United States Assistance to Countries That Shoot Down Civil Aircraft Involved in Drug Trafficking

• Court: Department of Justice Office of Legal Counsel
• Decided: July 14, 1994
• Status: Published

Opinion

United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking

T h e A irc ra ft S a b o ta g e A c t o f 1 9 8 4 applies to th e p o lic e an d m ilita ry p e rs o n n e l o f fo re ig n g o v e rn m e n ts. In p a rtic u la r, th e A c t a p p lie s to the use o f d e a d ly fo rce by s u c h fo re ig n g o v e rn m e n ta l a cto rs a g a in st c iv il a irc ra ft in flig h t th a t a re su sp ected o f tra n s p o rtin g ille g a l d ru g s T h e re is a c c o rd in g ly a s u b ­ s ta n tia l ris k th a t U n ite d S ta te s G o v e rn m e n t o ffic e rs an d e m p lo y e e s w h o p ro v id e flig h t tra c k in g in ­ fo rm a tio n o r c e r ta in o th e r form s o f a s s is ta n c e to th e a e ria l in te rd ic tio n p ro g ra m s o f foreign g o v e rn m e n ts th a t h a v e d e s tro y e d such a irc ra ft, o r th at h a v e a n n o u n c e d an in te n t to d o so, w o u ld be a id in g a n d a b e ttin g c o n d u c t th a t v iolated th e A ct.

July 14, 1994

M e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l *

This m em orandum summarizes our earlier advice concerning whether and in what circum stances United States G overnm ent (“USG”) officers and employees may law fully provide flight tracking information and other forms of technical as­ sistance to the Republics o f Colombia and Peru. The information and other assis­ tance at issue have been provided to the aerial interdiction programs o f those two countries for the purpose o f enabling them to locate and intercept aircraft suspected of engaging in illegal drug trafficking. Concern over the in-flight destruction of civil aircraft as a com ponent of the counternarcotics program s of foreign governm ents is not novel. In 1990, soon after the inception of the USG assistance program, the United States made an oral dem arche to the Colom bian government informing that governm ent that Colom­ bian use o f USG intelligence information to effect shootdowns could result in the suspension o f that assistance. M ore recently, we understand that the government o f Peru has used weapons against aircraft suspected of transporting drugs and that the government of Colom­ bia has announced its intention to destroy in-flight civil aircraft suspected of involvem ent in drug trafficking. The possibility that these governments might use the inform ation or other assistance furnished by the United States to shoot down civil aircraft raises the question o f the extent to which the United States and its governm ental personnel may lawfully continue to provide assistance to such program s. On M ay 1, 1994, in light of these concerns, the Departm ent of Defense sus­ pended a variety o f assistance program s. Thereafter, in a draft opinion, an inter­ agency working group concluded that the United States aid was probably unlawful.

E d ito rs N ote: In response to this o p in io n , C ongress en acted Pub. L. No 103-337, § 1012, 108 Stat 2663, 2 8 3 7 (1 9 9 4 ) (co d ified at 22 U S C § 2 2 9 1 -4 (1994)).

148 U nited States A ssistance to Countries that S hoot Down C ivil A ircraft Involved in D rug T rafficking

The group included lawyers from the Criminal Division, the Departments of State, Defense (including the Joint Chiefs of Staff), the Treasury, and Transportation (including the Coast Guard), and the Federal Aviation Administration. On M ay 26, 1994, this Department advised all relevant agencies that assistance programs directly and materially supportive of shootdowns should be suspended pending the completion of a thorough review of the legal questions. After careful consideration o f the text, structure and history o f the Aircraft Sabotage Act of 1984, the most relevant part o f which is codified at 18 U.S.C. § 32(b)(2), we have concluded that this statute applies to governmental actors, in­ cluding the police and military personnel of foreign countries such as Colom bia and Peru. Accordingly, there is a substantial risk that USG personnel who furnish assistance to the aerial interdiction programs of those countries could be aiding and abetting criminal violations of the Aircraft Sabotage Act. See 18 U.S.C. § 2(a) (aiding and abetting statute). We caution, however, that these conclusions are premised on our close analysis of § 32(b)(2) and should not be taken to mean that other domestic criminal statutes will necessarily apply to USG personnel acting officially.

I.

International law forms an indispensable backdrop for understanding § 32(b)(2). A primary source of international law regarding international civil aviation is the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S. No. 1591, 15 U.N.T.S. 295 (“the Chicago Convention”). The Chicago Convention is administered by the International Civil Aviation Organization (“ICAO”). Article 3(d) of the Chicago Convention declares that “[t]he contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft.” Parties have interpreted the due regard standard quite strictly, and have argued that this provision proscribes the use of weapons by states against civil aircraft in flight.1 For example, the United States invoked this provision during the international contro­ versy over the Korean Air Lines Flight 007 (“KAL 007”) incident.2 W hile ac­ knowledging that Article 1 of the Chicago Convention recognized the customary rule that “every State has complete and exclusive sovereignty over the airspace above its territory,” the United States argued that the Soviet Union had violated both Article 3(d) and customary international legal norms in shooting down KAL

1 A rticle 89 o f the C hicago C onvention relieves a state party from its obligations under the C onvention if il declares a national em ergency and certifies that declaration to ICA O . T o date, neither C olom bia nor Peru has made such a certification The C hicago C onvention contains no explicit exem ption perm itting the in ­ flight destruction o f aircraft suspected o f carrying contraband o r o f otherw ise being involved in the drug trade “ On Septem ber 1, 1983, a Soviet m ilitary aircraft shot dow n a civil aircraft, KAL 007, lhat had overflow n Soviet territory while on a scheduled international flight to Seoul

149 Opinions o f th e Office o f L egal C ounsel

007. The A dm inistrator of the Federal A viation Authority stated to the ICAO Council that:

The ICAO countries have agreed that they will “have due regard for the safety of navigation of civil aircraft” when issuing regulations for their m ilitary aircraft. It is self-evident that intercepts of civil aircraft by military aircraft must be governed by this paramount concern.

The international community has rejected deadly assault on a civil airliner by a m ilitary aircraft in time of peace as totally unaccept­ able. It violates not only the basic principles set forth in the [Chicago] convention but also the fundamental norms of interna­ tional law . . . .[31

In the wake of KAL 007, the ICAO Assembly unanimously adopted an amend­ ment to the Chicago Convention to make more explicit the prohibitions o f Article 3(d).4 This am endm ent, Article 3 b is, reads in part as follows:

(a) 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 aircraft m ust not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations o f States set forth in the Charter of the United N ations.5

A rticle 3 b is should be understood to preclude states from shooting down civil aircraft suspected o f drug trafficking, and the only recognized exception to this rule is self-defense from attack.6 We understand that the United States has not yet rati­ fied Article 3 bis. There is, however, support for the view that the principle it an­ nounced is declaratory of customary international law.7

