II. REPLIES TO RESPONSES MADE TO SPECIFIC SECTIONS OF THE DRAFT REPORT
EXECUTIVE SUMMARY
This section was not submitted to the FBI, the U.S. Attorneys' Offices, or others for comment.
PART ONE: ORGANIZATION OF THIS REPORT
The FBI, U.S. Attorneys' Offices, and other responders did not make any comments on this section.
PART TWO: BACKGROUND TO THE OIG INVESTIGATION
The FBI, U.S. Attorneys' Offices, and other responders did not make any comments on this section, other than to point out certain factual corrections (such as the date a trial began) in the World Trade Center case.
PART THREE: ANALYSIS OF PARTICULAR MATTERS
SECTION A: ALLEGATIONS CONCERNING TERRY RUDOLPH
FBI Response
The FBI notes that the draft Report is incorrect in stating that FBI OPR advised Rudolph that its inquiry had not developed facts warranting administrative action. Also, the FBI maintains that FBI OPR exercised proper investigative discretion in deciding not to pursue further the allegations that Rudolph had perjured himself in a case in the Southwest. FBI Response at 35.
OIG Reply
The OIG has revised the Report to state, as was noted elsewhere in the draft Report, that as a result of the FBI OPR investigation, the FBI Administrative Services Division, not FBI OPR,advised Rudolph that the facts did not warrant administrative action. Regarding the perjury allegations, the OIG considered the FBI’s response but did not change the Report’s conclusion that FBI OPR should at least have reviewed FBI records to determine if Rudolph had ever testified in a case in the Southwest, which could have led to further investigation. As explained in the Report, we do not think that Rudolph’s denying that he had ever perjured himself should have ended FBI OPR’s inquiry in the matter.
SECTION B: VANPAC CASE
FBI/Rothstein Response
The OIG received separate responses from both the FBI and Stanley Rothstein, an attorney in the Terrorism and Violent Crime Section of the Criminal Division of the Department of Justice, urging the OIG to delete its conclusion that CTU examiner Roger Martz was unnecessarily ambiguous when he testified at trial that he was not able to "successfully compare" certain smokeless powders. Both the FBI and Rothstein maintain that Martz truthfully answered the questions he was asked and that his answers, when viewed in the context of the questions, were not ambiguous. FBI Response at 28-29; Rothstein Response at 1-2.
OIG Reply
Based on these responses, the OIG decided to reproduce the testimony in question in the final version of the Report. As noted in the Report, the OIG concluded that Martz was ambiguous in stating on direct examination that he had been unable to "successfully compare" the powders. Only further questioning on cross-examination brought out that he could not determine from his comparisons if powders had come from the same lot. His testimony also left unclear whether he had compared samples from all the devices. Martz compared a sample from one of the four devices, a sample from a four-pound can of powder, and some known samples from the Laboratory. He should have stated more directly that he found differences and similarities when he compared certain samples, but could not determine from the data if the powders came from the same batch.
FBI Response
The FBI also urges in its response that the OIG consider whether its conclusions regarding former examiner Robert Webb are overly critical and inaccurate. The OIG found in the draft Report that Webb had stated his conclusions about the common origin of certain tape, paint, sealant, and glue more strongly than was justified by the results of his examinations and the background data. As noted in the Report, the methods Webb employed would allow an examiner
to conclude that samples could have come from the same source or manufacturer, but not to opine that they necessarily did. FBI Response at 29.
The FBI makes four points: (1) Webb used "polarized light microscopy" to examine the items; (2) the tests identified in the draft Report would be sufficient to allow an examiner to determine if two items came from the same manufacturer; (3) the draft Report reflects a misunderstanding of the nature and use of FBI data bases insofar as the draft Report notes that when Webb did the work neither he nor the FBI had a data base to confirm that the materials in question did in fact differ among manufacturers in terms of their chemical and physical characteristics; and (4) it is inappropriate to find deficiencies in Webb’s analysis when certain documents were missing from the case file. FBI Response at 29-30.
OIG Reply
The OIG considered the FBI’s comments and determined not to revise its conclusions regarding Webb’s work in VANPAC. The FBI does not identify any validation study conducted by it or any other laboratory showing that either polarized light microscopy or the other tests performed by Webb would successfully determine if samples came from the same source (or, with regard to the tape and RTV, the same batch or lot). The FBI’s response also appears to misapprehend the significance of the OIG’s comments concerning the absence of a data base. Without data confirming that samples of the questioned materials -- for example, black latex paint -- do in fact differ chemically or physically among manufacturers, we question the validity of Webb’s working proposition that the examinations would have revealed some differences if the materials had come from different manufacturers (or batch or lot). This point is not adequately answered by the FBI’s observation that "[t]he ultimate comparison and determination whether the two samples are from the same source is made by the examiner, based on all of the information available, including such factors as the color and texture of the item." Finally, as noted in the Report, we find that Webb’s conclusions also seem overstated in light of differences in the results from certain analyses that Webb performed. This conclusion was based on results that do appear in the case file.
SECTION C: WORLD TRADE CENTER CASE
FBI Response
The FBI contends that Williams accurately testified that urea nitrate was made pursuant to Arabic formulas from bomb-making books linked to the defendants because two bomb technicians recalled that the chemists told Williams that the formula they were using was "the same" as that in the Arabic Formula. FBI Response at 10.
OIG Reply
This section of the Report was modified in light of the statements of the bomb technicians.
FBI Response
The FBI makes several points regarding Williams’ role in the manufacture of urea nitrate. First, the FBI disagrees with our assessment that Williams was wrong to consider himself a supervisor of the Eglin "project." The FBI points out that Williams was in charge of logistics, recruiting the bomb technicians, and other tasks. FBI Response at 11.
