Thursday, September 29, 2011

Brazil Crash 5 Years Later: The Media Epilogue

[Photo: Another hot conspiracy tip is checked out by the Brazilian media]

Brazil is a country full of sensible and intelligent people who, as we Americans are also, are generally tending toward the cynical due to hard experience with official mendacity. They are citizens who often roll their eyes at the utter asininity of their own news media.

Hence it is no surprise that some Brazilian news media, behaving like the Keystone Kops of world journalism, have been ripe all week with five-year anniversary stories that repeat lies and xenophobic conspiracy theories, as if the record is still in any serious dispute about happened at 37,000 feet over the Amazon late in the afternoon of Sept. 29, 2006.

What happened is this: A Brazilian commercial airliner, a Boeing 737 with 154 aboard bound from Manaus to Brasilia, collided without warning with a Legacy 600 business jet with seven onboard at 37,000 feet over northern Mato Grosso state in the Amazon jungle. The business jet was bound for Manaus from the Embraer aircraft manufacturers headquarters near Sao Paulo, where the business jet had just been purchased by an American charter company.

All 154 on the 737 died in a horrible plunge to the jungle, where their bodies were found after days of terrifying work by rescuers who literally had to hack their way to the horrifying site battling swarms of bees and biting bullet-ants. The courage and professionalism displayed by those Brazilian rescuers, military and civilian, was stunning under those terrible conditions.

All seven on the badly damaged business jet survived, myself among them. The business jet managed an emergency landing at a jungle landing strip after 25 minutes of desperate flight.

There were three commercial planes in the Brazilian skies over the vast Amazon at the time -- and two of them hit each other. (The other was a Polar Air cargo plane, a 747 whose pilot heard the Legacy's "Mayday" call on his radio and helped the business jet pilots to locate the jungle airstrip.)

The basic cause of the crash was determined by the U.S. National Transportation Safety Board (NTSB) to have been operational and systemic errors by Brazilian air traffic control, which had mistakenly cleared both planes to fly at 37,000 feet on that leg of their opposing routes. The American pilots' original flight plan had them at 36,000 feet on that leg, which is the standard air-lane across the Amazon, but it's axiomatic that air traffic control instructions supersede a flight plan that's given before takeoff.

The NTSB was part of the investigation because an American-made plane was involved -- the Boeing, not the Legacy -- and some of the key avionics equipment was made by the American company Honeywell. The Brazilian Air Force, which runs air traffic control in that country, did its own investigation, along with the federal police. That investigation laid most of the blame on the American pilots, and some on a handful of low-ranking Brazilian air traffic controllers.

Several factors added to the conditions that led to the disaster. The most prominent was that the transponder on the brand-new Legacy was not working properly. A transponder, besides signaling position, also encompasses the traffic collision avoidance system (TCAS, pronounced "tee-kass"), an alarm system to warn both airplanes to take evasive action in an imminent collision. There were also other technical problems in radio and radar communications in the deepest part of the Amazon, but the transponder was the biggest one.

There has been a lot of speculation about why the transponder wasn't functioning. There has been no evidence introduced to show that the American pilots turned it off.

Unnoticed by the American pilots, and by Brazilian air traffic controllers, the Legacy's transponder was, however, offline for about 50 minutes before the crash, meaning that the TCAS was not operative when both planes suddenly closed in on each other at about 500 miles an hour each.

Abruptly, right after the impact of collision, the TCAS on the Legacy evidently suddenly went back online. Subsequent investigations noted that there is no adequate warning given in the cockpit about the state of this particular type of transponder.

Meanwhile, there are serious questions, many deeply embedded in litigation, about the technical functioning of the transponder that was installed in the Legacy as new equipment. This is not the place to evaluate that.

Suffice to say that it was not functioning, or not functioning properly. Yet in Brazil, there were and remain those who claim that the American pilots for some reason had chosen to turn off the transponder. Some of the Brazil media continue to lend credence to a reckless theory, that the pilots mysteriously chose to deliberately turn off the transponder, perhaps to hide their movements in the sky.

