a reddish-orange residue trail that streaked across a narrow section of the plane's interior. The FBI had lifted samples in early September 1996, then refused to share the test results with the NTSB. For the record, those tests today remain classified under the guise of national security.

Once the story had broken, the Clinton Justice Department used its considerable powers to thwart Sanders. The key to its strategy was the denial of Sanders' standing as a journalist by two Justice Department lawyers, Valerie Caproni and Benton Campbell. The current Justice Department now concedes that these two attorneys did the following:

conspired to print factually false information in a Justice Department letter to deprive [James Sanders] of his civil rights afforded by the PPA (Privacy Protection Act). By falsely alleging they did not know plaintiff was a journalist, defendants conspired to create an illegal scheme allowing them to subpoena and obtain work product and documents because, per the scheme, they did not know [Sanders] was a journalist until after receiving work product and documents.

The charges went beyond the two attorneys. The current Justice Department has chosen not to contest the following related charge from Sanders' civil suit:

Within seconds of learning that the overarching conspiracy [FBI agents Jim Kallstrom and Jim Kinsley, NTSB Chairman Jim Hall, NTSB head of investigation Bernie Loeb, and NTSB head of the Fire & Explosion Team Merritt Birky] were engaged in to alter the outcome of the TWA 800 federal 'investigation' was compromised by [James Sanders], CAPRONI and CAMPBELL knew beyond any doubt that [Sanders] was a journalist protected by PPA and Justice Department CFR (Code of Federal Regulations) 50.10. Defendants CAPRONI and CAMPBELL, in order to protect themselves and their co-conspirators, knowingly and willfully widened the overarching conspiracy to include violating [Sanders] PPA civil rights by using grand jury subpoena power to illegally seize work product.

The Sanders' suit details the way this conspiracy worked and names those responsible. Again, the Justice Department has let these incriminating charges stand unrebutted:

Defendants, no later than March 11, 1997, falsely said the reddish-orange residue was glue. Defendants HALL and LOEB made this false statement to Congress on March 11, 1997. Defendant BIRKY inserted this false information into the Fire & Explosion Team "Factual Report" … Defendants removed substantially all reddish-orange residue from rows 17-19. LOEB was then given the assignment to lie to Congress and state there was no residue trail on the seats inside Calverton Hangar.

At the FBI's Nov. 18, 1997 press conference, Kallstrom made the following claim about this residue trail:

The seat cushion residue, reported in the Riverside, Calif., press, of the residue that someone said was rocket fuel. The truth is the material is contact adhesive.

We know without a doubt – without any doubt whatsoever – that it's the adhesive that holds the back of the seats together. It's not rocket fuel. It's not residue of a rocket, never was, never will be.

The Justice Department, in essence, now concedes Kallstrom's "statement was false, [and] known to be false." Justice also concedes that "KALLSTROM and KINSLEY conspired to create a factually false illusion that [James Sanders] had misrepresented the [red residue tests]."

In fact, the residue was demonstrably not glue. The Justice Department also concedes that another FBI agent gave false testimony about the red residue by choosing not to contest the following charge:

FBI agent Ken Maxwell, testifying at the [Sanders'] criminal trial April 7, 1999, falsely stated the FBI first observed the reddish-orange [trail] in late October to early November [1996]. This factually false statement was made as a part of a conspiracy with [Justice Department attorney] PITOFSKY to place the peak FBI point of interest in the residue at the same period of time [James Sanders] and [Terry] Stacey were discussing removal for testing purposes.

If there were a consistent strategy among the seven defendants, it was to de-humanize the Sanderses – to strip away their dignity and individuality. This strategy reached its tragi-comic peak on Dec. 5, 1997 when the FBI's New York office Internet site proudly headlined the story of the Sanderses' arrest: "Conspiracy theorist and wife charged with theft of parts from airplane," and scrolled it across the top of its home page. The arrest warrant was shot through with false statements. In his suit, Sanders would credit FBI agents Jim Kallstrom and Jim Kinsley for this misrepresentation – and the Justice Department now concedes these constitutional violations.

Here is another critical point that the Justice Department has chosen not to contest: "On Dec. 5, 1997, the New York Justice Department-FBI website, coordinated with the KALLSTROM-KINSLEY conspiracy to vilify [James Sanders]." By labeling Sanders a "conspiracy theorist" on its website, the FBI employed a subjective characterization that violates the FBI's own guidelines.

Things got uglier four days later when FBI agent Jim Kinsley paraded James and Elizabeth through a throng of reporters, their hands cuffed behind their backs. Throughout it, Elizabeth worried deeply about what her aging mother, a Philippine immigrant, would think. Sanders would remember her hurt in his civil suit and charged Kinsley with inflicting it by orchestrating a gratuitous and illegal "perp walk."

Kinsley was also involved in one of the more clever bits of illegal mischief. As the Sanderses charge, and the Justice Department concedes, federal prosecutor David Pitofsky recognized that Kinsley's seizure of Sanders' computer was illegal. So Pitofsky initiated a scheme in which relevant printouts of that information would be sent to publisher Alfred Regnery. He and Kinsley then jointly contacted Regnery and demanded the publisher turn all over related documents in his possession, which he did.

