b'United States Assistance to Countries that Shoot Down\nCivil Aircraft Involved in Drug Trafficking\n\nT 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.\nIn 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\nc 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\n\nT h e re is a c c o rd in g ly a s u b \xc2\xad\n\ns 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 \xc2\xad\nfo 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\ng 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\na 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.\n\nJuly 14, 1994\n\nM 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 *\n\nThis m em orandum summarizes our earlier advice concerning whether and in\nwhat circum stances United States G overnm ent (\xe2\x80\x9cUSG\xe2\x80\x9d) officers and employees\nmay law fully provide flight tracking information and other forms of technical as\xc2\xad\nsistance to the Republics o f Colombia and Peru. The information and other assis\xc2\xad\ntance at issue have been provided to the aerial interdiction programs o f those two\ncountries for the purpose o f enabling them to locate and intercept aircraft suspected\nof engaging in illegal drug trafficking.\nConcern over the in-flight destruction of civil aircraft as a com ponent of the\ncounternarcotics program s of foreign governm ents is not novel. In 1990, soon\nafter the inception of the USG assistance program, the United States made an oral\ndem arche to the Colom bian government informing that governm ent that Colom\xc2\xad\nbian use o f USG intelligence information to effect shootdowns could result in the\nsuspension o f that assistance.\nM ore recently, we understand that the government o f Peru has used weapons\nagainst aircraft suspected of transporting drugs and that the government of Colom\xc2\xad\nbia has announced its intention to destroy in-flight civil aircraft suspected of\ninvolvem ent in drug trafficking. The possibility that these governments might\nuse the inform ation or other assistance furnished by the United States to shoot\ndown civil aircraft raises the question o f the extent to which the United States and\nits governm ental personnel may lawfully continue to provide assistance to such\nprogram s.\nOn M ay 1, 1994, in light of these concerns, the Departm ent of Defense sus\xc2\xad\npended a variety o f assistance program s. Thereafter, in a draft opinion, an inter\xc2\xad\nagency working group concluded that the United States aid was probably unlawful.\nE d ito rs N ote: In response to this o p in io n , C ongress en acted Pub. L. No 103-337, \xc2\xa7 1012, 108 Stat\n2663, 2 8 3 7 (1 9 9 4 ) (co d ified at 22 U S C \xc2\xa7 2 2 9 1 -4 (1994)).\n\n148\n\n\x0cU nited States A ssistance to Countries that S hoot Down C ivil A ircraft Involved in D rug T rafficking\n\nThe group included lawyers from the Criminal Division, the Departments of State,\nDefense (including the Joint Chiefs of Staff), the Treasury, and Transportation\n(including the Coast Guard), and the Federal Aviation Administration. On M ay\n26, 1994, this Department advised all relevant agencies that assistance programs\ndirectly and materially supportive of shootdowns should be suspended pending the\ncompletion of a thorough review of the legal questions.\nAfter careful consideration o f the text, structure and history o f the Aircraft\nSabotage Act of 1984, the most relevant part o f which is codified at 18 U.S.C.\n\xc2\xa7 32(b)(2), we have concluded that this statute applies to governmental actors, in\xc2\xad\ncluding the police and military personnel of foreign countries such as Colom bia\nand Peru. Accordingly, there is a substantial risk that USG personnel who furnish\nassistance to the aerial interdiction programs of those countries could be aiding and\nabetting criminal violations of the Aircraft Sabotage Act. See 18 U.S.C. \xc2\xa7 2(a)\n(aiding and abetting statute). We caution, however, that these conclusions are\npremised on our close analysis of \xc2\xa7 32(b)(2) and should not be taken to mean that\nother domestic criminal statutes will necessarily apply to USG personnel acting\nofficially.\nI.\nInternational law forms an indispensable backdrop for understanding \xc2\xa7 32(b)(2).\nA primary source of international law regarding international civil aviation is the\nConvention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S.\nNo. 1591, 15 U.N.T.S. 295 (\xe2\x80\x9cthe Chicago Convention\xe2\x80\x9d). The Chicago Convention\nis administered by the International Civil Aviation Organization (\xe2\x80\x9cICAO\xe2\x80\x9d).\nArticle 3(d) of the Chicago Convention declares that \xe2\x80\x9c[t]he contracting States\nundertake, when issuing regulations for their state aircraft, that they will have\ndue regard for the safety of navigation of civil aircraft.