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Legal View with Ashleigh Banfield

Examining Theories on Disappearance of Flight 370; Where is the Physical Evidence?

Aired April 24, 2014 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

JOHN BERMAN, CNN ANCHOR: At 8:00 on "AC 360."

MICHAELA PEREIRA, CNN ANCHOR: Oh.

BERMAN: So don't miss that.

PEREIRA: You need a nap.

BERMAN: We're going to talk to a couple family members from the people onboard Flight 370. Interesting discussion. That's at 8:00 p.m. Eastern.

"LEGAL VIEW" with Ashleigh Banfield start right now.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. It is Thursday, April the 24th and welcome to a special edition of a LEGAL VIEW.

After 48 days, a horrifying prospect in the mystery of 370, the flight that's missing. What if we are just simply right back at square one? It is not just this fragment that washed ashore yesterday and is now being ruled out as a piece of the missing plane. It is not just the Bluefin, whose sonar has now scanned almost the entirety of this area considered most likely to be holding those black boxes, only to come up empty time after time.

And it is not just the visual searches that take place day after day with nothing found related to Flight 370. It is all of those things together. And it is all of those things combined with 48 days of dysfunction and secrecy on the part of the Malaysian investigators. All of that giving rise to a special hour of our coverage today on LEGAL VIEW.

It is time to look again at some of the basic questions and possible dubious assumptions while anguished and angry family members prepare to take their questions to the maker of the vanished jet.

(BEGIN VIDEO CLIP)

SARAH BAJC, PARTNER OF FLIGHT 370 PASSENGER: We're also extending our reach now. There's a subset of those questions, including some new ones, that are much more technical that we will be bringing directly to Boeing. Boeing has a shareholders meeting next week. And if we're not getting information directly from Malaysian Airlines and from the Malaysian government, we might as well try to go directly to the source. Boeing is a publicly traded company in the United States and that puts them in a position of a little bit more fiduciary responsibility.

(END VIDEO CLIP)

BANFIELD: I want to bring in my experts on this. Michael Kay is a CNN aviation analyst and a retired lieutenant colonel in the Royal Air Force, David Soucie joins us today from Denver, he's a former air accident investigator and a CNN safety analyst, and from Washington we're joined by aviation attorney Mark Dombroff, who has also been integrity involved with the FAA as well as the - as the DOJ.

So, gentlemen, I want to begin with you, David, if I can. Is it time to rethink everything from square one on this terrible mystery, or is it time to double down on all the things we think we already know?

DAVID SOUCIE, CNN SAFETY ANALYST: I think it's time to finish what we started here. The first place they're looking right now is on ping number two. They need to go back to ping number one, which was the most extended ping, but it's deeper,, so they need some more equipment. That needs to be extinguished. That -- you don't change a strategy in the middle of the road. So that needs to be finished first. But barring that, if nothing results from that, then, yes, it needs to start from the beginning again and question all of the assumptions they've made since the beginning.

BANFIELD: If there weren't frustrations in this story already, starting from the beginning seems one of the more frustrating aspects of this.

Mark Dombroff, perhaps you could answer the burning question right now. We have a preliminary report. It's been completed, but it's still being held in secrecy. Is there any good reason not to release that initial report?

MARK DOMBROFF, AVIATION ATTORNEY: Well, I think it's important to realize, Ashleigh, that under the accident investigation procedures, whether it's the ICAO Annex 13, the International Civil Aviation Organization Annex 13, pursuant to which this investigation is taking place, or it's under the Malaysian accident investigation procedures, which the Malaysians are actually following. One, there's no provision for a preliminary report at all. They talked about a final report at the conclusion of the investigation. Obviously, we're nowhere close to that. We also know from announcements the Malaysians have made that there is a preliminary report.

Now, I'll tell you, my experience in the context of preliminary reports in accident investigations that are, quite frankly, a lot more direct than this one is that those reports, when they come out early, and they typically do come out early in the context of the U.S. accident investigation conducted by the NTSB, are very short reports.

They tend to only have facts in them and they tend to do nothing more than establish the fact that the accident occurred. They may have information regarding the aircraft, regarding the crew, regarding some of the facts surrounding the flight itself, but they don't talk about the analysis or the findings. Those are typically reserved for the final report or factual reports that may get issued later on in the investigation.

