Issue Brief: Foreign "Shoot Down" Policy

Issue Brief

Foreign "Shoot Down" Policy

January 2003

Over the past 17 years, the Aircraft Owners and Pilots Association has opposed proposed changes in policy authorizing the shoot down or force down of civil aircraft here and abroad. The tragic incident in Peru on April 20, 2001, resulting from this policy was predicted by AOPA in 1994 when we opposed the U.S. plan to furnish radar tracking and targeting information to South American governments to be used to intercept and shoot down suspected drug smugglers.

Current Action on a Shoot Down Policy

On January 10, 2003, Senator Patrick Leahy (D-VT), ranking member on the Senate Appropriations Subcommittee on Foreign Operations and top Democrat on the Senate Judiciary Committee, gave a floor statement condemning the U.S. foreign "shoot-down" policy. Leahy argued that despite an honest motive to prevent illegal drug activity, there are "serious deficiencies" in the program. Leahy expressed concern that a State Department recommendation the program be reinstated in Columbia may advance efforts for reinstatement in Peru. Leahy has asked the Administration to reconsider its policy. The State Department has not yet reissued new guidelines permitting resumption of the program. No legislation has been introduced thus far in the 108th Congress.
In response to the April 20, 2001 incident, the Senate Select Committee on Intelligence was tasked with investigating the effectiveness of the program. The Committee issued a report in October 2001, A Review of United States Assistance to Peruvian Counter-Drug Air Interdiction Efforts and the Shootdown of a Civilian Aircraft, highlighting the defects in this program. The report concludes that a lack of oversight by the U.S. government was responsible for an "erosion of safety procedures". Further, the Committee investigation concludes that while the shoot-down program has been made a difference in a reduction of drug traffic, other counter-drug policies could produce the same results. The full report can be found at: http://intelligence.senate.gov/perureport.pdf.
The foreign operations appropriations bill for FY 2002 (H.R. 2506) which was signed into law on 1/10/02 (P.L. 107-115) included a provision that withholds funds to support a Peruvian air interdiction program until the Bush administration sets up safeguards to protect civilian aircraft. This provision was added to the House version of the spending bill by Representative Peter Hoekstra (R-Mich.) after the fatal shoot down of a civilian aircraft carrying U.S. missionaries on April 20. The bill passed the House of Representatives on December 19 and the Senate on December 20, and President Bush signed the bill into law on January 10.

The language in the conference report is as follows:

(Andean Counterdrug Initiative section)."That none of the funds appropriated by this Act may be made available to support a Peruvian air interdiction program until the Secretary of State and Director of Central Intelligence certify to the Congress, 30 days before any resumption of United States involvement in a Peruvian air interdiction program, than an air interdiction program that permits the ability of the Peruvian Air Force to shoot down aircraft will include enhanced safeguards and procedures to prevent the occurrence of any incident similar to the April 20, 2001 incident."

On May 10, Representative Collin Peterson (D-Minn.), pilot and AOPA member, introduced H.R. 1818, a bill that eliminates authority for employees and agents of the U.S. government to assist foreign countries in interdiction of aircraft suspected of drug related operations. AOPA supports this bill to repeal a provision in the Defense Authorization Act of 1995 that grants immunity from prosecution to U.S. officials and contractors who assist foreign governments in tracking and shooting down aircraft suspected of drug operations. On May 10, 2001, the bill was referred to the House Committee on International Relations. As yet, the Committee has not taken action it.

Why AOPA Supports H.R. 1818:

AOPA supports anti-drug efforts but the use of deadly force against aircraft is fundamentally wrong and a violation of international law intended to protect civilian pilots and their passengers.
Ordering an aircraft to land is not comparable to a highway patrol officer ordering a car to pull onto the shoulder. An order to land can be difficult to communicate, even more difficult to accommodate, and in many cases dangerous. The International Standards, Rules of the Air, published by the International Civil Aviation Organization (ICAO) state that an aircraft interception should be undertaken "only as a last resort" and that "interceptions of civil aircraft are, in all cases, potentially hazardous."
Another tragedy will not be remedied by simply adding more guidelines or procedures. H.R. 1818 seeks to repeal a law that already contains numerous, well-intended, guidelines that will again simply be ignored in the heat of the moment by foreign governments that do not share our views on the rights of the individual.
There are effective alternatives to the use of deadly force. Utilizing the same modern technology and superior intelligence information which makes it possible to identify a suspected aircraft in the first place one could quite easily continue tracking such an aircraft to its point of destination.

Background

AOPA fought long campaigns in 1989, 1994 and 1998 to defeat proposed legislation authorizing various government agencies to shoot or force down civilian aircraft suspected of drug trafficking domestically and internationally.

In 1994 Senator John Kerry (D-Mass.) added, over AOPA's opposition, a provision in the Defense Authorization Act of 1995 that grants immunity from prosecution to U.S. officials and contractors who assist foreign governments in tracking and shooting down aircraft suspected of drug operations. Representative (now Senator) Bob Torricelli (D-N.J.) introduced similar shoot down legislation in the House. Congressmen Senator Malcolm Wallop (R-Wyo.) and Representative Benjamin Gilman (R-N.Y.) spoke out against this shoot down provision.

In a floor statement on September 12, 1994, on the Defense Authorization Act of 1995, Senator Wallop said, "For many years we have opposed, for both legal and safety reasons, other countries' occasionally announced intentions to shoot at civil aircraft. Once such a practice begins, it could have dangerous and widespread consequences that could affect the safety of innocent people worldwide. As the world leader in civil aviation, the United States would have more to lose than any other country in the development of such a practice...By elevating drug trafficking to the level of a threat to national security - justifying the use of deadly force against civil aircraft--[this provision] fundamentally departs from accepted standards of international law and long-held U.S. policy."

Necessitated by the tragic incident in Peru, Representative Collin Peterson (D-Minn.) has introduced legislation (H.R. 1818) to repeal this shoot down authority provision and Representative Peter Hoekstra (R-Mich.) has added an amendment to the FY02 Foreign Operations Appropriations bill that will withhold funding for the Peru portion of the Andean Counterdrug Initiative unless Congress receives a full report on the Peru shoot down incident of April 20, 2001. As we stated in our June 1994 letter to the U.S. Department of State, "How can anyone feel assured that a Cessna carrying members of Congress on an overseas fact-finding mission could never be mistaken for an identical Cessna full of drug smugglers?" Critics of the foreign shoot down authority fear U.S. liability if an innocent aircraft is shot down. There are effective alternatives to the use of deadly force, alternatives in which the consequences of mistake are far less likely to result in injury or death.

While AOPA supports efforts to fight drug smuggling, we believe the use of deadly force against aircraft is fundamentally wrong and a violation of international law intended to protect civilian pilots and their passengers.