At almost every turn in this sordid tale, cleverness trumped honor. The legal deck was stacked from the beginning and the jury pool poisoned. In April 1999, James and Elizabeth Sanders stood trial in Long Island before a jury shielded from the knowledge that James Sanders was acting as a journalist uncovering the criminal acts of federal agents, let alone that he was being prosecuted by the very agents he had hoped to expose.

As typical in a criminal trial, the prosecution got the last word. "A conspiratorial government going after these people?" David Pitofsky scoffed. "And, to what end? What is the government's motive? Ask yourself that. What is the government's motive to falsely implicate these people?"

One can hardly fault the jury for not knowing. They heard nothing about corruption within the investigation. They did not know about James Sanders' First Amendment right to expose that corruption or that his attempt to assert that right had been denied.

All they knew was that these two likely thieves may or may not have conspired to steal evidence from a crime scene. And why believe these "conspiracy theorists"? The establishment media obviously didn't. Besides, what reason did their government have to "falsely implicate these people?"

The jury returned after less than two hours of deliberation. Elizabeth clutched her husband's hand, almost too anxious to speak. She hoped for the best, but feared the worst. The worst is what they got.

"Guilty as charged" – both Sanderses – not only for conspiracy, but also for aiding and abetting in the theft of the fabric. The audience gasped in disbelief. Even Judge Joanna Seybert looked stunned.

David Pitofsky beamed in delight. "The jury understood," he said, spinning nonsense even in victory, "that no responsible reporter would believe they could break into a place to get a story.'' At this sad moment of truth, as she wept softly, one thought flashed through Elizabeth's mind, "What will my mother think?"

The Justice Department now concedes that it "fabricated a defense where none existed" in earlier opposing the Sanderses' civil action. It also concedes there is no defense for the 32 counts of federal lawlessness committed in pursuit of destroying a journalist and his wife.

Today, as the Sanderses await Judge Seybert's summary judgment ruling, the major media have the opportunity finally to recognize the innocent, to rebuke the guilty and to avenge the dead. Whether they choose to tell it or not, this is a story that will not go away.

Nice of you to both admit and display your ignorance.

That the government admits the facts alleged by the plaintiffs, albeit by default, is precisely what it means.

The report does not say that the government does not contest the motion, but rather precisely that the government does not contest the facts alleged in support of plaintiffs' summary judgment motion. Therefore, by rule, the facts alleged by plaintiffs are conceded, though, if ambiguous, they will interpreted against the moving parties, for purposes of the motion ruling only, subject to being proven at trial, should there be one.

It thus seems that you are the wearer of the tinfoil hat.

In truth the government, up until now, has never actually brought out the truth in any such high profile investigation. Would you, for example, contend that the Warren Commission got to the truth of the matter, or the Waco investigation?

There are only two reasons for the government to fail to contest the facts: either (1) someone made a decision to allow the truth out (which would be a novel concept in our government) or (2) the government wanted to cut its losses and minimize damage because the truth coming out fully at trial, after full discovery, would be even more damaging than these allegations standing uncontested.

When I was in private practice, my rule was never to file a MSJ if I wasn't pretty darned sure I could win it. I would settle the losers rather than file a useless motion, unless the plaintiffs weren't amenable to a reasonable settlement, in which case we took it to trial and either settled it on the courthouse steps or fought it out in front of the jury. (Surprising how many lawyers don't REALLY want to try a case, isn't it? :-D )

I take a different approach. Unless a MSJ would sound incredibly stupid, I file one -- for several reasons. First, it helps educate the judge of the facts and legal issues during the hearing. This can come in handly later during trial on legal matters, directed verdict arguments, JNOV arguments, and jury charge arguments. Second, most plaintiff attorneys are notoriously BAD at research and writing. For example, I know pretty much every common law and statutory duty in Texas (e.g. negligence law) and I make the plaintiff prove that any duty they are claiming is in fact legally based.

I've won several MSJs that I probably had no business winning. A judge WILL grant them if he is confident you can support him on appeal. I make sure he knows I will support him. But if he doesn't, I've lost no more than 8-10 hours or so and I've educated the judge and brough the plaintiff's thinking on damages down, because they now know trial is going to be a very tough fight.

Inform yourself, before calling people crazy, etc.

You SHOULD care about what federal law enforcement engages in. To cover up mistakes is a conspiracy.

And shooting an unarmed women holding a baby is not something I want my federal law enforcement doing.

Ruby Ridge fiasco details below: (excerpt is from this site.)

http://i2i.org/SuptDocs/Waco/rrprosec.htm

...Unfortunately, the decisions of both the federal and state prosecutors mean that several of the criminals at Ruby Ridge will never be charged with anything.

Consider Larry Potts, the Washington FBI headquarters man in charge of Ruby Ridge.