\xe2\x80\x9d Parties have interpreted\nthe due regard standard quite strictly, and have argued that this provision\nproscribes the use of weapons by states against civil aircraft in flight.1 For\nexample, the United States invoked this provision during the international contro\xc2\xad\nversy over the Korean Air Lines Flight 007 (\xe2\x80\x9cKAL 007\xe2\x80\x9d) incident.2 W hile ac\xc2\xad\nknowledging that Article 1 of the Chicago Convention recognized the customary\nrule that \xe2\x80\x9cevery State has complete and exclusive sovereignty over the airspace\nabove its territory,\xe2\x80\x9d the United States argued that the Soviet Union had violated\nboth Article 3(d) and customary international legal norms in shooting down KAL\n\n1\nA rticle 89 o f the C hicago C onvention relieves a state party from its obligations under the C onvention if\nil declares a national em ergency and certifies that declaration to ICA O . T o date, neither C olom bia nor Peru\nhas made such a certification The C hicago C onvention contains no explicit exem ption perm itting the in \xc2\xad\nflight destruction o f aircraft suspected o f carrying contraband o r o f otherw ise being involved in the drug\ntrade\n\xe2\x80\x9c On Septem ber 1, 1983, a Soviet m ilitary aircraft shot dow n a civil aircraft, KAL 007, lhat had overflow n\nSoviet territory while on a scheduled international flight to Seoul\n\n149\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\n007. The A dm inistrator of the Federal A viation Authority stated to the ICAO\nCouncil that:\nThe ICAO countries have agreed that they will \xe2\x80\x9chave due regard for\nthe safety of navigation of civil aircraft\xe2\x80\x9d when issuing regulations\nfor their m ilitary aircraft. It is self-evident that intercepts of civil\naircraft by military aircraft must be governed by this paramount\nconcern.\nThe international community has rejected deadly assault on a civil\nairliner by a m ilitary aircraft in time of peace as totally unaccept\xc2\xad\nable. It violates not only the basic principles set forth in the\n[Chicago] convention but also the fundamental norms of interna\xc2\xad\ntional law . . . .[31\nIn the wake of KAL 007, the ICAO Assembly unanimously adopted an amend\xc2\xad\nment to the Chicago Convention to make more explicit the prohibitions o f Article\n3(d).4 This am endm ent, Article 3 b is, reads in part as follows:\n(a)\nThe contracting States recognize that every State must refrain\nfrom resorting to the use of weapons against civil aircraft in\nflight and that, in case of interception, the lives of persons on board\nand the safety of aircraft m ust not be endangered. This provision\nshall not be interpreted as modifying in any way the rights and\nobligations o f States set forth in the Charter of the United N ations.5\nA rticle 3 b is should be understood to preclude states from shooting down civil\naircraft suspected o f drug trafficking, and the only recognized exception to this rule\nis self-defense from attack.6 We understand that the United States has not yet rati\xc2\xad\nfied Article 3 bis. There is, however, support for the view that the principle it an\xc2\xad\nnounced is declaratory of customary international law.7\n\n3 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 \xe2\x80\x99t St B u l l , Oct.\n1983, 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\nsh ootd o w n o f K A L 007 and *\xe2\x80\x98[r]eaffirm [ed] th e principle th at States, w hen intercepting civil aircraft, should\nnot use w eap o n s ag ain st th em \xe2\x80\x9d Id. at 20.\n4 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 \xe2\x80\x94 A P ro *\np o sa l f o r E n fo rcem en t, 22 San D iego L Rev. 859, 882-84 (1985)\n5 U SG re p resen tativ es p ro p o sed a reference to the U nited N ations C harter (\xe2\x80\x9cC harter1\') to reflect the view\nthat 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\ns ta te \xe2\x80\x99s n g h t o f self-d efen se as provided for in A rticle 51 o f the C harter.\n6 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\nF ly \', 38 U C L A L. Rev. 1287, 1306(1991)\n7 See, e.g ., A ndreas F. L ow enfeld, Looking Back a n d Looking A head, 83 Am J In t\xe2\x80\x99l L. 336, 341 & n 17\n(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\xe2\x80\x99l &\n\n150\n\n\x0cU nited States A ssistance to Countries that S hoot Down C ivil A ircraft Involved in D rug Trafficking\n\nIn addition to the Chicago Convention, the United States has ratified the Con\xc2\xad\nvention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation\n(Sabotage), done Sept. 23, 1971, 24 U.S.T. 567, 10 I.L.M . 1151 (1971) (\xe2\x80\x9cthe\nMontreal Convention\xe2\x80\x9d). Article 1 o f the latter Convention specifies certain sub\xc2\xad\nstantive offenses against civil aircraft: in particular, Article 1,1 (b) states that\n\xe2\x80\x9c [a]ny person commits an offence if he unlawfully and intentionally . . . destroys an\naircraft in service or causes damage to such an aircraft which renders it incapable\no f flight or which is likely to endanger its safety in flight.\xe2\x80\x9d Article 1,2 makes it an\noffense to attempt to commit a previously enumerated offense, or to be an accom \xc2\xad\nplice of an offender.8 Further, Article 10 requires states \xe2\x80\x9cin accordance with inter\xc2\xad\nnational and national law,\xe2\x80\x9d to \xe2\x80\x9cendeavour to take all practicable measures for the\npurpose of preventing\xe2\x80\x9d substantive offenses.\nThe Montreal Convention imposes on states certain duties with respect to of\xc2\xad\nfenders or alleged offenders.\nArticle 3 declares that the contracting states\n\xe2\x80\x9cundertaken to make the offences mentioned in Article 1 punishable by severe\npenalties.\xe2\x80\x9d This obligation is specified by requiring states to take measures to es\xc2\xad\ntablish jurisdiction over certain offenses (Article 5), to take custody of alleged of\xc2\xad\nfenders within their territory (Article 6), and either to extradite the alleged offender\nor to submit the case to their com petent authorities for prosecution (Article 7).\nFurther, states have the obligation to report the circumstances of an offense, and\nthe results of their extradition or prosecution proceedings, to the ICAO (Article\n13).\nNearly all nations with a significant involvement in air traffic are parties to the\nMontreal Convention, and have thus incurred the responsibility to execute it. The\nUnited States implemented the Convention in 1984 by enacting the Aircraft Sabo\xc2\xad\ntage Act, Pub. L. No. 98-473, \xc2\xa7\xc2\xa7 2011-2015, 98 Stat. 1837, 2187-90(1984). Con\xc2\xad\ngress specifically stated that legislation\xe2\x80\x99s purpose was \xe2\x80\x9cto implement fully the\n[Montreal] Convention . . . and to expand the protection accorded to aircraft and\nrelated facilities.\xe2\x80\x9d Id. \xc2\xa7 2012(3); see a lso S. Rep. No. 98-619 (1984), rep rin ted in\n1984 U.S.C.C.A.N. 3682.9 The criminal prohibition now codified at 18 U.S.C.\n\xc2\xa7 32(b)(2) was enacted as part of that legislation.\nC 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\n1991)\n8 In general, the furnishing o f inform ation o r assistance to another nation in circum stances that clearly\nindicate 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\na ct may itself be a w rongful act under international law.\nC f A rticle 27 o f the International Law\nC om m issio n \'s D raft C onvention on State R esponsibility, w hich provides that \xe2\x80\x9c [a]id or assistance by a State\nto another State, if it is established that it is rendered for the co m m ission o f an internationally w rongful act\nearn ed out by the latter, itself constitutes an internationally w rongful act, even if, taken alone, such aid or\nassistance w ould not constitute the b reach o f an international oblig ation \xe2\x80\x9d R eport o f the Intern a tio n a l L aw\nC 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 \xe2\x80\x99n 33, U .N . Doc.\nA /35/10.\n9 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\nacts 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 \xc2\xad\ntion betw een this country and the offense An attack on civil aircraft can be considered a crim e o f \xe2\x80\x9c universal\nc 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),\n\n151\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nII.\nW e turn to the question of criminal liability under domestic law. At least two\ncriminal statutes are relevant to this inquiry. The first is 18 U.S.C. \xc2\xa7 32(b)(2),\nwhich im plem ents Article 1,1 (b) o f the Montreal Convention, and prohibits the\ndestruction o f civil aircraft. The second is 18 U.S.C. \xc2\xa7 2(a), which codifies the\nprinciple o f aiding and abetting liability.10\nA.\n18 U.S.C. \xc2\xa7 32(b)(2) was enacted in 1984, one year after the destruction of\nKAL 007. The statute makes it a crime \xe2\x80\x9cwillfully\xe2\x80\x9d to \xe2\x80\x9cdestroy[] a civil aircraft\nregistered in a country other than the United States while such aircraft is in service\nor causef] dam age to such an aircraft which renders that aircraft incapable of flight\nor which is likely to endanger that aircraft\xe2\x80\x99s safety in flight.\xe2\x80\x9d11 The text, structure\nand legislative history o f the statute establish that it applies to the actions of the\nPeruvian and Colum bian officials at issue here.\nThe term \xe2\x80\x9ccivil aircraft,\xe2\x80\x9d as used in \xc2\xa7 32(b)(2), is defined broadly to include\n\xe2\x80\x9cany aircraft other than . . . an aircraft which is owned and operated by a govern\xc2\xad\nmental entity for other than commercial purposes or which is exclusively leased by\nsuch governm ental entity for not less than 90 continuous days.\xe2\x80\x9d 49 U.S.C. app.\n\xc2\xa7 1301(17), (36) (definitions section of Federal Aviation Act of 1958). See 18\nU.S.C. \xc2\xa7 31 (in chapter including \xc2\xa7 32(b)(2), \xe2\x80\x9ccivil aircraft\xe2\x80\x9d has meaning ascribed\nto term in Federal Aviation Act). The qualifying language providing that the sec\xc2\xad\ntion applies to \xe2\x80\x9ccivil aircraft registered in a country oth er than the U nited States,\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 32(b)(2) (emphasis added), has an expansive rather than restrictive\npurpose \xe2\x80\x94 to extend United States criminal jurisdiction over persons destroying\nsee 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\n(1988)\n10 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 \xc2\xa7 1472(0(1) m akes it a\ncrim e to co m m it, o r to attem pt to commit, a irc ra ft piracy \xe2\x80\x98\xe2\x80\x98A ircraft piracy\'* is defined to *\xe2\x80\x98m ean[] any seizure\nor 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,\nand 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.\n\xc2\xa7 1472(i)(2). T h e \xe2\x80\x9cspecial airc ra ft ju risd ictio n o f the U nited States\xe2\x80\x99\xe2\x80\x9d includes \xe2\x80\x9ccivil aircraft o f the U nited\nS ta te s\xe2\x80\x99" w hile su ch aircraft is in flight Id. \xc2\xa7 1301(38)(a) W e do not co n sid er in this m em orandum w hether\nthe pro h ib itio n on aircraft piracy, o r any c rim in a l statutes o th e r than \xc2\xa7 32(b) and the aiding and abetting and\nco n sp iracy statu tes, w ould be applicable to th e U SG activities in question here\n11 S ectio n 3 2 (b ) is a felony statute, and p u rsu a n t to 18 U S.C \xc2\xa7 34, persons w ho violate \xc2\xa7 32 are subject\nto \xe2\x80\x9c the d eath p enalty o r to im prisonm ent fo r life \xe2\x80\x9d if th e crim e \xe2\x80\x9c resulted in the death o f any person.\xe2\x80\x9d H ow \xc2\xad\never, \xc2\xa7 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\nbe 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\nC 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\nthe d e ath p en alty pro v id ed fo r by 18 U S C. \xc2\xa7 844(d) (w h ich incorporates \xc2\xa7 34 by reference) is unconstitu\xc2\xad\ntional. 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\nbe reheard en b anc, and it rem ains uncertain w h eth er \xc2\xa7 34 can be applied constitutionally Pending cn m e\nle gislatio n w o u ld resolve this issue for fu tu re violations by providing a constitutional death penalty\nprovision.