The Brazilian news media were deeply complicit in this in the earliest days, incidentally. When I got home from Brazil after the crash, I found myself (and my family) overwhelmed by international news-media attention (on two days, broadcast crews were lined up outside my home like trick-or-treaters). Amid this, the Brazilian defense minister at the time, an old politician later fired for gross incompetence named Waldir Pires, put out the crazy theory that the American pilots were doing "aerial maneuvers" to "test the equipment" -- that is, the new $25 million airplane -- in the vast, empty skies of the Amazon when the collision occurred.

(That demented conspiracy-theory was even elaborated upon by the media, with the assertion that the aerial maneuvers were being performed to "impress the North American journalist" riding along on the business jet.)

The craziness about aerial maneuvers was also stated at a widely attended news conference in Brazil by a lawyer with one of those law firms that engage in a kind of international ambulance-chasing after aviation disasters. She claimed that I myself had told Brazilian police that the plane was doing reckless maneuvers at the time of impact.

I, of course, said no such thing. During interrogations in the jungle and the next night at police headquarters during an all-night questioning session, I had said repeatedly that the Legacy was flying straight and level at 37,000 feet (I'd seen the altimeter) when the collision occurred.

The reckless charge of illegal aerial maneuvers was widely reported (even internationally by Dow Jones News Service, which subsequently issued a correction). It's in fact what initially prompted me to start blogging aggressively about the mess in Brazil, where I saw a gross miscarriage of justice starting to gather momentum.

It's important to note this, in a "media" epilogue, because that was the start of the trouble for me -- after, I mean, the trouble of being the innocent victim of a horrifying crash and being detained incommunicado in the jungle and questioned for days.

My initial story on the crash on the front page of the New York Times, written the day I got back, ignited a fury in Brazil that caught me totally off-guard. Suddenly, there were torrents of ugly denunciations of me coming from Brazil, including death threats by e-mail and by phone at my home in New Jersey. I was flabbergasted by this, and by the lies that the Brazilian media reflexively repeated, and even added to, as the media embraced the "ugly Americans" narrative.

[UPDATE: This nonsense continues to this day. For example, a Brazilian literary piss-ant by the name of Ivan Sant'anna has lugubriously "reconstructed" the accident in a book recently published in Brazil, unnoticed in the rest of the world. This self-regarding nonentity Sant'anna had previously spent three years "meticulously investigating" the vastly underreported 9/11 attacks far away in the hated America, to give you some idea of his priorities. Sant'anna's account of the Amazon crash is the usual anti-American tripe, but I was taken by his reference to me "strutting in the United States" as I was confronted with media attention after the crash. That was an amusing way to describe my own ordeal, to say the least. Oh, and piss-ant, incidentally, will be easier for Ivan to spell than Tupinikim.]

Anyway, back to 2006. Aghast at the anti-American hysteria, concerned that this emotionalism was getting in the way of an honest investigation into the causes of the crash, I began blogging my observations and my reporting about the aftermath of the disaster in Brazil, where the pilots were detained for two months till a judge ordered their release in December 2006. This created another media firestorm of anti-Americanism.

In Brazil, media had a field day fanning public emotion against the Americans. During the violently repressive military dictatorship that ruled the country from 1964 to 1985, Brazilian media were slavishly eager to convey propaganda and otherwise remain on their knees to serve their masters, the odious coup generals. Maybe old habits die hard. In no time at all, the media narrative in Brazil became: Ugly fat-cat Americans getting away with murder; American journalist causing "dishonor" to Brazil; Americans lying to cover up their crimes.

There is no need here to get into all of the nasty details of this spectacle. I think a defamation lawsuit filed against me by a Brazilian woman whose husband had died in the crash -- a lawsuit still widely given credence today in Brazilian media -- says a lot about the degree of accuracy and honesty involved.

The jumbled, rambling and fascinating lawsuit complaint was delivered to my front door late one dark night by a shifty-eyed process server working under the aegis of a New York law firm, Grant Hermann Schwartz & Klinger, a firm working on behalf of the Brazilian plaintiff.

High up in the complaint, which had been filed against me in a Brazilian court, it states the following: [Brackets mine].

"There is a rumor that the defendant [that is, me] made the ill-fated journey with the intent of writing an article about the Amazon, intending to demonstrate that the air space belongs to no one, the reason for this [being that] he asked the pilots to turn off the device [the transponder] that would allow them to be detected in that space, and this is why he feels such a responsibility to clear the pilots of all blame for the accident."