3 FAA A d m in istra to r H e lm s' Statem ent, IC A O Council, S e p t 15. 1983 M ontreal, D e p ’t St B u l l , Oct. 1983, at 17, 18 W e further note that the IC A O Council R esolution o f S eptem ber 16, 1983, condem ned the sh ootd o w n o f K A L 007 and *‘[r]eaffirm [ed] th e principle th at States, w hen intercepting civil aircraft, should not use w eap o n s ag ain st th em ” Id. at 20. 4 Se e Jeffrey D. L aveson, K o rea n Airline F lig h t 007. S ta le m a te in International A viation Law — A P ro * p o sa l f o r E n fo rcem en t, 22 San D iego L Rev. 859, 882-84 (1985) 5 U SG re p resen tativ es p ro p o sed a reference to the U nited N ations C harter (“C harter1') to reflect the view that an in tern atio n al law p ro h ib itio n on the u se o f w eapons against civil aircraft in flight w ould not restrict a s ta te ’s n g h t o f self-d efen se as provided for in A rticle 51 o f the C harter. 6 S ee Steven B. S lokdyk, C om m ent, A irb o rn e D rug Trafficking D eterrence Can A Shootdow n P olicy F ly ', 38 U C L A L. Rev. 1287, 1306(1991) 7 See, e.g ., A ndreas F. L ow enfeld, Looking Back a n d Looking A head, 83 Am J In t’l L. 336, 341 & n 17 (1989); Som p o n g Su ch aritk u l, Procedure f o r the P rotection o f C ivil A ircra ft in Flight, 16 Loy L A In t’l &

150 U nited States A ssistance to Countries that S hoot Down C ivil A ircraft Involved in D rug Trafficking

In addition to the Chicago Convention, the United States has ratified the Con­ vention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), done Sept. 23, 1971, 24 U.S.T. 567, 10 I.L.M . 1151 (1971) (“the Montreal Convention”). Article 1 o f the latter Convention specifies certain sub­ stantive offenses against civil aircraft: in particular, Article 1,1 (b) states that “ [a]ny person commits an offence if he unlawfully and intentionally . . . destroys an aircraft in service or causes damage to such an aircraft which renders it incapable o f flight or which is likely to endanger its safety in flight.” Article 1,2 makes it an offense to attempt to commit a previously enumerated offense, or to be an accom ­ plice of an offender.8 Further, Article 10 requires states “in accordance with inter­ national and national law,” to “endeavour to take all practicable measures for the purpose of preventing” substantive offenses. The Montreal Convention imposes on states certain duties with respect to of­ fenders or alleged offenders. Article 3 declares that the contracting states “undertaken to make the offences mentioned in Article 1 punishable by severe penalties.” This obligation is specified by requiring states to take measures to es­ tablish jurisdiction over certain offenses (Article 5), to take custody of alleged of­ fenders within their territory (Article 6), and either to extradite the alleged offender or to submit the case to their com petent authorities for prosecution (Article 7). Further, states have the obligation to report the circumstances of an offense, and the results of their extradition or prosecution proceedings, to the ICAO (Article 13). Nearly all nations with a significant involvement in air traffic are parties to the Montreal Convention, and have thus incurred the responsibility to execute it. The United States implemented the Convention in 1984 by enacting the Aircraft Sabo­ tage Act, Pub. L. No. 98-473, §§ 2011-2015, 98 Stat. 1837, 2187-90(1984). Con­ gress specifically stated that legislation’s purpose was “to implement fully the [Montreal] Convention . . . and to expand the protection accorded to aircraft and related facilities.” Id. § 2012(3); see a lso S. Rep. No. 98-619 (1984), rep rin ted in 1984 U.S.C.C.A.N. 3682.9 The criminal prohibition now codified at 18 U.S.C. § 32(b)(2) was enacted as part of that legislation.

C om p. L J 5 1 3 ,5 1 9 -2 0 (1994) But see D J H am s, C ases a n d M a terials on In ternational Law 221 (4th ed 1991) 8 In general, the furnishing o f inform ation o r assistance to another nation in circum stances that clearly indicate a sen o u s risk that the inform ation or assistance will be used by lhat nation to com m it a w rongful a ct may itself be a w rongful act under international law. C f A rticle 27 o f the International Law C om m issio n 's D raft C onvention on State R esponsibility, w hich provides that “ [a]id or assistance by a State to another State, if it is established that it is rendered for the co m m ission o f an internationally w rongful act earn ed out by the latter, itself constitutes an internationally w rongful act, even if, taken alone, such aid or assistance w ould not constitute the b reach o f an international oblig ation ” R eport o f the Intern a tio n a l L aw C om m ission on the W ork o f its T h irty-S eco n d S essio n , [1980] 2 Y B In t'l L C om m ’n 33, U .N . Doc. A /35/10. 9 It is undoubtedly w ithin C o n g re ss's pow er to provide that attacks on civil aircraft should be crim inal acts under dom estic law, even if they w ere co m m itted e x tra te m to n a lly and even absent any special c o n n ec ­ tion betw een this country and the offense An attack on civil aircraft can be considered a crim e o f “ universal c o n c e rn ' to the com m unity o f nations S ee U nited S ta te s v Yum s, 924 F 2d 1086, 1091 (D .C . C ir. 1991),

151 Opinions o f th e Office o f L egal C ounsel

II.

W e turn to the question of criminal liability under domestic law. At least two criminal statutes are relevant to this inquiry. The first is 18 U.S.C. § 32(b)(2), which im plem ents Article 1,1 (b) o f the Montreal Convention, and prohibits the destruction o f civil aircraft. The second is 18 U.S.C. § 2(a), which codifies the principle o f aiding and abetting liability.10

A.

18 U.S.C. § 32(b)(2) was enacted in 1984, one year after the destruction of KAL 007. The statute makes it a crime “willfully” to “destroy[] a civil aircraft registered in a country other than the United States while such aircraft is in service or causef] dam age to such an aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft’s safety in flight.”11 The text, structure and legislative history o f the statute establish that it applies to the actions of the Peruvian and Colum bian officials at issue here. The term “civil aircraft,” as used in § 32(b)(2), is defined broadly to include “any aircraft other than . . . an aircraft which is owned and operated by a govern­ mental entity for other than commercial purposes or which is exclusively leased by such governm ental entity for not less than 90 continuous days.” 49 U.S.C. app. § 1301(17), (36) (definitions section of Federal Aviation Act of 1958). See 18 U.S.C. § 31 (in chapter including § 32(b)(2), “civil aircraft” has meaning ascribed to term in Federal Aviation Act). The qualifying language providing that the sec­ tion applies to “civil aircraft registered in a country oth er than the U nited States,” 18 U.S.C. § 32(b)(2) (emphasis added), has an expansive rather than restrictive purpose — to extend United States criminal jurisdiction over persons destroying

