t2 b7 corken memo fdr- 3-30-00 legal memorandum by attorney robert a de la cruz- aerial intercepts...

8/14/2019 T2 B7 Corken Memo Fdr- 3-30-00 Legal Memorandum by Attorney Robert a de La Cruz- Aerial Intercepts and Shoot Downs 655

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Memor andum

s u b j e c t : Aerial Intercepts and Shoot-downs:Ambiguities of Law and PracticalConsiderationsDale: March 30, 2000

To: Cathleen Corken, Dep. ChiefDomestic Terrorism, TVCS

F r o m : Robert A. De La CruzTrial Attorney, TVCS

I. Introduction 2I1. Venue 2III. Ambiguities of Law 4

A. Omissions of Treaties and Conventions 51. Chicago Convention 6

a. Article 3 bis 82. Tokyo Convention 113. Hague Convention 134. Montreal Convention 135. 18 U.S.C. 32 14B. Distinctions Between Military and Civil Aviation . 171. Military Aviation 172. Civil Aviation 18a. Civil Aircraft Used for Illegal

Political Purposes 19b. Civil Aircraft Used for NarcoticsSmuggling 20c. Civil Aviation Being Used as a Weapon ... 23C. Applicability of Other Legal T heories 231. 1982 United Nations Convention on the Lawof the Sea 232. Law of Land Warfare 26

D. United States Code 281. Posse Comitatus Act 29

IV. Self-Defense 30A. United Nations Charter Provisions 30B. Constitutional Use of Deadly Force 32

V. Practical Considerations 34


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VI. Conclusion 35I. Introduction

If the need arises for the United States government to shootdown a terrorist-controlled civil aircraft, its decision willhinge upon the perceived need for self-defense. Because it ispresumptively unreasonable to shoot down a civil aircraft, theburden of justifying the shoot-down will fall upon the UnitedStates. The justification will require that the United Statescarry both the burden of production and the burden of persuasionto present the affirmative defense of self-defense. The legaldetermination of whether the shoot-down was warranted will (orshould) be governed by the well established self-defenseprinciples of necessity, proportionality of the force used, andreasonableness of the perception of the threat.

II. VENUEIn the event the United States does deliberately destroy acivil aircraft in flight, there are three possible venues inwhich the government will be required to act. It is beyond thescope of this paper to fully discuss the issues of venue,international jurisdiction, or "punishment" or sanctions, butbecause a shoot-down may effect the United States government inthese venues, I briefly identify them and address the practicallimits of their power.First, the shoot-down will be "tried in the court of publicopinion." Regardless of the strength of the justification inshooting down a terrorist-controlled civil aircraft, there willbe both genuine and manufactured public outrage over the act.

Due to the economic relationship between the United States andmost of the rest of the world, the "court of world opinion" willhave only a transitory effect, if at all, upon the long-terminterests of the United States. Despite the impotence of thisvenue to fundamentally change the operation of the United Statesgovernment, this is the primary audience the United Statesattempts to persuade. This is due in part to the fact that thepeople of the United States perceive the government to be anextension of themselves, and, internationally, both the citizensand the government demonstrate a seemingly compulsive need to beliked by most of the rest of the world. Internally, anunjustifiable and objectionable action may cause the governed towithdraw their consent to be governed by the electeddecision-maker. As a result, both the citizens and thegovernment attempt to avoid situations where the righteousness ofour action is validly and successfully criticized eitherinternally or internationally. At the practical level, thegovernment's obligation to appease this jury lies in preventingor minimizing unintended collateral consequences, such asvengeance-motivated terrorist attacks. This goal is accomplished


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by publicly making a persuasive and well documented casejustifying the act as legitimate self-defense.The second venue lies with the International Court of

Justice. The United States' amenability to the jurisdiction ofthis body is a product of treaty.1 The effectiveness of thisbody is a matter of dispute since, as against an economically andmilitarily strong nation, the International Court of Justicelacks the ability to enforce any sanction it might impose.Moreover, the practical decision whether to use deadly force toshoot down a threatening civil aircraft will not (or should not)turn upon any requirements of pleasing this body. On the otherhand, the United States might welcome the opportunity to use theforum of the International Court of Justice to publicize thelegitimacy of the act of self-defense. Due to the excessivedelay normally attendant in presenting a case before the ICJ,however, the United States would still be required to make itscase before the public.

The third, and most certain, venue is Congress. Unlike thefirst two venues, this body does have the power to define thelong-term goals and set the short-term operating rules for muchof the rest of the government. Just as with public reaction,Congress will exhibit both genuine and manufactured outrage overa shoot-down. Fortunately, Congress is a part of the United

1 The United States is a signatory to the civil aviationConventions discussed infra, and assuming that the destroyedcivil aircraft at issue operated under another signatory nation'sflag, the jurisdictional basis for the International Court ofJustice arises from the terms of ArticlB 84 of the ChicagoConvention (officially named the "Convention on InternationalCivil Aviation," Dec. 7, 1944, 61 Stat. 1180, TIAS No. 1591, 15U.N.T.S. 295 (ratified by the United States on April 4, 1947).The International Court of Justice (ICJ) is the ultimate arbiterof interpretation and application of the Chicago Convention. SeeD. Linnan, Iran Air Flight 655 and Beyond: Free Passage, MistakenSelf-Defense, and State Responsibility, 61 Yale J. Int'l L. 245,263-68 (Summer 1991). Notwithstanding the fact that aterrorist-controlled aircraft being used as a weapon should loseits protected "civil" status and no longer be covered within theframework of the Convention, it is highly unlikely that the ICJwould divest itself of jurisdiction, or rule favorably on theloss of "civil" status. Instead, we would probably witnessanother attempt by the International Civil Aviation Organizationto extend its jurisdiction to cover state (i.e., military)aircraft, as happened with the proposed Amendment 27 to Annex 2of the Rules of the Air.


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States' legal culture, and it is assumed that Congress is capableof understanding the law of self-defense. If the legitimate needarises to shoot down a civil aircraft on the grounds ofself-defense, then it is assumed that the government can presentits case to Congress without undue fear of hysterical reprisals.

III. Ambiguities of LawThere is no definitive body of law which expressly permits agovernment to shoot down a threatening civil aircraft. Whatrules do exist only address the issue of ordering an offending

aircraft to land if it is in violation of a nation's law or inviolation of the terms of the aviation Conventions; but the rulesare silent on the ultimate issue of what force is permitted inthe face of open defiance of a show of authority. Similarly,there is no definitive body of law which expressly permits agovernment to shoot down a threatening military aircraft.Instead, we can only draw conclusions based upon worldwidehistorical practice, coupled with either a strategic desire tomaintain ambiguity for the purpose of keeping options open, or anaversion to recognizing brutal realities wherein actual force isused.

As applicable to civil aviation, where internationalagreement does exist, such agreements form the basis for theinternational Conventions that have come into force. Oneuniformly accepted norm is that no nation should, as a matter ofnational policy, permit or practice the shooting down ofnon-threatening civil aviation aircraft. But it is alsouniversally accepted practice to shoot down foreign militarycombat aircraft whose only threatening behavior is unauthorizedpresence within the recognized airspace of a nation-state, eventhough such an act is not condoned in any particularinternational document.