Besides highlighting an insane rumor that I was part of a secret imperialist plot to claim Amazon airspace for some unnamed entity, and asked the pilots to turn off the transponder, causing the deaths of 154 people in the process, the lawsuit also claims that I referred to Brazil as "the most idiot of idiots" and an "archaic country" that is a "land of Tupiniquins and bananas." [Tupiniquin, I later learned, is a word, based on the name of an Amazon tribe, vaguely loosely and informally used in Brazilian Portuguese the sense of "Yank" in American English.]

I was also accused of using an old screen shot of the Keystone Kops atop a couple of blog posts in 2007 questioning the competence of the Brazilian authorities who were clearly hellbent on scapegoating the American pilots. (Well, OK, I did use that wonderful Keystone Kops screen-shot, which I have also employed from time to time to make fun of certain American official foolishness. But in America, we appreciate ridicule -- which, of course, was the basic idea of the original Keystone Kops silent-movie features in the first place!)

In Brazil, employing the Keystone Kops to illustrate the authorities' and media ineptitude was offered as further evidence that I had personally defamed the woman who brought the libel suit against me, Rosane Gutjahr, whose husband had died in the crash.

The fact that I had never heard of Gutjahr, and had never written or said a single word about her, was of no consequence to the Brazilian media, or to the Brazilian lawyers in her employ. Nor was the fact that I had never called the nation of Brazil "the most idiot of idiots," nor said or wrote any of those other strange things (none of which even sound like they came from a native English-speaker).

No. I had offended Brazil by my critical reporting (which incidentally has never once been shown to be inaccurate) and by my attitude, which was obviously disdainful of the spectacle I was witnessing in Brazil and the authorities -- and media -- behind it. And in offending the authorities in Brazil with my reporting, the lawsuit and the media argued, I had also personally offended every single one of the 190 million citizens of Brazil, including Gutjahr, who continues to press the case against the pilots and me literally to this day.

[To this day, I am amazed by the delusion of some in the Brazilian media that they are somehow protected against my seeking financial damages against them for the obvious, maliciously reckless libels they have committed against me, with no regard for the demonstrable truth, and even after they have been warned to desist. I mean, you really can't go around falsely accusing someone of perjury and homicide, even in Brazil.]

The fact that nothing I wrote, said or implied about the botched investigations in Brazil was even remotely actionable under U.S. free speech protections was also not of evident import. The Brazilian lawyers sought to have a defamation judgment imposed against me in the U.S. and, even after a Brazilian judge wisely threw out the suit, renewed their efforts to have the suit reinstated -- this time accompanied by a criminal charge.

Meanwhile, anniversary stories in Brazilian media today and this past week quote people, some being guided by lawyers, insisting that the Americans be hauled back to Brazil to be imprisoned for their "crimes."

The American pilots, Joe Lepore and Jan Paladino, were criminally convicted by a regional court in Brazil last May, in absentia, on charges loosely related to the malfunctioning transponder.

The judge later reduced their four-year prison sentence to community service in the U.S. -- an action that has no force of law in the United States. On the other hand, assuming the community-service sentence stands on appeal (prosecutors are seeking to have jail time reinstated), it could arguably but unfortunately be in the pilots' interest to actually serve it in the U.S. -- if only in order to remove the stigma of having defied one nation's justice, given that being in such defiance might cause liability for them in future international travel, not just to Brazil but to some other countries.

All of these things remain on appeal.

Lepore still flies for the Long Island charter company that had just bought the jet on Sept. 29, 2006, and which invited me to ride along while I was writing a freelance story (for Business Jet Traveler magazine, about Embraer at their headquarters near Sao Paulo.) Paladino now works for American Airlines.

Five low-ranking Brazilian air traffic controllers were indicted along with the two American pilots, but on lesser charges. Two controllers were convicted. [CORRECTION: This is corrected from the original "one," and thanks to Richard Pedicini in Sao Paulo]

Five years later, people ask me, has anything good come out of this horror?

My answer is, no, not really. In Brazil, 154 men, women and children are dead.

