Whac-a-Mole Redux

I thought it was soccer, but the Boardwalk arcade game Whac-a-Mole has to be the national sport in Brazil. You whack, or rather pound, the critter into one hole, thinking at least that's been dispatched with. But then -- Whac-a-Mole! -- up it pops up again from another hole.

Aware that the existing indictment of the American pilots on charges of non-intentionally causing the Sept. 29 crash would allow the pilots to avoid extradition to and a trial in Brazil, some Brazilian authorities are now talking up the possibility of ratcheting up the charge to one that would meet the standards under the extradition treaty between the United States and Brazil.

Remember that the federal prosecutor has already made it clear in the existing indictment that there is no evidence that the American pilots (assuming they did anything wrong) acted either recklessly or intentionally. But now the Brazilian congress is making snorting noises.

In a draft report that has not yet been approved by vote, an investigative panel of the Brazilian house of representatives appears to be demanding a new indictment that would charge the pilots with malicious reckless endangerment.

Assuming insane people prevail (and we see all around us that they sometimes do), doing this would mean that Joe Lepore and Jan Paladino -- who are not required by treaty to come to Brazil to answer charges under the current indictment -- might possibly be required to come to Brazil for what would be a show trial on the more serious (and patently absurd) charges of "homicide caused by reckless endangerment."

Incidentally, where is the United States State Department on this? (Oh, never mind. I forgot. Don't bother them. There's a war on).

But where, oh where, is the National Transportation Safety Board, which has examined this accident in minute detail and has come to the same conclusion as other independent outside agencies: The disaster was caused by egregious neglegence on the ground, starting 50 minutes before the collision when it became abundantly clear at Brasilia air traffic control that the Legacy transponder was not replying. The N.T.S.B. has a policy of not getting involved in an accident before the country where is occurred completes its investigations, but surely by now is has to be clear that playing patty-cake with the Brazilian authorities is abetting a miscarriage of justice.

In Brazil it almost does not matter which "authorities" we're speaking of, since they're all essentially in wink-and-nod cahoots in a country where, notoriously, nobody in charge takes responsibility, and Outsiders are always at fault, even the facts clearly show otherwise. But at least the Federal Prosecutor, wrong though he might have been, showed some perspective.

The new heat is coming from the Brazilian congress, which has been conducting its own investigation into the crash. The draft house report recommends the new indictment of "homicide by reckless endangerment," which is an extradictable charge.

On the other hand, it doesn't appear as if the congress has the power to enforce any such action. "They have absolutely no authority to indict. The case is already indicted," said Joel Weiss, an attorney representing the two pilots in the United States.

The house draft report is widely seen by cooler heads in Brazil as reflecting a desperation to save face, since it's already been made clear that the two pilots have no intention of returning to Brazil under the current indictment, which permits them instead to give sworn testimony in the United States.

In this case, it seems to me that some elements of the Brazilian media, so reflexively genuflecting to the authorities that I fear they'll soon need collective knee-replacement surgery, are being manipulated by politicians to stir up resentment against the pilots' reasonable position that they won't voluntarily return to a country that detained them without charges for 71 days after the crash.

Here's the ploy, as I see it: How dare they insult the dignity of Brazil by refusing to return? Obviously, ways must be found to save face!

Via translation today from our Sao Paulo bureau chief Richard Pedicini, consider the tone of language in this excerpt from Jornal do Brasil:

" .. the [pilots'] fear of leaving the United States grows every day. The pilots are hedged in on all sides. Not only the Federal Police, but the legislators of the CIP [the congressional investigative panels] see the pair as having the principal blame for the tragedy."

Feigning shock, the report hammers on the fact that the pilots don't intend to come back to Brazil, suggesting that this is an insult that can't be tolerated, treaty or not.

"Paladino and Lepore are benefited by a treaty of mutual cooperation between Brazil an the United States. The agreement opens a loophole for the Americans to be interrogated in New York -- as they desire," it says.

Quoting from the draft report, the newspaper O Estado de S. Paulo says that the panel found that the pilots "were conscious of the possibility of the crime happening and, even so, continued their conduct."

Jayzus, if I hadn't been on that airplane myself and spent 36 hours in custody with these guys after we fell out of the sky onto that jungle air strip (literally not knowing what had hit us), I might tend to wonder if the Brazilians know something I don't.

