Case could shape future of gun control

The Second Amendment establishes a right to possess firearms.
The question is: Is it an individual right or a military necessity?

By Richard Willing, USA TODAY, 8/27/99- Updated 12:35 AM ET
http://www.usatoday.com/news/acovfri.htm

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. - Second Amendment to the U.S. Constitution, 1791

Tucked inside this famous paragraph, amid the multiple clauses, odd punctuation and 18th-century syntax, lies the right that Americans both cherish and fear: the right to have a gun.

But whose right is it anyway? Is there an individual right to own a gun, like the individual right to freedom of speech or religion? Or does the Second Amendment mean only that Americans can defend themselves collectively through state militias, like the modern-day National Guard?

The debate over what the Second Amendment actually means has filled a forest of law review articles and scholarly papers over the past 10 years. Now it is about to spill out of the ivory tower and into the real world of guns and gun control.

For the first time, a federal judge has ruled that the Second Amendment guarantees an individual's right to own a gun. In the process, the judge invalidated a 1994 federal law that denies guns to anyone who is under a restraining order to prevent him or her from harassing a spouse. The law was part of a measure aimed at reducing domestic violence by limiting access to guns.

If the decision by a federal district court judge last April in Texas is upheld on appeal, it could be a huge setback for gun control advocates, placing perhaps hundreds of laws in danger of being struck down. And it would be a victory for gun control opponents such as the National Rifle Association, which has consistently argued that an individual's right to a gun is protected by the Second Amendment.

An appeal of the case, U.S. v. Emerson, begins with the filing of briefs in the U.S. Court of Appeals for the Fifth Circuit in New Orleans Friday.

The case, which is likely to be argued next January or February, is unfolding as liberal scholars such as Harvard's Laurence Tribe, who has long been hostile to the individual-rights argument, have begun to move toward the NRA's position.

"The real-world consequences (of the Texas case) could be enormous," says Carl Bogus, a specialist on the Second Amendment at Roger Williams Law School in Bristol, R.I.

If the lower-court ruling is upheld, "it would stand the law on its head," Bogus says. It would destroy Congress' ability to create gun control laws. Anyone arrested under current (gun control) laws could argue they're unconstitutional. This is not just an academic exercise."

The renewed debate over the Second Amendment's meaning comes as recent shootings in Atlanta, Los Angeles and Littleton, Colo., have increased pressure for new gun control laws. This week, authorities in Los Angeles took the unprecedented step of banning sales of guns from the nation's largest gun show.

The very fact that there is a debate is likely to surprise many Americans, many of whom assume that the Second Amendment already guarantees them the right to own a gun. A CBS News poll Aug. 15 found that 48% of adults believe there is an individual right to a gun, while 38% do not.

Case began as domestic dispute

The case began last August when Sacha Emerson, 26, a nurse from San Angelo, Texas, filed for divorce. The local court placed a restraining order on her husband, physician Timothy Joe Emerson, 41, after she complained that he had verbally threatened her boyfriend.

Timothy Emerson owned a handgun, which automatically put him at odds with the federal law barring gun ownership by people under state restraining orders in domestic disputes. A federal grand jury indicted Emerson, who was "greatly surprised" to learn that he may have violated any law, according to his lawyer, David Guinn.

The case never got to trial. In April, U.S. District Court Judge Sam Cummings found that the law denying guns to those under a restraining order was an unconstitutional infringement of the "individual right to bear arms."

The federal law, Cummings wrote, "is unconstitutional because it allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights."

The decision took gun control advocates and opponents by surprise. Cummings, 54, who was appointed to the federal bench by President Reagan, had a reputation as a middle-of-the-road jurist who seldom set aside an indictment. And Emerson's lawyer, assistant federal public defender David Guinn, had raised the Second Amendment argument almost as an afterthought.

Both sides are taking the appeal very seriously. The National Association of Criminal Defense Lawyers and the NRA plan to file briefs supporting Emerson and his argument that there is an individual right. A consortium of 45 law professors and legal historians has filed on behalf of the other side.

The solicitor general's office in Washington, which handles appeals for the federal government, is helping federal prosecutor William Mateja with his argument that the domestic violence law should be upheld and the indictment reinstated.

Amendment is open to interpretation

Arguments about the meaning of the Second Amendment can be murky, because both sides rely on the amendment's wording to reach radically different conclusions.

Proponents of the theory that the Second Amendment confers only a collective right to bear arms focus on the mention of "militia" in the amendment's opening clause.

"Clearly, the reference to 'militia' is there for a reason," Bogus says. If the Amendment's drafters had "wanted an individual right, they wouldn't have needed to qualify it. That first (clause) is all-important. They're saying, 'Because there's a need for a militia, we're bringing up the subject of arms.'"