see g e n era lly K enneth C. R andall, U niversal Ju risd ictio n U nder In ternational Law , 66 Tex. L. Rev 785 (1988) 10 O th e r c rim in a l statu tes m ay also be relev an t F o r exam ple, 49 U .S.C app § 1472(0(1) m akes it a crim e to co m m it, o r to attem pt to commit, a irc ra ft piracy ‘‘A ircraft piracy'* is defined to *‘m ean[] any seizure or exercise o f co n tro l, by force o r violence o r th reat o f force o r violence, or by any other form of intim idation, and w ith w ro n g fu l intent, o f an aircraft w ith in the special aircraft jurisd ictio n o f the U nited S tates." Id. § 1472(i)(2). T h e “special airc ra ft ju risd ictio n o f the U nited States’” includes “civil aircraft o f the U nited S ta te s’" w hile su ch aircraft is in flight Id. § 1301(38)(a) W e do not co n sid er in this m em orandum w hether the pro h ib itio n on aircraft piracy, o r any c rim in a l statutes o th e r than § 32(b) and the aiding and abetting and co n sp iracy statu tes, w ould be applicable to th e U SG activities in question here 11 S ectio n 3 2 (b ) is a felony statute, and p u rsu a n t to 18 U S.C § 34, persons w ho violate § 32 are subject to “ the d eath p enalty o r to im prisonm ent fo r life ” if th e crim e “ resulted in the death o f any person.” H ow ­ ever, § 34 p red ates the Suprem e Court d e cisio n in Furm an v G eorgia, 408 U S 238 (1972), and m ay not be ap p licab le c o n siste n t w ith that decision In a p ending case, U nited States v C h eely , 21 F.3d 914 (9th C ir. 1994), a d iv id ed panel o f the Ninth C irc u it issued an opinion on A pril I I , 1994, concluding that the d e ath p en alty pro v id ed fo r by 18 U S C. § 844(d) (w h ich incorporates § 34 by reference) is unconstitu­ tional. H ow ever, the c o u rt has, su a spoiite, re q u e ste d the parties to address the issue w hether the case should be reheard en b anc, and it rem ains uncertain w h eth er § 34 can be applied constitutionally Pending cn m e le gislatio n w o u ld resolve this issue for fu tu re violations by providing a constitutional death penalty provision.

152 U nited States A ssistance to C ountries that Shoot Down Civil A ircra ft Involved in D rug Trafficking

civil aircraft ‘“ even if a U.S. aircraft was not involved and the act was not within this country.’” U nited States v. Yunis, 681 F. Supp. 896, 906 (D.D.C. 1988) (citation om itted).12 Section 32(b)(2) was intended to apply to governmental actors (here, the m ili­ tary and police forces of Colombia and Peru) as well as to private persons and groups. W hen Congress adopted § 32(b)(2) in 1984, it had been a crime for nearly thirty years under § 32(a)(1) for anyone willfully to “set[] fire to, damage[], destroy[], disable[], or wreck[] any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air comm erce.” 18 U.S.C. § 32(a)(1).13 This Departm ent has sought, under § 32(a), to prosecute state actors whom it believes to have sponsored terrorist acts (specifically, the bombing of Pan American Flight 103 at the behest o f Libya). Because of the obvious linguistic and structural sim ilarities between §§ 32(a)(1) and 32(b)(2), we read those sections to have the same cover­ age in this regard, i.e., to apply to governmental and non-governmental actors alike.14

12 It m ight be argued that § 3 2 (b )(2 )'s reference to aircraft “ registered in a country other than the U nited S tates” is restrictive in m eaning, i e , that the section does not protect u n registered aircraft M oreover, we are inform ed that the registration num bers o f aircraft engaged in drug trafficking over C olom bia and Peru have in som e cases been painted over or otherw ise obscured It is suggested that unregistered aircraft, or aircraft w hose registration is concealed, may be made targets under a shootdow n policy w ithout violating the statute T here are several flaw s in this suggestion. (1) C ongress stated lhat its purpose in enacting the A ir­ c ra ft Sabotage Act was “ to im plem ent fully" the M ontreal C onvention See 18 U .S.C § 31 noie. A rticle 1,1 (b) o f ihe C onvention (from which 18 U .S.C § 32(b)(2) is derived) prohibits the d estruction o f civil aircraft as such, w ithout regard to registration B ecause § 32(a)( I) had already forbidden the w illful destruc­ tion o f “ any aircraft in the special aircraft ju risd ictio n o f the U nited States or any civil aircraft used, operated, o r em ployed in interstate, overseas, or foreign air com m erce," C ongress evidently sought to d ischarge this c o u n try ’s rem aining o bligations under ihe M ontreal C onvention by affording the sam e protection to all other civil aircraft A ccordingly, the protections provided by § 32(b)(2) should not be deem ed to hinge on w hether a foreign civil aircraft is in faci registered, had C ongress done no m ore than that, the U nited S tates w ould have fallen short o f fulfilling its treaty obligations, although C ongress intended lhat it should fulfill them. S ection 3 2 (b )(2 )‘s reference to “civil aircraft registered in a country other than the U nited S tates” “ m ust be taken lo refer to the class w iih w hich the statute undertakes lo deal ’’ U nited States v Jin Fuey M ay, 241 U S 394, 402 (1916) (H olm es, J.) (construing scope o f registration requirem ent in crim inal statu te) See a lso U nited S ta tes v. R o d g ers, 4 6 6 U S. 4 7 5 , 478-82 (1984), C o n tin ental Training S ervices Inc. v C avazos, 893 F 2 d 877, 883 (7th C ir 1990) (2) W e are advised by the Federal A viation A uthority that the co n ceal­ m ent or obscuring o f a registration num ber does not legally “d eregister” an airplane, and that only an official act by the registering governm ent can achieve that effect A ccordingly, suspected drug traffickers w hose registration is concealed cannot be deem ed to be unregistered (3) T here is no logical connection betw een the class o f aircraft engaged in drug sm uggling and the class o f unregistered aircraft N or do we kn o w of any em pirical evidence that the tw o classes significantly overlap Further, drug traffickers may ow n, lease or steal planes; and even if it w ere their practice not to register the planes they ow n, the ow ners o f the planes they have leased or stolen m ight norm ally do so. (4) W e are also unaw are o f any reliable m eans by w hich foreign law enforcers w ho have intercepted a plane could determ ine w hile it was in flight w hether it was registered or not Indeed, the very act o f d estroying a plane m ight prevent investigators from determ ining its registration (if any) Thus, it w ould be d ifficult, if not im possible, to m onitor a “shoot dow n” policy so as to ensure lhat the p articipants in it avoided crim inal liability by targeting only unregistered planes n Section 3 2 (a) was adopted m 1956, se e Pub. L No. 84-709, 70 Stat 5 3 8 ,5 3 9 (1956) 14 W hile § 32(a) does not have the broad extraterritorial scope of § 32(b)(2), it does apply to acts against U nited S tates-registered aircraft abroad, and thus w ould apply w ith respect to any such aircraft shot dow n by C olom bian or P eruvian authorities.

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The legislative history o f the A ircraft Sabotage Act confirms that Congress in­ tended § 32(b)(2) to reach governmental actions. The original bill was introduced as part o f a package o f four related measures proposed by the Administration and designed to enable the United States to com bat international terrorism, including state-sponsored actions, more effectively. In subm itting this legislative package to Congress, the President explained that it was largely concerned with

a very w orrisom e and alarming new kind o f terrorism . . .: the di­ rect use of instruments of terror by fo reig n states. This “state ter­ rorism ” . . . accounts for the great majority o f terrorist murders and assassinations. Also disturbing is state-provided training, financing, and logistical support to terrorists and terrorist groups.

M essage to the C ongress Transmitting Proposed Legislation To Combat Interna­ tional Terrorism , Pub. P apers o f R o n a ld Reagan 575 (1984) (emphasis added). Further, in testim ony given at a Senate Judiciary Committee hearing on these bills on June 5, 1984, W ayne R. Gilbert, Deputy A ssistant Director o f the Criminal Investigative Division o f the Federal Bureau of Investigation, underscored that:

Recent years reflect increasing concern both in the United States and in foreign nations over the use o f terrorism b y fo reig n g o vern ­ m ents or groups. W e have seen an increased propensity on the part o f terrorist entities to plan and carry out terrorist acts worldwide.

L eg isla tive In itiatives to Curb D om estic a n d International Terrorism : H earings B efore the Subcomm. on Security a n d Terrorism o f the Senate Comm, on the Judi­ ciary, 98th Cong. 44 (1984) (“H earings”) (statem ent o f Wayne R. Gilbert) (em phasis added). In written testimony, the Departm ent of Justice also explained that “ [t]hese four bills address some of the risks caused by the growing worldwide terrorism problem , especially state-su pported terro rism .” Id. at 46-47 (prepared statem ent o f V ictoria Toensing, Deputy A ssistant Attorney General, Criminal Divi­ sion) (em phasis added).15 The legislative history of § 32(b)(2) thus shows that the statute was intended to reach shootdowns by officials or agents of governments as well as by private individuals and organizations. B ecause § 32(b)(2) applies generally to foreign governments, it must apply to shootdow ns of foreign-registered civil aircraft by law enforcem ent officers or military personnel of the governments of Colom bia and Peru. The statute contains no exem ption for shootdowns in pursuance of foreign law enforcement activity; nor

15 In a co llo q u y b etw een S en ato r Denton a n d M r G ilbert on the bill addressed to aircraft sabotage, S ena­ tor D enton co m m en ted that ‘‘we should not ig n o re the fact that in Libya a G eneral W olf, w hose full nam e is M arcus W olf, set up and acts as the chief o f L ibyan In tellig en ce.” Id. at 81 In context, Senator D enton's co m m en t seem s to reflect his understanding th a t the legislation w ould reach state-sponsored attacks on civil aircraft o r air p assen g ers and the officials resp o n sib le for such attacks

154 U nited S ta tes A ssistance to C ountries that Shoot Down C ivil A ircraft Involved in D rug Trafficking

does it exempt shootdowns of aircraft suspected of carrying contraband.16 USG personnel who aid and abet violations o f § 32(b)(2) by the Colombian or Peruvian governments are thus themselves exposed to criminal liability by virtue of 18 U.S.C. § 2(a), see Part II B below .17 Our conclusion that § 32(b)(2) applies to governmental action should not be un­ derstood to mean that other domestic criminal statutes apply to USG personnel acting officially. Our O ffice’s precedents establish the need for careful exam ina­ tion of each individual statute. For example, we have opined that USG officials acting within the course and scope of their duties were not subject to section 5 of the Neutrality Act, 18 U.S.C. § 960. See A pplication o f N eutrality A ct to O fficial G overnm ent A ctivities, 8 Op. O.L.C. 58 (1984) (“Neutrality Act O pinion”). In general terms, lhat statute forbids the planning of, provision for, or participation in “any military or naval expedition or enterprise to be carried on from [the United States] against the territory or dominion of any foreign prince or state . . . with whom the United States is at peace,” 18 U.S.C. § 960; it does not explicitly exempt USG-sponsored activity. Our conclusion with respect to the Neutrality Act was based upon an examination of the legislative history of the Act, its practical con­ struction over two centuries by Presidents and Congresses, and the judicial deci- 18 sions interpreting it.

B.

The question we have been asked presupposes that USG personnel would not themselves directly carry out shootdowns of civil aircraft or encourage others to do

16 A lthough the legislative history em phasizes the dangers o f state-sponsored “terrorism ," w e do not understand the statute to exem pt state activity that co u ld arguably be characterized as “ law en fo rcem en t.” An action such as the Soviet U n io n 's shooting dow n o f K AL 007 could have been view ed as the enforcem ent o f national security laws regulating overflights in m ilitarily sensitive airspace, and thus distinguished from acts o f terrorist violence N evertheless, we think that § 32(b)(2) w ould apply to such attacks on civil avia­ tion 17 Section 32(b)(2) w ould also apply directly to USG personnel who them selves shot dow n foreign- registered civil aircraft, although on the facts as we understand them such conduct — as distinct from aiding and abetting foreign governm ental violations — is not at issue here. (For further discussion, see Part V below ) N othing in the legislative history o f § 32(b)(2) suggests that that statute w ould not apply to USG personnel in p roper cases as m uch as it does to foreign governm ental personnel ,x W e noted in the N eutrality Act O pinion that “the A c t's purpose was to enhance the P resid en t’s ability to im plem ent the foreign policy goals that have been developed by him , with appropriate p articipation by C ongress.” Id. at 72 A ccordingly, we found that “ it would indeed be anom alous’' to construe that A ct to lim it what USG officials acting under Presidential foreign policy directives could law fully do. Id By con­ trast, interpreting the A ircraft Sabotage A ct to reach such actors w ould not obstruct the statu te ’s purpose, w hich in any case was not to ensure the P resident’s ability to co nduct a unified and consistent foreign policy unim peded by private citizen s' interferences If anything, it w ould be contrary to the A ircraft Sabotage A c t's policy o f protecting international civil aviation from arm ed attacks to allow U SG officials, but not those o f any other country, to carry out such attacks Furtherm ore, although it is often true that “ ‘statutes w hich in general term s divest pre-existing rights o r privileges will not be applied to the sovereign w ithout express w ords to that effect, " id. (quoting U nited S ta tes v U n ited M ine W orkers, 330 U S 258, 272 (1947)), lhat m axim is “ ‘no hard and fast rule o f e x clu sio n ,’ and much depends on the context, the subject m atter, legislative history, and executive interpretation ” W ilson v O m aha Indian Tribe, 442 U .S. 653, 6 67 (1979) (quoting U nited Slates v C oo p er C orp , 3 1 2 U.S 600, 604-05 (1941))

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so. Thus, the lawfulness o f USG activities and the potential liability o f USG per­ sonnel, under the circumstances outlined to us, depend on the proper application of the federal aider and abettor statute, 18 U.S.C. § 2(a). Section 2(a) does not itself define any crim inal offense, but rather provides that a person who is sufficiently associated with the criminal act of another is liable as a principal for that act.

U nder the “classic interpretation” of this offense, “ [i)n order to aid and abet another to com m it a crime it is necessary that a defen­ dant in some sort associate him self with the venture, that he partici­ pate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”

U nited S tates v. M onroe, 990 F.2d 1370, 1373 (D.C. Cir. 1993) (quoting Nye <£ N issen v. U n ited S tates, 336 U.S. 613, 619 (1949)) (internal quotation marks and citations omitted). A iding and abetting liability for a crime can be usefully analyzed as consisting of three elements: “[1] knowledge of the illegal activity that is being aided and abetted, [2] a d esire to help the activity succeed, and [3] some a ct o f helping.” U nited S ta tes v. Z afiro, 945 F.2d 881, 887 (7th Cir. 1991) (enumeration added), a ff’d, 506 U.S. 534 (1993). All three elem ents must be present for aiding and abetting liability to attach. Id.