The Amazon crash in late September was followed by a protracted period of air-travel chaos in Brazil created by disruptions caused by air traffic controllers sending a message that they had better not be blamed for the disaster. Nine months after the Amazon crash, there was another horrific airplane crash at the airport in Sao Paulo. In that one, 199 died.

There have been some training improvements made at Brazilian air traffic control, including at least some acknowledgment that air space over the central Amazon has radio and radar blind spots.

On the other hand, some controllers say the system remains poorly run, with little real change since the Amazon crash. Yesterday, a former controller named Edleuzo Cavalcante said that training and woprking conditions remain poor. "We have the stage set for a new tragedy," he said in one news account on UOL News, Brazil's main Internet news service.

An active controller, Sgt. Eurípides Barsanulfo Marques, testified at a military safety board hearing in July that unqualified unqualified airmen are being used as controllers.

"As a controller and instructor of this Center, I could see the poor quality of the instructional process and especially the concession of technical controllers' licenses to people without the minimum knowledge and ability to exercise such a complex activity," he said, according to a copy of his testimony obtained by UOL.

"This very serious and is similar to another that this center experienced in 2006, whose outcome we all know," he said.

So Brazilian air traffic control is still run by the military; controllers are still inadequately trained and poorly paid; and international pilots tell me they still exercise extra caution in Brazilian skies, partly because some air traffic controllers still have poor skills in English, which is the mandated lingua Franca of international aviation.

Some Brazilian media continue to behave abysmally. Yesterday, Brazilian television reports dredged up some of the ugliest anti-American elements associated with this event, showing street protestors with signs denouncing President Obama and the two American pilots.

As they love to do, the media presented news photos of Lepore and Paladino smiling happily, surrounded by loved ones. Those pictures come from the day in December 2006 when both pilots returned home to Long Island, to the arms of their families, after being detained in Brazil for over two months following the crash.

"Why so happy!" said the protestors' signs showing the pilots broadly smiling photos. Under the photos was the message: "Punishment for Legacy Pilots: Flight 1907 Killers!"

And so it goes down the rabbit hole of the Brazilian media. A photo of a man happy to see his family again after being held for two months in a foreign country is presented as illustration that a man is laughing at the dead.

Last year, President Obama signed the SPEECH Act, a federal law that prevents U.S. courts from enforcing foreign libel or defamation judgments in cases where the alleged offending speech was clearly protected by the free speech provisions of the U.S. First Amendment. I had been a participant in the congressional efforts to draft that law. So it is at least a comfort to other Americans -- not just journalists and authors, but bloggers, reviewers, researchers, users of social media -- who find themselves unjustly sued in any foreign country, for something they said or wrote here that is fully protected speech under our First Amendment.

And in general, I suppose, the shoddy performance by Brazilian authorities and Brazilian media in the aftermath of this crash reinforced the belief, already firmly held in international aviation, that rushing to criminalize an air disaster is a grave mistake -- when what's needed is to have everyone cooperating, without fear, in an effort to get at the truth of what happened, and why.

In fatal aviation accidents that are not objectively investigated, the dead are ultimately dishonored. When emotionalism runs rampant and impedes that investigation, as it did in Brazil, the cause of aviation safety is badly served.

P.S.: I am often asked, Why aren't you writing a book about this? Well, I am. Details soon.



Anonymous said...

Joe, when you say "straight and narrow" I assume you mean "straight and level"...or not?

ChefNick said...

If Brazil still insists on being a "Wild, Wild South" of aviation, I'm willing to bet that there's a surfeit of Afghanistan-era military pilots looking for a job. (And a little pulque.)

Bob Barbanes: said...

(I know you will not let this appear in your blog, but I'll send it to you anyway.)

Joe, Joe, Joe... WHY do you still cling to the ridiculous idea that the transponder "mysteriously" malfunctioned and then equally mysteriously returned to service after the collision? I don't understand- why don't you just admit what happened?

Lepore was working on the RDU on his side. "Underneath" the radio frequency and transponder page are sub-menu pages with other information, specifically related to fuel staus. When Palladino figured out what weight they could use for take-off at their next destination, Lepore began "backing" out of the sub-menus on the RDU. The button used to accomplish this was the exact button used to switch the transponder to Standby. He hit it one too many times. Neither pilot noticed...