Unlike the "Law of Land Warfare" or the "Law of NavalWarfare," there is no comprehensive "Law of Aerial Warfare."Instead, to the degree aerial warfare is considered at all,aerial combatants have been treated as adjuncts to some otherform of combat. As a result, there is no widely-accepted body ofmilitary definitions which might otherwise prove useful inclassifying an aircraft as threatening or non-threatening.Similarly, notwithstanding the existence of mass commercialaviation, none of the surprisingly few international conventionsdirectly confront the issue of when it becomes permissible todestroy a civil aircraft in flight. 2 The omission of discussion

There are internationally recognized rules applicable4


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on this vital point is due to practical limitations, such as alack of ability to achieve an international consensus definingrecognizable justifications, or the belief that existing languagein the United Nations Charter already governs the issue ofself-defense, or a willful ideological desire to interpretexisting language in such a manner as to make it a violation ofinternational law to use force under any circumstance. Evenattempts to address the issue of use of force against civilaircraft, such as Article 3 bis of the Chicago Convention, remainambiguous.A. Omissions of Treaties and Conventions

There are five Conventions which purport to regulate keyaspects of international aviation: the Convention onInternational Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, TIASNo. 1591, 15 U.N.T.S. 295, known as the "Chicago Convention"(ratified by the United States on April 4, 1947); the Conventionon Offences and Certain Other Acts Committed on Board Aircraft,Sept. 14, 1963, 20 U.S.T. 2941, TIAS 6768, 704 U.N.T.S. 219,known as the "Tokyo Convention" (ratified December 4, 1969); theConvention of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22U.S.T. 1641, TIAS 7192, 10 I.L.M. 133, known as the "HagueConvention" (ratified October 14, 1971); the Convention for theSuppression of Unlawful Acts Against the Safety of CivilAviation, Sept. 23, 1971, 24 U.S.T. 564, TIAS 7570, 10 I.L.M.1151, known as the "Montreal Convention" (ratified January 26,1973); and United Nations Convention of the Law of the Sea (1982UNCLOS) (which entered into force on November 16, 1994, but whichhas not been ratified by the United States Senate).3 Althoughthe Tokyo Convention is the closest of the Conventions to implyan authorized use of force against civil aircraft, it is only alogical implication. The 1982 Law of the Sea Convention createsan inference, as opposed to an arguably stronger implication,authorizing the use of force, as did the Chicago Conventionbefore Article 3 bis was added. The remaining documentscarefully avoid the creation of even a weak inference. Each ofratified Conventions are discussed below. The United Nations

to interception of international civil aviation, but these do notaddress the situation of a necessity-induced deliberateshoot-down. See Annex 2, Rules of the Air, at App. 2, ICAO (9thEd. July 1990).

3 Additional aviation protocols do not appear to berelevant to the issue of civil aircraft in flight. See, e.g.,Protocol for the Suppression of Unlawful Acts of Violence atAirports Serving Civil Aviation (United States became party onNovember 18, 1994).


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Convention on the Law of the Sea will be discussed later in thispaper.1. Chicago Convention (International Aviation)The Chicago Convention is the cornerstone upon which the

structure of international civil aviation is built. It containsseveral provisions which either reappear in later Conventions, orestablishes the presumptive norm that is inherently assumed toexist in all subsequent Conventions. In relevant part, the keypassages of the Chicago Convention are:Article 3

(a) This Convention shall be applicable only to civilaircraft, and shall not be applicable to stateaircraft.(b) Aircraft used in military, customs and policeservices shall be deemed to be state aircraft.(c) No state aircraft of a contracting State shallfly over the territory of another State or land thereonwithout the authorization by special agreement orotherwise, and in accordance with the terms thereof.

Article 4Each contracting State agrees not to use civilaviation for any purpose inconsistent with the aims ofthis Convention.

The "aims of this Convention" are, essentially, to protectand facilit ate international air transport of both persons andproperty.Article 5 establishes a right of non-scheduled flight andprotects the right of transit passage, "subject to the right ofthe State flown over to require landing."

Article 9(a) Each contracting State may, for reasons of

military necessity or public safety, restrict orprohibit uniformly the aircraft of other States fromflying over certain areas of its territory, providedthat no distinction in this respect is made between theaircraft of the State whose territory is involved,engaged in international scheduled airline services,and the aircraft of other contracting States likewise


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engaged. Such prohibited areas shall be of reasonableextent and location so as not to interfereunnecessarily with air navigation. Descriptions ofsuch prohibited areas in the territory of a contractingState, as well as any subsequent alterations therein,shall be communicated as soon as possible to the othercontracting States and to the International CivilAviation Organization.(b) Each contracting State reserves also the right,in exceptional circumstances or during a period ofemergency< or in the interest of public safety, andwith immediate effect, temporarily to restrict orprohibit flying over the whole or any part of itsterritory, on condition that such restriction orprohibition shall be applicable without distinction ofnationality to aircraft of all other States.(c) Each contracting State, under such regulations asit may prescribe, may require any aircraft entering theareas contemplated in subparagraphs (a) or (b) above toeffect a landing as soon as practicable thereafter atsome designated airport within its territory.

Article 35(a) No munitions of war or implements of war may be

carried in or above the territory of a State inaircraft engaged in international navigation, except bypermission of such State. Each State shall determineby regulations what constitutes munitions of war orimplements of war for the purposes of this Article,giving due consideration, for the purposes ofuniformity, to such recommendations as theInternational Civil Aviation Organization may from timeto time make.

Article 89In case of war, the provisions of this Convention

shall not affect the freedom of action of any of thecontracting States affected, whether as belligerents oras neutrals. The same principle shall apply in thecase of any contracting State which declares a state ofnational emergency and notifies the fact to theCouncil.As can be seen, the Chicago Convention clearly prohibitsusing civil aviation in a militarily aggressive manner. Thefailure of this Convention, as will all others, is that it does


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not specify what level of actions are permissible to enforcethese prohibitions. It is inferred, but never stated, that useof deadly force is the ultima te sanction for failure to complywith this Convention. Moreover, the Chicago Convention speaks interms of contracting S tates, and does not encompass the acts ofstateless terrorists. Given the creation of this Convention in1944, the failure to address a then-non-existent problem isunderstandable.

a. Article 3 bisAfter the Soviet destruction of Korean Air Lines Flight 007on August 31, 1983, world opinion resulted in the creation of"Article 3 bis," which was meant to be appended to the ChicagoConvention. Notwithstanding the United States' decision not toformally adopt this provision, the required number of signatorycountries (which was 102) have ratified the document, and Article3 bis is now considered to be international law brought into

force by custom. The Federal Aviation Administration believes,or at least operates as if, Article 3 bis is binding upon theUnited States.Article 3 bis states:

(a) The contracting States recognize that every Statemust refrain from resorting to the use of weaponsagainst civil aircraft in flight and that, in case ofinterception, the lives of persons on board and thesafety of the aircraft must not be endangered. Thisprovision shall not be interpreted as modifying in anyway the rights and obligations of States set forth inthe Charter of the United Nations.(b) The contracting States recognize that everyState, in the exercise of its sovereignty, is entitledto require the landing at some designated airport of acivil aircraft flying above its territory withoutauthority of if there are reasonable grounds toconclude that it is being used for any purposeinconsistent with the aims of this Convention; it mayalso give such aircraft any other instructions to putan end to such violations. For this purpose, thecontracting States may resort to any appropriate meansconsistent with relevant rules of international law,including the relevant provisions of this Convention,specifically paragraph (a) of this Article. Eachcontracting State agrees to publish its regulations inforce regarding the interception of civil aircraft.(c) Every civil aircraft shall comply with an order


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its speed. The destructive effect of a projectile lies in thetransference of kinetic energy into the struck target. Anairborne Boeing 747 can weigh in excess of 2 million pounds,retain structural integrity at flight speeds exceeding 500 milesper hour, and can carry many thousands of gallons ofkerosene-based jet fuel. If used as a weapon, such an aircraftmust be considered capable of destroying virtually any buildinglocated anywhere in the world.

