The US did not reveal the satellite imagery they claimed to have about the downing of MH17 to the Dutch court that handled the criminal case. However, statements made by US officials about the imagery unintentionally indicate that the recorded missile launch cannot have been of the missile that brought down MH17.
“We saw the launch, we saw the trajectory, we saw the hit. We saw this airplane disappear from a radar screen. So there's really no mystery about where it came from and where these weapons have come from.” These legendary words were spoken on August 12, 2014 by then US Secretary of State John Kerry during a press conference in Sydney, Australia. He had previously made similar statements in various American media, starting three days after the disaster involving flight MH17, the passenger plane that was shot down over eastern Ukraine on July 17, 2014. On July 22, 2014, the American authorities provided the press with a map showing where the fatal missile had been fired, how it had flown towards MH17 and where the crash site was located. However, they never released the underlying satellite images. The US even refused to make them available to the Joint Investigation Team (JIT), the international team that led the criminal investigation. The Dutch court, which handled the MH17 criminal case from 2020 to 2022, has instructed the Dutch Public Prosecution Service to ask the US again for the images. A number of Dutch relatives of the MH17 Truth Finding Working Group subsequently sent a letter, addressed to the American embassy, requesting that the images be made available to the court. It did not help. On June 7, 2021, judge Hendrik Steenhuis announced that the US decision had been finalized. The court received no satellite images. Even the request of the examining magistrate of the District Court of The Hague to view them in the US has been rejected.
Is what Kerry said true? Does the US really have relevant satellite images? Four days after the disaster, Russian General Andrey Kartapolov challenged the Americans during a press conference of the Russian Defense Ministry to come forward with the satellite images. According to him, an experimental US satellite was seen hovering over eastern Ukraine when MH17 was shot down. The missile launch may have been recorded by an SBIRS satellite, a Space-Based Infra Red System, which is able to detect the heat trail of such a launch using infrared. Satellite expert Marco Langbroek of SatTrackCam reported in the Dutch parliament on January 22, 2016 that at least three American SBIRS satellites had a view of Ukraine at the time of the air crash. How did Langbroek know that? “I base that on our own tracking data from these satellites,” he says when asked. “That tracking data comes from an informal international network of satellite trackers. For one of the three satellites, the position is slightly more uncertain due to a "gap" in our observation data for this object around the MH17 disaster, but within the uncertainties we can still say that it actually certainly had a view of Ukraine at that time.”
However, the American satellite images do not seem to be the holy grail that some people take them to be. “There are no satellite images showing how a missile shot down flight MH17 over Ukraine on July 17,” said former chief prosecutor and coordinator of the JIT Fred Westerbeke in an interview with the Dutch newspaper NRC on December 19. 2014. “There is a misunderstanding. There are no satellite images in the sense of a video where you see a missile going into the air. There is no conclusive evidence from intelligence services with the answer to all questions.” Former CIA analyst Raymond McGovern said in an interview with Dutch video channel Café Weltschmerz that appeared on May 12, 2021 that he thinks Kerry lied about the satellite images, because the US would certainly have released them if it could support Kerry's statement.
In response to a request for legal assistance from the Public Prosecution Service about the satellite data, the US sent a written statement. This dates from August 23, 2016 and was drawn up by an employee of the Director of National Intelligence (DNI), the head of the US intelligence services. The statement said that MH17 was shot down with an SA-11 surface-to-air missile (the American name for a Buk missile) and that it was fired about six kilometers south of the town of Snizhne (Russian name: Snezhnoye or Snezhnoe). By the way, the DNI head at that time was James Clapper. He was the one who lied to a US Senate committee in 2013 when it asked him whether it was true that the US intelligence service NSA collected data on hundreds of millions of Americans. Clapper denied. NSA whistleblower Edward Snowden exposed the truth three months later.
