FBI Plays UAL Flight 93 CVR Tapes Over ALPA Objections

The FBI played the tape from the cockpit voice recorder for families of the victims of United Airlines Flight 93, which crashed near Shanksville, Pa., on Sept. 11, 2001. The playing of the tape took place April 18 in Princeton, N.J., despite ALPA’s strenuous objections to U.S. Attorney General John Ashcroft and FBI Director Robert Mueller.

ALPA’s president, Capt. Duane Woerth, sent strongly worded letters to both Ashcroft and Mueller noting that the playing of the tape was "contrary to congressional intent, contrary to precedent, and contrary to the underlying legal principles justifying the existence of the CVR."

ALPA made an extremely difficult decision to not fight the Bush Administration in court on its decision to play the CVR to the families of the victims of the terrorist attack on United Flight 93. ALPA considered that national security interests were at stake and that the successful prosecution of those responsible for this horrendous crime was a compelling matter.

Prosecutors pointed to a loophole in the legislation governing use of the CVR. The loophole permits release of the CVR recording when the FBI, rather than the NTSB, is in charge of investigating the event. Unfortunately, it appeared likely that the Bush Administration would prevail and, for practical purposes, would substantially expand the loophole if ALPA pressed the matter in federal court.

The FBI said it would play the CVR tape only for members of the victims’ families who were willing to serve as potential penalty-phase witnesses in the capital murder trial of Zacarias Moussaoui, the alleged hijacker who has been indicted for conspiracy to murder more than 3,000 Americans on Sept. 11, 2001. Under current law, victims of capital crimes, such as the members of the families of the United Flight 93 victims, may present impact statements and have access to the government’s evidence during trial preparation.

ALPA worked behind the scenes to try to reverse the Administration’s decision to play the CVR tape to the families of the United Flight 93 victims. After the Association saw that the Bush Administration was determined to bow to political pressure from the families of the victims, ALPA’s Legal Department began intense negotiations with the office of the U.S. Attorney General regarding the procedures to be used.

ALPA’s letters to Ashcroft and Mueller, plus Assistant U.S. Attorney David Novak, outlined the minimum safeguards that the Association demanded be put in place before the tapes were aired:

1. The CVR tape should be played for a minimum number of potential trial witnesses, each of whom, for purposes of trial, is under the control of the United States. Adequate security control and identification procedures must be in place at any facility where the CVR tape is to be played, to prevent unauthorized recording or access.

2. A judicial Protective Order of Confidentiality should bind each person who listens to the CVR tape.

3. No unnecessary disclosure of the contents of the CVR to the news media during trial must occur.

Ultimately, the Department of Justice addressed some of the Association’s concerns, although not ALPA’s overriding complaint that playing the tape was an outrageously inappropriate use of the tape and likely would serve no useful purpose.

ALPA representatives present in Princeton for the April 18 playing of the CVR tape included members of the United Airlines Master Executive Council. They were in Princeton to help support the widows of both United pilots, as the widows had elected to listen to the tape.

Since CVRs were introduced in airline cockpits in 1964 as tools for accident investigation, ALPA has fought to prevent public disclosure of their recordings, for two reasons—to protect the privacy of the flight crew and to safeguard the "laboratory conditions" under which accident investigations are conducted.

ALPA successfully pushed for amendments to federal law in 1982 and 1990 to restrict the release of CVR tapes. Amendments to the Independent Safety Board Act in 1990 restricted release of the tapes by the NTSB, but the fact that the Sept. 11, 2001, crashes were deliberate acts of murder, not accidents, led to the playing of the tape.

Capt. Woerth issued a public statement on April 18, the day of the airing of the CVR recording, to make the Association’s position on this sensitive issue clear:

"Pilots across the country mourn their fellow pilots, crew members, and all passengers who perished on the four flights that crashed at the hands of terrorists on Sept. 11, 2001. We empathize with all surviving family members and certainly understand the desire of those who had loved ones on United Flight 93 to seek solace and closure to this horrific act of terrorism. Our compassion and understanding, however, must not overshadow our determination to protect the CVR as an effective tool in the accident investigation process. We are disappointed that the Justice Department could not be swayed, despite our many requests, from using the CVR in this manner.

"Playing the CVR for family members goes against the fundamental principles of the recordings—the gathering of useful information to determine the cause of an accident, so future occurrences could be prevented. Pilots embraced this intrusion into their workplace and invasion of their privacy on the strict condition that the CVR, an endless loop tape of 30 minutes, would be used only within the accident investigation process.

"ALPA has long been concerned that leaks of CVR tapes lead to sensationalism and speculation as to the causes of an accident, which can taint the accident investigation process. The release of CVR information has also shown that the public tends to focus on nonpertinent conversations rather than the air safety factors associated with the accident.

"At ALPA’s urging, Congress passed legislation in 1982 and 1990 restricting the NTSB from releasing CVR information in an attempt to stem abuses. When the laws concerning CVR use were being written, no one could have predicted the situation in which we now find ourselves, where another government agency with access to the evidence would decide to play the CVR to individuals outside of the investigation. This violates the assurances of privacy that pilots were given by proponents of the CVR concept at the time it was implemented.

"ALPA is concerned that the well-intentioned playing of the United Flight 93 CVR recording could set another precedent that will erode the accident investigation process as well as the privacy that pilots have a legal right to expect."