Second, Article 3 bis fails to specify what types ofenforcement are permissible when confronted by noncompliance.The general prohibition of Article 3 bis prohibits use of deadlyforce, and requires States to make noncompliance punishable by"severe penalties," but it does not explicitly authorize the useof deadly force. Instead, a generalized reference is made to theU.N. Charter, but that erroneously presupposes a uniformity ofdefinition of what the right of self defense is under the U.N.Charter. The specifics of the United Nations Charter provisionsare dealt with later in this paper, but this issue here iswhether Article 3 bis has created an illusory reliance upon a"right" that may not be found to exist.

Third, the conceptual scope of Article 3 bis fails toencompass what actions are permissible when dealing with aterrorist-controlled, hijacked or surreptitiously-armed planethat is carrying a weapon of mass destruction to an intendedtarget. Notwithstanding various works of fiction, to date thereare no reported actual incidents of a hijacked civil aircraftbeing deliberately and successfully used as a flying bomb.4

4 During World War II, both American and Japanese pilotsdeliberately used aircraft in suicidal attacks. The differencebetween the national examples lies in the formal adoption by theJapanese of kamikaze aircraft as a tactical means of guiding theaircraft/bomb to its target; whereas American incidents appear tobe independent decisions by the pilot of an already damagedaircraft (one specific American example is derived from thedamage inflicted on the Imperial Japanese Navy cruiser Mogamiduring the Battle of Midway).More recently, on Feb. 22, 1974, Samuel J. Byck murdered anairport guard and a co-pilot before he was shot and wounded (andthen committed suicide) during his failed attempt to hijack aDelta Air Lines for purpose of crashing it into the White House.On Sept. 12, 1994, Frank Corder, operating in an apparentnarcotic-induced fog, piloted a small and unarmed Cessna aircraftinto the White House, but caused little damage. Finally,although not a deliberate threat, on July 16, 1998, an errantAmerican Airlines jet directly overflew the White House during an

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to restore control of the aircraft to its lawful commander" inthe event of a hijacking. But, Articles 4 and 11 must be read inconjunction with Article 17:

Article 17In taking any measures for investigation or arrest or

otherwise exercising jurisdiction in connection withany offence committed on board an aircraft theContracting States shall pay due regard to the safetyand other interests of air navigation and shall so actas to avoid unnecessary delay of the aircraft,passengers, crew or cargo.Thus, even when dealing with the Convention that mostclosely implies a specific authorization for the use of force toprotect a State from a specific aircraft threat, the remainder ofthe Convention expressly only authorizes non-deadly force

remedies, which puts us back sguarely within the framework of theChicago Convention. To the degree that Article 17 provideslatitude for use of deadly force, it is a matter ofinterpretation of the phrase "due regard" for passenger safety.Another problematic issue arises within the Tokyo Conventiondue to the following Article:

Article 2Without prejudice to the provisions of Article 4 and

except when the safety of the aircraft or of persons orproperty on board so requires, no provision of thisConvention shall be interpreted as authorizing orrequiring any action in respect of offences againstpenal laws of a political nature or those based onracial or religious discrimination.At first blush, the United States would normally interpret

this Article as embodying nothing more than a prohibition againstusing this Convention as a vehicle for practicing or enforcinginvidious discrimination. Under an appropriatelyideologically-motivated interpretation, however, this Articleexempted politically-motivated crimes, possibly even includinghijacking, from coverage under this Convention.

Also note that the Tokyo Convention offered two definitionswhich govern when an aircraft is considered "in flight":Article 1

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3. For the purposes of this Convention, an aircraft isconsidered to be in flight from the moment when poweris applied for the purpose of take-off until the momentwhen the landing run ends.But when addressing the authority of the aircraft commander,the definition was altered:

Article 52. Notwithstanding the provisions of Article 1,paragraph 3, an aircraft shall for the purposes of thisChapter, be considered to be in flight at any time fromthe moment when all its external doors are closedfollowing embarkati on until the moment when any suchdoor is opened for disembarkation. In the case of aforced landing, the provisions of this Chapter shallcontinue to apply with respect to offences and actscommitted on board until competent authorities of aState take over the responsibility for the aircraft andfor the persons and property on board.This latter definition was incorporated by the Hague

Convention as the operational definition.3. The Hague Convention (Hijacking)This Convention closed the "political offense" loophole left

open by Article 2 of the Tokyo Convention. It mandated thatunlawful seizures of aircraft (hijacking) be deemed a seriouscrime which manda ted prosecution. Other than limiting theprohibited conduct to "unlawful" activiti es, this Conventioncontains no provisions applicable to the topic of this paper.

4. The Montreal Convention (Sabotage)The Montreal Convention made it an offense to unlawfullycommit an act of violence against a person on an airplane wheresuch conduct threatened the safety of the aircraft; to destroy anaircraft in flight or being "in service" of flight; to place byany means a device or substance on board an aircraft "in service"

that could destroy or endanger the safety of the aircraft; todestroy or damage air navigation facilities that would endangerthe safety of aircraft in flight; and to attempt any of theaforementioned activities or to convey false information whichendangers the safety of an aircraft in flight.

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As with the Hague Convention, other than limitingapplicability of this Convention to "unlawful" activities, thisConvention contains no specific provisions applicable to theissue of specifically authorizing the government to act inself-defense by shooting down a civil aircraft.

5. 18 U.S.C. 32Pursuant to its obligation to effectuate the provisions of

the Montreal Convention, the United States enacted implementinglegislation. It was the express purpose of Congress "toimplement fully" the Montreal Convention "and to expand theprotection accorded to aircraft and related facilities." SeeH.J.Res. 648, Pub.L. 98-473, 98 Stat. 1837 (Oct. 12, 1984). Indrafting the legislation, Congress failed to describe thescienter to use, but instead used the terminology "Whoeverwillfully - ...." In so doing, Congress seemingly, andapparently unintentionally, criminalized the potentialself-defense actions of the United States government.

The terms "willful" and "willfully" have no set meaning, andhave been interpreted (in non-tax cases) in a variety of ways.Indeed, the term "willfully" has "defied any consistentinterpretation by the courts." United States v. Granda, 565 F.2d922, 924 (5th Cir 1978) . According to the Federal Jury Practiceand Instructions, "willfully" is defined as follows:

The term "willfully", as used in these instructions todescribed the alleged state of mind of Defendant ,means that (he)(she) knowingly (performed an act) (failed toact), deliberately and intentionally ("on purpose") ascontrasted with accidentally, carelessly, orunintentionally.

Federal Jury Practice and Instructions 17.05(5th Ed.)Under this definition, a United States soldier, airman, or

employee ordered to shoot down a threatening aircraft is acting"willfully" because the act is done intentionally, and notaccidentally. This definition, and jury instruction, wouldprobably constitute reversible error, in light of Ratzlaf v.United States, 510 U.S. 135, 136, 114 S.Ct. 655, 657, 126 L.Ed.2d615 (1994). Ratzlaf required that the defendant have known hisactions were illegal. The Ratzlaf rationale has led severalCircuits to modify their instructions to reflect a knowledge thatthe committed was done in violation of a law. See, e.g., UnitedStates v. Doyle, 130 F.3d 523, 540 (2d Cir. 199777 United Statesv. McNamara, 74 F.3d 514, 515 (4th Cir. 1996). The Seventh andNinth Circuits recommend that "willfully" not be defined unless

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used in the statute, and the Eighth Circuit recommends the termnot be defined for the jury even if the word appears in thestatute. See Federal Jury Practice and Instructions, at 17.05Note Fifth Circuit. But the Ratzlaf-modified instruction faresonly little better in a necessity-induced shoot-down.