1. Knowledge of unlawful activity. A person must know about unlawful activity in order to be guilty o f aiding and abetting it: “a person cannot very well aid a venture he does not know about.” U nited S tates v. Allen, 10 F.3d 405, 415 (7th Cir. 1993). W ith respect to most or perhaps all countries to which the United States provides information or other assistance (other than Colombia and Peru), the absence o f this first elem ent of aiding and abetting eliminates entirely any possibil­ ity that the USG activities implicate 18 U.S.C. § 32(b). In the absence o f some serious reason to think otherwise, the United States is entitled to assume that the governm ents o f other nations will abide by their international commitments (such as the C hicago Convention) and custom ary international law. The fact that another governm ent theoretically could act otherwise cannot render USG aid activities le­ gally problem atic. Furthermore, the United States is under no general obligation to attem pt to determ ine whether another governm ent has an as-yet unrevealed inten­ tion to m isuse U SG assistance in a violation of § 32(b). See United States v. Gio- vannetti, 919 F.2d 1223, 1228 (7th Cir. 1990) (“A ider and abettor liability is not negligence liability.”). Therefore, if a foreign nation with no announced policy or known practice of unlawful shootdowns did in fact use USG aid in carrying out a shootdow n, that event would create no liability for the prior acts of USG personnel,

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although it probably would require a reevaluation of USG assistance to that coun­ try and, depending on the circumstances, might require changes in that assistance. The same analysis, however, does not apply where the foreign state does have an announced policy or known practice o f carrying out shootdowns that violate § 32(b)(2) — precisely the situation with respect to Colombia and Peru. It is obvi­ ous that the United States has knowledge o f Colom bia’s publicly avowed policy. We believe that the United States is equally on notice about Peru’s de fa c to shoot­ down policy on the basis of the incidents that have occurred.19 It appears to be settled law that the knowledge elem ent o f aiding and abetting is satisfied where the alleged aider and abettor attempted to escape responsibility through a “deliberate effort to avoid guilty knowledge” of the primary actor’s intentions. G iovannetti, 919 F.2d at 1229. Someone who suspected the existence of illegal activity that his or her actions were furthering and who took steps to ensure that the suspicion was never confirmed, “far from showing that he was not an aider and abettor . . . would show that he was.” Id. On the facts as presented to us, we think that the knowl­ edge element is met with respect to Colom bia and Peru unless there is a change in the policies of those countries.

2. Desire to facilitate the unlawful activity. “[T]he aider and abettor m ust share the principal’s purpose” in order to be liable under 18 U.S.C. § 2. U nited S tates v. Fountain, 768 F.2d 790, 798 (7th Cir. 1985), cert, denied, 475 U.S. 1124 (1986). The contours of this element in the definition of aiding and abetting are not without ambiguity, see Zafiro, 945 F.2d at 887, although as a general matter mere knowl­ edge of the criminal activity (the existence of the first, knowledge element) does not in itself satisfy this second, purpose element. Many courts state the purpose element in terms of a “specific intent that [the aider and abettor’s] act or omission bring about the underlying crim e,” U nited States v. Zam brano, 776 F.2d 1091, 1097 (2d Cir. 1985), and the Suprem e C ourt’s most recent restatement of the aid­ ing and abetting statute’s reach suggests — if it does not quite endorse — this view. See C entral Bank o f D en ver v. F irst Interstate Bank, 511 U.S. 164, 181 (1994) (section 2(a) “decrees that those who provide knowing aid to persons com­ mitting federal crimes, with the intent to facilitate the crime, are themselves com­ mitting a crime”) (citing Nye & N issen, 336 U.S. at 619). At first glance it might appear that the United States could negate this element of aiding and abetting — and thus render USG assistance to Colombia and Peru lawful and USG personnel free of potential liability under 18 U.S.C. § 32(b)(2) — simply by announcing this G overnm ent’s opposition to any violations of § 32(b) by anyone. It might seem that after such an announcement it would not be possible to say that USG personnel acted with a desire to help unlawful shootdowns succeed.

19 For the purposes o f ihe aiding and abetting statute, it is im m aterial w hether an aider and ab etto r knew o f the unlaw ful activity because the prim ary actor told him or her, o r sim ply took actions that m ade obvious w hat was happening See g en era lly G iovannettt, 919 F 2d at 1226-29.

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However, “there is support for relaxing this requirement [of specific intent to bring about the crim inal act] when the crime is particularly grave: . . . ‘the seller of gaso­ line who knew the buyer was using his product to make M olotov cocktails for ter­ roristic u se’” would be guilty of aiding and abetting the buyer’s subsequent use of the “cocktails” in an act o f terrorism. F ountain , 768 F.2d at 798 (quoting with approval P eo p le v. L auria , 251 Cal. App. 2d 471, 481 (1967) (dictum )). Where a person provides assistance that he o r she knows will contribute directly and in an essential m anner to a serious criminal act, a court readily may infer a desire to fa­ cilitate that act. See Zaftro, 945 F.2d at 887 (if someone “knowingly provides es­ sential assistance, we can infer that [that person] does want [the primary actor] to succeed, for that is the natural consequence of his deliberate act”).20 W ere this a case in which a foreign government provided direct and material as­ sistance to an attack upon United States civil aircraft, both our Government and, we believe, the courts o f this country would view the offense against § 32(b)(2) to be o f a very serious nature, and would adopt an expansive view of the “desire to help the [unlawful] activity succeed” that constitutes this element of aiding and abetting. U nited S tates v. Carson, 9 F.3d 576, 586 (7th Cir. 1993), cert, denied, 513 U.S. 844 (1994). As we understand the facts, USG assistance is critical to the ability o f C olom bia and Peru to effect shootdowns. USG personnel have been fully engaged in the air interdiction operations of each country, providing substan­ tial assistance that has contributed in an essential, direct and immediate way (w hether by “real tim e” information or otherwise) to those countries’ ability to shoot dow n civil aircraft. Moreover, our assistance has been of a type and extent that Colom bia and Peru would have difficulty in providing for themselves or in obtaining from other sources. In the absence of changes in the policies and prac­ tices of C olom bia and Peru, there is a very substantial danger that the USG activi­ ties described to us m eet the purpose elem ent of aiding and abetting.

3. Acts of assistance. The application o f the third element to the question we are considering is, we think, fairly straightforward. As the Supreme Court recently reiterated, aiding and abetting “ ‘com prehends all assistance rendered by words, acts, encouragem ent, support, or presence.’” R eves v. Ernst & Young, 507 U.S. 170, 178 (1993) (quoting B la ck ’s L aw D ictionary 68 (6th ed. 1990)). Gauged by this definition, many or most forms of USG activities that have been described

20 In g en eral, U SG inform ation-sharing an d other form s o f assistance to foreign nations do not im plicate the U n ited S tates in those n a tio n s’ actions b ecau se, am ong o th er reasons, the purpose elem ent o f aiding and abetting is not met. H o w ev er im portant USG aid m ay be as an overall m atter, the provision o f .information, resources, train in g , and su p p o rt to a foreign nation w ould not in itse lf provide a basis for concluding that the U nited S tates intended to facilitate that n a tio n ’s unlaw ful actions Indeed, the general nature o f such aid and its le g itim a te p u rp o ses (the furtherance of th e diplom atic, national security, and dem ocratization goals of USG fo reig n policy) rebut any assertion that its purpose is to su p p o rt the occasional or unexpected unlawful acts o f re c ip ie n t gov ern m en ts. S ee generally U nited S tates v P tno-P erez, 8 70 F 2d 1230, 1237 (7th Cir.) (en banc) (aid in g and ab ettin g requires “ a fuller e n g ag em en t with [the prim ary a cto r's] activities” than accidental or iso lated assistan ce creates), cert denied, 4 9 3 U.S. 901 (1989)

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to us could be fairly described as “act[s] of helping” Colombia or Peru to carry out a shootdown policy. That conclusion, when com bined with our analysis o f the knowledge and purpose elements, leads us to think that there is grave risk that the described USG activities contravene 18 U.S.C. § 32(b)(2).