OIG Reply
In the testimony at issue, however, Williams asserted that he was the supervisor not of the "project" but of the "mixing process." The Report already notes that Williams was in charge of certain administrative matters. Accordingly, Williams erred in his testimony that "I" made the urea nitrate and "supervised" the "mixing process."
FBI Response
Second, we stated in the draft report: "The reference in [Williams’] trial testimony to the other FBI personnel at Eglin as ‘my workers’ ... manifests an intent to downplay the role of the others and to aggrandize his own." The FBI argues that the trial testimony about "my workers" was reasonable and objects to "the OIG’s speculation as to Williams’ intent." FBI Response at 11.
OIG Reply
This sentence was revised for the sake of precision to indicate that Williams' testimony "could be interpreted to manifest an intent...."
FBI Response
Third, the FBI objects to our assertion that Williams’ misstatement as to his role in the mixing process made him "appear to be an expert in the manufacture of urea nitrate," contending that the jury was not misled as to Williams’ role or expertise. FBI Response at 11.
OIG Reply
We believe the statement in the Report is accurate, and therefore we did not amend it. We made no judgments as to what the jury concluded.
FBI Response
At the end of this section of the draft Report, we stated, "We are deeply troubled by Williams’ testimony about the FBI’s manufacture of urea nitrate." The FBI objects to our including the phrase "deeply troubled." FBI Response at 8.
OIG Reply
As previously noted, we deleted characterizations such as "we are deeply troubled" from the body of certain sections of the Report to address the claim that such characterizations appear overly subjective. The Conclusion in this section of the final Report begins: "We are profoundly disturbed by Williams’ testimony in the Salameh trial." Report at 145. Thus, our strong disapproval of Williams’ testimony is still expressed in the Report.
FBI Response
Regarding Williams' testimony about the defendants’ capacity to make urea nitrate, the FBI generally does not disagree with our analysis, but the FBI does object to the sentence, "We are troubled that Williams’ erroneous calculations conveniently produced the exact amount of urea nitrate -- 1200 pounds -- that he later testified ... was used in the Trade Center bombing." The FBI contends that since Williams’ erroneous calculations produced a range (1200 to 1800 pounds), they did not produce the "exact amount" allegedly used in the bombing. FBI Response at 12.
OIG Reply
For the sake of precision, we have inserted the phrase "a range that included" after "produced." (The correctly calculated range would not have included 1200 pounds). Report at 101.
FBI Response
The FBI objects to the conclusion in the Report that Williams’ testimony about a "non-laboratory yield" may have been "tailored" to reach the desired result (the amount of explosives used in the bombing). FBI Response at 12.
OIG Reply
For the reasons stated in the Report, the language is appropriate. Report at 102-104.
FBI Response
The FBI objects to our discussion of Williams’ testimony about the VOD of urea nitrate. FBI Response at 12-13. The section of the draft Report on this subject included the following paragraph:
We are deeply troubled by Williams’ testimony in Salameh that the VOD of urea nitrate is 14,000-15,500 feet per second. At best, the testimony was incomplete. At worst, it was intentionally false. We do not understand why Williams failed to tell the court that a standard text in the field of explosives (the Encyclopedia)--a text Williams was aware of when he testified--indicated that urea nitrate has a VOD of about 11,155 to 15,420 feet per second.
Williams told us that he obtained the VOD orally from different persons. The FBI contends that while the persons Williams named "did not recall" discussing the VOD with Williams, "none of them stated categorically that it did not happen." Therefore, according to the FBI, there is no evidence to support the assertion that Williams’ testimony may have been "intentionally false." FBI Response at 12-13. The FBI acknowledges that "[t]he recognized VOD of urea nitrate is . . . 11,155 to 15,420 fps." FBI Response at 12.
The FBI also objects to our conclusion that we have "grave doubts" about the veracity of Williams' claim that his testimony about the 14,000-15,5000 feet per second VOD of urea nitrate was based on oral statements from persons outside the FBI. FBI Response at 13.
OIG Reply
The three witnesses we contacted following Williams' interview told us more than that they just did not recall talking to Williams about the VOD. Two said that they did not recall such a conversation but that if they had been asked about the VOD of urea nitrate they would have consulted the Encyclopedia. The third witness said that he was "pretty sure" he did not have the conversation and that he would have had to perform research or make calculations to determine the VOD of urea nitrate (which would have made it more likely he would have remembered the conversation; moreover, any research would have inevitably led to the VOD range in the Encyclopedia). Moreover, there were no casenotes reflecting a VOD range of 14,000 to 15,500 feet per second, but in Williams’ casenotes was the page of the Encyclopedia containing the range of 11,155 to 15,420 feet per second. Further, Williams told us he reviewed the Encyclopedia regarding the VOD of urea nitrate before he testified at the trial. It should also be noted that the 14,000-15,500 range was the exact range Williams estimated for the VOD of the explosive in the bombing. Accordingly, Williams’ testimony may very well have been "intentionally false," and we believe our language referring to "grave doubts about the veracity" of Williams' claim is appropriate. Nevertheless, we have changed the phrase "intentionally false" to "knowingly incorrect" for the sake of precision and have rewritten the paragraph.
FBI Response
With respect to the discussion of Williams’ opinion regarding the VOD of the main charge, the FBI "agrees with the OIG that a broader range should have been given. We disagree, however, with the OIG’s criticism of Williams’ methodology," on the ground that the methodology of inferring a VOD from observations at the scene is permissible as long as the estimated range is broad enough. FBI Response at 13-14.
OIG Reply
We were careful in the Report, however, to criticize Williams’ "application of the methodology" not simply the methodology. Accordingly, the FBI’s point lacks merit.