\n\n152\n\n\x0cU nited States A ssistance to C ountries that Shoot Down Civil A ircra ft Involved in D rug Trafficking\n\ncivil aircraft \xe2\x80\x98\xe2\x80\x9c even if a U.S. aircraft was not involved and the act was not within\nthis country.\xe2\x80\x99\xe2\x80\x9d U nited States v. Yunis, 681 F. Supp. 896, 906 (D.D.C. 1988)\n(citation om itted).12\nSection 32(b)(2) was intended to apply to governmental actors (here, the m ili\xc2\xad\ntary and police forces of Colombia and Peru) as well as to private persons and\ngroups. W hen Congress adopted \xc2\xa7 32(b)(2) in 1984, it had been a crime for nearly\nthirty years under \xc2\xa7 32(a)(1) for anyone willfully to \xe2\x80\x9cset[] fire to, damage[],\ndestroy[], disable[], or wreck[] any aircraft in the special aircraft jurisdiction of\nthe United States or any civil aircraft used, operated, or employed in interstate,\noverseas, or foreign air comm erce.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 32(a)(1).13 This Departm ent has\nsought, under \xc2\xa7 32(a), to prosecute state actors whom it believes to have sponsored\nterrorist acts (specifically, the bombing of Pan American Flight 103 at the behest\no f Libya).\nBecause of the obvious linguistic and structural sim ilarities\nbetween \xc2\xa7\xc2\xa7 32(a)(1) and 32(b)(2), we read those sections to have the same cover\xc2\xad\nage in this regard, i.e., to apply to governmental and non-governmental actors\nalike.14\n\n12\nIt m ight be argued that \xc2\xa7 3 2 (b )(2 )\'s reference to aircraft \xe2\x80\x9c registered in a country other than the U nited\nS tates\xe2\x80\x9d is restrictive in m eaning, i e , that the section does not protect u n registered aircraft\nM oreover, we\nare inform ed that the registration num bers o f aircraft engaged in drug trafficking over C olom bia and Peru\nhave in som e cases been painted over or otherw ise obscured It is suggested that unregistered aircraft, or\naircraft w hose registration is concealed, may be made targets under a shootdow n policy w ithout violating the\nstatute T here are several flaw s in this suggestion. (1) C ongress stated lhat its purpose in enacting the A ir\xc2\xad\nc ra ft Sabotage Act was \xe2\x80\x9c to im plem ent fully" the M ontreal C onvention See 18 U .S.C \xc2\xa7 31 noie. A rticle\n1,1 (b) o f ihe C onvention (from which 18 U .S.C \xc2\xa7 32(b)(2) is derived) prohibits the d estruction o f civil\naircraft as such, w ithout regard to registration B ecause \xc2\xa7 32(a)( I) had already forbidden the w illful destruc\xc2\xad\ntion o f \xe2\x80\x9c any aircraft in the special aircraft ju risd ictio n o f the U nited States or any civil aircraft used, operated,\no r em ployed in interstate, overseas, or foreign air com m erce," C ongress evidently sought to d ischarge this\nc o u n try \xe2\x80\x99s rem aining o bligations under ihe M ontreal C onvention by affording the sam e protection to all other\ncivil aircraft A ccordingly, the protections provided by \xc2\xa7 32(b)(2) should not be deem ed to hinge on w hether\na foreign civil aircraft is in faci registered, had C ongress done no m ore than that, the U nited S tates w ould\nhave fallen short o f fulfilling its treaty obligations, although C ongress intended lhat it should fulfill them.\nS ection 3 2 (b )(2 )\xe2\x80\x98s reference to \xe2\x80\x9ccivil aircraft registered in a country other than the U nited S tates\xe2\x80\x9d \xe2\x80\x9c m ust be\ntaken lo refer to the class w iih w hich the statute undertakes lo deal \xe2\x80\x99\xe2\x80\x99 U nited States v Jin Fuey M ay, 241\nU S 394, 402 (1916) (H olm es, J.) (construing scope o f registration requirem ent in crim inal statu te) See\na 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,\n893 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\xc2\xad\nm ent or obscuring o f a registration num ber does not legally \xe2\x80\x9cd eregister\xe2\x80\x9d an airplane, and that only an official\nact by the registering governm ent can achieve that effect A ccordingly, suspected drug traffickers w hose\nregistration is concealed cannot be deem ed to be unregistered (3) T here is no logical connection betw een\nthe 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\nem pirical evidence that the tw o classes significantly overlap Further, drug traffickers may ow n, lease or\nsteal planes; and even if it w ere their practice not to register the planes they ow n, the ow ners o f the planes\nthey 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\nforeign law enforcers w ho have intercepted a plane could determ ine w hile it was in flight w hether it was\nregistered or not Indeed, the very act o f d estroying a plane m ight prevent investigators from determ ining its\nregistration (if any) Thus, it w ould be d ifficult, if not im possible, to m onitor a \xe2\x80\x9cshoot dow n\xe2\x80\x9d policy so as to\nensure lhat the p articipants in it avoided crim inal liability by targeting only unregistered planes\nn Section 3 2 (a) was adopted m 1956, se e Pub. L No. 84-709, 70 Stat 5 3 8 ,5 3 9 (1956)\n14\nW hile \xc2\xa7 32(a) does not have the broad extraterritorial scope of \xc2\xa7 32(b)(2), it does apply to acts against\nU nited S tates-registered aircraft abroad, and thus w ould apply w ith respect to any such aircraft shot dow n by\nC olom bian or P eruvian authorities.\n\n153\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nThe legislative history o f the A ircraft Sabotage Act confirms that Congress in\xc2\xad\ntended \xc2\xa7 32(b)(2) to reach governmental actions. The original bill was introduced\nas part o f a package o f four related measures proposed by the Administration and\ndesigned to enable the United States to com bat international terrorism, including\nstate-sponsored actions, more effectively. In subm itting this legislative package to\nCongress, the President explained that it was largely concerned with\na very w orrisom e and alarming new kind o f terrorism . . .: the di\xc2\xad\nrect use of instruments of terror by fo reig n states. This \xe2\x80\x9cstate ter\xc2\xad\nrorism \xe2\x80\x9d . . . accounts for the great majority o f terrorist murders and\nassassinations. Also disturbing is state-provided training, financing,\nand logistical support to terrorists and terrorist groups.\nM essage to the C ongress Transmitting Proposed Legislation To Combat Interna\xc2\xad\ntional Terrorism , Pub. P apers o f R o n a ld Reagan 575 (1984) (emphasis added).\nFurther, in testim ony given at a Senate Judiciary Committee hearing on these\nbills on June 5, 1984, W ayne R. Gilbert, Deputy A ssistant Director o f the Criminal\nInvestigative Division o f the Federal Bureau of Investigation, underscored that:\nRecent years reflect increasing concern both in the United States\nand in foreign nations over the use o f terrorism b y fo reig n g o vern \xc2\xad\nm ents or groups. W e have seen an increased propensity on the part\no f terrorist entities to plan and carry out terrorist acts worldwide.\nL eg isla tive In itiatives to Curb D om estic a n d International Terrorism : H earings\nB efore the Subcomm. on Security a n d Terrorism o f the Senate Comm, on the Judi\xc2\xad\nciary, 98th Cong. 44 (1984) (\xe2\x80\x9cH earings\xe2\x80\x9d) (statem ent o f Wayne R. Gilbert)\n\n(em phasis added). In written testimony, the Departm ent of Justice also explained\nthat \xe2\x80\x9c [t]hese four bills address some of the risks caused by the growing worldwide\nterrorism problem , especially state-su pported terro rism .\xe2\x80\x9d Id. at 46-47 (prepared\nstatem ent o f V ictoria Toensing, Deputy A ssistant Attorney General, Criminal Divi\xc2\xad\nsion) (em phasis added).15 The legislative history of \xc2\xa7 32(b)(2) thus shows that the\nstatute was intended to reach shootdowns by officials or agents of governments as\nwell as by private individuals and organizations.\nB ecause \xc2\xa7 32(b)(2) applies generally to foreign governments, it must apply to\nshootdow ns of foreign-registered civil aircraft by law enforcem ent officers or\nmilitary personnel of the governments of Colom bia and Peru. The statute contains\nno exem ption for shootdowns in pursuance of foreign law enforcement activity; nor\n15\nIn 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\xc2\xad\ntor D enton co m m en ted that \xe2\x80\x98\xe2\x80\x98we should not ig n o re the fact that in Libya a G eneral W olf, w hose full nam e is\nM arcus W olf, set up and acts as the chief o f L ibyan In tellig en ce.\xe2\x80\x9d Id. at 81 In context, Senator D enton\'s\nco m m en t seem s to reflect his understanding th a t the legislation w ould reach state-sponsored attacks on civil\naircraft o r air p assen g ers and the officials resp o n sib le for such attacks\n\n154\n\n\x0cU nited S ta tes A ssistance to C ountries that Shoot Down C ivil A ircraft Involved in D rug Trafficking\n\ndoes it exempt shootdowns of aircraft suspected of carrying contraband.16 USG\npersonnel who aid and abet violations o f \xc2\xa7 32(b)(2) by the Colombian or Peruvian\ngovernments are thus themselves exposed to criminal liability by virtue of 18\nU.S.C. \xc2\xa7 2(a), see Part II B below .17\nOur conclusion that \xc2\xa7 32(b)(2) applies to governmental action should not be un\xc2\xad\nderstood to mean that other domestic criminal statutes apply to USG personnel\nacting officially. Our O ffice\xe2\x80\x99s precedents establish the need for careful exam ina\xc2\xad\ntion of each individual statute. For example, we have opined that USG officials\nacting within the course and scope of their duties were not subject to section 5 of\nthe Neutrality Act, 18 U.S.C. \xc2\xa7 960. See A pplication o f N eutrality A ct to O fficial\nG overnm ent A ctivities, 8 Op. O.L.C. 58 (1984) (\xe2\x80\x9cNeutrality Act O pinion\xe2\x80\x9d). In\ngeneral terms, lhat statute forbids the planning of, provision for, or participation in\n\xe2\x80\x9cany military or naval expedition or enterprise to be carried on from [the United\nStates] against the territory or dominion of any foreign prince or state . . . with\nwhom the United States is at peace,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 960; it does not explicitly exempt\nUSG-sponsored activity. Our conclusion with respect to the Neutrality Act was\nbased upon an examination of the legislative history of the Act, its practical con\xc2\xad\nstruction over two centuries by Presidents and Congresses, and the judicial deci18\nsions interpreting it.\n\nB.\nThe question we have been asked presupposes that USG personnel would not\nthemselves directly carry out shootdowns of civil aircraft or encourage others to do\n16 A lthough the legislative history em phasizes the dangers o f state-sponsored \xe2\x80\x9cterrorism ," w e do not\nunderstand the statute to exem pt state activity that co u ld arguably be characterized as \xe2\x80\x9c law en fo rcem en t.