The Center for Grassroots Oversight

This page can be viewed at http://www.historycommons.org/context.jsp?item=a033000lawyersanalysis


Context of 'March 30, 2000: Lawyer’s Analysis Considers the Legal Aspects of Shooting Down a Hijacked Airliner'

This is a scalable context timeline. It contains events related to the event March 30, 2000: Lawyer’s Analysis Considers the Legal Aspects of Shooting Down a Hijacked Airliner. You can narrow or broaden the context of this timeline by adjusting the zoom level. The lower the scale, the more relevant the items on average will be, while the higher the scale, the less relevant the items, on average, will be.

Korean Airlines Flight 007 before takeoff.Korean Airlines Flight 007 before takeoff. [Source: Check-Six (.org)]A Soviet Su-15 fighter plane fires two missiles into a Korean Airlines 747 passenger plane, KAL 007. The plane, en route from Alaska to Seoul, South Korea, had strayed into Soviet air space, had not responded to radio communications, and had either ignored or not seen warning shots fired at it. The 747 crashes into the Sea of Japan, killing all 269 passengers, including conservative House Representative Larry McDonald (D-GA) and 62 other Americans. The Soviets insist that the passenger plane was deliberately sent into their airspace to test their military readiness; later investigation shows that a US spy plane had just left the area, agitating Soviet radar units, and, according to their own radio transmissions, the Soviets had honestly believed the 747 was another spy plane, most likely an American RC-135. Though it has definitely strayed into Soviet airspace at least twice, and flown over a sensitive Soviet airbase on the Kamchatka Peninsula, it is most likely shot down in international airspace. (Fischer 3/19/2007; Scoblic 2008, pp. 131)
Angry White House Officials Respond - Reagan administration officials are furious. Secretary of State George Shultz, dubbed “The Sphinx” by journalists for his remote demeanor, rails at the Soviets in a press conference called just four hours after the White House learns of the incident. (Scoblic 2008, pp. 131) Four days later, Reagan will denounce the Soviets in a primetime televised speech (see September 5, 1983).
Massive PR Campaign against USSR - The US will use the shootdown to mount a tremendous public relations campaign against the Soviets, focusing on the Soviet civilian leadership as well as Soviet international business interests; for example, the US will demand a global boycott of the Soviet airline Aeroflot. According to a memo issued to the Politburo by the Defense Ministry and the KGB, the Soviets well understood the political ramifications of the shootdown: “We are dealing with a major, dual-purpose political provocation carefully organized by the US special services. The first purpose was to use the incursion of the intruder aircraft into Soviet airspace to create a favorable situation for the gathering of defense data on our air defense system in the Far East, involving the most diverse systems including the Ferret satellite. Second, they envisaged, if this flight were terminated by us, [the US would use] that fact to mount a global anti-Soviet campaign to discredit the Soviet Union.” In its own counter-propaganda efforts, Soviet leader Yuri Andropov will say that an “outrageous military psychosis” has taken over US foreign policy. He adds, “[T]he Reagan administration, in its imperial ambitions, goes so far that one begins to doubt whether Washington has any brakes at all preventing it from crossing the point at which any sober-minded person must stop.” (Fischer 3/19/2007)
Exacerbating Tensions - After the shootdown and its aftermath, according to the Soviet ambassador to the US, Anatoly Dobrynin, both sides go “a little crazy.” The shootdown gives the US hard evidence of its worst-case assumptions about the Soviets. For the Soviets, the US reaction gives them hard evidence of their own assumptions about the US’s attempts to provoke the USSR into some sort of confrontation (see 1981-1983) and to embarrass the Soviet Union in the eyes of the world. Reagan’s use of the KAL 007 incident to ask Congress for more defense funding is, in the Soviets’ eyes, proof that the entire incident was engineered by the Americans for just such an outcome. (Fischer 3/19/2007)
Alternative Accounts - A number of alternative accounts about the incident spring up, in particular concerning McDonald. (Maier 4/16/2001)