The Clapper employee who drafted the memorandum was Kenneth R. Stolworthy. The Dutch lawyers of MH17 suspect Oleg Pulatov wanted to invite him for an interrogation to find out exactly what can be seen on the satellite images and how they should be interpreted. The Public Prosecution Service said it would not use the memorandum as evidence. But that did not detract from the importance of an interrogation for the defense, the lawyers felt. After all, the court might view the memorandum as relevant evidence, they stated on June 24, 2021. Moreover, an interrogation of Stolworthy might provide exculpatory information. However, on July 8, 2021, judge Steenhuis rejected the request "as pointless", because the Americans had done nothing more than refer to the memorandum in previous responses and therefore did not seem to want to add anything to it.
In any case, the lawyers believed that the memorandum should be considered exculpatory for their client. They pointed out during their March 2022 plea that Stolworthy writes that “at the moment contact was lost with MH17” the American intelligence community observed the launch of a Buk missile. The lawyers conclude from this that the missile that the Americans detected could not possibly have been the missile that downed MH17. After all, air traffic control only lost contact when the missile hit and not when it was launched. According to the Public Prosecution Service, the missile was on its way for more than half a minute. The launch that the Americans allegedly observed must therefore have been from a different missile than the missile that hit MH17, the lawyers argued. A missile may have been fired when contact with MH17 was lost due to another missile. Which missile could this have been?
According to the administrator of the Russian-language internet forum mh17-welbtalk, the fatal missile did not come from Pervomaiskyi, but was fired near Shaposhnykove. He refers, among other things, to the American memorandum and also points out that the Americans have never mentioned the exact time of the missile launch they observed. According to him, this launch must have taken place just after a Ukrainian missile hit MH17. (More about this in a next blog.) The lawyers speculated that the Americans may have observed the missile launch of a Strela-10. The separatists had several units of this short range service to air missile system. Pulatov also stated about a Strela launch around the time of the crash. In addition, several people testified about two consecutive explosions. The lawyers forgot to mention that there is a second reason to assume that the missile that the Americans say they saw must have been different from the Buk missile that allegedly downed MH17: the Americans indicate a different launch site than the JIT. It is located more than half a kilometer west of the agricultural field near Pervomaiskyi, at least judging by the map that the American embassy in Kiev had posted on Facebook on July 22, 2014, showing where the missile was fired, and how it had flown into MH17 and where the crash site was located.
The US says it not only has satellite images, but also relevant radar data. But the Public Prosecution Service never received that either. However, prosecutors do not doubt the existence of both. The National Public Prosecutor for Counterterrorism, Intelligence and Security Services was given the opportunity to test the accuracy of the DNI memorandum based on underlying, secret sources, the Public Prosecution Service reported at the hearing of June 9, 2020. “In the United States, the National Public Prosecutor has received an intelligence briefing from several American officials and has also had access to various classified and unclassified documents. According to the National Public Prosecutor, the written statement from the Office of the Director of National Intelligence is supported by the secret sources he consulted.” So could he have seen with his own eyes what Kerry had claimed? Not that either. “Some of the underlying metadata and research data was not made available to him.”
In addition to the Dutch Justice Department, the Dutch military intelligence service MIVD was also given an insight. “Upon request, the American authorities have shared classified radar and satellite information from their intelligence and security services with the MIVD,” then Minister of Security and Justice Ard van der Steur reported in a letter dated January 21, 2016 to the Dutch parliament. Both the Dutch Safety Board (DSB) and the Public Prosecution Service were able to take note of this through the MIVD.” The official report from the MIVD was drawn up by deputy head Geert Kuiper, the lawyers reported on November 5, 2020. Its value was “nil,” they stated. “It is in no way clear on the basis of which sources the MIVD comes to the conclusion that the firing area is located 5 kilometers south of Snizhne, what exactly these sources said and what these sources based this on. It is also not clear which analyzes were carried out, on what basis these analyzes were carried out, how these analyzes were carried out and what precise findings resulted from them. For this reason, the official report cannot be used as evidence of any firing location.” However, case law of the Supreme Court shows that an official report can be used not only as initial information in a criminal case but also as evidence. It is up to the court to judge whether the official report, given its limited verifiability, can serve as evidence. The court ultimately appears not to have taken the official report into account in its judgment. At least the court left the information from the MIVD undiscussed in their judgment of November 17, 2022. The memorandum from DNI employee Stolworthy was also not mentioned.
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