C.

It has been suggested that the problems for USG information-sharing and other assistance to Colombia and Peru that are posed by 18 U.S.C. §§ 2(a) and 32(b) might be eliminated by seeking assurances from the governments of those countries with respect to their shootdown activities. Two possible forms of such an assurance have been posited: an assurance that Colombia and Peru would engage in no more shootdowns of civil aircraft, or an assurance that Colombia and Peru would make no use of information (or other aid) provided by the United States in effecting shootdowns. The argument would be that such assurances would negate either the first, knowledge element, or the second, purpose prong o f aiding and abetting. An initial point applies to both forms of assurance: to be of any legal signifi­ cance, an assurance must be made by an official of the other government with authority to bind that government, and it must be deemed reliable by a high officer of the United States, acting with full knowledge o f the relevant facts and circum ­ stances. Assurances from subordinate officials could not reasonably be taken to represent a position that would be adhered to by other officials of that government. The acceptance of assurances that were not deem ed credible in fa c t by USG offi­ cials might readily be characterized as a “deliberate effort to avoid [the] know l­ edge,” G iovannetti, 919 F.2d at 1229, that the assurance did not represent the actual intentions of the other government. In light of the gravity o f the issue, the decision to accept and act on such an assurance would be a policy decision o f such significance that it could be appropriately made only by a very high officer o f this Government. A reliable assurance (as we have defined it) lhat the foreign government would carry out no shootdowns falling within the prohibition of § 32(b)(2) would, in our opinion, clearly negate the knowledge element of aiding and abetting. With such an assurance, there would be no known or suspected intention to effect unlawful shootdowns for USG officials to have knowledge of; put another way, the acceptance o f such an assurance as reliable would constitute a judgm ent that the foreign government was engaged in no criminal activity in this respect. If it subse­ quently became apparent that this judgm ent was mistaken, a reevaluation o f the legal status of USG assistance would be necessary, but until and if evidence emerged that the other government intended to violate its assurance, USG aid of all sorts, including the provision of real-time flight information, would be lawful. For similar reasons, a reliable assurance that the foreign government would

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not carry out any unlawful shootdowns would eliminate any argument that USG officials had a “desire to help the activity succeed,” C arson , 9 F.3d at 586, because it would represent a judgm ent that no unlawful activity was contemplated or under way. A more problem atic case is posed if the foreign government declined to re­ nounce its shootdown policy but offered assurances that it would not use USG- supplied information or other assistance in carrying out shootdowns violating § 32(b)(2). (In such a case, the foreign governm ent might carry out such activities using inform ation or assistance obtained from other sources.) A bare assurance to that effect, without more, would be insufficient to remove the risk of contravening the statute, given what we understand to be the widespread use of USG-supplied inform ation, the commingling of USG and foreign government information, and the tem ptation on the part of the foreign governm ent’s operational officers to make use o f information or assistance extrem ely valuable to effecting their own govern­ m ent’s law enforcem ent program. W e believe that there are conditions in which such assurances would be suffi­ ciently reliable to perm it the United States to continue to provide information and assistance to a foreign country’s antinarcotics program even if that country de­ clined to renounce its shootdown policy. First, the United States and the foreign country should agree that the sole purpose for which USG information and other assistance would be provided and used was to assist in the execution of a ground- based end game (searches, seizures and arrests), and that such information and assistance would not be used to target civil aircraft for destruction. Second, the agreem ent should establish mechanisms by which USG personnel would obtain detailed and specific knowledge as to how the USG-provided information and as­ sistance w ere in fact being used, and thus be able to identify at an operational level any instances o f non-compliance w ith the agreement. Third, the agreement should stipulate that if any incident should occur in which the foreign governm ent’s agents fired on a civil aircraft, USG personnel would be able to verify whether USG- provided inform ation and assistance had been used in that instance, or whether the foreign country had employed only information and assistance from other sources in carrying out that operation. Finally, the agreem ent should provide for the termi­ nation o f U SG -supplied information and assistance in the event of material non- com pliance. W ere it possible to reach an agreem ent that incorporated such safe­ guards, we believe that it would insulate U SG personnel from liability in the event the foreign governm ent destroyed a civil aircraft.

III.

U nited States aid to Colombia and Peru m ight also implicate USG personnel in those governm ents’ shootdown policies on a conspiracy rationale. See 18 U.S.C.

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§ 3 7 1 . The concept of conspiracy is distinct from that of aiding and abetting.21 Aiding and abetting liability does not depend on an actual agreement between the primary actor and the aider and abettor.22 In contrast, “agreement remains the es­ sential element of the crime, and serves to distinguish conspiracy from aiding and abetting which, although often based on agreement, does not require proof o f that fact.” lannelli v. United S tates , 420 U.S. 770, 111 n.10 (1975). In addition, li­ ability for participation in a conspiracy may attach to someone even though he or she provides no material assistance toward the conspiracy’s goals, and even if the primary criminal activity that is the object of the conspiracy never takes place. See, e.g., U nited States v. Townsend, 924 F.2d 1385, 1399 (7th Cir. 1991).23 USG activities — including information-sharing and technical advice — that would be of material assistance in effecting shootdowns do not in themselves constitute an agreement between USG personnel and others to carry out shootdowns, but as we understand the facts the following are both true. (1) The United States intends, and has agreed with the governments of Colom bia and Peru, to bolster the antinarcotics law enforcement activities o f those countries. (2) The governments of Colombia (expressly) and Peru (in practice) regard shootdowns as an integral part o f their antinarcotics law enforcement activities. In those circumstances, courts might well view the distinction between USG assistance to their antinarcotics programs gener­ ally and USG assistance to the shootdown component o f those programs as thin or non-existent, and thus construe ongoing USG assistance as evidence of an agree­ ment. See U nited States v. Lechuga, 994 F.2d 346, 350 (7th Cir.) (en banc), cert, denied, 510 U.S. 982 (1993). W e believe that it is imperative to make this Governm ent’s disapproval of shootdowns in violation of § 32(b) clear in order to eliminate any suggestion that

