by Ean Higgins
This could only happen if the wing was going forward, while at the same time the flap was being held back, Vance wrote, and that again was consistent with a controlled ditching with flaps down and not a high-speed uncontrolled crash.
Vance then concluded:
‘All of the evidence I used to explain what happened to MH370 was available to the official investigation, and yet they failed to uncover it.’
In psychology there is a well-established concept known as ‘motivated cognition’. It’s a case where, subconsciously, new facts or developments are perceived and interpreted by a person in such a way as to support the most convenient conclusion. As the Iresearch.net psychology website describes it, people’s motives influence how they process new information.
‘They are relatively more likely to trust small samples of information consistent with desired expectations (even when they know that small samples can be unreliable) and are more critical of messages threatening desired beliefs . . . Judgments of frequency and probability are also influenced by motives.’
Vance suggested this sort of phenomenon may have befallen the ATSB. He claimed it had, rather than objectively assessing each clue when it came in, ignored some and focused on others, leading it – perhaps subconsciously – to stick to a conclusion that was convenient. In particular, he said, the bureau had placed too much store in complex and debatable satellite tracking data never used before for this purpose, rather than relying on comparatively old-fashioned but proven, solid and methodical wreckage analysis.
‘By the time the flaperon was found, the safety investigation had already declared that MH370 was an unpiloted airplane that ran out of fuel. It appears they examined the flaperon, and the section of the flap, with that evidence . . . in mind,’ Vance wrote.
It was, Vance said, a convenient fit with their rationale for continuing to search in the area where their original calculations told them the wreckage would be, and provided justification for all the money spent, and for the further commitment of resources.
‘It served the purposes of those who were dismissing the possibility of pilot involvement,’ Vance wrote.
Vance’s conclusion on where MH370 might be differed from those of Keane, Bailey and Hardy. The airline pilots thought Zaharie had flown an essentially straight line after fuel exhaustion and ditched the aircraft at maximum distance. Vance took the view that it was, essentially, pointless to search anywhere: if a pilot deliberately flew the aircraft to the end, he could have flown it in any direction in the final minutes, creating a massive search area.
In the conclusion to MH370: Mystery Solved, Vance said 9M-MRO ‘probably will be found someday, but most likely it will be a long time from now. It will rest where it is until eventually someone finds it by using a technology that has not yet been invented.’
As always, I gave the ATSB every opportunity to respond to Vance before putting the extracts and news story to print, and as always, by that stage of the game, the ATSB passed up the chance.
On 10 May, three days before The Australian went to press with the Vance extracts and the news story, I wrote to ATSB spokesman Paul Sadler outlining how Vance had claimed the ATSB got its assumptions wrong in coming up with, and sticking to, the ‘ghost flight/death dive’ theory. I asked for the response of the ATSB’s search leader, Peter Foley.
Neither Sadler nor Foley responded.
But the timing was such that Australian democracy was again going to force the ATSB to front up before a national audience to address these questions. Another round of Senate Estimates was coming up, and once again, I liaised with cross-bench Senator Rex Patrick to develop a series of questions to put to the ATSB. Patrick was keen.
‘In any circumstance where $200 million of taxpayer money has been spent and credible sources raise questions as to the approach or efficacy, some form of inquiry is worthy,’ Patrick told The Australian in a lead-up story about how he and other senators were going to approach Foley and Hood.
Considerable anticipation developed about the imminent Senate Estimates hearing, fuelled also by a fresh treatment of the MH370 mystery by 60 Minutes. The Nine Network’s story, which filled a whole program and ran the night before The Australian published the extracts from MH370: Mystery Solved, took the form of a panel discussion among key members of the international MH370 club, including the former ATSB boss, Martin Dolan. The program mostly re-covered material and theories and counter-theories already known, but the panel discussion style made for some engaging television.
60 Minutes reporter Tara Brown (Coulthart had by then left Nine) posed the question:
‘Was MH370 a catastrophic accident or mass murder?’
The answer the panel eventually arrived at, pretty much unanimously, was the latter. There was one particularly interesting new element to the 60 Minutes program: some deft positioning and repositioning by Dolan. The former ATSB boss in charge during most of the first subsea search for MH370 performed an exquisite segue during the course of the program from expressing full confidence that the ATSB’s ‘ghost flight/death dive’ theory was right, to acknowledging that maybe it wasn’t.
Dolan started off with the standard ATSB line that MH370 was not controlled by a pilot at the end.
‘I still think the weight of the evidence – which is why the search has been concentrated where it is – is that, for whatever reason, it’s unlikely there were control inputs at the end of the flight, and therefore the aircraft spiralled into the water and crashed,’ Dolan said.
But as the program went on Dolan became increasingly open to the other possibility; that a pilot had in fact flown the aircraft to the end, and outside the ATSB’s search area.
‘If we don’t end up finding the aircraft in the search area, then the conclusion is that we focused on the wrong set of priorities, yes,’ Dolan said. ‘There are two viable theories – that someone was at the controls of that aircraft and applying control impulse at the end of flight or they were not, and there’s evidence that supports both of those theories.’