\xe2\x80\x9d\nAn 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\no f national security laws regulating overflights in m ilitarily sensitive airspace, and thus distinguished from\nacts o f terrorist violence N evertheless, we think that \xc2\xa7 32(b)(2) w ould apply to such attacks on civil avia\xc2\xad\ntion\n17 Section 32(b)(2) w ould also apply directly to USG personnel who them selves shot dow n foreignregistered civil aircraft, although on the facts as we understand them such conduct \xe2\x80\x94 as distinct from aiding\nand abetting foreign governm ental violations \xe2\x80\x94 is not at issue here. (For further discussion, see Part V\nbelow ) N othing in the legislative history o f \xc2\xa7 32(b)(2) suggests that that statute w ould not apply to USG\npersonnel in p roper cases as m uch as it does to foreign governm ental personnel\n,x W e noted in the N eutrality Act O pinion that \xe2\x80\x9cthe A c t\'s purpose was to enhance the P resid en t\xe2\x80\x99s ability\nto im plem ent the foreign policy goals that have been developed by him , with appropriate p articipation by\nC ongress.\xe2\x80\x9d Id. at 72 A ccordingly, we found that \xe2\x80\x9c it would indeed be anom alous\xe2\x80\x99\' to construe that A ct to\nlim it what USG officials acting under Presidential foreign policy directives could law fully do. Id By con\xc2\xad\ntrast, interpreting the A ircraft Sabotage A ct to reach such actors w ould not obstruct the statu te \xe2\x80\x99s purpose,\nw hich in any case was not to ensure the P resident\xe2\x80\x99s ability to co nduct a unified and consistent foreign policy\nunim peded by private citizen s\' interferences If anything, it w ould be contrary to the A ircraft Sabotage A c t\'s\npolicy o f protecting international civil aviation from arm ed attacks to allow U SG officials, but not those o f\nany other country, to carry out such attacks Furtherm ore, although it is often true that \xe2\x80\x9c \xe2\x80\x98statutes w hich in\ngeneral term s divest pre-existing rights o r privileges will not be applied to the sovereign w ithout express\nw 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\nm axim is \xe2\x80\x9c \xe2\x80\x98no hard and fast rule o f e x clu sio n ,\xe2\x80\x99\nand much depends on the context, the subject m atter,\nlegislative history, and executive interpretation \xe2\x80\x9d W ilson v O m aha Indian Tribe, 442 U .S. 653, 6 67 (1979)\n(quoting U nited Slates v C oo p er C orp , 3 1 2 U.S 600, 604-05 (1941))\n\n155\n\n\x0cO pinions o f ihe Office o f L egal C ounsel\n\nso. Thus, the lawfulness o f USG activities and the potential liability o f USG per\xc2\xad\nsonnel, under the circumstances outlined to us, depend on the proper application of\nthe federal aider and abettor statute, 18 U.S.C. \xc2\xa7 2(a).\nSection 2(a) does not itself define any crim inal offense, but rather provides that\na person who is sufficiently associated with the criminal act of another is liable as a\nprincipal for that act.\nU nder the \xe2\x80\x9cclassic interpretation\xe2\x80\x9d of this offense, \xe2\x80\x9c [i)n order to\naid and abet another to com m it a crime it is necessary that a defen\xc2\xad\ndant in some sort associate him self with the venture, that he partici\xc2\xad\npate in it as in something that he wishes to bring about, that he seek\nby his action to make it succeed.\xe2\x80\x9d\nU nited S tates v. M onroe, 990 F.2d 1370, 1373 (D.C. Cir. 1993) (quoting Nye <\xc2\xa3\nN issen v. U n ited S tates, 336 U.S. 613, 619 (1949)) (internal quotation marks and\n\ncitations omitted).\nA iding and abetting liability for a crime can be usefully analyzed as consisting\nof three elements: \xe2\x80\x9c[1] knowledge of the illegal activity that is being aided and\nabetted, [2] a d esire to help the activity succeed, and [3] some a ct o f helping.\xe2\x80\x9d\nU nited S ta tes v. Z afiro, 945 F.2d 881, 887 (7th Cir. 1991) (enumeration added),\na ff\xe2\x80\x99d, 506 U.S. 534 (1993). All three elem ents must be present for aiding and\nabetting liability to attach. Id.\n\n1. Knowledge of unlawful activity. A person must know about unlawful activity\nin order to be guilty o f aiding and abetting it: \xe2\x80\x9ca person cannot very well aid a\nventure he does not know about.\xe2\x80\x9d U nited S tates v. Allen, 10 F.3d 405, 415 (7th\nCir. 1993). W ith respect to most or perhaps all countries to which the United\nStates provides information or other assistance (other than Colombia and Peru), the\nabsence o f this first elem ent of aiding and abetting eliminates entirely any possibil\xc2\xad\nity that the USG activities implicate 18 U.S.C. \xc2\xa7 32(b). In the absence o f some\nserious reason to think otherwise, the United States is entitled to assume that the\ngovernm ents o f other nations will abide by their international commitments (such\nas the C hicago Convention) and custom ary international law. The fact that another\ngovernm ent theoretically could act otherwise cannot render USG aid activities le\xc2\xad\ngally problem atic. Furthermore, the United States is under no general obligation to\nattem pt to determ ine whether another governm ent has an as-yet unrevealed inten\xc2\xad\ntion to m isuse U SG assistance in a violation of \xc2\xa7 32(b). See United States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990) (\xe2\x80\x9cA ider and abettor liability is not\nnegligence liability.\xe2\x80\x9d). Therefore, if a foreign nation with no announced policy or\nknown practice of unlawful shootdowns did in fact use USG aid in carrying out a\nshootdow n, that event would create no liability for the prior acts of USG personnel,\n\n156\n\n\x0cU nited States A ssistance to Countries that Shoot D own Civil A ircraft Involved in D rug Trafficking\n\nalthough it probably would require a reevaluation of USG assistance to that coun\xc2\xad\ntry and, depending on the circumstances, might require changes in that assistance.\nThe same analysis, however, does not apply where the foreign state does have\nan announced policy or known practice o f carrying out shootdowns that violate\n\xc2\xa7 32(b)(2) \xe2\x80\x94 precisely the situation with respect to Colombia and Peru. It is obvi\xc2\xad\nous that the United States has knowledge o f Colom bia\xe2\x80\x99s publicly avowed policy.\nWe believe that the United States is equally on notice about Peru\xe2\x80\x99s de fa c to shoot\xc2\xad\ndown policy on the basis of the incidents that have occurred.19 It appears to be\nsettled law that the knowledge elem ent o f aiding and abetting is satisfied where the\nalleged aider and abettor attempted to escape responsibility through a \xe2\x80\x9cdeliberate\neffort to avoid guilty knowledge\xe2\x80\x9d of the primary actor\xe2\x80\x99s intentions. G iovannetti,\n919 F.2d at 1229. Someone who suspected the existence of illegal activity that his\nor her actions were furthering and who took steps to ensure that the suspicion was\nnever confirmed, \xe2\x80\x9cfar from showing that he was not an aider and abettor . . . would\nshow that he was.\xe2\x80\x9d Id. On the facts as presented to us, we think that the knowl\xc2\xad\nedge element is met with respect to Colom bia and Peru unless there is a change in\nthe policies of those countries.\n\n2. Desire to facilitate the unlawful activity. \xe2\x80\x9c[T]he aider and abettor m ust share\nthe principal\xe2\x80\x99s purpose\xe2\x80\x9d in order to be liable under 18 U.S.C. \xc2\xa7 2. U nited S tates v.\nFountain, 768 F.2d 790, 798 (7th Cir. 1985), cert, denied, 475 U.S. 1124 (1986).\nThe contours of this element in the definition of aiding and abetting are not without\nambiguity, see Zafiro, 945 F.2d at 887, although as a general matter mere knowl\xc2\xad\nedge of the criminal activity (the existence of the first, knowledge element) does\nnot in itself satisfy this second, purpose element. Many courts state the purpose\nelement in terms of a \xe2\x80\x9cspecific intent that [the aider and abettor\xe2\x80\x99s] act or omission\nbring about the underlying crim e,\xe2\x80\x9d U nited States v. Zam brano, 776 F.2d 1091,\n1097 (2d Cir. 1985), and the Suprem e C ourt\xe2\x80\x99s most recent restatement of the aid\xc2\xad\ning and abetting statute\xe2\x80\x99s reach suggests \xe2\x80\x94 if it does not quite endorse \xe2\x80\x94 this\nview. See C entral Bank o f D en ver v. F irst Interstate Bank, 511 U.S. 164, 181\n(1994) (section 2(a) \xe2\x80\x9cdecrees that those who provide knowing aid to persons com\xc2\xad\nmitting federal crimes, with the intent to facilitate the crime, are themselves com\xc2\xad\nmitting a crime\xe2\x80\x9d) (citing Nye & N issen, 336 U.S. at 619).\nAt first glance it might appear that the United States could negate this element\nof aiding and abetting \xe2\x80\x94 and thus render USG assistance to Colombia and Peru\nlawful and USG personnel free of potential liability under 18 U.S.C. \xc2\xa7 32(b)(2) \xe2\x80\x94\nsimply by announcing this G overnm ent\xe2\x80\x99s opposition to any violations of \xc2\xa7 32(b) by\nanyone. It might seem that after such an announcement it would not be possible to\nsay that USG personnel acted with a desire to help unlawful shootdowns succeed.\n\n19\nFor the purposes o f ihe aiding and abetting statute, it is im m aterial w hether an aider and ab etto r knew\no f the unlaw ful activity because the prim ary actor told him or her, o r sim ply took actions that m ade obvious\nw hat was happening See g en era lly G iovannettt, 919 F 2d at 1226-29.\n\n157\n\n\x0cOpinions o f the O ffice o f Legal C ounsel\n\nHowever, \xe2\x80\x9cthere is support for relaxing this requirement [of specific intent to bring\nabout the crim inal act] when the crime is particularly grave: . . . \xe2\x80\x98the seller of gaso\xc2\xad\nline who knew the buyer was using his product to make M olotov cocktails for ter\xc2\xad\nroristic u se\xe2\x80\x99\xe2\x80\x9d would be guilty of aiding and abetting the buyer\xe2\x80\x99s subsequent use of\nthe \xe2\x80\x9ccocktails\xe2\x80\x9d in an act o f terrorism. F ountain , 768 F.2d at 798 (quoting with\napproval P eo p le v. L auria , 251 Cal. App. 2d 471, 481 (1967) (dictum )). Where a\nperson provides assistance that he o r she knows will contribute directly and in an\nessential m anner to a serious criminal act, a court readily may infer a desire to fa\xc2\xad\ncilitate that act. See Zaftro, 945 F.2d at 887 (if someone \xe2\x80\x9cknowingly provides es\xc2\xad\nsential assistance, we can infer that [that person] does want [the primary actor] to\nsucceed, for that is the natural consequence of his deliberate act\xe2\x80\x9d).20\nW ere this a case in which a foreign government provided direct and material as\xc2\xad\nsistance to an attack upon United States civil aircraft, both our Government and,\nwe believe, the courts o f this country would view the offense against \xc2\xa7 32(b)(2) to\nbe o f a very serious nature, and would adopt an expansive view of the \xe2\x80\x9cdesire to\nhelp the [unlawful] activity succeed\xe2\x80\x9d that constitutes this element of aiding and\nabetting. U nited S tates v. Carson, 9 F.3d 576, 586 (7th Cir. 1993), cert, denied,\n513 U.S. 844 (1994). As we understand the facts, USG assistance is critical to the\nability o f C olom bia and Peru to effect shootdowns. USG personnel have been\nfully engaged in the air interdiction operations of each country, providing substan\xc2\xad\ntial assistance that has contributed in an essential, direct and immediate way\n(w hether by \xe2\x80\x9creal tim e\xe2\x80\x9d information or otherwise) to those countries\xe2\x80\x99 ability to\nshoot dow n civil aircraft. Moreover, our assistance has been of a type and extent\nthat Colom bia and Peru would have difficulty in providing for themselves or in\nobtaining from other sources. In the absence of changes in the policies and prac\xc2\xad\ntices of C olom bia and Peru, there is a very substantial danger that the USG activi\xc2\xad\nties described to us m eet the purpose elem ent of aiding and abetting.