These theorists say that history, too, is in their favor. James Madison's original draft of the Second Amendment, the theorists note, exempted the "religiously scrupulous" - conscientious objectors - from bearing arms, indicating that the right protected only arms related to militia service.

"If the Second Amendment had been adopted as originally drafted by Madison, there'd be no question that its scope is limited to the possession of weapons for use in the militia," says David Yassky, a Brooklyn Law School professor who has filed a brief supporting the collective view in the Texas case.

Supporters of the militia interpretation also say that to accept an individual right to arms is to endorse anarchy.

"The Second Amendment can't mean that you have the right to form a private army," says Dennis Henigan, legal director of the Center to Prevent Handgun Violence.

"That's the logic of (Oklahoma City bomber) Timothy McVeigh," Henigan says. The framers of the Constitution "couldn't have intended to bestow a right to armed insurrection. That would have destroyed what they were trying to build."

Those who advocate the right of the individual to bear arms say their adversaries are misreading the Second Amendment.

"You've got to understand: The militia at the time (the amendment) was written was basically all able-bodied men," says Stephen Halbrook, a lawyer in Fairfax, Va., who has filed a pro-gun-rights brief in the Texas case.

When the framers "are talking about the 'militia,' they are talking about the 'people.' They'd be shocked if anybody thought they meant something different."

Both sides say history supports them

Those in the individual-rights group also say history supports them, not their opponents.

"When the amendment was written and through most of the 19th century and into the 20th, it was assumed that the individual right (to a weapon) existed," says Robert Cottrol, a Second Amendment specialist at George Washington University law school and author of Gun Control and the Constitution.

"It wasn't until federal (gun control) laws were enacted, during Prohibition and later during the 1960s, that it even became an issue."

Akhil Reed Amar, a Yale University law professor and scholar of the Bill of Rights, says the right is neither collective nor individual but something in between: the right of a small community of family and friends to defend their homes, as the Minutemen had done during the American Revolution.

"They weren't thinking of establishing a right for the National Guard or for the Michigan militia," Amar says. "They were thinking about Lexington and Concord, where they stood with their families and friends to resist an imperial army. If you get Lexington and Concord, you get the Second Amendment."

America's courts have had little to say about the debate. When they have weighed in, it has been on the side of those who says there's no individual right.

During Prohibition, Arkansas bootlegger Jack Miller was indicted under the first national gun control law for carrying a sawed-off shotgun across state lines.

Miller argued that the Second Amendment gave him the right to carry the weapon and that the charge should be dismissed. But the Supreme Court disagreed, saying in a unanimous 1939 decision that the shotgun had no "reasonable relationship to the preservation or efficiency of a well-regulated militia" and was thus not protected by the amendment.

U.S. v. Miller was the first and so far the only Supreme Court case to address the issue. Since then, the U.S. Courts of Appeal have used the case's reasoning to uphold gun restrictions in at least 21 separate cases.

"As long as a (gun control) law exempts the National Guard or police, it has passed muster," says Dennis Henigan of the Center to Prevent Handgun Violence. "The law has been all our way."

But liberal scholars, after backing the militia theorists for years, have begun to side with individual-rights proponents.

Sanford Levinson of the University of Texas law school began the trend 10 years ago with an influential law journal article that compared the Second Amendment to an "embarrassing relative, whose mention brings a quick change of subject."

"This will no longer do," Levinson wrote, concluding that the individual-rights argument had a historical basis.

Others picked up on that argument.

"If you're going to look at (the Second Amendment) fairly, you have conclude that it means a lot more than its critics say," Amar of Yale says. "It's there in the middle of the Bill of Rights for a reason."

In a striking departure, Harvard University's Tribe now concludes that the Second Amendment guarantees more than a militia right and includes an individual right to own firearms. Tribe's new view is included in an updated version of his treatise American Constitutional Law, which is out this month.

"Some very serious scholars are concluding that it is too simplistic to say that the Second Amendment only protects the militia," Tribe says. "It's not just the 'hired guns' for the NRA."

The stakes are large. If the Fifth Circuit upholds the individual right to own guns, it would conflict with decisions in other appeals courts over the years. This probably would prompt a review by the U.S. Supreme Court.

And if the individual-right theory is upheld there, state and federal legislatures could have a much harder time passing gun control laws. Current laws, too, would be open to challenge. Courts probably would impose a "balancing test" to determine whether a proposed gun control law unduly restricts an individual's rights. Essentially, courts would weigh the justification for the gun control statute against the restriction imposed on the individual citizen.