They were important concessions, and helped set the scene for a similar acknowledgement by Foley barely a week later. Even though it did not say a lot that was new, the power of television is such that the 60 Minutes program generated worldwide publicity along the lines that an international group of experts had cracked the MH370 mystery – concluding ‘the pilot done it’.
‘MH370 experts think they’ve finally solved the mystery of the doomed Malaysia Airlines flight,’ headlined The Washington Post.
Although on the program only Hardy and Vance had specifically claimed Zaharie had flown the aircraft to the end and ditched it, Dolan’s admission that the search strategy could have been wrong because it excluded that possibility upped the pressure on the serving ATSB officers who were about to be confronted at Senate Estimates. All eyes were upon the ATSB when Hood, Foley and chief legal officer Patrick Hornby took their seats in the interrogation chamber that constituted the Senate Rural and Regional Affairs and Transport Legislation Committee at Parliament House on 22 May 2018.
One of the excellent modern democratic qualities of the Senate Estimates process is that it is streamed live. This hearing when the ATSB was in the hot seat was watched contemporaneously by many in the international MH370 club around the world. Hood read out an initial prepared statement saying ‘at the ATSB, we exercise great care not to engage in conjecture or speculation’, and handed over to Foley. After some initial questioning about the Ocean Infinity search, Labor Senator David Chisholm said:
‘In recent media reports the investigators have been heavily criticised for sticking to the “ghost flight” theory. Do you have any response to that?’ Foley could be seen to bristle. ‘Firstly, I’d like to re-characterise it as not a ghost flight and not a death dive,’ he replied evenly. ‘This is a construction – and quite an ugly one – by . . . a journalist.’
Foley had seemed t
o pause after the word ‘by’, as if he were going to name the journalist.
It is worth noting here that the terms ‘ghost flight’ and ‘death dive’ were taken up by media organisations around the world as graphic, but accurate and descriptive layman words for the ATSB’s ‘unresponsive crew/hypoxia’ and ‘high and increasing rate of descent’ theories.
Just as Dolan had on 60 Minutes, Foley started off with the line that the ATSB remained confident its scenario of what happened to MH370 at the end was the correct one based on the evidence. He went over the satellite data, the fuel calculations, the satellite ‘reboot’ thought to indicate fuel exhaustion followed by the automatic deployment of the auxiliary power unit. Then he came to the discovery of the flaperon, and the flap, which he again maintained analysis showed had not been deployed, so that in all, as always, ‘the most likely scenario at that point was that the aircraft was probably descending in an uncontrolled manner’.
But then, again like Dolan, under further questioning from Chisholm, Foley started to open up the possibility a pilot was in fact in control at the end.
‘We haven’t ever ruled out someone intervening at the end,’ Foley said, while adding, ‘it’s unlikely.’
Then Patrick took over the cross-examination, asking a difficult and significant question of Foley. Patrick established that while Foley claimed the satellite data showed the aircraft in rapid descent at one point late in the flight, he could not know what the aircraft did after that.
Patrick: You’ve based the modelling on what happens when no-one is in charge of the aircraft. You’ve gone to Boeing. They’ve described the rudder movements and the perturbation and you’ve modelled that.
Foley: Correct.
Patrick: But you actually have no data points to say, ‘From that point, that is correct.’ If, for example, there was someone still in control of the aircraft, that last data point could have occurred and a completely different set of events could have then followed. You have no data that would show you conclusively that that didn’t occur.
Foley: We have nothing conclusive, but I can’t imagine why any pilot would be looking at flying an aircraft with descent rates between 13,800 feet a minute and 25,000 feet a minute.
When Patrick began to focus in on the claims by Vance, the exchange took a curious direction.
Patrick: In the news media, people have referred to Swissair Flight 111 and the results of the aircraft going into an uncontrolled drive. Basically they say that the damage to the flaperon is not consistent with what happened in the Swissair 111 flight.
Foley: You’re talking about Larry Vance?
Patrick: Yes, I am talking about Larry Vance.
Foley: And you’re talking about Larry Vance’s book?
Patrick: I haven’t seen the book.
Foley: I have.
Patrick: I had only the news reports, so I’m in the same position as you.
Foley: No, I’ve actually read the book. Mr Vance provided me with a copy last week. The flaperon came ashore in July 2015. Of course, at that time, everyone looked at the trailing edge damage and they made all sorts of conclusions based on just that trailing edge damage. We also thought long and hard about that. We didn’t have access to it. The French judiciary took it to France for analysis. One of our analysts went, but he wasn’t allowed to actually do anything meaningful in the analysis of the flaperon.
There are many scenarios that will damage the flaperon. For example, it sits right over the top of engine and in most crash scenarios you’re going to liberate the engines and they’ll come adrift. If your wings are reasonably level, there is going to be consequential damage, and you can’t conclude from a missing trailing edge on a flaperon that it was deployed at that time. So we didn’t make that conclusion.
Patrick picked up the curious turn in Foley’s argument – having always insisted that MH370 was in a spiralling, high and accelerating rate of descent at the end, with no pilot to keep the wings level, Foley now seemed to be talking about the wings being ‘reasonably level’ when the aircraft hit the water.