Debt of Honor, by Tom Clancy.Debt of Honor, by Tom Clancy. [Source: HarperCollins]A novel by the military thriller writer Tom Clancy, one of America’s top-selling authors, includes a plotline of a suicide pilot deliberately crashing a commercial jet plane into the US Capitol building in Washington, DC. The story of Debt of Honor is based around a crisis between Japan and the United States. A short, armed conflict between the two nations arises and is won by the US. The book ends with a Japanese commercial airline pilot deliberately crashing a Boeing 747 into the US Capitol building during a joint session of Congress. The president is killed, along with most of the Senate, House, Supreme Court, and others. (Buckley 10/2/1994; Guinn 8/13/1996; Osava 9/15/2001; Pinkerton 5/20/2002) Clancy later describes to the BBC how he’d gone about writing this book: “I didn’t write Debt of Honor without first discussing it with an Air Force officer. And so I ran this idea past him and all of a sudden this guy’s eyeballing me rather closely and I said come on general, I know you must have looked at this before, you’ve got to have a plan for it. And the guy goes, ‘Mr. Clancy, to the best of my knowledge, if we had a plan to deal with this, it would be secret, I wouldn’t be able to talk to you about it, but to the best of my knowledge we’ve never looked at this possibility before.’” (BBC 3/24/2002) Debt of Honor makes number one on the New York Times bestseller list. (Mansfield 10/6/1994) Following the 9/11 attacks, there will be considerable interest in it, particularly because the Capitol building is considered to have been a likely intended target of Flight 93. (Lane and Pan 9/12/2001; Harnden 9/17/2001; Berger 1/2002; 9/11 Commission 7/24/2004, pp. 14)

Robert De La Cruz, a Justice Department lawyer, writes a detailed analysis that considers the legal issues that would be involved in shooting down an aircraft that was under the control of terrorists who intended to use it as a weapon. De La Cruz, a trial attorney with the Department of Justice Criminal Division’s Terrorism and Violent Crime Section (TVCS), apparently writes the analysis on his own initiative. He sends it to Cathleen Corken, the TVCS’s deputy chief for domestic terrorism. The 34-page document is titled “Aerial Intercepts and Shoot-Downs: Ambiguities of Law and Practical Considerations.” In it, among other things, De La Cruz discusses Article 3 bis of the Chicago Convention, a set of rules created after a Soviet fighter jet shot down Korean Airlines Flight 007, in 1983 (see September 1, 1983), which is “now considered to be international law.” He states that the “Federal Aviation Administration believes, or at least operates as if, Article 3 bis is binding upon the United States.”
Article States that Using Weapons against Civil Aircraft Should Be Avoided - De La Cruz notes that, according to the article, “The contracting states recognize that every state must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of the aircraft must not be endangered.” He also notes that “contracting states recognize that every state, in the exercise of its sovereignty, is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority [or] if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of this convention.” De La Cruz then describes what he considers three failures of Article 3 bis.
Action Is Only Permitted Once an Aircraft Has Entered a State's Airspace - The first problem is that the article “only permits a state to avail itself of the article’s provisions once the offending aircraft has entered the territorial airspace of the state.” If the aircraft was carrying a weapon of mass destruction, he explains, “awaiting territorial arrival of the aircraft may be too late.” In this scenario, if the aircraft was allowed to enter the “territorial airspace” of the state, “prevailing winds could theoretically spread an airborne-detonated biological weapon or chemical weapon onto the targeted state.”
Analysis Considers the Effects of a Plane Being Crashed into a Building - De La Cruz then states that this failure of the article could still apply if the offending aircraft was carrying no weapons. Significantly, in light of what will happen on September 11, 2001, he points out that this is because “the aircraft itself can be a potent weapon.” He considers the destruction that could result from a commercial airliner being crashed into a building, writing: “An airborne Boeing 747 can weigh in excess of 2 million pounds, retain structural integrity at flight speeds exceeding 500 miles per hour, and can carry many thousands of gallons of kerosene-based jet fuel. If used as a weapon, such an aircraft must be considered capable of destroying virtually any building located anywhere in the world.”
Article Fails to Authorize 'Deadly Force' against a Hostile Aircraft - The second problem with Article 3 bis, according to De La Cruz, is that it fails to specify what actions are permitted when an aircraft refuses to comply with instructions. While the article “requires states to make noncompliance punishable by ‘severe penalties,’” he writes, “it does not explicitly authorize the use of deadly force.”
Article Is Not Designed to Deal with Planes under the Control of Terrorists - The third failure De La Cruz describes regards “what actions are permissible when dealing with a terrorist-controlled, hijacked, or surreptitiously armed plane that is carrying a weapon of mass destruction to an intended target.” He notes, “Notwithstanding various works of fiction (see August 17, 1994), to date there are no reported actual incidents of a hijacked civil aircraft being deliberately and successfully used as a flying bomb.” All the same, he continues, “Article 3 bis was designed to protect otherwise legitimate civil aircraft that have wandered off course; it is not designed to deal with the issue of… a passenger airliner that has been deliberately converted for use as a kamikaze.” He concludes that the US should be prepared to shoot down a hostile aircraft, irrespective of what the article states. “It is certainly neither the policy nor intention of the United States to shoot down civil aircraft,” he comments, “but if necessity demands it we shall do it regardless of our formal or informal ratification of Article 3 bis.”
Document Will Be Called a 'Prescient Pre-9/11 Analysis' - It is unclear whether any action will be taken in response to De La Cruz’s analysis after the lawyer sends it to Corken. But the 9/11 Commission Report will call the document a “prescient pre-9/11 analysis of an aircraft plot.” (US Department of Justice 3/30/2000; 9/11 Commission 7/24/2004, pp. 346, 561) On September 11, senior government officials including the president and vice president will discuss the possibility of shooting down a hijacked commercial aircraft (see (Shortly After 9:56 a.m.) September 11, 2001, (Between 10:00 a.m. and 10:15 a.m.) September 11, 2001, (Between 10:00 a.m. and 10:20 a.m.) September 11, 2001, and 10:18 a.m.-10:20 a.m. September 11, 2001). (Balz and Woodward 1/27/2002; 9/11 Commission 7/24/2004, pp. 40-41)