I, quite frankly, think that if this preliminary report does get issued, that it's going to fuel a lot of claims that there continue to be a cover up because I think people are going to be very unsatisfied with what they see in it.

BANFIELD: Well, and it is a living document, as I'm led to understand. The 30 day rule just means, as you said, they're just the facts and the basics and every day it can be added to and changed and can morph (ph). By the time it's actually published, as, Colonel Kay, you've outlined before, by the time it's published, it's usually outdated.

There was a question that came through social media and I want to ask it of you because I think it's a fair question to ask since we've been talking about debris, pieces of debris, what are we looking for on the bottom of the ocean. And this person asks, since we haven't found one single piece of this plane, should we perhaps assume that it's somewhere intact instead? Those were early theories. So is it time to perhaps revisit that?

LT. COL. MICHAEL KAY, CNN AVIATION ANALYST: As I said from the outset, Ashleigh, I think we've got just enough information to have all the cards on the table. What I mean by cards are hijack, sabotage, mechanical failure, the fact that it may have landed somewhere. I don't think there's enough evidence for any one of those cards to be taken off the table.

But there are priorities in which we can be looking. We don't have an endless budget. There aren't endless resources. And if we go right back to the South China Sea and we draw a 2,500 mile radius and draw a circle, it's about a 50 million square mile area that we have to look at. And we just don't have the resources to be able to cover all of that area.

So we've got to take this convergence of evidence from the Inmarsat. The Inmarsat lead us to the pings. The pings work on strength. They don't work on GPS, hence the reason we've not been zoned in on something. And we've got to start from something that we know.

The Inmarsat analysts, Ashleigh, is the center of gravity to this investigation.

BANFIELD: The center of gravity.

KAY: We spoke about this earlier. You take Inmarsat analysis away, you take away the northern arc, you take away the southern arc and you have very limited information radar traces and that's about it. And you know how they are.

BANFIELD: You know what, you hit the nail on the head and we're going to touch on that in a moment, the theories, including that northern arc and why we haven't heard about that for so long. That's coming up in just a moment. Michael Kay, thank you, as well as David Soucie, thank you, Mark Dombroff, all three of you. If you could say with me because still with not one physical piece of evidence to go on, there are so many of those theories about where this plane is and what caused it to disappear and it doesn't seem to be dissipating. The fascination, the frustration, the angst for those who step on a plane every day.

Among them, is this plane actually perhaps in that northern arc? Why are we not searching up there? Was this plane perhaps hijacked? Did the pilots intentionally do something with this plane? Was there perhaps just simply catastrophic, electrical or mechanical failure? Was there a fire on board? Did something cause it to become depressurized, effectively causing it to be a ghost plane? We're going to go back to all of those particular ideas, those theories, in our special coverage for the mystery of Flight 370 and why perhaps they're not necessarily being discounted.

(COMMERCIAL BREAK)

BANFIELD: Ask 100 people what they think happened to that Malaysia Airlines flight, and you are more than likely to get 100 different answers. And why not. Until there's a single shred of physical evidence, even one solid clue, everything is just a theory.

And even the wackiest and most unlikely possibility is still just a theory without proof. So we're going to take some time to pick apart some of the more unbelievable scenarios and either give them a little weight, tell you what the facts are about them, or rule t hem out completely and tell you why, why they don't make sense factually.

Our David Soucie is back with us. He's our safety analyst and he used to investigate air crashes for the FAA. Also, Colonel Michael Kay, an experienced pilot, CNN aviation analyst and retired from the Royal Air Force. Mark Dombroff, aviation attorney, who used to represent the FAA and NASA in jury trials. Also general counsel for the DOJ.

David, I want to begin with you and talk about the search area. They told us weeks ago that the plane either flew a southern arc or that plane flew a northern arc when it headed out over the Indian Ocean. But then all of a sudden, within a couple of weeks, the northern arc went away completely. We've heard nothing about it. Is it time to revisit the northern arc? Is there some legitimacy to the northern arc? Why are we not talking about it anymore?

SOUCIE: Well, what we've been told by Inmarsat - well, not by - by the Malaysian government through Inmarsat and also through a source that I've got within Inmarsat, is that they used the northern arc and southern arc routes that they - that they received the signals from aircraft that had flown those routes subsequent to the aircraft going mission.