But they don't, trust me.

Never mind that it's now longer in dispute among international aviation investigators that the crash was caused by egregious air-traffic controller errors, coupled with an air-traffic control system that is saddled with antiquated equipment and that functions daily with the reality of radar and radio dead zones -- especially over the Amazon, where the collision took place.

Yes, there is a matter of a perhaps malfunctioning transponder on the Legacy 600 business jet. Was the Legacy transponder malfunctioning? No one has yet been able to say. There is evidence to suggest that the transponder unit in the Legacy might have had some prior technological problems before being installed in the plane that were not disclosed to ExcelAire, the Long Island charter company that had just taken delivery of the $24.7 million plane at Embraer headquarters in Sao Jose dos Campos, near Sao Paulo, on the day of the crash.

It is, of course, also possible that the transponder was accidently knocked into standby, perhaps by being inadvertently jostled by a pilot's foot. (At the bottom of this post, I'm pasting a recent safety alert on Legacy 600 jets by the F.A.A., warning operators of exactly that possibility in the design of that airplane.)

No one but a lunatic would suggest that the pilots deliberately turned off a transponder, however.

Whatever the case, a working transponder and its associated collision-avoidance alarm were at best the last possible chance to avoid impact when air-traffic control had already put two planes (and this is also no longer in dispute by anyone with the sense of a cabbage) on a direct collision course at 37,000 feet, each closing in on one another at about 500 miles an hour.

It is not the pilots' job to monitor a transponder, we also know. It is the duty of air traffic control. And we know (again, not in dispute) that for 50 minutes before the crash, air traffic control in Brasilia, which had charge of the Legacy, was aware that the transponder wasn't functioning and, incredibly, did nothing to alert the pilots to that fact.

From Mr. Pedicini in Sao Paulo, the translation of a recent report from the congressional news servce Real Time:

"Report asks for indictment of controllers and pilots

The report referee of the Aviation Crisis CPI, congressman Marco Maia (PT-RS), informed moments ago that he will ask in his report for the indictment of four air traffic controllers and the two pilots of the Legacy jet, Jean Paul Paladino and Joseph Lepore.

The CPI is investigating the causes of the accident with the Gol Boeing in September of last year, which killed 154 people. The request for indictment of the pilots will be for " homicídio doloso eventual " [roughly, homicide caused by reckless endangerment.]

He reaffirmed that the investigations demonstrated that the larger part of the responsibility for the accident belonged to the American pilots. Maia argues that there is no way to prove that the Legacy's transponder was turned off involuntarily during the flight [My note: There being no way to prove a negative], but affirms that, even under this hypothesis, it is the pilots' responsibility to constantly check the safety equipment, principally in cases of communications failures with air traffic control centers.

The referee further remembered that the pilots opted for a route against traffic. [My note: Blatantly untrue. The pilots were flying at 37,000 feet under direct air-traffic control orders, and this also is no longer in dispute by any honest person following these events].

In the case of the controllers, the report will ask for indictment for unintentional homicide, He still has not divulged the names of the controllers against whom the CPI will ask for indictments."

***

I know this situation isn't the least bit funny, but it might help, for comic relief at least, to have a look at the 1939 Three Stooges short, "Disorder in the Court."

Meanwhile, Brazil Magazine at Brazzil.com, the energetic online daily news magazine, has an even more pointed take on what's going on:

"Brazil Congress Wants US Pilots Indicted for Murder in Air Accident

Written by José Wilson Miranda
Thursday, 12 July 2007

Brazil's Inquiry Parliamentary Commission (CPI) on the Brazilian Air Traffic has concluded its report on Brazil's worst accident ever ...

The Brazilian House of Representatives's commission in the 200-page report is recommending that Joseph Lepore and Jan Paul Paladino, the two American pilots, be indicted for murder.

They are considered the main culprits of the accident for having - as the report concluded - turned off the Legacy's transponder ... Lepore and Paladino are accused of acting with malice. Although they had no intention to kill anybody, the document says, they knew their action posed that risk. ...

[My note: Several flight controllers also are being thrown in for good measure, though the congressional panel recommended that the flight controllers be indicted for involuntary manslaughter. These indictments, and any made against the pilots, would presumably supercede already-issued Federal Police indictments of the pilots and the controllers for involuntary negligence (though the federal police did add a graver charge for a single controller, the one monitoring the Legacy as it flew over the Amazon].