...Until just after the collision when Palladino said, "The TCAS, is it off?" and there was that moment of stunned silence as they realized that their TCAS/transponder was indeed "OFF." Then returned to working status WITHOUT THEM DOING A BLESSED THING! Yeah, right.

LEPORE caused the transponder to go off. Unintentionally, yes, but he did it. Just admit it! Then they turned it back on after they realized the mistake. Then they lied about it after they landed.

If LEPORE had not accidentally turned the transponder off, the collision might not have happened. If either of those boneheads had been connected with the task of FLYING THE AIRPLANE, they would have known that they were supposed to descend to FL360. But noooooo. They were too busy trying to figure out how much fuel they could take on at Manaus.

Your staunch defense of them is noble but misguided. I keep wondering when you're going to admit the truth, if ever? Hell man, YOU almost died due to their incompetence! Doesn't that mean anything to you??

Sheesh. said...

There are several plausible theories about why the transponder was not functioning, and the one highest on the list is that the equipment itself had known electrical problems before it was installed, presumably repaired (and unbeknownst to the buyers). Two things: 1. I was there in intimate surroundings, and in the immediate aftermath, when the pilots were still in shock and certainly before they had a chance to realize that I was now reporting a breaking story, I saw no sign in their demeanor that would support your certitude about your theory. and 2. Vis a vis your theory, my point from day one was that the Brazilians' mad nrush to criminalize the accident and immediately blame the Americans effectively precluded a hard-nosed, honest investigation because in their media-driven and politically driven emotionalism (the accident happened 2 days before the presidential election), everyone involved had reason to go into deep defense. It was a textbook case of why we should not rush to criminalize an accident.

Richard said...

On the issue of turning off the transponder, it went off when Paladino was using the laptop to calculate fuel, and Lepore was using the FMS. Judge Murilo Mendes's verdict points out, the Federal Police tried this on their very own EMB 145, and said you can't turn off the transponder from the FMS. The judge says, you can turn it off from the RMU. But, the RMU is not the FMS, and the cockpit recording show Lepore was using the FMS. If he had been playing around with the RMU to familiarize himself with it, the judge continues, he would have been pushing buttons and watching the result - and would have seen the result "TCAS OFF".

So yes, it can be turned off from the RMU, but Lepore wasn't using the RMU. And there are indeed records of Legacy transponders mysteriously turning off by themselves. said...
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ChefNick said...


I think in the end it was simply one of those days that end badly. You didn't mean to forget your credit card on the way to the airport (times 10,000). The airline's lead luggage supervisor's wife didn't plan too have the baby that day, resulting in the rookie's mishandling of your bag.

The weather report didn't say thunderstorms and the airline didn't plan to cancel your flight, resulting in you ending up without luggage or a credit card in a strange airport.

It was just one of those incredible worms of coincidences that somehow all fit together to conspire against you. At any point, one tiny thing changed, the equation would have turned This time it didn't. But every single day, it does, and that's what enables us to fly. Someone catches something. And why? Because we learn from past errors. Someone never repeats one because he learned something.

Criminalize the errors and no one will ever learn anything. We'll just repeat them out of fear of being discovered and criminalized.

Brazil is and has been making a big mistake of sensationalizing this crash -- better leave it to people who know what they're doing, ie. the NTSB, and abide by the judgment.

Jack P. said...

Mr. Sharkey,
Honeywell transponders of that era (software updates have repaired the problem) were known to go into standby seemingly uncommanded. The cause could have been a slight, barely-noticeable power interruption or glitch, or a pilot taking too many seconds to enter the four digit "squawk" code. The only indication of fault was not on the fault warning panel, but was on the lower edge of the large flight or navigation display. This said "XPNDR STBY" or "TCAS OFF" - [unsure which] in white or yellow letters.
If the subject Embraer Legacy aircraft was indeed one of the aircraft susceptible to this condition [requires research of box part numbers and software status], Honeywell escaped a very big hit of responsibility.

Anonymous said...

For me, you're a typical US american, ridiculous, arrogant and a potential nazis ...