President Bush talks on the phone to Vice President Dick Cheney. Cheney recommends that Bush authorize the military to shoot down any plane that might be under the control of hijackers. “I said, ‘You bet,’” Bush later recalls. “We had a little discussion, but not much.” (Weisman 9/16/2001; Adcock, Donovan, and Gordon 9/23/2001; Balz and Woodward 1/27/2002; Kohn 9/2/2003) Bush recalls that this isn’t a difficult decision for him to make, “once I realized there was a protocol… because again, I now realized we’re under attack. This is a war.” According to journalists Bob Woodward and Bill Sammon, this call between Bush and Cheney takes place shortly after 9:56, when Air Force One took off from the Sarasota airport. (Sammon 2002, pp. 102; Woodward 2002, pp. 17-18; Balz and Woodward 1/27/2002) Consistent with this, Bush and Cheney will tell the 9/11 Commission that Bush gives the shootdown authorization during a call estimated to occur between about 10:00 and 10:15 (see (Between 10:00 a.m. and 10:15 a.m.) September 11, 2001). But the 9/11 Commission will say the authorization is given in a later call, at 10:18 (see 10:18 a.m.-10:20 a.m. September 11, 2001). (9/11 Commission 7/24/2004, pp. 40-41) Bush later indicates that he doesn’t make any major decisions about how to respond to the attacks until after boarding Air Force One, which fits with these accounts of him approving shootdown authorization after take off. (Bush 12/4/2001; Paltrow 3/22/2004 pdf file) But according to counterterrorism “tsar” Richard Clarke, the authorization is given earlier, at some point between about 9:38 and 9:56 (see (9:38 a.m.) September 11, 2001 and (Between 9:45 a.m. and 9:56 a.m.) September 11, 2001). (Koppel 11/29/2003; Clarke 2004, pp. 8)