Section 32(a)(1) specifically makes it an offense to destroy"any aircraft in the special aircraft jurisdiction of the UnitedStates" [emphasis added]. In other parts of this statute, whenCongress meant to discuss civil aircraft, they explicitlyreferenced "civil aircraft." Accordingly, the 32 (a) (1)reference to "any" must, in fact, mean "any" aircraft.5 Assuminga United States interceptor aircraft, or long range ground basedmissile launcher, fired upon a terrorist-controlled U.S. flagaircraft in international airspace (or any civil aircraft insideU.S. airspace), the person launching the weapon would beintentionally acting, knowing that such act is in violation ofthe law. That individual would have an affirmative defense toraise at trial, but the underlying act would still bepresumptively criminal. While it would be exceedingly unlikelythat the United States government would prosecute such anindividual, there is no guarantee that other nations would notuse the Convention and 18 U.S.C. 32 to assert criminaljurisdiction over the launching person. Hence, the lack ofscienter in 32 potentially exposes governmental actors, actingin good faith and within the scope of their duties, to criminalprosecution.

In light of this unacceptable situation, the Executivebranch of government may wish to invoke immunity from the reachof 32. In Nardone v. United States, 302 U.S. 379, 58 S.Ct.275, 82 L.Ed.314 (1937), the Supreme Court limited along-standing rule of statutory interpretation it had previouslyrecognized in Dollar Savings Bank v. United States, 86 U.S. (19

5 Assuming that "any" does, in fact, mean "any" aircraft,18 U.S.C. 32 becomes constitutionally suspect where, takenliterally, this statute would prohibit the destruction of ahostile nation's intruding air force. Given this possibleinterpretation, this statute is unconstitutional in that itrepresents an impermissible legislative infringement upon theExecutive Branch's un-enumerated constitutional duty andprerogative to defend the United States from hostile attack. See IThe Prize Cases, 67 U.S. (2 Black) 635, 668, 17 L.Ed. 459 (1862T~("If a war be made by invasion of a foreign nation, the Presidentis not only authorized but bound to resist force by force. Hedoes not initiate the war, but is bound to accept the challengewithout waiting for any special legislative authority.").

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Wall.) 227, 22 L.Ed. 80 (1873), and in United States v. Herron,87 U.S. (20 Wall.) 251, 22 L.Ed. 275 (1873). The Dollar rulepreviously recognized and adopted the ancient English canon thata statute or legislative act did not bind the sovereign unless itused "special and particular words" evidencing the law's coverageof the sovereign, and noted:

The most general words that can be devised (forexample, any person or persons, bodies politic orcorporate) affect not [the sovereign] in the least, ifthey may tend to restrain or diminish any of his rightsand interests.

Id., 86 U.S. (19 Wall.) at 239.When deciding Nardone, the Supreme Court implicitly rejectedthe first half of the Dollar rule, requiring "special andparticular words" to be averred within the statutory language,

and concluded that generalized statutes did apply to thegovernment. See also United States v. Arizona, 295 U.S. 174, 55S.Ct. 666, 79 L.Ed. 1371 (1935). The Nardone decision retained,however, the latter half of the Dollar rule, by rejecting aliteral reading of a general statute where doing so would"deprive the sovereign of a recognized or established prerogativetitle or interest[,]" or where literal application of thestatutory language "would work obvious absurdity[.]" Nardone v.United States, supra, 302 U.S. at 383-4, 58 S.Ct. at 277.

Even if 18 U.S.C. 32 is construed as generally prohibitingthe United States or its agents from destroying civil aircraft,but see 22 U.S.C. 2291-4, the statute does not foreclose theduty of self-defense, or the affirmative legal defense ofself-defense. See The Prize Cases, supra, 67 U.S. at 668 ("If awar be made by invasion of a foreign nation, the President is notonly authorized but bound to resist force by force. He does notinitiate the war, but is bound to accept the challenge withoutwaiting for any special legislative authority."). Therefore, theExecutive branch of government could argue it is immune from 32where statute both deprives the sovereign of the prerogative ofself-defense, as well as working an "obvious absurdity" inpotentially precluding self-defense.

B. Distinctions Between Military and Civil AviationEvery Convention - Chicago, Tokyo, Hague and Montreal -contains an explicit provision stating that the Convention does

not apply to "military, customs, or police" aircraft. Such Stateaircraft fly without the protection of these Conventions, but

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carry with them the implicit force majeure of their country oforigin.

1. Military viationThere are no treaties or Conventions which explicitly grant

one nation the power or lawful authority to shoot down anothernation's military aircraft. Instead, the pragmatism of harshreality controls the practice of shooting down intruding militarycombat aircraft. To the degree that nations engage inself-restraint in shooting down their neighbor's combat aircraft,such restraint can safely be presumed to be the product of adesire not engage in open belligerency. Conversely, the neighborcan be presumed to withhold its aircraft from crossing a borderout a desire to preserve its limited supply of very expensivecombat aircraft. But violations of this general accord result inself-help, wherein the intruding combat aircraft are destroyed bythe overflown nation. See generally Geiser, The Fog of Peace:The Use of Weapons Against Aircraft in Flight During Peacetime, 4J. Int'l Legal Stud. 187 (Summer 1998) [hereinafter "Fog ofPeace"]- While the nation that lost its aircraft may beoutraged, the rest of the world is not. Furthermore, since warinterferes with the general orderliness and predictability ofnations at peace, as well as with commerce, the practical andworld-wide consensus is that escalation to full scale war is notappropriate when someone destroys trespassing combat aircraft.

At least one distinction has been recognized for clearlynon-combatant-type military aircraft. On August 9th and 19th,1946, Yugoslavia intercepted unarmed but admittedly intrudingU.S. military transport planes and machine-gunned them. Thefirst aircraft made a forced landing, and the second was shotdown. By agreement between Yugoslavia and the United States, itwas decided to permit non-combatant military planes to eitherland upon order of the interceptor aircraft, or failing that, topursue diplomatic remedies. See Fog of War, supra, 4 J. Int'lLegal Stud, at 198-201. It is exceedingly unlikely that thisisolated episode can be extrapolated into a general ruleprotecting non-combatant-type military aircraft, and Yugoslaviahad an ulterior motive for seeking peace with the United Statesat the time it reached its agreement on this matter (borderdispute with Italy). However, even were we to accept the verytenuous assumption that unarmed military transport aircraft are"safe," any protection given this form of unarmed aircraft isonly operable in the absence of open belligerency. If a state ofwar or open belligerency exists, these aircraft are legitimatetargets.

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subject to the ICAO, reality does not dictate that it be so.Second, there is no provision within the Chicago Convention thatgrants it the right to cover civil aircraft used "for any purposeinconsistent with" the Convention. It is implicit within thescope of both the Hague Convention (Hijacking) and the TokyoConvention (Offenses on Board Aircraft) that ICAO jurisdictioncontinues during the period when the aircraft is not under thecontrol of the aircraft commander, but there is no explicitprovision that states this principle.

But even assuming that ICAO jurisdiction does continue whena civil aircraft is unlawfully diverted from its routine mission,there are no provisions in these Conventions that assert coverageover aircraft that intentionally begin their flights beyond thelimits of the law.

At least two examples illustrate this point: the use ofcivil aviation for unlawful political purposes, as in the examplethe Cuban shoot-down of two "Brothers to the Rescue" aircraft onFebruary 24, 1996; and the use of civil aviation for narcoticssmuggling, which implicates the Colombian and Peruvian policiesof shooting down of narcotics smugglers' aircraft during andbetween 1992 and 1994 (and perhaps beyond).

a. Civil Aircraft Used for Illegal Political PurposesIn the "Brothers to the Rescue" shoot-down, the position

articulated by the United States was that it was the civil natureof the aircraft that made the shooting down illegal underinternational law. See Fog of Peace, supra, 4 J. Int'l LegalStud, at 229. Reference by the United States was made to Article3 bis, but inasmuch as this reference was a "political" statementmade by the Secretary of State in a press conference, suchreference cannot be interpreted as legal reliance upon, or formaladoption of, Article 3 bis. In any event, by its terms, the"Brothers to the Rescue" misuse of civil aviation appears to bewithin the scope of conduct that Article 3 bis was designed toprotect. Article 3 bis (c) requires "each Contracting State" tomake it "punishable by severe penalties" for its persons orregistered aircraft to fail to comply with an order to landissued by the overflown State. Under this regime, the United

6 Article 3 of the Hague Convention (Hijacking) andArticle 4 of the Montreal Convention (Sabotage) expressly coveraircraft engaged in both international and domestic flight. PerArticle I, the Tokyo Convention (except when describing powers ofthe aircraft commander) applies when the aircraft is "in flight,"and it is implicitly assumed that this includes domestic flight.

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States should have a criminal statute that requires its personsand commanders of its registered aircraft to submit to an orderto land. The Cuban government would therefore be required tonotify the United States of the overflight violations and theintruding pilots' noncompliance, whereupon the United Stateswould have an affirmative duty to prosecute the violation.7

b. Civil Aircraft Used for Narcotics SmugglingA slightly different situation arises when dealing with

narcotics' smuggling aircraft. Unlike the political activitiescarried out by the "Brothers to the Rescue," narcotics have adirect, immediate and measurable nexus to murder, death, andother serious crimes. Whether the murders are committed bynarco-terrorists defending their airfields from the Colombian orPeruvian Army, or whether the murders and deaths are reflected inthe daily death toll within the United States, nobody can denythe nexus or severity of the threat. Moreover, narcoticsaircraft are clearly operating for a "purpose inconsistent withthe aims of the [Chicago] Convention," and therefore it istheoretically arguable that such aircraft have no greater orlesser right to continue flying than any intruding militarycombat aircraft. But for the existence of 18 U.S.C. 32, and toa lesser degree Article 3 bis, it would be entirely defensible toargue that international law does not prohibit the shooting downof narcotics aircraft. The existence of 18 U.S.C. 32 makessuch an argument untenable for the United States, however,because it represents the policy of the United States to notshoot down "any" civil aircraft.

On the other hand, the federal government has granted"official immunity for authorized employees and agents of theUnited States and foreign countries" to "interdict" narcoticsaircraft by destruction. See 22 U.S.C. 2291-4. This statuteappears to apply the Nardone exception reserving sovereign powersas against a general legislative enactment. The interdictionmust occur within a foreign nation's airspace, however, and doesnot confer equivalent authority to domestically-based agents ofthe United States.

The remedies available for using less-than-deadly forceagainst civil narcotics aircraft are not quite as limited asusually thought, but they do require a level of commitment of

1 If such a statutory scheme is created, the statuteshould put venue in an appropriately neutral judicial district,so as to avoid the jury nullification problems encountered inWashington D.C., Florida, and Puerto Rico.

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resources and willpower that this country typically lacks.The first option is use our radar capabilities to track the

intruding aircraft back to their home base, whereupon we demandthat the country of origin criminally prosecute the violators.The sanction to be applied for lack of prosecution is a series ofescalating economic sanctions, including the termination of thatnation's permissive entry into United States airspace for normalairborne commerce.8 When dealing with situations such aspresented in Colombia, where the government is incapable ofpolicing its narcotics violators, the United States might bejustified in engaging in a more direct form of self-help.

The second option, premised upon failure of the firstoption, is to engage in a hazardous and fuel-consuming practiceof aerial interception and harassment (a.k.a. "force-down").Given that the normal body of governmental police aircraft areincapable of conducting high-performance intercepts, the UnitedStates would likely have to rely upon military combat aircraft.Assuming that the intercepted aircraft declined an invitation tocomply with the orders of the intercepting aircraft, the militaryaircraft would engage in high-speed and violent maneuvers in veryclose proximity to the intercepted aircraft that would do twothings: cause the intercepted plane to consume fuel, and breakthe nerve of the pilot. If the intercepted aircraft can beforced to use its fuel in avoidance maneuvers, the aircraft willhave the option of landing in the United States or being forceddown at sea. If the nerve of the pilot can be broken, the pilotmay choose to surrender, or assuming escape, not return. Thisoption carries with it a substantial risk of mid-air collisions,and an even greater risk of inducing the intercepted aircraft todepart controlled flight (i.e., crash).

The second option is clearly an attenuated method ofapplying deadly force, but the situation puts the pilot of theintercepted aircraft in the position of deciding whether tocomply with the interceptor's commands or to crash. Since theintercepted aircraft is not covered within the scope of any ofthe civil aviation Conventions, this form of engagement is notprohibited by such Conventions. Article 3 bis permits theintercepting country to "any appropriate means" of enforcing itsairspace sovereignty, short of "resorting to the use of weapons."

8 For the purposes of this paper, I have not attempted tointegrate to what degree our right to impose economic sanctionsmay be limited or modified by our membership in the World TradeOrganization or by the North American Free Trade Agreement, or byother similar agreements.

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Section 32 of Title 18, United States Code, only prohibits theuse of fire or destructive devices or substances, or "act[sj ofviolence against" aircraft. Arguably, aerial intercept maneuversare not "acts of violence," and therefore are not governed bythis statute.9The third option is to continue the present practice ofattempting to make law enforcement interceptions with substandard

police aircraft. Notwithstanding the fact that the currentpractice has been demonstrated to be of limited effectiveness,this appears to represent the level of commitment that thisnation is willing to undertake, commensurate with its desire notto offend domestic public sensibilities.

The fourth option is to do nothing. This option wouldrequire an acceptance of political realism equivalent to thatexercised by Option Two. In essence, the government would admitdefeat, admit that it is incapable of safeguarding the nation'sairspace, and permit whomever wished to fly over the UnitedStates to do so for any purpose.

c. Civil Aviation Being Used as a WeaponWhen dealing with an aircraft that has come under thecontrol of stateless terrorists, who intend to use the aircraft

as either a weapons delivery system or a guided missile, none ofthe generally accepted theories apply. The aircraft is neithermilitary nor civil. The aircraft, which is presumably filledwith hundreds of innocent passengers, may have started its flightunder the protection of the various civil aviation Conventions,but once the intended use of the aircraft becomes known, theaircraft should lose its protected status. It is only theunchanged outward appearance of the aircraft that generates theillusion that the aircraft continues to be a civil aircraft.

The terrorist-controlled aircraft is not quite military,

9 The use of aerial intercept missiles, whether infraredor radar guided, is prohibited by 18 U.S.C. 32(a) (2), whichmakes it unlawful to place a destructive device or substance "inproximity to" an aircraft. Missiles typically operate withproximity-fused warheads.

As for "world opinion" to a policy of inducing narcoticsaircraft to crash by means other than the use of weapons, pleasenote that there was no meaningful adverse world opinion, norsanctions, to the announced Colombian and Peruvian policies ofshooting down narcotics aircraft. See Fog of Peace, supra, 4 J.Int'l Legal Stud, at 219-220 and nn7T30-132.