FBI Response
The FBI contends that the OIG is "overreaching" when we stated in the Report:
Williams’ testimony about the "very limited" "type" of explosives that fit in the 14,000-15,500 feet per second bracket was literally correct, because the many commercial products within that range fall into certain categories or types--namely, dynamites, water gels, emulsions and fertilizer (e.g., ANFO) products. We are concerned, however, that the court may not have understood that within each "type" there are numerous commercial products meeting the 14,000-15,500 feet per second range.
According to the FBI, "[t]here is nothing in the record to suggest that the court was unclear on this matter." FBI Response at 14.
OIG Reply
For the reasons stated in the Report, the language is appropriate. Report at 124.
FBI Response
On cross-examination Williams testified that in his opinion the explosive used in the Trade Center bomb was urea nitrate. He told us that he rendered this opinion based on the chemicals possessed and purchased by the defendants. We concluded that in the context of the examination "it was unprofessional and misleading for Williams, without explanation, to base such an incriminating opinion on a factor (the auxiliary searches) so different from the factors previously relied on (VOD and damage at the scene)." The FBI objects to this conclusion because "[t]he questions posed by defense counsel were admittedly unclear and opened the door to Williams’ opinion" -- the questions "provided Williams with an opening to consider the results of thesearches." The FBI also states that it is "fundamentally unfair" to say that defense counsel "clearly meant" to limit his questions to an analysis of the crime scene. FBI Response at 14.
OIG Reply
We have revised this section of the Report. The revision changes the phrase "counsel clearly meant" to "the question, reasonably interpreted, meant." Our criticism of Williams for using the auxiliary searches to form his conclusion is appropriate and was not changed. The FBI’s general point that defense counsel "opened the door" to Williams’ opinion is specifically addressed in the Report at 131, note 76.
FBI Response
In Part Five regarding Williams we state:
Most egregiously, Williams gave a scientifically unsupportable opinion in stating that the main charge was urea nitrate. That opinion was improperly based on information linking the defendants to urea nitrate that was not related to any scientific analyses of the bomb scene.
The FBI considers this conclusion "unfair" because Williams’ opinion "was elicited by unartful questioning by defense counsel"--"an open-ended question on cross-examination which allowed [Williams] to consider more than the ‘scientific analyses of the bomb scene.’" FBI Response at 39. The FBI does not address our conclusion that the opinion was "scientifically unsupportable."
OIG Reply
We reject the FBI’s argument for the reasons stated in the Report at 131, especially note 76.
FBI Response
Regarding Williams’ testimony about attempting to modify Whitehurst’s dictation, we concluded that Williams’ testimony was, "at a minimum, misleading." The FBI agrees that Williams’ testimony was "incorrect" but complains that we held him "accountable" for interpreting imprecise questions. FBI Response at 15.
OIG Reply
For the reasons stated in the Report, the language in the Report is appropriate. Report at 134-137.
U.S. Attorney Response
The U.S. Attorney points out several factual inaccuracies related to the dates of events, and other matters. U.S. Atty. Response at 2-3.
OIG Reply
These inaccuracies have been corrected.
U.S. Attorney Response
The draft stated that the blue manuals were "circumstantially linked to the defendants." The U.S. Attorney thinks the evidence linking the defendants to the manuals -- the manuals were found in one defendant’s luggage and his and another defendant’s fingerprints were on pages of the manuals -- was stronger than circumstantial evidence. U.S. Atty. Response at 2-3.
OIG Reply
To avoid a debate as to the correct definition of "circumstantial evidence," we dropped the word "circumstantially" from the text of the Report.
U.S. Attorney Response
As a preliminary matter in support of Williams’ testimony, the U.S. Attorney asserts that Williams testified as a "summary witness" and notes that "[t]he Government obtained permission from the Court for Williams to read the entire trial transcript before his testimony and to base his testimony in part on this record." U.S. Atty. Response at 3.
OIG Reply
We requested documentary support for this assertion, and the U.S. Attorney sent us a page of the trial transcript that included the following:
[PROSECUTOR]: And then, secondly, recognizing that your Honor has excluded witnesses under [Fed. R. Evid.] 615. At some point, we are going to get to an expertwitness, an explosive expert witness, who will base his testimony on a lot of other testimony, we will request permission to show him the transcripts.
THE COURT: Sure.
T3986. There is no mention in this passage of Williams testifying as a "summary witness." We construe the passage to mean that the court authorized the prosecution to show the trial transcripts to Williams in his capacity as "an explosive expert witness." Experts may base their expert opinions on all the evidence in the case, and therefore it is commonplace for experts to be allowed to consider the entire trial record despite a general order under Rule 615 preventing witnesses from being present while other witnesses testify.
That Williams, as an expert witness, was permitted to read the trial transcript, however, does not mitigate any of his errors. In particular, we criticize Williams for considering the auxiliary searches in rendering an opinion that the bulk of the main charge was urea nitrate. The basis of our criticism was that this "opinion" was derived from speculation beyond Williams’ scientific expertise. In the above passage, the court did not authorize Williams to read the trial transcript for the purpose of speculating beyond his expertise as "an explosive expert witness." Similarly, the court’s permission to read the trial transcript does not excuse Williams’ other errors, which consisted of inaccurate, incomplete, misleading, and scientifically invalid testimony and other testimony beyond his expertise.
U.S. Attorney Response
The U.S. Attorney makes several points regarding Williams’ role and the use of the Arabic formulas in the manufacture of urea nitrate. The U.S. Attorney observes that, although Williams on direct examination used the first person, singular pronoun "I" in describing who made the urea nitrate, he also used the first person, plural pronoun "we." U.S. Atty. Response at 5-6.
OIG Reply
To maintain a balanced Report, a discussion of Williams’ use of the word "we" was added to the final Report.
