Cathleen Corken

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). [Washington Post, 1/27/2002; 9/11 Commission, 7/24/2004, pp. 40-41]