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either, at least in the sense normally considered by theConventions. Military aircraft, as well as police and customsaircraft, belong to a nation-State. Here the hypotheticalterrorists are either stateless themselves (such asPalestinians), purport to be acting without State sanction (suchas Libyan- or Iranian-sponsored terrorists), or are in factoperating without State sanction (such as the German Red ArmyFaction, Italian Red Brigade, Irish Provisional Army, etc.). Asa result, the terrorist-controlled aircraft constitutes somethingcloser to a pirate vessel of old, operating without flag andwithout protection.C. Applicability of Other Legal Theories

What is the status of terrorists, especially terrorists incontrol of an aircraft? The practical answer is that such peopleare the functional equivalent of pirates; international outlawswho used to be subject to attack by anyone at any place.Unfortunately, the United Nations Convention on the Law of theSea has foreclosed the use of this conceptual construct. Whetherthis was intentional or merely a reflection of society'sincreasingly unwillingness to commit necessary violence for thepurpose of self-protection is a matter beyond the scope of thispaper.

1. United Nations Convention on the Law of the SeaThe United Nations Convention on the Law of the Sea[hereinafter UNCLOS] took effect in 1994. Like Article 3 bis,

UNCLOS has obtained sufficient signatories to become customaryinternational law, even though the United States has not formallyratified it. Notwithstanding the title of this Convention,UNCLOS contains several passages relating specifically toaircraft. In many respects, UNCLOS is similar to the aviationConventions in that definitional concepts limit protection underthis Convention to those vessels and aircraft that are otherwiseoperating lawfully. But while UNCLOS often creates strongimplications that seemingly justify use of force in certaincircumstances, UNCLOS creates definitions about piracy thatpreclude the use of this term and concept from being applied toterrorist-controlled aircraft.

Article 19 of UNCLOS defines "innocent passage" as beingpassage that "is not prejudicial to the peace, good order orsecurity of the coastal state." Passage "of a foreign ship shallbe considered prejudicial" if it poses "any threat or use offorce against the sovereignty, territorial integrity or politicalindependence of the coastal State" or engages in "any other

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activity not having a direct bearing on passage." While Article19 is specifically applicable to ships, its concept extends toaircraft.Article 39, regarding the right of aircraft (and ships) toengage in "transit passage" requires the aircraft to "refrain

from any threat or use of force against the sovereignty,territorial integrity or political independence of States ..."and prohibits the aircraft from engaging in conduct "in violationof the principles of international law embodied in the Charter ofthe United Nations."Essentially, Articles 19 and 39 impose no greater burdenupon aircraft than those already establi shed by the aviationConventions. But when dealing with the issue of piracy, UNCLOShas a direct impact upon aviation, and effectively forecloses theuse of "piracy" law against aerial terrorists.

Article 101Definition of piracy

Piracy consists of any of the following acts:(a) any illegal acts of violence or detention, orany act of depredation, committed for privat e ends bythe crew or the passengers of a private ship or aprivate aircraft, and directed:(i) on the high seas, against another ship oraircraft, or against persons or property on board such

ship or aircraft;(ii) against a ship, aircraft, persons or propertyin a place outside the jurisdiction of any State;(b) any act of voluntary participation in theoperation of a ship or of an aircraft with knowledge offacts making it a pirate-ship or aircraft;(c) any act of inciting or of intentionallyfacilitating an act described in subparagraph (a) or(b) .

Article 103Definition of a pirate ship or airc raft

A ship or aircraft is considered a pir ate ship oraircraft if it is intended by the persons in dominantcontrol to be used for the purpose of committing one ofthe acts referred to in Article 101. The same applies24


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if the ship or aircraft has been used to commit anysuch act, so long as it remains under the control ofthe persons guilty of that act.Based upon these provisions, piracy requires two or morevessels or aircraft: one is the pirate, the other is the

target/victim.Piracy must be committed for "private ends," which meansfinancial reward. An ideologically motivated hijacking is notcovered. UNCLOS mirrored the loophole created by the TokyoConvention, which required the Hague Convention to close.10Under Article 104, an "aircraft may retain its nationalityalthough it has become a pirate ..." depending upon the law of

the nation of registration of the aircraft. The ancient commonlaw concept of severing the legitimate origins of a vessel fromits piratical application has been overturned by this Convention.UNCLOS purports to govern the high seas and the airspacebeyond the territorial limits of nations. Although the generaltransit-right terms of UNCLOS are not "inconsistent" with theChicago Convention, the piracy provisions are beyond the scope ofthe Chicago Convention. If the Chicago Convention applied sub

silencio to civil aircraft operating beyond the jurisdiction ofthe ICAO, then UNCLOS is inconsistent with the ChicagoConvention. Pursuant to Articles 82 and 83 of the ChicagoConvention, signatory States are foreclosed from adopting otheragreements that are "inconsistent" with the Chicago Convention.If UNCLOS controls the issue, then a fortiori the ChicagoConvention never did govern the situation wherein a civilaircraft is converted in flight from a protected "civil" statusto an unprotected status operating in contravention of the aimsof the Chicago Convention, because the UNCLOS piracy provisionsare not "inconsistent" with the Chicago Convention. But UNCLOSonly applies when two aircraft are involved. If this is thecase, then it stands to reason that a solitaryterrorist-controlled civil aircraft is not governed by eitherUNCLOS or the Chicago Convention.

10 The "political" loophole for maritime ships andplatforms was closed with the Convention for the Suppression ofUnlawful Acts Against the Safety of Maritime Navigation, codifiedat 18 U.S.C. 2280, and the Protocol for the Suppression ofUnlawful Acts Against the Safety of Fixed Platforms Located onthe Continental Shelf, codified at 28 U.S.C. 2281. Presumably,aircraft remain protected under the Hague Convention.

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In any event, by definition, civil aircraft terroristscannot be "pirates." The option of treating terrorists asinternational criminals subject to attack anywhere, anytime andby anybody, appears to be foreclosed.

2. LAW OF LAND WARFAREIf terrorists are not pirates, they must be some other formof international criminal. But terrorists do not meet thecriteria of being considered an armed force governed by the laws

of war. If they were, their chosen method of war stands indirect contravention of the laws of war.For examples, all of the 1949 Geneva Conventions governingvarious aspects of treatment of civilians, wounded, and prisonerscontain the following passage in their respective Article 3:

In the case of armed conflict not of an internationalcharacter occurring in the territory of one of the HighContracting Parties, each Party of the conflict shallbe bound to apply, as a minimum, the followingprovisions:( I ) Persons taking no active part in the hostilities,including members of armed forces who have laid downtheir arms and those placed hors de combat by sickness,wounds, detention, or any other cause, shall in allcircumstances be treated humanely, without any adversedistinction founded on race, colour, religion or faith,sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remainprohibited at any and in any place whatsoever withrespect to the above-mentioned persons:(a) violence to life and person, in particular murderof all kinds, mutilation, cruel treatment and torture;(b) taking of hostages;(c) outrages upon personal dignity, in particularhumiliating and degrading treatment;(d) the passing of sentences and the carrying out ofexecutions without previous judgment pronounced by aregularly constituted court, affording all the judicialguarantees which are recognized as indispensable bycivilized peoples.

Article 3, Geneva Convention Relative to the Protection ofCivilian Persons in Time of War, TIAS 3365 (12 August 1949);

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Article 3, Geneva Convention Relative to the Treatment ofPrisoners of War, TIAS 3364 (12 August 1949); Article 3, GenevaConvention for the Amelioration of the Condition of Wounded, Sickand Shipwrecked Members, TIAS 3363(12 August 1949); Article 3,Geneva Convention for the Amelioration of the Condition of theWounded and Sick in Armed Forces in the Field, TIAS 3362 (12August 1949).