U.S. Attorney Response
In a footnote the U.S. Attorney states: "We also do not understand the Draft to be suggesting that urea nitrate was not, in fact, the main explosive in the WTC bomb." U.S. Atty. Response at 6, note 2.
OIG Reply
As noted in the Report, we offer no opinion as to what constituted the main explosive in the Trade Center bomb.
U.S. Attorney Response
The U.S. Attorney contends that the urea nitrate formula in GX 2783 (the blue manuals) was workable. According to the U.S. Attorney, Burmeister said, when recently contacted by the United States Attorney's Office, that one of the Arabic formulas (GX 2783) was "workable" and "close to the methodology that was used at Eglin." U.S. Atty. Response at 7.
OIG Reply
We disagree with the U.S. Attorney's contention that the formula was workable. Report at 91 and note 41.
U.S. Attorney Response
The U.S. Attorney makes several points regarding Williams’ identification of urea nitrate as the main charge in the Trade Center bomb. The Report states that because there was no residue available from which to identify the explosive, "Williams' purported identification of the explosive filled" a "void." The U.S. Attorney argues that this assertion is "unfounded" because "[t]here simply was no such ‘void’ to fill." U.S. Atty. Response at 10. The U.S. Attorney then summarizes the "overwhelming" evidence of the defendants’ guilt. U.S. Atty. Response at 10-12.
OIG Reply
The evidence summarized by the U.S. Attorney only tends to show that (1) the defendants manufactured a urea nitrate bomb and (2) the defendants were involved in the Trade Center bombing. The U.S. Attorney’s summary includes no scientific evidence that the Trade Center bomb in fact used urea nitrate. The "void" referred to in the Report -- a void that was never validly filled -- is the absence of scientific evidence and is therefore a correct characterization. Further, Williams’ own trial testimony indicates that he thought one of the purposes of his testimony was to supply opinions in areas in which the government "may need some assistance" and "to tie this case up in a nice package," which in a sense is an attempt to fill a void. Accordingly, the word "void" is appropriate. Report at 96, note 45.
U.S. Attorney Response
The U.S. Attorney asserts that the absence of chemical evidence identifying urea nitrate, and Williams testimony that urea nitrate "likely served as the main charge," were not "significant" or "critical" to the case, in light of the overwhelming evidence of guilt.
OIG Reply
This point goes to the ultimate effect of the evidence on the outcome of the trial and is a matter beyond the scope of this Report.
U.S. Attorney Response
Regarding Williams’ direct examination about the category of explosives that could have caused the explosives damage, the Report states: "In light of Williams’ OIG testimony, we are deeply troubled that his trial testimony may have misled the court." The U.S. Attorney states that "it is not correct that the court or jury was ‘misled’ by Williams." U.S. Atty. Response at 12.
OIG Reply
We did not conclude that the court or the jury in fact were misled, and given the serious differences between Williams’ OIG and trial testimony, the Report wording is warranted. For clarity, however, the phrase "his trial testimony" was changed to "his testimony on direct examination."
U.S. Attorney Response
On cross-examination Williams at one point stated that "the bulk of the explosive was, in my opinion, urea nitrate." Williams told us he based this opinion on the searches of defendants’ storage facility and bomb factory, which showed that the defendants had the capacity to make a urea nitrate bomb. The draft report criticized Williams’ opinion on two grounds: (1) the questions put to Williams called for an opinion based on the damage at the crime scene and therefore Williams should have limited his opinion to that basis, and (2) it was improper for a scientific examiner to base an opinion on evidence collateral to his Laboratory examinations. The U.S. Attorney objects to the first ground of our criticism, but makes no comment on the second. U.S. Atty. Response at 15-18. In analyzing the pertinent cross-examination, the U.S. Attorney seizes on the phrase "based on everything you know" in one of the questions and asserts that the defense counsel "did not limit his questioning to Williams’ conclusions based on physical data and scientific analysis." U.S. Atty. Response at 15.
OIG Reply
In the context of the examination, however, the phrase "everything you know" appears to have referred to the scientific information available to Williams and everything Williams knew about the damage at the crime scene. Moreover, even if the questioning was inept, Williams had an obligation to restrict his opinions to his scientific knowledge and resist the temptation to speculate about what the explosive must have been based on the defendants’ capacity to manufacture such an explosive. Accordingly, the U.S. Attorney’s point lacks merit and is addressed in the Report at 131, note 76.
Nevertheless, in order to strengthen the Report, we rewrote a portion of this section to accomplish the following: (1) put the second ground of our criticism first, since this is our main point, (2) change some language in the first ground, and (3) add some introductory language stating that Williams’ error consisted of basing an opinion on speculation beyond his scientific expertise.
U.S. Attorney Response
The U.S. Attorney states that Williams "corrected" any misimpression when, in response to questions by the court, he acknowledged that ANFO could have caused the damage at the crime scene. U.S. Atty. Response at 18.
OIG Reply
This point is fully addressed in the Report at 130, note 75.
U.S. Attorney Response
The U.S. Attorney argues that, when Williams told us the main charge "could have been anything," Williams was not basing that on his damage assessment but only on the negative chemical analysis. U.S. Atty. Response at 20.
OIG Reply
Given the question that elicited Williams' answer, we disagree. Report at 126, and note 70.
U.S. Attorney Response
The U.S. Attorney also contends that the statement that the explosive "could have beenanything" should not be taken literally because "Williams was professionally able to narrow the range of possible explosives used in the bomb (to those with VOD’s roughly between 10,000 and 20,000 feet per second)." U.S. Atty. Response at 22.
OIG Reply
This is addressed in the Report at 126-27, note 70.