In this m em orandum , we focus on the potential for aiding and abetting liability for tw o reasons First, it is unclear that under the circum stances outlined to us the relationship betw een the activities of U SG p e rso n ­ nel and shootdow n actions by foreign governm ents co u ld reasonably be deem ed an “agreem ent ” to violate 18 U S C § 32(b)(2) A lesser degree o f association w ith a crim inal venture suffices to create aiding and a b e t­ ting liability, how ever, and we think that a more serious argum ent can be m ade that som e form s o f USG assistance could fall w ithin the definition o f aiding and abetting See U nited States v C owart, 595 F 2d 1023, 1031 (5th C ir 1979) (the “ ‘co m m unity o f unlaw ful in te n t'” present m aiding and abetting, although "sim ilar to the ‘ag reem en t’ upon w hich the crim e o f conspiracy is based, does not rise to the level o f ‘a g re em en t'” ) In addition, and vitally, as stated in the text w e believe the risk that U SG personnel m ight plausibly be view ed as conspirators can and should be elim inated by the com m unication to foreign g o v e rn ­ m ents and USG operational personnel o f the U nited S tates’s firm opposition to any shootdow ns o f civil aircraft c o n tra n to § 32(b)(2) o r international law. " The Seventh C ircuit recently hypothesized a case illustrating this point. Suppose som eone w ho adm ired crim inals and hated the police learned that the police were planning a raid on a drug ring, and, hoping to foil the raid and assure the success of the ring, w arned its m em bers — w ith w hom he had no previous, or for that m atter subse­ quent, dealings — o f the im pending raid He w ould be an aider and abettor o f the drug conspiracy, but not a m em ber o f it C arson, 9 F 3d at 586 (quoting Zajlro , 945 F.2d at 884) T hus, USG personnel theoretically could be liable for conspiracy if their actions w ere construed as constituting an agreem ent with officials o f the foreign governm ent to carry out shootdow ns and if the latter took som e overt action tow ard accom plishing a shootdow n It w ould be unnecessary under the law o f c o n ­ spiracy for a shootdow n to take place or for any U SG actions actually to contribute to a shootdow n

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USG personnel have entered into a conspiratorial agreement with foreign officials involving unlawful shootdowns since liability as a conspirator attaches even if the substantive unlawful act never takes place. In addition, we think that USG agen­ cies should specifically instruct their personnel not to enter into any agreements or arrangem ents with the officials or agents of foreign governments that encourage or condone shootdowns. S ee generally la n n elli , 4 20 U.S. at 777-79.

IV.

This case is characterized by a com bination of factors: it involves a criminal statute that explicitly has extraterritorial reach, that is applicable to foreign gov­ ernm ent m ilitary and police personnel, and that defines a very serious offense. M oreover, our governm ent is fully engaged in furnishing direct and substantial assistance that is not otherwise available to the foreign nations involved, and at least some of the USG personnel w ho provide that assistance have actual knowl­ edge that it is likely to be used in com m itting violations. Given this com bination of factors, we conclude that, in the absence of reliable assurances in the sense defined above, USG agencies and personnel may not pro­ vide inform ation (w hether “real-time” or other) or other USG assistance (including training and equipm ent) to Colombia or Peru in circumstances in which there is a reasonably foreseeable possibility that such information or assistance will be used in shooting down civil aircraft, including aircraft suspected of drug trafficking. Furtherm ore, we note that § 32(b)(2) prohibits the destruction of civil aircraft “while such aircraft is in service,” as well as “damage to such an aircraft which renders that aircraft incapable of flight” (emphasis added). The statute defines “[i]n services” to “mean[] any time from the beginning of preflight preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty- four hours after any landing.” 18 U.S.C. § 31. Thus, USG assistance for certain operations against aircraft on the g rou n d may come within the statutory prohibi­ tions. Section 32(b)(2) does not preclude ordinary law enforcement operations directed at a plane’s crew or cargo during those times.24 It does, however, appear to forbid airborne law enforcers to bomb or strafe a suspect plane that has landed or that is preparing to take o f f 25

24 F o r exam ple, nothing in the section fo rb id s the police to o rder the crew of a suspected drug trafficking plane to su rren d er upon landing, o r to search o r seize the p lane or its cargo (C onsequential dam age to the aircraft w ould not co n stitu te a violation of the statute ) N or does the section forbid the police to use deadly force a g ain st a p lane if they are them selves en d an g ered by its c re w ’s arm ed resistance to their legitim ate orders T he police m ay also use force to rescue any hostages held aboard the plane. 25 A v alid law en fo rcem en t operation in ten d ed to seize a pane on the ground and arrest us crew and an attack on the airplane itse lf in violation o f § 3 2 (b )(2 ) m ay b o th result in the disabling or destruction o f the aircraft. No liab ility un d er the section would attach, either to prim ary actors or to those w ho assist them , m the fo rm er circu m stan ce. As described to us, how ever, the C olom bian and Peruvian counternarcotics pro­ gram s each e n co m p ass (p o ten tial) actions that w ould in ten tio n ally fall w ithin the latter, forbidden category O bviously , on d ifferen t facts we co u ld reach a d ifferen t c o n clu sio n

162 U nited Sla tes A ssistance to Countries lhat Shoot D own C ivil A ircraft Involved in D rug T rafficking

We will be pleased to cooperate with legal counsel for other agencies in evalu­ ating specific programs or forms of aid under that standard.

V.

Our conclusions here must not be exaggerated. W e have been asked a specific question about particular forms of USG assistance to the Colombian and Peruvian aerial interdiction programs. The application of the legal standard described here to any other USG programs — including other programs designed to benefit Co­ lombia or Peru — will require careful, fact-sensitive analysis. W e see no need to modify USG programs whose connection to those governm ents’ shootdown poli­ cies is remote and attenuated, and (as noted above) we perceive no implications for USG assistance to any other foreign country unless another government adopts a policy of shooting down civil aircraft. Other limitations on our conclusions should be noted. In certain circumstances, USG personnel may employ deadly force against civil aircraft without subjecting themselves to liability under § 32(b)(2). “The act is a criminal statute, and there­ fore must be construed strictly, ‘lest those be brought within its reach who are not clearly included.’”26 Although these circumstances are extremely limited, they may in fact arise. Specifically, we believe that the section would not apply to the actions of United States military forces acting on behalf of the United States during a state of hostilities.27 As discussed above, § 32(b)(2) was intended to implement the United States’s obligations under the Montreal Convention. That Convention does not appear to apply to acts o f armed forces that are otherwise governed by the laws of armed conflict.28 (The general rule under the law of armed conflict is that civil