"Wilful killing" of a protected person is considered a gravebreach of each of these Geneva Conventions.11 See Article 147,Civilians; Article 130, Prisoners; Article 51, ShipwreckedMembers; and Article 51, Field Wounded. Each nation is entitledto bring violators before their own courts to prosecute suchviolators. See Article 129, Article 146, Article 50 and Article50, respectively.

But terrorists are not "war criminals." There is nospecific prohibition against classifying them as such, only alack of consensus. If classified as war criminals, theaccelerated due process available to the United States throughits military jurisprudence might be advantageous for use.Courts-martial do not suffer the delays normally attendant in thecivilian system, and the military jury pool would be better thanwhat might be found in large metropolitan centers. While thereis certainly Constitutional tension between placing suchinternational criminals under the jurisdiction of militarytribunals; compare Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100L.Ed. 8 (1955) (striking down military jurisdiction overdischarged U.S. serviceman), with In re Yamashita, 327 U.S. 1, 66S.Ct. 340, 90 L.Ed. 499 (1946)(military tribunal had validjurisdiction over enemy alien charged with violations ofinternational laws of war); there is no inherent bar that wouldprevent such an act. Article I, Section 8, clauses 9 and 10 ofthe Constitution gives Congress the power "To constitutetribunals inferior to the Supreme Court;" and "To define andpunish piracies and felonies committed on the high seas, andoffenses against the law of nations." The existing statuteswould have to be repealed, and passed again in a fashionconferring jurisdiction over terrorist offenses expressly tomilitary tribunals. In such legislation, the Supreme Court'sappellate jurisdiction would be denied by Congress. See Ex ParteMcCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1868) (Article IIIappellate jurisdiction subject to "such exceptions, and undersuch regulations, as the Congress shall make."). Until theprocedure described above occurred, however, the general

1 1 Note the previous discussion regarding the term"willful."

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applicability of Article Ill's command that the "judicial powershall extend to all cases ... arising under ... the laws of theUnited States ...." places criminal jurisdiction over terroristoffenses within existing Article III courts. As a result, bydefault, terrorists are just one more form of internationalcriminal protected by the inability and unwillingness ofnation-States to deny them sanctuary.D. United States Code

The domestic federal law of the United States provides nogreater specificity or clarity of thought than the internationallaw.

"The United States Government has exclusive sovereignty ofairspace of the United States." 49 U.S.C. 40103(a). Pursuantto 49 U.S.C. 40106(b), the President may "suspend the authorityof" a person or government to operate an aircraft within theUnited States. The President may act without notice or hearing,and lasts as long as the President deems necessary. The mostsignificant problem with the invocation of "emergency powers"under 49 U.S.C. 40106 is that the Presidential power occursunder the express terms of the statute only if the enemy is "thegovernment of a foreign country ... [using] an aircraft as aninstrument of policy . . . . " There is no provision for independentcells of stateless terrorists. Also note that the Presidentialpower conferred under 49 U.S.C. 40106 is that of "suspension"of flying privileges. Accordingly, a legal argument justifying ashoot down would be based on an analogy to statutes grantingfederal law enforcement agents the power to make arrests andcarry firearms. Just as the authorizing legislation for thesefederal law enforcement agents do not expressly authorize the useof deadly force, the power under 49 U.S.C. 40106 does notexpressly authorize use of force as a means of enforcing thesuspension. The use of such force, however, is always implicitwithin meaning of the statute. Assuming the existence of acredible threat which could be explained in a judicialproceeding, it is highly probable that no federal judge wouldlimit the sanctions under 49 U.S.C. 40106 to mere suspension.The extension of 40106 from "government of a foreign country"to stateless terrorists would likely follow the same lines. Thedistinction between foreign governments and stateless terrorists,however, may be a point upon which the judiciary might takenotice. Nonetheless, interpretation of the "foreign country"requirement would probably be favorable to the government. Thelegislative history of this statute indicates that "government ofa foreign country" replaced "foreign nation" in 1958. Theproblem of stateless terrorists did not exist in 1958, and ourargument would be that such terrorists are included within the

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intent and spirit of the statute. Naturally, the best solutionwould be to craft a legislative "fix" of this statute.

1. Posse Comitatus Act, 18 U.S.C. 1385In order to intercept a civilian airliner, the United States

would have to rely upon the use of military aircraft to performthe intercept. Military combat aircraft have the weaponsnecessary to shoot down another aircraft, and are capable ofmid-air refueling, which gives them the range necessary tointercept the civilian aircraft (assuming the threat isdiscovered before the aircraft enters United States airspace).Use of military aircraft and personnel implicate the PosseComitatus Act.

The statute reads:Whoever, except in cases and under circumstances expresslyauthorized by the Constitution or Act of Congress, willfullyuses any part of the Army or Air Force as a posse comitatusor otherwise to execute the laws shall be fined under thistitle or imprisoned not more than two years, or both.The Title 18 Posse Comitatus Act expressly does not apply to

the Navy or the Marine Corps. Under Title 10, which applies toall branches of the military, Congress passed 10 U.S.C. 375,which reads:

The Secretary of Defense shall prescribe such regulations asmay be necessary to ensure that any activity (including theprovision of any equipment or facility or the assignment ordetail of any personnel) under this chapter does not includeor permit direct participation by a member of the Army,Navy, Air Force, or Marine Corps in a search, seizure,arrest, or other similar activity unless participation insuch activity by such member is otherwise authorized by law.The military construes 10 U.S.C. 375 as making the Title

18 Posse Comitatus Act applicable to all branches of militaryservice (except the Coast Guard).

As discussed below, the constitutional use of deadly forceis analyzed as a "seizure" under the Fourth Amendment. If the"seizure" is analyzed under a Fourth Amendment rationale, thereis a strong implication that the "seizure" is done in the contextof federal law enforcement operation.

If the suspected weapon of mass destruction on board theintercepted aircraft is thought to be chemical or biological,

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then the emergency exception under 10 U.S.C. 382(d) (2) permitsthe military to provide "law enforcement" assistance to thecivilian United States government. If the suspected weapon isnuclear, the Posse Comitatus exception is found at 18 U.S.C. 831 (e) . If the aircraft is being used as the weapon of massdestruction, without augmentation by nuclear, chemical orbiological agents, then it would appear that the President mustinvoke the collective emergency authority of 10 U.S.C. 331-333, in order to bring the military assets lawfully into useto perform a law enforcement mission.12

IV. SELF-DEFENSE

A. United Nations Charter Provisions

To the degree that the aviation Conventions are willing torecognize any implicit use of force, they do so through themechanism of asserting that no provision of any of theConventions modifies "the rights and obligations of States setforth in the Charter of the United Nations." There is one major,and one minor, provision within the United Nations Charterapplicable to this issue.

The major provision is found in Article 51, which states:Nothing in the present Charter shall impair

the inherent right of individual orcollective self-defense if an armed attackoccurs against a Member of the UnitedNations, until the Security Council has takenthe measures necessary to maintaininternational peace and security. Measurestaken by Members in the exercise of thisright of self-defense shall be immediatelyreported to the Security Council and shallnot in any way affect the authority andresponsibility of the Security Council underthe present Charter to take at any time suchaction as it deems necessary in order tomaintain or restore international peace andsecurity.

12 In the unlikely event the intercepted aircraft is not aU.S. flag aircraft, does not carry any American citizens onboard, and has not yet entered United States airspace, then noviolation of Posse Comitatus Act would occur even if the militaryaircraft were supplied without justification under one of theaforementioned legal schemes.