U.S. Attorney Response
The U.S. Attorney states that the Report "should indicate that it concerns the investigation of Whitehurst’s allegations and is not meant to be a legal analysis or fact-finding concerning the effect of any of the allegations on the verdicts in the trials discussed therein." U.S. Atty. Response at 23.
OIG Reply
We agree with this point, and it is addressed in the Executive Summary and other places in the Report.
U.S. Attorney Response
The U.S. Attorney also asks us to "state, wherever relevant (as in the WTC case), that Whitehurst’s allegations do not concern any tampering with or destruction of evidence." U.S. Atty. Response at 23.
OIG Reply
We do not think this is necessary.
SECTION D: THE BUSH ASSASSINATION ATTEMPT
FBI Response
In this section, the FBI contends that we are unfairly critical of Jordan's failure to include Whitehurst's dictation verbatim in his laboratory report in the Bush matter. The FBI contends that: (1) there were unique circumstances that permitted Jordan to paraphrase and only partially incorporate Whitehurst's dictation; (2) "It seems inevitable that there will be some circumstances that will require that dictation be summarized and a blanket rule requiring that dictation beincluded verbatim [is] . . . unnecessarily inflexible [and] inappropriate"; and (3) we are ignoring the fact that the document in question was not a laboratory report.
OIG Reply: The FBI's objections are not persuasive:
(1)There were no unique circumstances that justified Jordan's actions. Unit Chief James Ronay and Counter Intelligence Section Chief Neil Gallegher told us that they did not ask Jordan to prepare this report in any particular manner. Additionally, there were no apparent space or time limitations that made it difficult to include Whitehurst's dictation verbatim. In fact, Jordan probably spent more time and effort editing Whitehurst's dictation than he would have spent by simply incorporating the dictation verbatim. Thus, we think the circumstances did not justify Jordan's failure to report Whitehurst's dictation verbatim.
(2)The so-called "blanket rule" merely requires that Jordan obtain Whitehurst's authorization before changing his dictation. Such a rule is not inappropriate. Moreover, this rule is in place for important reasons: As we have seen several times in this investigation, when a principal examiner without expertise in a particular area attempts to summarize the expert opinion and findings of an auxiliary examiner, it is far too easy for the principal examiner to inadvertently misstate the auxiliary examiner's findings or subtly change the auxiliary examiner's conclusions. As a result, the auxiliary examiner later may be unable to defend the conclusions stated in the Laboratory report. For these reasons, Laboratory policy clearly required verbatim inclusion of auxiliary examiner dictation at the time of Jordan's report, unless the auxiliary examiner agreed to the change, which did not occur here.
The FBI fails to appreciate the importance of the verbatim rule. Indeed, although the FBI generally purports to recognize the importance of this rule in other parts of its response, its response in this particular case -- that a blanket rule requiring that dictation appear verbatim is "inflexible" and "inappropriate" -- conflicts with that position. Notably, such mixed signals were precisely the problem that existed in the Explosives Unit. The Explosives Unit's lax adherence to the verbatim rule fostered a permissive attitude about altering dictation that led to the unauthorized changes described in the Thurman and Higgins Sections of our report.
(3)Contrary to the FBI's assertion, the document in question was a laboratory report.
(4) Examiner Alan Jordan also requested that his name be deleted from this chapter because of concerns for his safety. After careful consideration, we decided not to delete Jordan's name for several reasons. First, the FBI said that it was unaware of any threat that specifically targets Jordan or any FBI employee based on their role in the investigation of the Bush assassination attempt, and the FBI declined to take a formal position with respect to deleting Jordan's name. Second, if we deleted his name, we would be treating him differently from numerous other FBI examiners whose work is discussed in our Report andwho, if given the option, would request that they not be identified by name in the Report. We have determined that because of the high level of legitimate public interest in the contents of this report, the names of the individual Laboratory examiners should be included. In this respect, Jordan is no different than the other FBI Laboratory employees whose names are contained in the Report. Finally, we believe that omitting his name would unduly highlight this section of the Report and inevitably lead to questions about the identity of the examiner whose conduct was at issue. In other words, we believe that deleting Jordan's name would have the opposite effect of what he intends and result in concerted efforts to identify Jordan by the media and defense counsel.
SECTION E: AVIANCA CASE
FBI Response
The FBI contests our conclusion that Hahn "slightly overstated his experience" regarding his activities in the Pan Am 103 and World Trade Center cases. The FBI states that the Report "mischaracterizes Hahn’s claim of ‘assessing’ evidence as ‘analyzing’ evidence -- two very different processes." FBI Response at 20, note 38.
OIG Reply
Hahn did not testify that he "assess[ed]" "evidence." He testified he was involved in assessing the "causes of [the] explos[ions]" -- which, for the reasons set forth in the Report, was inaccurate.
FBI Response
The FBI contests our conclusion that Hahn’s testimony about the structure of the aircraft "appears to require expertise that Hahn lacked." The FBI argues that we ignored the fact "that Hahn testified from official Boeing diagrams and with the knowledge base of other investigative team members." FBI Response at 20, note 38.
OIG Reply
The diagrams and the opinions of the other team members did not make Hahn an expert in aircraft structure.
FBI Response
The FBI requests that we "delete any suggestion that Hahn formed his conclusions to support the prosecution’s theory of the case." FBI Response at 21.
OIG Reply
This presumably is a reference to a statement in the Conclusion that we omitted from the final Report as explained in note 141 of the Report at 201.
FBI Response
The FBI objects to portions of our discussion of Hahn’s testimony that correlated pitting and cratering with a high velocity explosive. FBI Response at 21-23.
(1)The FBI first asserts that Hahn’s testimony "has been taken out of context by the OIG." The FBI contends that the purpose of Hahn’s testimony was to give "the approximate VOD that could have caused the observable damage, including the pitting and cratering." FBI Response at 21.
(2)The FBI repeats the position taken by Hahn in his OIG interviews that his testimony should not be "taken literally." FBI Response at 21.
(3)The FBI objects to "criticism that Hahn’s opinion . . . was offered in an attempt to help the prosecution’s case." FBI Response at 22. See also FBI Response at 23 ("that Hahn’s testimony ‘was intended to buttress the prosecution’s case’").
(4)The FBI also cites a Colombian Laboratory Report that states that certain damage (not the pitting and cratering) was "characteristic of high explosives traveling at a velocity of 20,000 to 23,000 feet per second" as corroboration for Hahn's conclusions. FBI Response at 23.
(5)The FBI states: "While we agree that Hahn’s opinion may have lacked adequate supporting scientific data, Hahn did in fact have sufficient experience to offer that opinion at that time." The FBI then summarizes Hahn’s experience. FBI Response at 23.
(6)The FBI asserts that the Report "is unfairly critical" of Hahn’s failure to make inquiries about the validity of his jetting theory because "that aspect of his testimony was neither material to a finding of guilt nor susceptible, at that time, to ready validation." FBI Response at 23.
OIG Reply
(1)Hahn did not testify that an explosive with a VOD of 20,000 feet per second "could have caused" the pitting and cratering, but rather that such an explosive "did that damage." The testimony was not taken out of context.
(2) The FBI's contention that Hahn's testimony should not be "taken literally" is addressed in the Report, which discusses the validity of Hahn’s opinion if it is not taken literally. Report at 168-71.
(3)As we stated in the Report, Hahn himself noted in his OIG testimony that he was "certain" that the testimony was offered to contradict the Confessor’s story should it be introduced.
(4)Hahn never said he relied on the Colombian Laboratory report in rendering his opinion on pitting and cratering, and he has criticized the competence of the Colombian Laboratory. Further, the velocity range in the Colombian Laboratory Report is below the velocity of Semtex, which Hahn and the prosecution thought may have been used in the bombing. Additionally, the Colombian Report does not render a categorical conclusion, as Hahn did, that the explosive definitely had a VOD of 20,000 feet per second or more. Accordingly, the FBI’s point lacks merit.
(5)In the Report we set forth the basis for our conclusion that Hahn’s experience was inadequate. Report at 166-71.
(6)The jetting theory was material to Hahn’s analysis of the pitting and cratering. If Hahn’s theory was not "susceptible, at that time, to ready validation," then he should not have used it to reach his conclusions.
FBI Response
The FBI objects to portions of our discussion criticizing Hahn for testifying incorrectly and outside his expertise about a fuel-air explosion. FBI Response at 24-25.
(1)The FBI complains about "the OIG’s suggestion that [Hahn] attempted to mislead the jury." FBI Response at 24.
(2)In support of Hahn’s testimony about a fuel-air explosion, the FBI cites the report of Walter Korsgaard, the FAA representative who investigated the Avianca crash. FBI Response at 24, note 52.
(3)The FBI states that Hahn’s role at trial was, in part, "to summarize the conclusions of other witnesses. That summary witness role was apparently what led to some of Hahn’sdifficulty and we believe the OIG is unnecessarily critical of Hahn in this regard." FBI Response at 24.
OIG Reply
(1)The FBI does not cite to a page of the Report in support of this assertion, and the assertion is incorrect. We specifically concluded that Hahn did not intend to mislead the court. Report at 200.
(2)Korsgaard’s report is addressed in the Report at 181-82.
(3)This point is addressed in the Report. The FBI’s claim (FBI Response at 24-25 and note 52) that Hahn used the word "we" to indicate that the opinion being rendered was the product of a "joint effort" with the other experts is a mischaracterization of the record as it applies to Hahn’s testimony in the second trial concerning a fuel-air explosion. The use of the word "we" cited in note 52 only applied to the discussion of the voice data recorder.
FBI Response
Regarding Hahn’s testimony that certain injuries to the passengers (hard, burnt skin and skulls that had been cracked open) supported his theory of a fuel-air explosion, the FBI states: "Hahn has informed us that he was used as a summary witness in this regard as well and that he simply discussed the findings of the medical examiner about which he was aware." FBI Response at 25.
The FBI also argues that Hahn’s testimony is supported by the report of the Colombian agency that investigated the Avianca crash. The Colombian report stated: (1) "Generalized explosion of head, apparently produced during the explosion"; (2) "the lesions and the burns observed on the bodies were caused by an explosion inside the airplane while it was still in flight and subsequently was aggravated by the detonation of some type of gas (oxygen, cumbustible vapors, or some other element)." Response at 26.
OIG Reply
The summary witness point is addressed in the Report at 186, note 124.
In his testimony, Hahn did not purport to summarize the Colombian report. Moreover, Hahn’s testimony was different from the quoted passages in the Colombian report. The Colombian report, for example, suggests that the explosion of the heads occurred from the initial, not the secondary, explosion. The second passage in the Colombian report does not specifically discuss the hard, burnt skin and indicates that "the burns" were caused by the initial explosion and only "aggravated" by the secondary explosion; moreover, the secondary explosion is notspecifically described as a fuel-air explosion or flash fire. Hahn, on the other hand, did not discuss the "burns" generally but only a particular type of burn, and he said this type of burn was specifically caused by the secondary explosion, which he characterized as a fuel-air explosion or flash fire.
FBI Response
The FBI contests our discussion of Hahn’s incomplete testimony about Whitehurst's scientific results. Without addressing the analysis in the Report, the FBI asserts that "Hahn’s testimony at trial was responsive to the questions asked," notes that Bender not Whitehurst conducted the instrumental examinations, and asserts that Hahn could ignore the Whitehurst Memorandum since he received no guidance from his supervisors. FBI Response at 27.