Back to the Brazzil.com story:

"[A member of the panel, Marco Maia] believes that by turning off the transponder the American pilots contributed decisively to the accident.

'The truth of the matter is that the transponder was turned off and this is an instrument of major importance for safety. Another consideration is that the aircraft commander is the one responsible for the flight. He needs to be attentive to all the situations,' said the representative.

'All the elements show that the transponder was off and that both pilots were in a wrong way course,' added Maia.

The American pilots responsibility, ponders the legislator, is even bigger when you consider that the pilots didn't know the Brazilian air space, had little knowledge on how to operate the Legacy's equipment and had a "very low situational awareness" in the hours leading to the accident."

[My note, not to argue with the esteemed gentleman, but every international aviation authority has affirmed that air traffic control orders determine flight altitude, and the Legacy was ordered to maintain 37,000 feet. Yes, it's clear the pilots weren't fully aware that Brazilian air space is dangerous and that Brazilian air traffic control, supervised by the military, is run by undertrained and overworked military personnel who have complained (before and after the crash), about poor equipment, bad working conditions and supervisors who are more interested in having the controllers do military marching drills than in operating a safe air traffic system. And no: the pilots, both with distinguished flying records, were fully trained and certified on the Legacy 600.]

Brazzil.com opens its news reports to comments, and here are some that are posted today on that story. Grammar, spelling and punctuation all [sic]:

From someone signed "Gringo Dingo" -- "Can this nation slide anything further down the idiot scale? For Christ sakes Brazil, grow up already will ya! ATCs knew for 50 minutes that the transponder was not functioning but neglected to get into contact with the Legacy; ATCs ASSIGNED the two crafts to collide; it was the ATCs that lied and later feigned illness so as NOT testify during the inquiry and finally if the ATCs were AMERICAN they’d already be hanging from coconut trees in Rio. As it happens, they’re Brazilian, they F**KED UP BIG TIME, however Americans were involved and so politically it’s much easier to scapegoat those dang IMPERIALISTS."

A reply from someone signed C.ostinha: "You said "ATCs knew for 50 minutes that the transponder was not functioning but neglected to get into contact with the Legacy" Distorted Lie.... ATC tried on many occasions to contact the Embraer Jet, to no avail. The american cowboys once again acting like freaking John Wayne..... Bastards! Those american pilots belong in jail for murder.... As to you "GRingo Dingo" a.sshole... The stealthing technology used to hide your brain from all attacks of reason is impressive. Is NASA designing advanced retards now?

From someone signed Madre Dios: "That the pilots turned off the transponder is patently false. The NTSB report, among others, determined that the transponder was malfunctioning and intermittent, turning itself off. The Congress reaches an indictment here, but not in any of the cases of fraud, graft, collusion with any of its own membership. Some thing is rotten in Denmark and it is the smell of Congressional red herrings rotting in the equatorial sun."

Gringo Dingo again (and no, I don't know who Gringo Dingo is and am not pulling his or her strings): "Costa-baby, you knuckle dragging glue sniffing ball juggler; it’s quite possible that NASA has invented some giszmo to do something quite extraordinary this week, unlike your sugar cane pickers that invent nothing but stories of first world imperialism, and your politicians that invent nothing but excuses, but heck, we´ve come to expect little else from you folks. You and your ilk are simply out of your league, and hence need the ole sacrificial “let´s hang-the-bogey-man” public witch hunts to feel better about your pathetic existences. Sure, let’s come right out and say-- contrary to all the facts--that the Americans should be “charged” during this CPI (a BURROcractic invent designed to soley to feign public interest in events while lining the pockets of the already wealthy). Why not? It will be translated on Globo into “Americans are the only guilty” which will be enough to rally the 189,000,000 cachaça suppositories that don’t read into a frenzy. But for the one million who actually do have functioning synapses and can read, they’ll pick up Veja and see they’ve been bamboozled (international ATC is calling Brazil's skies UNSAFE!): AGAIN. Although reading the Brazilian weeklies from Miami doesn’t really count, now does it? Face it Costinha, blaming the pilots for the problems of the ATC is just a political ploy to ease air traffic for Pan, and to take attention off the rest of the countries pathetic woes… which are, in no particular order: Violence, Corruption, Stupidity, Illiteracy, Poverty, Stupidity, Nepotism, Coronelism, Stupidity, Poor infrastructure, stupidity, being Brazilian and Stupidity."