"To date, any restriction short of prohibition (of private gun ownership) has been deemed acceptable by the courts," George Washington University's Cottrol says. "If a right is involved, presumably the whole picture changes. Any law impacting on that right might have to pass a much stricter test."

No one is making book on how the Fifth Circuit will rule. Mateja says he'll argue that the militia rights view is "well settled" in law and that Judge Cummings' decision was "flat wrong."

Guinn says he'll fall back on the language of the Second Amendment and its promise of the "right of the people to keep and bear arms."

"The 'people' means the people," he says. "What else could it mean?"

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Scientists Say Polygraphs Scare

By Michelle Locke Associated Press Writer Friday, August 27, 1999; 4:48 p.m. EDT
http://search.washingtonpost.com/wp-srv/WAPO/19990827/V000204-082799-idx.html

LIVERMORE, Calif. (AP) -- The intent is to catch spies. But the effect of polygraph tests at Energy Department weapons labs will be to scare off new researchers and demoralize those who remain, scientists there say.

``I don't think you'll find very many people who are in favor of polygraphing,'' says Betty Gunther, who works in the computing division of Los Alamos in New Mexico. ``What we're talking about is destroying a very good research institution.''

The tests are proposed as part of a new spy-fighting initiative prompted by allegations that a Los Alamos scientist passed nuclear secrets to China. The investigation, which found the man had downloaded thousands of files of super-secret codes into his unclassified computer, brought accusations the labs aren't doing a good job of keeping nuclear secrets.

Since the Energy Department announced its plans earlier this year, scientists at the nation's three nuclear weapons labs, Livermore in California and Los Alamos and Sandia in New Mexico, have made it clear they're worried about hanging their careers on the squiggly lines of a polygraph machine.

``Our concern here is that it will actually undermine, not bolster, national security,'' said Alan Zelicoff, a senior scientist at Sandia.

He said the tests have a very low ``true positive'' rate, meaning they won't be very efficient spycatchers, but probably will be effective at putting off bright young recruits.

``'Come to the DOE labs, we'll pay you a third of what you'd get in Silicon Valley and, by the way, you're guilty until proven innocent.' That's counterproductive,'' Zelicoff said.

National weapons lab scientist Patrick Weidhaas likened the situation to anti-Communist sweeps of the 1950s.

``This was America at its worst, and we do not need another witch hunt,'' he wrote in a newsletter this month to colleagues at Lawrence Livermore National Laboratory.

Details of the tests -- who must take them and when -- are still being worked out. The first of four public hearings on the issue will be held Sept. 14 in Livermore.

The tests consist of only four work-related questions -- ``basically, are you a spy,'' says Jim Danneskiold, Los Alamos spokesman.

Opponents worry about the possibility of ``false positives'' from the polygraphs, which are generally not admitted in court because of questions about their reliability.

``Once that red flag goes up, it won't go down,'' Weidhaas said this week.

Energy Department officials say the tests should have a very small error rate. The department's security head, Eugene Habiger, who passed one last month, said the tests should have fewer than one error in a thousand.

Employees who fail can take a second, more detailed, test. A second failure triggers an evaluation that also includes such things as work history.

The testing is supported by the University of California, which manages Los Alamos and Livermore.

``National security now is of the utmost importance and with new technologies out there ... new ways of penetrating security systems, it is just more important than ever to make sure that those people in those sensitive positions are completely reliable and understand their responsibilities,'' said UC spokesman Rick Malaspina.

Sandia President C. Paul Robinson issued a statement saying the lab's manager, Lockheed Martin Corp., has a policy of asking employees to take polygraphs if so requested by the government.

At Livermore, spokeswoman Susan Houghton said officials respect the employees' feelings, ``but the bottom line (is) that we have to do what is right for the United States.''

Weidhaas doesn't agree that polygraphs are the way to achieve that.

``The polygraph introduces a totally new element,'' he said, ``that basically, we're all suspects.''

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FOR IMMEDIATE RELEASE Contact: Matthew Wanniski 202.452.8200

JACK KEMP RELEASES ANALYSIS BY NUCLEAR WEAPONS EXPERT CRITICAL OF "UNWARRANTED CONCLUSIONS" IN COX COMMITTEE REPORT

A Technical Reassessment of the Cox Committee Report
The Prather Report:
http://www.polyconomics.com/prather.html#A Technical Reassessment of the Conclusions and Implications of the Cox Committee Report

Report excoriates Clinton Administration policies as real threat to US national security

Washington, DC, July 8, 1999 - A report released today by Jack Kemp questions the Cox Committee Report for drawing unwarranted conclusions. The report’s author, Dr. James Gordon Prather, concludes that, "What the evidence presented in the Redacted Report does not do is support the primary charge that US nuclear weapons labs were ‘penetrated’ by PRC [People’s Republic of China] agents more that 20 years ago and that some of those PRC ‘moles’ are still there, actively spying for the PRC."