~6 Export S a le s o j A g ricu ltu ra l C om m odities to Soviet U nion a n d E astern European B loc C ountries, 42 O p ^A tt’y G e n 229, 232 (1963) (quoting U nited S ta tes ex rel M arcus v H ess, 317 U.S. 537, 542 (1943)) 27 We do not m ean to confine a '‘state o f hostilities’7 to som e specific legal category, such as a state of declared w ar in the constitutional sense, see U S C onst, art I, § 8, cl. 1 1, or a situation su ch as to trig g er the reporting requirem ents o f the W ar Pow ers R esolution, see 50 U S C § 1543(a) 28 International agreem ents such as the M ontreal C onvention are generally concluded with a v iew to regulating ordinary, peace-tim e conditions. A ccordingly, one treatise w riter has stated it to be the general rule that *“ [i]f, as the result o f a w ar, a neutral or belligerent State is faced w ith the necessity of tak in g ex ­ traordinary m easures tem porarily affecting the application o f such conventions in order to protect its n e u tra l­ ity or for the purposes o f national defence, it is entitled to do so even if no express reservations are m ad e in the convention. ’’ Bin C heng, The Law oj In tern a tio n a l A ir Transport 483 (1962) (quoting The S S W im ­ bledon (G r Brit et al v G erm .), 1923 P C 1J (ser. A) No 1, at 36 (A ug. 17) (dissenting opinion o f Judges A nzilotti and H uber)) A cco rd Prelim inary O bjections S ubm itted by the U nited States o f A m erica, C ase C oncerning the A e ria l Incident o f 3 Ju lx 1988 (Isla m ic Republic o f Iran v U n ited States o f A m erica) at 200, 203 (M ar 4, 1991) ( “the M ontreal C onvention w as intended to prevent and deter saboteurs and terrorists from unlaw fully interfering with civil aviation and endangering innocent lives The d rafters of the C o n v en ­ tion did not discuss the actions o f m ilitary forces acting on b eh alf o f a State during hostilities, and there is no reason to believe that they intended the C onvention to extend to such actions . . . Infringem ents on the law s o f arm ed conflict through international agreem ents prim arily addressing situations other than arm ed con flict are not to be presum ed. There is no indication that the d rafteis o f the M ontreal C onvention intended it to apply to m ilitary forces acting m arm ed conflict. If they had so intended, they w ould have had to a d d re ss a m ynad o f issues relating to acts by m ilitary fo r c e s .') This conclusion is corroborated by article 89 o f the

163 Opinions o f th e O ffice o f L eg a l Counsel

aircraft are im mune from attack unless they are being used for military purposes or pose an im m ediate military threat.29) W e do not think that § 32(b)(2) should be construed to have the surprising and almost certainly unintended effect of crim i­ nalizing actions by military personnel that are lawful under international law and the law s o f arm ed conflict. We note specifically that the application o f § 32(b)(2) to acts of U nited States military personnel in a state of hostilities could readily lead to absurdities: for exam ple, it could mean in som e circumstances that military per­ sonnel would not be able to engage in reasonable self-defense without subjecting them selves to the risk of criminal prosecution. Unless Congress by a clear and unequivocal statem ent declares otherwise, § 32(b)(2) should be construed to avoid such outcom es.30 Thus, we do not think the statute, as written, should apply to such incidents as the dow ning on July 3, 1988 o f Iran Air Flight 655 by the United States Navy cruiser Vincennes .3I Furtherm ore, even in cases in which the laws o f armed conflict are inapplicable, we believe that a USG officer or em ployee may use deadly force against civil air­ craft w ithout violating § 32(b)(2) if he or she reasonably believes that the aircraft poses a threat o f serious physical harm to the officer or employee or to another person.32 A situation o f this kind could arise, for example, if an aircraft suspected of narcotics trafficking began firing on, or attempted to ram, a law enforcement aircraft that was tracking it. Assuming that such aggressive actions posed a direct and im m ediate threat to the lives of USG personnel or of others aboard the tracking

C hicago C o n v en tio n , w hich declares in part th a t “ [i]n case o f w ar, the provisions o f this C onvention shall not affect the freedom o f action o f any o f the c o n tractin g States affected, w hether as belligerents or as neutrals ’* See D av id K. L innan, Ira n A ir Flight 655 a n d B eyond: Free Passage, M istaken Self-D efense, a n d State R e sp o n sib ility , 16 Y ale J In t’l L 245, 267 (1 9 9 1 ) (“the n atu re o f the M ontreal C onvention as an anti- h ijacking and sab o tag e treaty seem s to preclude its ap p licatio n to the acts o f arm ed forces governed by the law o f arm ed c o n flic t under article 89 of the C h ic a g o C o n v en tio n ” ) See also 1 G reen H ackw orth, D igest o f In te rn a tio n a l L a w 5 52-55 (1 943) (describing e a rlie r practice and theory). 29 Se e D ep artm en t o f the A ir Force, In tern a tio n a l L a w — The C onduct o f A rm ed C onflict a nd A ir O pera­ tions, <][ 4 - 3 ( a ) ( l), (b) (1976); Stokdyk, C om m ent, A irb o rn e D ru g Trafficking D e terren c e • Can a Shootdow n P olicy F lv?, su p ra n o te 6, at 1321 30 C f U n ite d S ta te s v. K irbv, 74 U S. (7 W a l l ) 482, 4 8 6 -8 7 (1869) (holding that statute punishing o b ­ struction o f m ail did not apply to temporary d e te n tio n o f m ail caused by e a r n e r ’s arrest for m urder); N ardone v U n ited S ta tes, 302 U .S. 379, 384 (1937) (p u b lic officers m ay be im plicitly excluded from statutory lan­ guage e m b racin g all persons because ‘a read in g w hich w o u ld include su ch officers w ould work obvious a bsurdity as, fo r ex am p le, the application o f a sp eed law to a policem an pursuing a crim inal or the d n v e r o f a fire e n g in e re sp o n d in g to an a la rm '5). 31 S e e M arian N ash Leich, D e n ia l o f Liability’. Ex G ra tia C om pensation on a H um anitarian B asis, 83 A m . J. In t’l L. 319, 3 21-22 (1 9 8 9 ) (quoting C ongressional testim ony o f State D epartm ent Legal A dviser S ofaer that “ [i]n the case o f the Iran Air in cid en t, the d am ag e caused in fin n g upon #655 was incidental to the law ful use o f force T h e com m ander o f the U.S S. Vincennes evidently believed that his ship was under im m in en t th re a t o f attack from a hostile aircraft, and he attem pted repeatedly to identify or contact the aircraft b efo re taking d efensiv e action T h erefo re, the U nited States does not accept legal responsibility for this in c id e n t. . M). 32 S e e T e n n e sse e v. G a rn e r, 471 U.S. 1, 1 1 (1985) (d iscu ssin g constitutionally reasonable use o f deadly force); N ew O rlea n s a n d N ortheastern R R v. J o p e s , 142 U .S. 18, 23 (1 8 9 1 ) (“the law o f self-defence ju s ti­ fies an act d o n e in h o n est and reasonable b e lie f o f im m ediate dan g er”).

164 U nited States A ssistance lo C ountries that Shoot Down Civil A ircraft In vo lved in D rug T rafficking

aircraft, and that no reasonably safe alternative would dispel that threat, we believe that the use of such force would not constitute a violation of § 32(b)(2).33

W ALTER DELLINGER A ssistan t A ttorn ey G eneral Office o f Legal Counsel

31 T o the extern that § 32(b)(2) does not apply to the use o f deadly force by USG m ilitary or o th e r p erson­ nel in the circum stances described above, it w ould o f necessity be inapplicable as w ell to the actions of sim ilarly situated personnel o f the C olom bian o r Peruvian governm ents T hat is, such foreign governm ental agents could em ploy deadly force against civilian aircraft in the sam e circum stances in w hich USG personnel w ere able to do so USG personnel w ho assisted foreign governm ent agents in such law ful and legitim ate acts o f self-defense w ould o f course not be subject to liability, since one c an n o t be prosecuted for aid in g and abetting the com m ission o f an act that is not itse lf a crim e. S ee Sh uttlesw urth v. C itv o f B irm ingham , 373 U S . 2 6 2 (1 9 6 3 )