Meanwhile, Folha de S. Paulo weighs in with this summary of the report, with some reaction from the attorney representing ExcelAire and the pilots in Brazil:

"Conclusions

--Motive: The turning off of the transponder was the principal cause of the accident
The pilots Joseph Lepore and Jan Paul Paladino practiced the crime of attack against safely, with the destruction of aircraft and the occurrence of deaths, with intent (the risk of their conduct was predictable, but they acted with indifference)


--Controllers: They were negligent in not having performed the procedures foreseen in cases of failure of radio and transponder


CPI's suggestions: Installation of audio alarms in aircraft cockpits and on controllers' consoles, indicating turning off of a transponder. Installation of voice recorders in cockpits with a capacity of more than two hours.

Other Side

CPI's accusation is irresponsible, lawyer says

By the Brasilia Bureau

Lawyer Theo Dias, who represents the Legacy jet's pilots, Americans Joe Lepore and Jan Paladino, called "irresponsible" the CPI's accusation of them even before the conclusion of the technical investigations that are being undertaken by aeronautic authorities.

'It was irresponsible to make a supposed investigation conducted by politicians and then announce the judgment even before the conclusions of Cenipa [the FAB center for the investigation and prevention of aeronautic accidents]. It should be something completely new in the history of international aviation,' he reacted.

According to Dias, the CPI was created to analyze the aviation crisis and to propose changes in the system, not to investigate and issue judgments on the causes of aircraft collisions and crashes.

One example of what he called 'irresponsibility' is the fact that the legislators announced 'results' without knowing at least what happened with the transponder ...

He said that, too, he considers it 'an absurdity and a danger' the announcement that the CPI intends to have access to the tapes of the Legacy's black boxes, to analyze the pilots' dialogs.

'How can layman politicians interpret the black boxes of airplanes? This only shows how CPIs have become trivialized in this country,' the lawyer affirmed."

And so it goes ...

***
Here is that F.A.A. safety alert:

SAFO
Safety Alert for Operators
U.S. Department SAFO 07005
of Transportation DATE 7/3/2007
Federal Aviation
Administration Flight Standards Service
Washington, DC
http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/safo

A SAFO contains important safety information and may include recommended action. SAFO content should be especially valuable to air carriers in meeting their statutory duty to provide service with the highest possible degree of safety in the public interest.

Subject: Embraer Legacy/EMB-135, -140, -145 — Be Careful Where You Put Your Foot

Purpose: This SAFO calls attention to the possibility that a pilot of an Embraer Legacy, EMB-135 or -145 (sometimes called EMB-140 in marketing literature) might inadvertently change VHF radio frequencies or place the ATC transponder into standby mode during flight.

Background: During an investigation the FAA discovered that crewmembers who had the simple habit of placing their shoe on the footrest just below the instrument panel could inadvertently put the ATC transponder into standby mode, or change radio frequencies without the crew's awareness. Further, they found that pilots might not notice the corresponding indication on the Pilot Flight Display due to the white colored letters, which are not as noticeable as differently colored caution or warning indications.

Switching a transponder with a functioning traffic alert and collision avoidance system (TCAS) to standby mode renders the TCAS ineffective, and is therefore one of the most serious consequences of a pilot’s foot inadvertently contacting the radio management unit. Two airplanes equipped with TCAS would fail to see each other if they were on a collision course. Pilots could presume TCAS was operating normally if they failed to notice the subtle TCAS OFF indication on the Pilot Flight Display.

Recommended Action: Managers of part 142 training centers where pilot training on the Embraer Legacy, EMB-135, and EMB-145 is conducted should ensure that their trainers caution pilots of this latent hazard and emphasize the importance of being careful when using the footrests provided.

Similarly, directors of safety, directors of operations, trainers, and check airmen for operators flying any of these Embraer models should immediately make this hazard known to their pilots and should make sure that it is addressed in their training programs, especially during flight training, supervised operating experience, and line checks.
Any questions regarding the content of this SAFO should be directed to the Air Transportation Division, AFS-200, at (202) 267-8116.
Approved by: AFS-200

--ends