At the same time, the report strongly indicts the Clinton Administration for policies that have subverted US nuclear weapons laboratories and their ‘mission’ oriented programs. "If the PRC has managed to ‘steal’ design information on every one of our currently deployed nuclear warheads, then each of these Clinton Administration [national security] policies is partially to blame."

Dr. Prather is a nuclear physicist with extensive experience in both nuclear weapons development and in government service in the Departments of Energy (DOE) and Defense (DOD) and on Capitol Hill. In recent years, Dr. Prather has been involved in various capacities with DOE National Laboratories, Federal agencies, US universities, US private sector firms, Congressional Members and committee staff in seeking to ameliorate the radiological, environmental, health, safety and-above all-nuclear weapons proliferation consequences of the disintegration of the Soviet nuclear weapons infrastructure.

According to Mr. Kemp, the Cox Committee Report has provided a valuable service not only by voicing some of the understandable concerns many Americans have over the emerging Chinese power in the world and America’s proper relationship with the PRC, but also by provoking a reevaluation of the Clinton Administration’s national security strategy and its policies at vital US labs. But, the US should not unquestionably buy into the premise that China constitutes a new enemy to the United States. As Kenneth deGraffenreid, editor of the Cox Committee Report, states in the introduction of the Report, "Neither a hot war nor a cold war with the PRC is inevitable, but both are far more likely in the face of disjointed and dishonest policies that have recently characterized American foreign policy toward Communist China." In Mr. Kemp’s view, taking a Cold War, adversarial position with China would neither be beneficial to the US nor the world. Instead, Mr. Kemp says, "We should conduct a policy of 'open-eyed engagement,' with China. Indeed, we must apply the Reagan Doctrine - 'trust, but verify'-in the conduct of our foreign and economic policy, particularly when it comes to dealing with an emerging powerful country like China."

The Clinton Administration (and particularly former Energy Secretary Hazel O’Leary) -by contrast to the strategic logic of previous administrations - embarked on a reckless policy of unprecedented "openess" that has thrown wide the gates to other nations to access classified American information, thus creating an environment where spying is unnecessary because many secrets have already been made public and published on the Internet. In fact, one of the websites mentioned in the Prather Report provides a complete inventory of America’s nuclear weapons arsenal, including type of fuse, yield, and deployment status: (http://www.enviroweb.org/enviroissues/nuketesting/hew/Usa/Weapons/Allbombs. html)

Mr. Kemp asked Dr. Prather to make an informed comparison of the charges in the Cox Committee Report with the consensus "findings" of the intelligence community’s damage assessment team, which was requested by Chairman Cox after submitting his report to the Administration. (The damage assessment team of experts, which was convened by Director of Central Intelligence George Tenet and headed by Robert Walpole, the National Intelligence Officer for Strategic and Nuclear Programs, made a "net assessment" of the PRC’s nuclear weapons and conventional missile capabilities. The intelligence community’s "Key Findings," which were based on the report of its damage assessment team, were confirmed by an Independent Review Panel, members of which included Admiral David Jeremiah, Ret. and General Brent Scowcroft, Ret., and by the President’s Foreign Intelligence Advisory Board, chaired by former Senator Warren Rudman.) In writing his report, Dr. Prather drew inferences from only that information available to the general public and at no time did he have access to information that he knew to be "classified."

Mr. Kemp felt that it was important to make the comparison because the Cox Committee Report is based largely upon security officials’ assessment of what the PRC may have learned about US nuclear weapons and conventional missile capabilities, while the intelligence community’s "Key Findings" are based upon the technical experts’ assessment of what the PRC actually did learn. On the basis of his comparison, Dr. Prather concluded that there was no compelling evidence for the Cox Committee Report charges that the PRC actually had "penetrated" the US weapons Labs or had "stolen" anything "classified" from them in previous decades. Dr. Prather finds that "¼the threat, past and present, of PRC ‘espionage’ to our National Security is almost certainly considerably less than the public no doubt believes at this point."

In addition, the report contends that if the PRC did "steal" anything "classified," there is no evidence that they have yet incorporated it in their nuclear weapons program. However, Mr. Kemp said this fact doesn’t mean they won’t eventually. "Therefore, we must remain heavily-armed doves," Mr. Kemp warned, and chastised the Clinton Administration for dragging its feet in deploying a strategic missile defense.

Dr. Prather concluded that an environment may well have been created in recent years at the US Labs and elsewhere wherein the PRC could have obtained, and may have obtained, everything they wanted to know without "stealing." According to the Prather Report, the evidence presented in the Cox Committee Report reveals that

. . . the Clinton Administration for the first time ever [1] told the world that we were never going to develop or test or build another nuclear weapon; [2] told them how many nuclear weapons we had and what they were; and [3] invited the PRC weapons scientists to come over and check us out.

Since it will take some years for any information so obtained to be reflected in PRC nuclear weapons capabilities, the "intelligence community" has no basis for assessing what the PRC did learn in recent years. In the interim, as the Administration and Congress rush to repair the "holes" in our physical security "fences" without undoing the Clinton Administration policies that resulted in the "lax security environment," which may have helped the PRC, Dr. Prather warns that permanent and long-lasting damage will be done to the capabilities of our nuclear weapons Labs to carry our their assigned missions.

The Prather Report concludes by saying:

The irony in all this is, that if the PRC has been able to obtain US nuclear weapons "secrets"-and there is little evidence in the "redacted" Cox Committee Report that it has-it was able to obtain them all as a direct result of the Clinton Administration's non-proliferation policies of:

1. Unilateral implementation of the Comprehensive Test Ban Treaty-which the Senate has refused to ratify-that has prevented the Labs from testing new weapons;

2. Openness and transparency with respect to US nuclear weapons inventories and programs-which devalued our existing stockpile; and

3. Engagement of the PRC nuclear weapons establishment by the DOE nuclear weapons establishment-which subverted the NLD [Nunn-Lugar-Domenici] Lab-Institute's programs.

A hard copy of the Prather Report is available from the Office of Jack Kemp by calling (202) 452-8200.

---------------

[I haven't included any TWA 800 missile theories before, but this one looks interesting, particularly in light of the Waco revelations.]

New radar data revives missile theory in TWA Flight 800 crash: groups

August 27, 1999 Nando Media, Agence France-Press
http://www.nandotimes.com/nation/story/0,1038,86797-137080-955753-0,00.html

WASHINGTON (August 27, 1999 8:45 p.m. EDT http://www.nandotimes.com) - Two groups that claim a missile brought down TWA Flight 800 in July 1996 said Friday that just-released radar data showing an unidentified ship near the blast tend to support their theory. They called on Congress to investigate.

Government officials have said mechanical failure, not a terrorist attack, brought down the Paris-bound Boeing 747 off New York's Long Island, killing all 230 people aboard.

The data, obtained in June from the National Transportation Safety Board (NTSB), show many ships in the area, including one just 2.9 nautical miles from where the plane went down.

"There were 30 surface vessels in the area. Only one, the closest, has not been identified," Tom Stalcup, the director of the Flight 800 Independent Research Organization (FIRO), told a press conference.

"After the explosion that everyone could see 20 miles around, the ship, about 2.9 nautical miles away, did not turn around," he said, showing an animated re-creation of ship and airplane travel when the Boeing crashed.

Some 130 witnesses said they saw a glowing arc climb into the sky - like a rocket or a missile - seconds before the aircraft exploded, he added.

NTSB investigators explained that phenomenon by saying that part of the Boeing's fuselage had broken off and briefly climbed before slowing down and falling.

But Stalcup said the radar data contradict the NTSB because they show acceleration, which corresponds with a rapid fall towards the ocean, adding "the plane did not climb after the explosion."

The aircraft went down near a military warning area, in which military exercises such as missile and artillery fire are undertaken.

The radar data also show an unidentified airplane flying back and forth over the warning area.

Commander William Donaldson, a former U.S. Navy fighter pilot and crash investigator who heads the Associated Retired Aviation Professionals (ARAP), said he believed the U.S. government was covering up the true cause of the accident.

"The plane was shot down by a short-range shoulder-fired kind of Stinger missile, from the surface," he said. "We've tried to get these radar data for two years. It's a cover-up."

ARAP and FIRO called on Congress to open an inquiry into the crash.

According to the NTSB, which has yet to render its final report, kerosene fumes in the airplane's central fuel tank ignited, causing an explosion.

The Federal Bureau of Investigation pulled out of the investigation in November 1997, ending a probe into whether Flight 800 was brought down by a terrorist.

---

The FBI and Flight 800
A Missile Expert Cries Cover-Up

Village Voice, July 14-20, 1999
http://www.villagevoice.com/features/9928/davey.shtml

The Flight 800 investigation, still at a loss to explain the tragedy, has the right stuff for a thrilling spy novel. Government flacks easily spin the lazy mainstream media to sedate the nervous public. Meanwhile, a band of military insiders heads for the Internet (http://twa800.com) and reaches out to a few sympathetic independent journalists to convince readers that the truth is being hidden. For some reason-at this point only a fiction writer could provide one-many observers believe that the government is covering up the disaster's most likely explanation: it was a missile that three years ago this week, 10 miles south of Long Island, brought down the Paris-bound 747, killing all 230 aboard.

As the investigation's third anniversary passes, the mystery is deepening. A few months ago, a retired army officer bearing impressive credentials approached the <I>Voice </I>as an intermediary for a missile expert with a story to tell. This expert is extremely fearful of losing his job-for more than 20 years he's been a military engineer who specializes in infrared missile technology. Assured of anonymity, he submitted to lengthy interviews by telephone and e-mail, detailing why he believes the investigation of TWA Flight 800 is a cover-up.

After spending more than $40 million on the investigation, the FBI and the National Transportation Safety Board have not found a definitive answer for why the center fuel tank exploded. Yet they have ruled out a missile as the cause. The NTSB believes an undetermined system flaw produced an electrical spark that ignited jet fuel vapors in the tank.

Prior to the official embrace of this mechanical explanation, the missile expert was among several scientists invited by FBI agents to explore the missile theory. He was made privy to evidence suggesting that TWA 800 could have been shot down, consisting of eyewitness accounts of a "flare-like object" shooting skyward moments before the plane exploded. Later he examined the debris in the Calverton hangar.

The missile expert has also been in contact with military labs where, he says, the chemists have been unable to make jet fuel vapor explode as the NTSB says it did in TWA 800's center fuel tank. "The labs told the NTSB there's a big problem-it can't happen." The NTSB wouldn't listen. He says, "They were adamant that [the labs] had to find something."

The evidence adds up, the missile expert believes, to a "70 percent chance" that TWA 800 was downed by a shoulder-launched missile. Like others who have spoken to the <I>Voice</I>, the expert is exasperated with what he sees as a corrupted investigation. Asked why he is speaking up now, he says, "I wanted someone to look at the truth, not whitewash it away."

The missile expert says his unit was summoned by the FBI quite early in the investigation and asked to review the eyewitness accounts and check out the potential for a successful missile hit. "We talked to Ted Otto and Steve Bongardt"-two agents assigned by FBI assistant director James Kallstrom to examine the missile theory. "We picked missiles and ran computer simulations and shipped the data to Bongardt," the <I>Voice</I> source says. The data showed that virtually any post-Vietnam era shoulder-launched missile would have had the range and infrared seeker capability to reach the plane at 13,700 feet, he says.

But it was the eyewitness accounts that most impressed the expert-the investigation has compiled more than 100 eyewitness interviews reporting a streak of light ending in a flash or explosion, apparently contradicting the official scenario. "When we discussed this with the FBI, they said some of these people were very credible," he recalls.

"The most compelling account was from a female witness, as I remember, who reported something with a small flame rising from the ocean trailing a faint smoke trail. The flame was reported to have burned out after about six or seven seconds with a puff that was seen when it hit the aircraft at about 10 seconds. I can tell you that this testimony, if the recounting is accurate, is about as precise as you can get on what you would see from a shoulder-fired infrared SAM [surface-to-air missile]."

The accounts were so persuasive, he says, that Otto and Bongardt arranged a meeting in Washington, D.C., in late '96 to discuss them and other data. A high-powered group convened around the table-the CIA and other military and intelligence agencies were represented but not the NTSB. "We took a vote, and almost everyone said the plane was shot down," the expert says. Only the CIA remained silent. "The CIA was very quiet." Someone asked if there was a warning prior to the disaster of a terrorist attack. "The CIA wouldn't say," he recalls.

Asked about this meeting, the FBI's Kallstrom says, "It never happened," though he allows, "There might have been a meeting where underlings were speculating, but I don't have any knowledge of it."

The CIA at the time was developing its theory that eyewitnesses to the crash saw not a missile but the burning plane itself as it reared up and climbed several thousand feet after the explosion. The <I>Voice</I> missile expert source has no patience with the CIA's point of view. He insists that the eyewitness accounts "are information that cannot be denied."

And there was more-the expert mentioned a videotape shot by a man on Long Island one night during the weeks preceding the crash, which appeared to show a rocket trail rising skyward. "The FBI showed it to us as interesting evidence," the expert says. It looked like the trail of a missile, he adds. FBI assistant director Kallstrom, now retired from the agency, says he doesn't recall any such video.

Later in the investigation, only a month or so before Kallstrom shut down the criminal investigation in late '97 for lack of evidence, Bongardt called the missile expert and invited him to Calverton to view the wreckage. What he saw there hardened his suspicions.

"The left wing root near the center fuel tank was clearly a potential impact point, since much of it was missing or badly damaged," he wrote in an e-mail. In an interview he added that together with the left-side wall of the center fuel tank and the left wing, these areas exhibited "a lot of damage which was not well explained, as far as we were concerned....The metal there looked like something very violent happened."