OIG Reply
For the reasons stated in the Report, these contentions lack merit. Report at 177-79.
U.S. Attorney Response
In the Conclusion to the Avianca Section, the draft Report stated regarding Hahn:
We conclude that in the Munoz trials Hahn did not commit perjury, fabricate evidence, or intend to mislead the court. We also conclude that he committed several errors[, which are listed.] . . . All of these errors tended to help the prosecution’s case or rebut a defense.
The U.S. Attorney objects to the final sentence in the above paragraph, arguing that Hahn’s testimony about the explosive used on the aircraft did not "tend[] to help the prosecution’s case or rebut a defense." U.S. Atty. Response at 2.
OIG Reply
For the reasons given in the Report at 200, note 140, the sentence was deleted.
Furthermore, we agree with the U.S. Attorney's point regarding the use of the word "rebut." Although we state explicitly in the Report that the Confessor defense was not interposed in either trial, we think the word "rebut" could engender confusion. Accordingly, throughout the section, references to "rebutting a defense" are changed to "contradicting a potential defense."
U.S. Attorney Response
The U.S. Attorney makes several additional points regarding our criticism of Hahn's testimony about the type of explosive used in the Avianca bombing. First, the U.S. Attorney argues that the type of explosive (and the dispute between Hahn and Whitehurst concerning it) was irrelevant to the trial.
Second, the U.S. Attorney asserts that if dynamite had been used on the aircraft, the prosecution’s case would have been strengthened because witnesses linked the defendant to the terrorist use of dynamite; therefore, Hahn’s testimony that dynamite was not used cannot be deemed supportive of the prosecution’s case. U.S. Atty. at 3-6.
Third, the U.S. Attorney states that Hahn’s elimination of the use of dynamite actually helped the defendant because terrorists other than the defendant’s group had access to such explosives as Semtex. U.S. Atty. Response at 6.
OIG Reply
Regarding the issue of relevancy, the U.S. Attorney overlooks the fact that the Confessor's statement, if true, would have exonerated the defendant. The Confessor defense, therefore, clearly related to the issue of whether the defendant participated in the bombing. Additionally, we note that the testimony in question was elicited by the prosecution in both trials; in 1994, therefore, the prosecution must have thought the testimony was relevant to something. In any event, Hahn's errors cannot be excused because in retrospect his testimony may be deemed "irrelevant."
The remaining arguments are unpersuasive. The Report does not say that Hahn should have testified that dynamite was used. Rather, the Report says that he erred when he excluded the use of dynamite. Had Hahn testified correctly, he would not have established the use of dynamite. Furthermore, since eliminating dynamite also contradicted the Confessor’s story, elimination of that explosive would have also potentially hurt the defendant. Moreover, Hahn told us he believed he was helping the prosecution by contradicting the Confessor’s story when he testified concerning the explosive.
U.S. Attorney Response
The U.S. Attorney's final point regarding the usefulness to the prosecution of Hahn's testimony about the type of explosive is that the prosecution had no need to discredit the Confessor because (1) the Confessor did not testify and (2) other evidence rebutted him although Hahn may have been unaware of it. U.S. Atty. Response at 9.
OIG Reply
Regarding the first point, Hahn believed his testimony was elicited in anticipation of a defense based on the Confessor's statement. Whether the defense strategy would have been different had Hahn given different testimony is unknown. The second point relates to whether Hahn’s testimony was cumulative. Even if it was, it nevertheless contradicted a potential defense.
U.S. Attorney Response
The U.S. Attorney argues that Hahn’s testimony about a fuel-air explosion and the injuries to the passengers was permissible because Hahn testified as a "summary witness." U.S. Atty. Response at 10-14.
OIG Reply
This point is addressed in the Report at 184, 186, notes 121, 124.
U.S. Attorney Response
The U.S. Attorney asserts that we concluded that there was no fuel-air explosion. U.S. Atty. Response at 16.
OIG Reply
The U.S. Attorney's assertion is incorrect, and we address this point in the Report at 181, note 119.
U.S. Attorney Response
In the draft Report we stated that Hahn testified to "a distinct demarcation line" between his duties and those of the FAA and NTSB representatives because he said they were only concerned with the possibility of a mechanical failure of the aircraft. The U.S. Attorney points out that Hahn testified only that they were "primarily" concerned with the issue of a mechanical failure. U.S. Atty. Response at 12.
OIG Reply
The Report was modified accordingly.
U.S. Attorney Response
The U.S. Attorney objects to our criticism of Hahn's testimony about his experience in the World Trade Center and Pan Am 103 cases. U.S. Atty. Response at 13.
OIG Reply
Regarding the statement of Hahn’s experience, we did not say, as the U.S. Attorney suggests, that Hahn’s experience in those cases was irrelevant, only that he "overstated" that experience.
U.S. Attorney Response
Hahn testified that certain injuries to the passengers (hard, burnt skin and cracked-open skulls) were indicative of a fuel-air explosion. The Report states:
In fact, the injuries are not consistent with a flash fire or fuel-air explosion, which are of short duration. Rather, the injuries indicate that the bodies were subjected to substantial heat for a significant period of time. [Footnote and citation omitted.] When we pressed Hahn on this point, he acknowledged that the injuries to the bodies did not justify the opinion that a fuel-air explosion occurred but rather that there was a hot fire burning for a continuous period of time.
(Underlining added.) The U.S. Attorney complains that the underlined language is inconsistent with the evidence, which indicates that the aircraft was aloft and intact for only a minute or two, at most, after the detonation of the explosive device. U.S. Atty. Response at 15.
OIG Reply
This point is addressed in the Report at 185, note 123.