So they compared the northern route signals to the southern route signal they had, then compared those to Flight 370. From that they were able to determine, based on the type of signal that was received, that none of the northern route signals matched the signature of the southern route signals, which did match the Flight 370. So that's why the northern route was ruled out.

So if you're going to question that and go back to the northern route, you have to start at the beginning and question the whole Inmarsat set of data as well. So that -- for that reason I think that we did make the right decision by going to the southern arc in the first place and the northern arc still doesn't hold a lot of credibility for me.

BANFIELD: And, Mikey, isn't that really your point? And you drive it home so often is that, really, do you want to throw out the bedrock of what we have so far and leave yourself with almost nothing?

KAY: We don't. And the northern arc, we've got to remember, is part of the Inmarsat analysis. But I think we've got to step back and look at the other evidence that contributes to the big jigsaw puzzle. And some of the evidence that we can't overlook is that there was a radar trace that went across the Malaysian peninsula, out of Banda Aceh, and down to the south.

BANFIELD: Something big, the size of a 777.

KAY: Exactly.

BANFIELD: There's no proof that it was that 777.

KAY: Well, there is no proof. But we've got to take it, all the evidence, in the context of which we're looking at it. And that, to me, if we take the radar traces, would eliminate the fact that it went north, along with the absence of sovereign territories in the north identifying an unidentified aircraft too.

BANFIELD: Mark Dombroff, so many people so quickly chose the option of a hijacking, that that could be the only explanation for something this unusual, specifically with those altitudes and that turn. But why did the hijacking not seem so plausible?

DOMBROFF: Well, I think, before I address that, Ashleigh, let me just comment about this northern route, southern route question.

BANFIELD: Sure.

DOMBROFF: You know, the one fact that I think most people seem to agree on is that the aircraft had a final transmission and a final radar hit. And everything following that in terms of the turn, in terms of doubling back, in terms of going south, in terms of the pings, seems to stem from a lot of information, either origination with Inmarsat or nations saying they may have gotten a hit or they didn't get a hit on their radar or whatever. We've seen a lot of political movement here in terms of nations sort of jockeying for position it seems. I'm not sure people are playing well together.

I think we are, to be honest with you, I think we are back at the beginning. I've heard a number of comments made by people on this network saying that perhaps some fresh eye. Not a whole group of fresh eyes, but some fresh eyes should be brought to the investigation and look at the data.

BANFIELD: And, Mark, can you -- can you briefly comment on the notion of the hijacking and why that's discounted?

DOMBROFF: I don't think it is discounted and it shouldn't be discounted if it has been discounted. There's a parallel criminal investigation going on. We've heard nothing about that other than the fact that there seems to be nothing on the captain's computer or simulator and no particular reason to believe that either the pilot or the co-pilot were involved in a hijacking.

We have no evidence at all of a hijacking. None of the type of evidence that we may have seen in other situations. No requests for ransom, no announcement, nobody taking credit. If it's a hijacking, it's a hijacking gone wrong in the sense that it started with a hijacking and ended with an accident. But I don't think any theory at this stage, short of the, you know, the black hole type theories should be discounted.

BANFIELD: Well, interesting that you would say that as you even touched upon those pilots.

Stay with me, all three of you, if you would, please, because we're going to explore those theories, those additional ones, like what if the pilots had something to do with the plane disappearing? What are the logic behind that? We're going to talk about that in a moment.

(COMMERCIAL BREAK)

BANFIELD: We're picking apart some of the more implausible explanations for this incredible mystery, the Malaysian Flight 370 disappearance.

If there was one piece of real evidence we had to go, a lot of these theories would just fall apart, but so far there's just nothing. There are no clues. There's no debris. There's no radio evidence. There's no hijacker demands. There's no plane sightings. There's quite simply nothing. And we've never been through this before.

Our David Soucie is still with us, Michael Kay and Mark Dombroff.

There is this possibility, and it's an idea I'd like to ask the three of you about it, that possibly one or both of those pilots on board rendered this plane invisible and intentionally flew it somewhere. A lot of people believe this is possible. Others don't.

David Soucie, let me begin with you. Your thoughts on that?

DAVID SOUCIE, CNN SAFETY ANALYST: If they did, they didn't do it very well, because we continue to have sat-com data.

Any pilot that would try to make it invisible would have turned that sat-com off as well as the ACARS as well as the radios, not just those specific things that did go off.