Dick Cheney talking to Condoleezza Rice.Dick Cheney talking to Condoleezza Rice. [Source: David Bohrer / White House] (click image to enlarge)According to the 9/11 Commission, Vice President Dick Cheney is told that the Air Force is trying to establish a combat air patrol (CAP) over Washington. Cheney, who is in the Presidential Emergency Operations Center (PEOC) below the White House, then calls President Bush on Air Force One to discuss the rules of engagement for this CAP. Cheney later tells the 9/11 Commission that he’d felt “it did no good to establish the CAP unless the pilots had instructions on whether they were authorized to shoot if the plane would not divert.” He recalls that “the president signed off on that concept.” Bush will recall this phone call and emphasize to the 9/11 Commission that, during it, he had authorized the shootdown of hijacked aircraft. National Security Adviser Condoleezza Rice, who is in the PEOC with Cheney, will tell the Commission she recalls hearing Cheney inform the president: “Sir, the CAPs are up. Sir, they’re going to want to know what to do.” Then she hears Cheney say, “Yes sir.” However, as the Commission will later note, “Among the sources that reflect other important events that morning there is no documentary evidence for this call, although the relevant sources are incomplete” (see (Mid 2004)). (9/11 Commission 7/24/2004, pp. 40-41) Reportedly, some members of the Commission’s staff will not believe this call between Bush and Cheney ever took place. (Klaidman and Hirsh 6/20/2004) Cheney phones Bush at 10:18 (see 10:18 a.m.-10:20 a.m. September 11, 2001). According to the 9/11 Commission, it is in fact during that call that Bush authorizes the military to shoot down threatening aircraft. (9/11 Commission 7/24/2004, pp. 41)

In a phone call with Vice President Dick Cheney, President Bush authorizes the military to shoot down hostile aircraft. Minutes earlier, in the Presidential Emergency Operations Center (PEOC) below the White House, a military aide had asked Cheney for the authority to engage what appeared to be an inbound aircraft, and Cheney had promptly given it (see (Between 10:10 a.m. and 10:15 a.m.) September 11, 2001). During a subsequent quiet moment, deputy White House chief of staff Josh Bolten, who is also in the PEOC, suggested to Cheney that he contact the president to confirm the engage order. Therefore at 10:18 a.m., according to White House logs, Cheney calls Bush, who is on board Air Force One, and speaks with him for two minutes. White House press secretary Ari Fleischer notes that at 10:20 a.m., Bush informs him that he has authorized the shootdown of aircraft, if necessary. According to the 9/11 Commission, “Fleischer’s 10:20 note is the first mention of shootdown authority.” (9/11 Commission 7/24/2004, pp. 41 and 465) Bush’s senior adviser Karl Rove, who is also on Air Force One, gives a similar account, later telling NBC News that “at about 10:20,” Bush goes from his office into the private cabin in front of it, “and took a phone call, and came back in and said that he had talked to the vice president and to the secretary of defense and gave the authorization that [the] military could shoot down any planes not under control of their crews that were gearing critical targets.” (Rove 9/11/2002) But other accounts indicate the president gives the shootdown authorization earlier than this. Bush and Cheney will claim that Bush gives the authorization during a call estimated to occur between about 10:00 and 10:15 (see (Between 10:00 a.m. and 10:15 a.m.) September 11, 2001). (9/11 Commission 7/24/2004, pp. 40) Similarly, according to journalists Bob Woodward and Bill Sammon, Bush gives it in a call with Cheney soon after 9:56, when Air Force One takes off (see (Shortly After 9:56 a.m.) September 11, 2001). (Sammon 2002, pp. 102; Woodward 2002, pp. 17-18; Balz and Woodward 1/27/2002) Counterterrorism “tsar” Richard Clarke says it is given even earlier. He states that, at some point between about 9:38 and 9:56, he is instructed to tell the Pentagon it has authorization from the president to shoot down hostile aircraft (see (9:38 a.m.) September 11, 2001 and (Between 9:45 a.m. and 9:56 a.m.) September 11, 2001). (Koppel 11/29/2003; Clarke 2004, pp. 8)


Creative Commons License Except where otherwise noted, the textual content of each timeline is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike