Law Exempts U.S. From Blame In Downing Of Missionary Plane

by Jason Vest

But even if it turns out that a CIA-employed aircrew was not as heroic in trying to stop the downing as "intelligence sources" have spun, the point is strangely moot; because according to U.S. law, no official of the American government can be held responsible for the errant shootdown of an aircraft suspected of drug smuggling in the Andes. As national attention fixates on the untimely deaths of Veronica and Charity Bowers, it's worth revisiting the circumstances that beget the legislation which effectively insulates American officials from being held accountable for the more unfortunate aspects of the drug war.

After years of providing an unfettered stream of airborne intelligence to the Colombian and Peruvian air forces, on May 1, 1994, the U.S. government abruptly stopped furnishing those countries with radar intercept information. Lawyers from the Defense, Justice and some bureaus of the State Department concluded that furnishing foreign powers with intelligence used to shoot down unarmed civilian aircraft -- a policy both Colombia and Peru were in the process of implementing -- was a violation of an International Convention on Civil Aviation 1984 amendment (that the amendment had been backed by the U.S. as a response to the Soviet downing of Korean Airlines flight 007 gave the issue a particularly poignant edge).

Of great concern was the lawyers' conclusion that if U.S.-provided intelligence was used in the accidental downing of an innocent aircraft -- something the Pentagon was seriously concerned about -- U.S. personnel, at both the executive and operational level, would be in definite violation of the 1984 amendment, and, under its provisions, subject to criminal charges and even the death penalty.

Not wanting U.S. government employees to be faced with premature state-mandated final exit for transmitting intercept data, the U.S. froze intelligence-sharing with Colombia and Peru. Upon appraisal of the freeze and the reasons for it, Drug War boosters in both the administration and Congress went into fits of apoplexy and indignation, charging the Pentagon with undercutting an effective counter-drug program that, critics noted then as now, was merely pushing coca production from one region of the Andes into another.

Among those infuriated by the Pentagon move was then Representative, now Senator, Robert Toricelli (D-New Jersey). At a June 22, 1994 House Foreign Affairs subcommittee hearing, Torricelli lambasted the intelligence-sharing suspension, calling it "incredible" that a trifle like the "legal vulnerabilities of U.S. government officials" would require a suspension of activity. In light of recent events, it's worth revisiting one of Torricelli's riffs on this point:

"The United States government tracks narco-traffickers bringing cocaine to the United States. That information is merely provided to the Peruvian or Colombian governments. They pass it to their own officials, who make their own judgements. Peruvian aircraft tracks a narco-trafficker, operating with no flight plan, often at night, with no lights. The plane is approached and wing tips attempt to communicate. There's no response. They attempt on radio communications on multiple frequencies. There's no response. There's an effort to lead them to an airport for a forced landing. They refuse and attempt to evade. And then warning shots are fired. Do you seriously believe that there is a jury in America, of any combination of American citizens, anywhere, under those circumstances, that would find a liability for U.S. government officials?"

Making the hearing even more surreal was the flip-flop of rationality between Toricelli and Gelbard. Gelbard maintained that the Peruvians and Colombians had not actually downed any planes using U.S. radar information. Toricelli, recently returned from an Andean junket, said that in private, he had been told by Colombian and Peruvian officials that dozens of planes had either been forced or shot down by both governments.

"If they admit that they're shooting down aircraft, you suspend cooperation and sharinging information with them," Toricelli said. "Of course they're going to [officially] tell you they're not shooting down any aircraft."

Toricelli's remark reflected the "wink and nod" view taken by drug warriors irked by legal restrictions on downing unarmed civilian aircraft. In the end, those drug warriors carried the day: On September 13, 1994, the FY 1995 Defense Authorization Act was approved, and it included language not only allows American military aircraft to take part in downing civilian planes, but relieves pilots from any responsibility should they be complicit in a wrongful shootdown.

Whether or not this applies to contract employees of the civilian CIA isn't entirely clear, which may be a reason the U.S. is scrambling to pin the blame on the Peruvians. A piece of legislation likely to be introduced within the next week, however, may deal with that issue by requiring that the U.S. government cease using contracted private military companies (PMCs) as surrogates for U.S. military and law enforcement elements in the Andes.

In a letter to White House on Tuesday, Rep. Jan Schakowsky (D-Illinois) asked President Bush to not only immediately cease aerial intelligence sharing with all the Andean countries as "we have so little control over the end use of information," but also called on Bush to "immediately suspend all contracts with private military firms and individuals for narcotics control and law enforcement services in the Andean region." Along with Rep. Cynthia McKinney (D-Florida), Schakowsky observed that the Bowers incident was a direct result of U.S. drug policy.

"The fact remains that the missionaries would never have been spotted without the assistance of a private military company under contract with the CIA," she wrote. "As you know, the U.S. uses private military companies in its drug operations throughout Latin America, and they operate largely out of the public eye. Now that their operations have resulted in the deaths of two Americans we believe it is time to take a closer look at the policy that permits this practices."

Though the notorious Alexandria, Virginia-based Military Professional Resources Incorporated (MPRI) has not renewed its command and control contract in Colombia, airborne units from Dyncorp, East Inc. and AirScan are all still active in the Andes, flying everything from crop dusters to helicopters. (Who the CIA's air contractor is has yet to be determined.) Despite U.S. rules that state they're not to take part in actual combat operations, PMCs like DynCorp (charge to U.S. taxpayer per outsourced pilot: $90,000) have lost personnel in combative situations, and, according to sources familiar with their operations, do end up as active participants in military-style operations. But as they're contractors, not actual servicemen, their actions and deaths have attracted little attention -- hardly surprising given the notoriously opaque qualities that are intrinsic to PMCs, and very attractive to us policymakers, who tremble at the thought of actual servicemen or agents being shipped home in coffins.

Concerns about the potential for loss of innocent life and desire for transparency and accountability vis a vis the privatized aspects of the drug war have been raised before. This time, Schakowsky and some of her colleagues are likely to raise it again, with gusto. But she can expect a fight from the contractors, many of whom have profitable, longstanding ties to the defense and intelligence establishments, as well as the usual lot of craven politicians from both parties who perpetuate the righteous mythology of the drug war.