So I'm not putting a lot of stock in that. If they went to all this trouble and tried to figure out how to get this done, they would have thought of the sat-com which continued to ping for hours after they would have tried to intentionally make the aircraft disappear. BANFIELD: And, Mark Dombroff, we've had investigators looking with a fine-toothed comb through not only the backgrounds of these pilots but also the simulator that was found in the pilot's home, and nothing. That has to count for a lot.

DOMBROFF: I think it does, Ashleigh. I'm sure another thing that they have done, because I think it's routinely done in this country in terms of pilots, when the circumstances of the accident call for it, is something in the form of a psychological autopsy.

In that situation, you don't need to locate the wreckage or the victims. You can do a psychological autopsy based upon interviews and lifestyles and what's known about the person.

Obviously, they're done in the absence of the person anyway, and I suspect that if they had found anything in either pilot's background that would have suggested that they were involved in this that we would have heard about that by now.

BANFIELD: And then this other possibility, that the plane's entire electrical system just catastrophically shut down, completely failed. There's no radio. There's no ACARS. There's no transponders. There's no pinger. There's no way to send a stress call. Just everything electrically was dead.

Colonel, you're an experienced pilot, I'm sure you've had myriad things go wrong as you've been flying, but does that sound plausible that everything at once would just stop?

MICHAEL KAY, CNN AVIATION ANALYST: We've had many conversations with Les Abend about this, all the scenarios out there from hijack and sabotage and landing in Pakistan and Iran. I think this is certainly one of the most plausible.

There are a number of actions around an electrical bay problem to a flier. When the electrics goes out in an airplane, you lose all of your instruments, but these guys will be trained. They will do four days a year in the simulator to train for such scenarios.

So would the electrical lead to a fire? If it did lead to a fire, then the immediate actions of the crew would be to turn the aircraft towards and alternate landing area.

BANFIELD: And that makes with the left-hand turn.

KAY: Yeah, fly it, navigate and communicate.

So you would sort of expect some call to come out, possibly. If it was a very quick breakup of the airplane, as you rightly pointed out, there should be some form of debris at the point at which we lost the transponder.

Now we know that the last ping of the ACARS was around 1:09, and we know that the last transponder, or the transponder ceased to function, it's important, maybe not be turned off because it could have broken in a fire. And so again, plausible but there are a number of points which sort of counter the theory.

BANFIELD: Like the crazy route and the change in altitude that all of a sudden it became to take.

If there is no electrical system, how is it so perfectly going up to almost 40,000 feet, back down again to around 4,000 feet and making a perfect arc around those airspaces?

There are still more questions out there than answers. Michael Kay, David Soucie and Mark Dombroff, I want to talk through a couple more theories with you. Did a catastrophic fire possibly bring that plane down? What about the sudden compression that everyone's talked about, the ghost flight that it could have turned into.

That's coming up, right after the break.

(COMMERCIAL BREAK)

BANFIELD: Welcome back to our special coverage of the search for Flight 370. It has been 48 days since that plane vanished, and we are seemingly and amazingly no closer to finding the plane today than on day one.

Let's not forget there are 239 people on that plane, and we don't have a clue about their ultimate fate. There are more plausible theories out there, two of them, perhaps, that an onboard fire took that plane down, or that there was an event on the jet that caused the cabin to decompress.

Joining me now to talk about these two theories, why they may be plausible and why they may be ruled out CNN safety analyst David Soucie, live with us in Denver, former RAF pilot Colonel Michael Kay and also aviation attorney Mark Dombroff, who just so happened to represent the charter company with the jet involved in that ghost flight and ultimate crash that took the life of PGA champion Payne Stewart back in 1999. And may I remind you that was caused by decompression?

So, Mark, I'd like to start with you on that. I'm sure that was of keen interest to you when you heard about this flight 48 days ago. Is it possible decompression was the cause here?

DOMBROFF: I don't think we can rule it out. I recall that particular flight where F-16 fighters from the National Guard went up to basically shadow the aircraft after air-traffic control advised that the aircraft was not flying its flight plan and had turned north and was not communicating.

In that particular instance, there was no warning given to the pilots or by the pilots to air-traffic control. Communication simply stopped. They passed the word on to -- from air-traffic control to their authorities and fighter jets were scrambled.