The prosecutors investigated Larry Potts for approving the dramatic change in the "rules of engagement" for the FBI’s siege of the Weaver family’s remote Idaho cabin in August, 1992. According to the official FBI guidelines, deadly force is allowed only when necessary to protect someone against immediate danger. The rules of engagement are not based on the whims of FBI officials, or even on the acts of Congress. Instead, the limits on deadly force are implicit in the Constitution, and therefore decreed by the Supreme Court.

At Ruby Ridge, Idaho, the normal, constitutional rules of engagement were changed; the new rules were orders to kill any armed adult male seen on the Weavers’ property. The non-prosecution of Larry Potts is based on a disputed fact: it cannot be proven that Potts approved the order saying FBI agents "can and should" shoot.

But there is no real dispute that Potts approved an earlier change in the rules of engagement, saying the FBI "could" shoot any armed adult male. (Randy Weaver and his friend Kevin Harris often carried guns on their own property, as is completely legal under Idaho law.) Even if Potts didn’t approve the "order to kill" rules of engagement, he clearly did approve a "license to kill" rule, which is illegal and unconstitutional. But he’s getting away with it.

FBI sniper Lon Horiuchi-- who shot Vicki Weaver in the head while she was standing in the cabin doorway, holding her baby in her arms--is being charged with voluntary manslaughter by the local Idaho prosecutor. The federal government, though, is leaping to Horiuchi’s defense, because he was obeying an order. But the Nuremberg and My Lai prosecutions have established that "I vas just following orders" is no excuse for killing innocent people. The license-to-kill orders were so outrageous that other FBI snipers at the scene -- for example, the SWAT team from Denver -- agreed among themselves that the license-to-kill order should not be obeyed. The Denver agents chose to disobey the unconstitutional order, and instead to stick with the traditional rules of engagement.

Besides choosing to obey an illegal assassination order, Horiuchi lied under oath at Randy Weaver’s trial. Horiuchi claimed that he opened fire on Randy Weaver and Kevin Harris because the two men were threatening to shoot an FBI helicopter. But the trial judge found this testimony so blatantly false that he ordered the charges related to the testimony to be dismissed. (The helicopter was nowhere near where Weaver or Harris could have shot at it.)

Moreover, sniper Horiuchi violated even the illegal rules of engagement. True, he did obey the illegal orders when he shot at Randy Weaver and Kevin Harris, who were outside their cabin carrying guns.

But Horiuchi’s second shot violated even the license to kill rules; the second shot was the one that killed Vicki Weaver, as she was standing in the doorway of her cabin, holding her baby.

The rules prohibited firing a shot if it would endanger any children.

Horiuchi claims that he never saw Vicki Weaver standing in the doorway, and his shot that killed her was really intended to kill Kevin Harris, who was running back into the cabin. Let’s assume that Horiuchi was telling the truth about what he saw. (Let’s also ignore the substantial evidence that the FBI had plans to kill Vicki Weaver--who was not accused of any crime--because she was the "dominant" member of the family.)

Even Horiuchi’s version of the facts shows that he violated the rules. After the shooting, Horiuchi drew a diagram of the target he had aimed at. His drawing shows that he was aiming at a part of the door approximately ten inches above where he thought 16-year-old Sara Weaver was crouching. She wasn’t there, to be sure; but that’s where Lon Horiuchi was aiming -- just above the head of someone the rules of engagement prohibited him from endangering.

And when he fired, in violation of the rules of engagement, he killed Vicki Weaver and injured Kevin Harris.

This is the basis for the manslaughter charge against Horiuchi: his second shot was so reckless that he is culpable for the death that resulted.

True enough, but what about Horiuchi’s first shot: his intentional, illegal attempt to kill Randy Weaver? Why no charge for this crime? And why no charge for all the FBI officials--from field commanders all the way up to Larry Potts, who authorized the FBI snipers to shoot people illegally?

The FBI came on the scene a few hours after a shoot-out between a squad of U.S. Marshals and the Weaver family. Why are no charges being filed against the United States Marshal who shot fourteen-year-old Sammy Weaver in the back, as the unarmed Sammy was running home, away from the confrontation?

Amazingly, the only person being charged by the Idaho prosecutor for the initial shoot-out is the Weavers’ friend Kevin Harris. During that shoot-out, Harris killed a United States Marshal, and said he was acting in self-defense. The federal government prosecuted him for the killing in 1993, and he was acquitted.

The Constitution outlaws prosecuting a person twice for the same crime. But the Supreme Court has gutted this rule, by allowing separate prosecutions by the state and federal governments.

Given the strange decisions of the federal and Idaho prosecutors, Congress and the state legislatures should promptly take two steps: First, enact legislation barring double state/federal prosecution for the same alleged crime. Second, pass resolutions calling for a special prosecutor to investigate the federal officials responsible for the deaths at Ruby Ridge.

Paul Blackman and David Kopel are the authors of "No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix It" (Prometheus Books, 1997). Information about the book is available at http://i2i.org/Waco.htm.

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.
Please send comments to Editorial Coordinator, Independence Institute, 14142 Denver West Pkwy., suite 185, Golden, CO 80401 Phone 303-279-6536 (fax) 303-279-4176 (email)webmngr@i2i.org

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.