Patrick: This wasn’t a wings-level event, in your view.
Foley: We don’t know – that’s the whole point.
Patrick: You were pretty sure before what happened.
Foley: We’ve never speculated on the speed of the impact. What we’ve said was it was between 20,000 and 30,000 feet when those two final transmissions occurred – the aircraft was in a high and increasing rate of decent, and likely to be in a phugoid.
The ‘phugoid’ was an element in the ATSB’s end-of-flight scenario which had seemed to creep in as the debate developed over the years, and enabled the bureau to express more ambiguity about what speed the aircraft might have been travelling when it hit the water and what attitude it was in at that point. A phugoid is an up-and-down repetitive pattern in which an aircraft which is not under the control of a pilot, stalls or comes close to a stall. It then descends rapidly, but then as the airflow speeds up over the wings the aircraft starts to level off or climb again, slowing down until approaching a stall the cycle is repeated.
Patrick asked how much interaction the ATSB had had with pilots Keane, Bailey and Hardy, and Foley replied that their views had been considered.
Foley said he had had ‘lots of interactions’ with Hardy, and claimed he had sent the search ships at least some way towards where the British Boeing 777 captain said he thought MH370 might be.
‘We went a long way to the east in that search area.’
Then Patrick went down a very interesting line of inquiry which, effectively, got Foley to say for the first time explicitly what he had probably always wanted to say, but had for years been reticent about due to diplomatic considerations.
Patrick: Working back to your analysis or your conclusion that the aircraft wasn’t piloted, at what point in the flight do you say it became a pilotless aircraft?
Foley: It’s absolutely evident. We’ve always been in agreement with the notion that an aircraft doesn’t turn itself. I mean, there must have been someone in control of that aircraft, probably until about 18:25 or thereabouts. [Foley was referring to Universal Coordinated Time, or UTC, equivalent to 2:25am local Malaysian time.]
Although to every man and his dog in the aviation business, what Foley had just told the Senate committee was a no-brainer, it was in fact significant. It was effectively saying the ATSB believed a pilot had hijacked the aircraft, and had flown it for about two hours – even if, as the ATSB maintains, he or she was not flying it at the end of the flight. Hood then jumped in.
Hood: Once again, we’re not saying it was the pilot either; we’re saying that control inputs were made, because we’ve got no evidence to suggest that it was the pilot.
Patrick: Respectfully, control inputs –
Hood: Yes, we’re saying control inputs.
Then Patrick went to the next point of logic in what was an exquisite cross-examination: if Foley was so sure a pilot was flying MH370 in a deliberate fashion for about the first two hours of the flight, why was he so equally sure a pilot was not flying it at the end?
Patrick prefaced the question by saying, ‘I know you’re an experienced crash investigator. I’m even more dangerous because I’ve got a private pilot’s licence.’
He then said, ‘I’m just curious. You can’t explain how a pilot might do very strange things at the end of a flight, but somehow it’s reasonable that the pilot did some very strange things at the start of the flight.’
Foley then came up with what he called a ‘plausible scenario’. He recounted a 1994 case investigated by the US National Transportation Safety Board in which a cargo aircraft took off, but due to a problem with one of the doors the crew could not pressurise the cabin. The captain, despite the objections of the rest of the flight crew, elected to fly on after donning oxygen masks.
‘Shortly after level off
, the captain became incapacitated from decompression sickness. The first officer took command – and they landed the plane.’
Although the point of Foley’s line of argument was not completely clear, it seemed to be to try to counter Vance and other proponents of the ‘pilot to the end’ theory, by saying while a rogue pilot could have donned an oxygen mask to counter hypoxia, he or she would eventually succumb to decompression sickness, or what happens to mountain climbers with altitude sickness.
Senate Committee Chair O’Sullivan wrapped up the session with the ATSB soon after that. But O’Sullivan made a parting observation: ‘With your efforts over the four years, it’s got to torment your soul, as much as anything else.’
Foley: ‘It certainly does.’
The cross-examination of Foley had not lasted all that long, about half an hour, but it was the first time he’d had to address several key questions about the ATSB’s failed search for MH370 before a public audience. He had repeatedly outlined the ATSB’s fundamental argument that it had devised the search strategy based on what solid evidence it believed was available. He had again insisted the ATSB’s analysis of the flap indicated it had been retracted. He had posited an intriguing new ‘plausible’ scenario in which Zaharie might have depressurised the aircraft and stayed on oxygen, but unwittingly allowed himself to be overcome by decompression sickness.
But under questioning from Chisholm and Patrick, Foley had made a few key concessions: among them, he admitted he couldn’t really say how the flight ended because he didn’t have the data of the final minutes. And, like Dolan, Foley had delicately crab-walked to a position where he had effectively stated the plane was hijacked by a pilot, who might in fact have flown it to the end of the flight after all, even though such a scenario was, he said, unlikely.
‘We haven’t ever ruled out someone intervening at the end,’ Foley had said.
The bet-each-way messages from Foley led the media to focus on different interpretations.