The NTSB's reports confirm the view that the damage on the left side of the plane was of a different order from the damage on the right side. While the left wing upper skin, for example, was shattered into many small fragments, most of the right wing was recovered in one large chunk that had to be cut up into several pieces before it would fit onto a flatbed truck for the journey from East Moriches to Calverton. In its Sequencing Report the NTSB says that the left wing damage is consistent with "extremely high-strain energy release associated with water impact," but does not suggest why the right wing should have escaped similar damage.

The missile expert interviewed by the <I>Voice</I> says that part of the problem was a lack of time to thoroughly examine the debris for clues. In fact, he says his group proposed that the FBI extend its investigation to evaluate the left-side damage. "The recommendation was verbal and in a letter that we sent the FBI looking to do some additional work on the case with funding from the FBI," he says. "They never replied." Bongardt asked him for a formal report, he says, but before he could write it, Kallstrom ended the criminal probe.

Kallstrom told the <I>Voice </I>he doesn't recall any military experts recommending an extension of the investigation. Kallstrom insists, "It was unanimous among all the experts" that nothing was seen in the damaged metal to warrant further scrutiny.

Kallstrom's "unanimous" claim is open to dispute. Richard Bott, of the China Lake Naval Air Warfare Center, testified at a Baltimore hearing during the investigation that he had seen no evidence of a missile on any of the debris. But just a few days earlier he had signed off on a report, called "TWA Flight 800 Missile Impact Analysis," in which he drew attention to what he called "unexplained damage characteristics" that "puzzled" investigators. He recommended further tests before conclusively ruling out a missile as the cause of this damage to the left wing upper skin, the left wing front spar, and the left side of the center fuel tank. Bott did not return repeated phone messages left by the <I>Voice</I>.

The missile expert the <I>Voice </I>interviewed says of the Bott report, "Much of what he states was brought up in discussions of our people." The expert insists that those discussions took place over a year before he first heard of Bott and read his report.

Kallstrom is apparently indifferent to Bott's concerns. He says, "I wouldn't put much credence in that-I've got a huge pile of expert opinion to the contrary."

The missile expert the <I>Voice</I> interviewed still insists that a forensic team should "take a real hard look" at the left side, and rule in or rule out a missile. But he also admits that the region of damage that would bear clues of the explosion of a shoulder-launched missile-which has a small warhead-would be quite small, and could easily be among the large areas of the left wing front spar and left side of the center fuel tank that are among the 5 percent of the plane that was never recovered.

<I>Voice </I>interviews with a number of metallurgists and experts in explosives confirmed that unless investigators are able to identify the area-perhaps only a few inches across-where the explosion first impinged on the metal, it's impossible to tell what caused the structure to fail. One author of a book on explosives who has worked on government projects told the <I>Voice</I>, "You're looking at something bent and fractured, but to tie it to a pressure source is very difficult<I>.</I>"

Several metallurgists suggested that explosive residue on the debris would point unambiguously to a high explosion. In August '96, traces of PETN and RDX, both ingredients of the plastic explosive also found in some missile warheads, were indeed detected in recovered debris from Flight 800's passenger cabin.

It seemed as if at last evidence had been found proving that a terrorist bomb or a missile had downed the aircraft. But shortly afterward it was claimed that a month before the crash the same 747 was used for a bomb-sniffing-dog exercise. Some of the explosives used, according to this account from the FBI, were apparently in poor condition and could easily have spilled.

This explanation was itself recently thrown into doubt by Victoria Cummock, a member of the White House Commission on Aviation Safety and Security, established by President Clinton in the wake of the ValuJet and TWA 800 disasters and chaired by Vice President Al Gore. Cummock, an advocate for victims' families since her husband was killed on PanAm Flight 103 over Lockerbie, Scotland, told the <I>Voice </I>that when she asked at an FBI briefing to see the FAA log for the training exercise, "they said, 'It's not conclusive this particular plane was involved.' They couldn't produce the log."

Nevertheless, Kallstrom says, "It's absolutely confirmed that it was that plane."

And there, with the dog-sniffing dispute between Cummock and the FBI, we have another juicy subplot within the larger enigma of the TWA Flight 800 story, which like any good spy novel should continue to tantalize until the final chapter.