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The minor provision is found in Article 2(4), which states:All Members shall refrain in their

international relations from the threat offorce against the territorial integrity orpolitical independence of any State, or inany other manner inconsistent with thePurposes of the United Nations.

Both provisions have strict constructionist proponents.These strict constructionist proponents interpret Article 2(4) asprohibiting any Member from using armed force at all times andunder any circumstances. Similarly, strict constructionistsinterpret Article 51 as requiring the attacked State to absorbthe first blow. Naturally, there are competing viewpoints to thecontrary.

Because every nation shall interpret either of theseArticles in whatever manner seems advantageous at the moment, theresult is that the United Nations Charter neither providesguidance nor confers any explicit right to use anticipatoryself-defense against a weapon-laden terrorist-controlledaircraft. Accordingly, the United Nations Charter is asworthless as the aviation Conventions when seeking expressauthority to justifiably shoot down a civil aircraft that poses athreat.

Accordingly, if the need arises to shoot down such anaircraft, any decision made within the United States should bedone in accordance with our own interpretation ofConstitutionally-permitted use of deadly force. The leadingSupreme Court opinions in this field are Tennessee v. Garner, 471U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and Graham v.Conner, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).B. Constitutional Use of Deadly Force

Under our existing law, the United States may use deadlyforce when it has an objectively reasonable belief that theaircraft to be seized by deadly force poses an imminent danger ofdeath or serious physical injury to other persons.

As set forth in Tennessee v. Garner, supra:"apprehension by the use of deadly force is a seizuresubject to the reasonableness requirement of the FourthAmendment." Id., 471 U.S. at 7, 105 S.Ct. at 1699."We must balance the nature and quality of the intrusion on

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the individual's Fourth Amendment interests against theimportance of the governmental interests alleged to justifythe intrusion." id., 471 U.S. at 8, 105 S.Ct. at 1699."[T]he question [is] whether the totality of thecircumstances justifie[s] a particular sort of search orseizure." Id., 471 U.S. at 9, 105 S.Ct. at 1700."Thus, if the suspect threatens the officer with a weapon orthere is probable cause to believe he has committed a crimeinvolving the infliction or threatened infliction of seriousphysical harm, deadly force may be used if necessary toprevent escape, and if, where feasible, some warning hasbeen given." Id., 471 U.S. at 11-12, 105 S.Ct. at 1701.In Graham v. Conner, supra, the Supreme Court providedadditional guidance on interpreting Tennessee v. Garner. Inrelevant part, the Supreme Court noted:"Our Fourth Amendment jurisprudence has long recognized thatthe right to make an arrest or investigatory stopnecessarily carries with it the right to use some degree ofphysical coercion or threat thereof to effect it. [Citationomitted.] Because '[t]he test of reasonableness under theFourth Amendment is not capable of precise definition ormechanical application' [citation omitted], however, itsproper application requires careful attention to the factsand circumstances of each particular case, including theseverity of the crime at issue, whether the suspect poses animmediate threat to the safety of the officers or others,and whether he is actively resisting arrest or attempting toevade arrest by flight.The 'reasonableness' of a particular use of force mustbe judged from the perspective of a reasonable officer onthe scene, rather than with the 20/20 vision of hindsight."

Graham v. Conner, 490 U.S. at 396, 109 S.Ct. at 1871-72."As in other Fourth Amendment contexts, however, the'reasonableness' inquiry in an excessive force case is anobjective one: the question is whether the officers' actionsare 'objectively reasonable' in light of the facts andcircumstances confronting them, without regard to their [theofficers'] underlying intent or motivation."

Id., 490 U.S. at 397, 109 S.Ct. at 1872.To put these phrases into context, we first look todetermine whether probable cause exists to believe that a weapon

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of mass destruction exists, or that the aircraft itself is goingto be used as the weapon of mass destruction. The terrorist mayissue demands signaling their intent, or in the alternative/ wemake a probable cause determination based on circumstantialevidence derived from various forms of intelligence that theaircraft is under terrorist control.

Second, we examine the severity of the intended crime, thatis a detonation or employment of a weapon of mass destructionthat is reasonably anticipated to cause mass casualties. This isa brutal cost/benefit calculation; hundreds of innocentpassengers sacrificed for the protection of presumably thousandsof lives.

Third, we examine whether there are any options other than(less than) use of deadly force. This is the proportionalityprong of the test. In the case of an airborne aircraft, thereare exceedingly few available alternatives to shooting it down.

Assuming that probable cause exists to satisfy the firstelement, and that the severity of the threat is properly deemedto be catastrophic under the second element, and assuming underthe third element that less-than-deadly force options are notobjectively reasonable, then seizure of the terrorists and theaircraft by means of deadly force is constitutionally authorized.

Fortuitously, the "reasonableness" standard governing theperception of the threat under American law is consistent withArticle 3 bis of the Chicago Convention. In Article 3 bis, theoverflown country can order an aircraft to land "if there arereasonable grounds to conclude that it is being used for anypurpose inconsistent with the aims of this Convention ...." But,even had a higher legal standard of certainty been required tosatisfy the unenforceable demands of these Conventions, theUnited States would be justified in shooting down the terroristaircraft if necessity demanded it.

V. PRACTICAL CONSIDERATIONS

All scenarios for using a civil aircraft as weapon of massdestruction or its mode of delivery are premised upon some formof advance warning regarding the aircraft. If advance warningexists, then the United States should strongly consider usingArticle 89 of the Chicago Convention, wherein we notify the ICAOthat a national state of emergency exists and that we areexercising our "freedom of action" under that provision.

Pursuant to Article 3 bis, UNCLOS, and Annex 2 to the Rulesof the Air, the United States appears to have an affirmative duty

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to intercept the aircraft in question and make visual contactbetween the interceptor and intercepted aircraft. Once theintercepted aircraft fails or refuses to comply with thedirectives of the interceptor, we have satisfied, to the degreepossible, the prerequisites necessary for justifying ashoot-down. If the aircraft complies with the "follow me" signalof the interceptor, the question left open is where to take theintercepted aircraft, assuming it has the fuel to get there.

Another unanswered question is whether the interceptor pilotor pilots will comply with an order to shoot down a civilairliner, presumably filled with hundreds of innocent passengers.Assuming the shoot-down order is complied with, I recommend thatthe missile be fired from several miles distance so that theengaging pilot not be forced to watch the bodies of thepassengers fall out of the targeted aircraft, and not be caughtwithin the contamination or detonation envelope of the weaponthought to be on board.

In the event that a shoot-down becomes necessary, the worldpractice is to pay compensation to the victims. For the victimsof the accidental shoot-down of Iran Air Flight 655, the UnitedStates offered its compensation ex gratia. See generally,Linnan, Iran Air Flight 655 and Beyond: Free Passage, MistakenSelf-Defense, and State Responsibility, 16 Yale J. Int'l L. 245(Summer 1991). With the exception of the Soviet Union and itsdestruction of Korean Air Lines Flight 007, the world practicehas been to pay compensation, either ex gratia or after admittingliability. See generally, Fog of Peace, supra. Suchcompensation is typically paid regardless of the originallegitimacy of the reason for shooting down the aircraft.

IV. CONCLUSIONNo body of law exists that affirmatively governs the

situation created by a nation confronting the need foranticipatory self-defense in the face of an inboundterrorist-controlled civil aircraft. For the United States, theconstitutional requirements of necessity, reasonableness andproportionality will determine whether the decision was lawful.Whether or not the rest of the world accepts our reasonablenessdetermination or decision is utterly meaningless.

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t2 b7 corken memo fdr- 3-30-00 legal memorandum by attorney robert a de la cruz- aerial intercepts...

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