U.S. Attorney Response
The U.S. Attorney argues that Hahn’s testimony regarding the burnt skin, that is, that certain injuries including the passengers' burnt skin was indicative of a fuel-air explosion, is supported by the following passage from the report of the Colombian agency that investigated the Avianca crash: "reported damages to portions of the body relating to sudden burns, including the skin on the legs and hands which were rigid in their normal shape from the onset of the burns, albeit lacking their internal tissue." U.S. Atty. Response at 15.
OIG Reply
Hahn’s testimony, however, did not purport to summarize the Colombian report, and it was Hahn who inferred that the "sudden burns" were caused by a fuel-air explosion or flash fire.
U.S. Attorney Response
The U.S. Attorney requests that we state whether we agree with Hahn’s "ultimate opinion" that an explosive device functioned on the aircraft, breaking it into pieces and causing the deaths of the passengers. U.S. Atty. Response at 17.
OIG Reply
This point is addressed in the Report at 181, note 119.
SECTION F: ROGER MARTZ’S TESTIMONY IN O.J. SIMPSON CASE
FBI Response
The FBI objects to the draft Report’s criticism of Martz’s courtroom presentation during the Simpson trial on the grounds that such criticism is (1) outside the scope of the OIG’s mandate, (2) inherently subjective, and (3) unfairly singles out Martz for criticism. FBI Response at 30-31.
OIG Reply
The FBI’s objections are not persuasive:
(1)The OIG’s mandate is broad enough to encompass analyses of Martz’s courtroom demeanor, especially since Martz’s demeanor was related to his lack of preparation. Also, courtroom presentation is a essential element of the Laboratory’s mission and therefore is an appropriate area of comment.
(2)Our judgments about Martz’s courtroom presentation were not unfairly subjective: We reviewed a video tape of his testimony and could easily and appropriately use our experience as testifying experts and prosecutors to conclude that his testimonial presentation was sub-standard. Moreover, according to SAS Chief Randy Murch, even Martz acknowledged that his courtroom performance could have been better.
(3)Finally, we did not unfairly single out Martz for criticism. Rather, we examined the allegation that was made.
SECTION G: OKLAHOMA CITY CASE
FBI Response
Although generally not disputing our assessment of Williams’ "incomplete, categorical, and otherwise too specific conclusions" (FBI Response at 15), the FBI objects to language indicating that Williams tilted his conclusions in favor of the prosecution’s theory of the case. FBI Response at 16-17.
OIG Reply
There are several items at issue:
(1)In the Introduction to the draft Report, we stated: "As explained below, we conclude that certain conclusions in Williams’ report are scientifically unsound, are not explained in the body of the report, and are biased in favor of the prosecution (italics added)." In the final Report this sentence was rephrased to put the emphasis on incrimination of the defendants rather than bias in favor of the prosecution.
(2)Regarding Williams’ incomplete statement of the VOD of urea nitrate, the draft Report stated: "Williams thus stated that the approximate VODs of both the main charge and ANFO were each 13,000 feet per second, which supported the prosecution’s theory of the case that the defendants caused the Oklahoma City bombing by detonating an ANFO explosive (italics added)." The sentence was rephrased to put the emphasis on support for Williams’ theory rather than the prosecution’s.
(3)Regarding Williams’ identification of the explosive as ANFO, we stated in the draft Report:
We conclude that it was inappropriate for Williams to render a categorical opinion in his report that the main charge was ANFO. As discussed with reference to the World Trade Center case, it is inappropriate for a forensic examiner to identify the main charge based in whole or in part on prior knowledge of the explosive components purchased by a defendant. Such an identification is not based on scientific or technical grounds and appears to tailor the opinion to evidence associated with the defendants.
Report at 4-5 (italics added). We believe the word "tailor" is appropriate here, since it is an accurate general observation. Moreover, that Williams may have estimated on the day of the bombing that 4,000 pounds of ANFO were used (FBI Response at 16) does not alter our view regarding the word "tailor," because (1) when he wrote the report he was aware of the evidence associated with the defendants, (2) he told us he relied on that evidence inreaching his conclusion, and (3) in Williams' report the conclusion is presented as a categorical expert opinion whereas the statement on the day of the bombing could only have been an educated guess.
(4)In the draft Report, we stated, "We are troubled that Williams' opinion as to weight may have been tailored to conform to the evidence associated with the defendants." We deleted this comment from the body of this section but included the following statement in the Conclusion regarding all of Williams’ errors: "We are troubled that the opinions in Williams’ report may have been tailored to conform to the evidence associated with the defendants." The section of the Conclusion regarding Williams was rewritten accordingly.
(5)In the Conclusion of the draft Report we stated: "These errors were all tilted in favor of the prosecution’s theory of the case." In the final Report this sentence was rephrased to put the emphasis on incrimination of the defendants rather than support of the prosecution.
FBI Response
The FBI "agree[s] with the draft report’s conclusion that Thurman should not have approved Williams’ report in the Oklahoma City bombing case," but has two specific complaints regarding our discussion of Thurman. First, the FBI contends that Thurman was interrupted in his response to the OIG regarding "home-made type" explosives and should be given the opportunity to clarify his response. FBI Response at 43.
OIG Reply
This point is addressed in the Report at 236, note 167.
FBI Response
Second, the Report states: "Thurman acknowledged that 2000 pounds of ANFO and 500 pounds of commercial dynamite could have been used in the [Oklahoma city] blast." The FBI states that "[a]ccording to Thurman, the inquiry concerning this composition was posed as a hypothetical scenario rather than as a specific reference to the Oklahoma City case." FBI Response at 43.
OIG Reply
The "hypothetical scenario" was a reference to the Oklahoma City case. Thurman’s answer was, "[T]hat [referring to 2000 pounds of ANFO and 500 pounds of commercial dynamite] could have happened." Thus, the statement in the Report is accurate.
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