Related Articles:

Scattered Clues: New Shadows Darken the TWA Flight 800 Probe
http://www.villagevoice.com/features/9908/davey.shtml

High-ranking Military Officers, Independent Investigators, Pilots, and Eyewitnesses Believe a Missle Destroyed TWA Flight 800
http://www.villagevoice.com/features/9829/davey.shtml

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New Wiretapping Rules on Cell Phones

By The Associated Press, August 28, 1999
http://www.nytimes.com/aponline/w/AP-Digital-Wiretapping.html

WASHINGTON (AP) -- New government wiretapping rules will allow police, with a judge's permission, to track cellular phone users by their location at the beginning and end of a call.

The rules, announced Friday by the Federal Communications Commission, are intended to help law enforcement authorities keep pace with advances in phone technology. Privacy groups complained that the government was effectively turning cellular phones into tracking devices.

Another rule would allow investigators to listen in on phone conversations of all parties to a conference call, even if some are put on hold and are no longer talking to the target of the legal wiretap. Authorities with a court order also could determine when someone is using call-forwarding, three-way calling or other features.

``Our actions today will help ensure that law enforcement has the most up-to-date technology to fight crime,'' FCC Chairman Bill Kennard said.

The rules help implement a 1994 law that requires companies to make digital wiretapping technology available to law enforcement agencies. The commission stepped in after the Justice Department, FBI and the telecommunications industry failed to agree on a plan after years of negotiations. The Justice Department and FBI got much of what they sought.

The companies have until March 2000 to set equipment standards that integrate the added requirements and until Sept. 30, 2001, to implement them.

The Justice Department said the FCC's order addressed its major concerns and would aid officers in fighting terrorism, organized crime and illegal drug activity.

``The continuing technological changes in the nation's telecommunications systems present increasing challenges to law enforcement,'' Attorney General Janet Reno said. ``This ruling will enable law enforcement to keep pace with these changes and ensure we will be able to maintain our capability to conduct court-authorized electronic surveillance.''

Privacy groups said the FCC overstepped the 1994 law.

``We are deeply disappointed that on all the issues that mattered, the commission ruled against privacy and in favor of expanded FBI surveillance,'' said Jim Dempsey, counsel at the Washington-based Center for Democracy and Technology.

Industry groups said communications companies will have a hard time meeting the deadlines.

``It's a real time crunch and resource drain,'' said Grant Seiffert, vice president for government relations at the Telecommunications Industry Association, which represents major equipment manufacturers.

The requirements also will be costly for the nation's local phone companies, according to the United States Telephone Association.

Tom Wheeler, head of the Cellular Telecommunications Industry Association, said he hoped law enforcement authorities would ``provide carriers with the flexibility necessary to implement these capabilities in a way that makes sense.''

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FCC Adopts Rules To Aid Wiretaps Some Groups Call Move Privacy Threat

By Shu Shin Luh Washington Post Staff Writer Saturday, August 28, 1999; Page E01
http://www.washingtonpost.com/wp-srv/WPlate/1999-08/28/060l-082899-idx.html

The Federal Communications Commission yesterday approved a series of telephone industry standards aimed at bringing law-enforcement wiretaps into the digital age, to the displeasure of groups that see a threat to privacy rights.

The FCC order will require telecommunications companies to provide six of nine new surveillance capabilities that have been on the "wish list" of the Justice Department and the Federal Bureau of Investigation.

The new surveillance standards will affect a range of companies, including long-distance providers, local service carriers and wireless phone companies, because of the alterations the carriers need to make to meet the requirements.

With the new rules in place, for example, phone companies will have to equip their cellular towers to allow court-authorized traces of cellular phone calls. They also will have to equip their services so wiretaps can be made of conference calls.

Companies also must put equipment in place to enable law enforcement officials to learn the phone number that a person calls after dialing a 1-800 number to connect to a long-distance carrier.

The FCC rejected the idea of requiring telephone firms to inform law enforcement agents whether a wire tap is working or when a customer whose phone is being tapped changes features such as call-waiting or voice mail.

The FCC will require telecom providers to meet the rules by next June 30. However, the FCC asked for more time to study wiretaps of so-called packet-mode communications, used on the Internet and increasingly for voice communications. The FCC said if the standards were applied to those areas, investigators could gain access to the content of a call at times when they were legally allowed only to trace the call's source. The agency asked the industry to come up with a solution by September of next year.

The FCC order implements the 1994 Communications Assistance for Law Enforcement Act, which was a response to complaints by law enforcement agencies that they were losing their ability to conduct wiretaps and other forms of electronic surveillance because of rapid new digital technologies.

The Center for Democracy and Technology, a civil liberties advocacy group, said it is outraged by the FCC's decision. "The FCC basically sided with the FBI, putting aside any privacy concerns," said James X. Dempsey, senior staff counsel at the center. He said the center is considering appealing to the courts.

The FBI and the Justice Department applauded the FCC's action, while industry reaction was mixed, with some companies complaining about the cost.