\n\n3. Acts of assistance. The application o f the third element to the question we\nare considering is, we think, fairly straightforward. As the Supreme Court\nrecently reiterated, aiding and abetting \xe2\x80\x9c \xe2\x80\x98com prehends all assistance rendered by\nwords, acts, encouragem ent, support, or presence.\xe2\x80\x99\xe2\x80\x9d R eves v. Ernst & Young, 507\nU.S. 170, 178 (1993) (quoting B la ck \xe2\x80\x99s L aw D ictionary 68 (6th ed. 1990)). Gauged\nby this definition, many or most forms of USG activities that have been described\n20\nIn g en eral, U SG inform ation-sharing an d other form s o f assistance to foreign nations do not im plicate\nthe U n ited S tates in those n a tio n s\xe2\x80\x99 actions b ecau se, am ong o th er reasons, the purpose elem ent o f aiding and\nabetting 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,\nresources, 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\nU nited S tates intended to facilitate that n a tio n \xe2\x80\x99s unlaw ful actions Indeed, the general nature o f such aid and\nits le g itim a te p u rp o ses (the furtherance of th e diplom atic, national security, and dem ocratization goals of\nUSG fo reig n policy) rebut any assertion that its purpose is to su p p o rt the occasional or unexpected unlawful\nacts 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\nbanc) (aid in g and ab ettin g requires \xe2\x80\x9c a fuller e n g ag em en t with [the prim ary a cto r\'s] activities\xe2\x80\x9d than accidental\nor iso lated assistan ce creates), cert denied, 4 9 3 U.S. 901 (1989)\n\n158\n\n\x0cU nited Slates A ssistance to Countries that Shoot Down C ivil A ircraft Involved m D rug Trafficking\n\nto us could be fairly described as \xe2\x80\x9cact[s] of helping\xe2\x80\x9d Colombia or Peru to carry out\na shootdown policy. That conclusion, when com bined with our analysis o f the\nknowledge and purpose elements, leads us to think that there is grave risk that the\ndescribed USG activities contravene 18 U.S.C. \xc2\xa7 32(b)(2).\nC.\nIt has been suggested that the problems for USG information-sharing and other\nassistance to Colombia and Peru that are posed by 18 U.S.C. \xc2\xa7\xc2\xa7 2(a) and 32(b)\nmight be eliminated by seeking assurances from the governments of those\ncountries with respect to their shootdown activities. Two possible forms of such an\nassurance have been posited: an assurance that Colombia and Peru would engage\nin no more shootdowns of civil aircraft, or an assurance that Colombia and Peru\nwould make no use of information (or other aid) provided by the United States in\neffecting shootdowns. The argument would be that such assurances would negate\neither the first, knowledge element, or the second, purpose prong o f aiding and\nabetting.\nAn initial point applies to both forms of assurance: to be of any legal signifi\xc2\xad\ncance, an assurance must be made by an official of the other government with\nauthority to bind that government, and it must be deemed reliable by a high officer\nof the United States, acting with full knowledge o f the relevant facts and circum \xc2\xad\nstances. Assurances from subordinate officials could not reasonably be taken to\nrepresent a position that would be adhered to by other officials of that government.\nThe acceptance of assurances that were not deem ed credible in fa c t by USG offi\xc2\xad\ncials might readily be characterized as a \xe2\x80\x9cdeliberate effort to avoid [the] know l\xc2\xad\nedge,\xe2\x80\x9d G iovannetti, 919 F.2d at 1229, that the assurance did not represent the\nactual intentions of the other government. In light of the gravity o f the issue, the\ndecision to accept and act on such an assurance would be a policy decision o f such\nsignificance that it could be appropriately made only by a very high officer o f this\nGovernment.\nA reliable assurance (as we have defined it) lhat the foreign government would\ncarry out no shootdowns falling within the prohibition of \xc2\xa7 32(b)(2) would, in our\nopinion, clearly negate the knowledge element of aiding and abetting. With such\nan assurance, there would be no known or suspected intention to effect unlawful\nshootdowns for USG officials to have knowledge of; put another way, the\nacceptance o f such an assurance as reliable would constitute a judgm ent that the\nforeign government was engaged in no criminal activity in this respect. If it subse\xc2\xad\nquently became apparent that this judgm ent was mistaken, a reevaluation o f the\nlegal status of USG assistance would be necessary, but until and if evidence\nemerged that the other government intended to violate its assurance, USG aid of\nall sorts, including the provision of real-time flight information, would be lawful.\nFor similar reasons, a reliable assurance that the foreign government would\n159\n\n\x0cOpinions o f the O ffice o f L eg a l C ounsel\n\nnot carry out any unlawful shootdowns would eliminate any argument that USG\nofficials had a \xe2\x80\x9cdesire to help the activity succeed,\xe2\x80\x9d C arson , 9 F.3d at 586, because\nit would represent a judgm ent that no unlawful activity was contemplated or under\nway.\nA more problem atic case is posed if the foreign government declined to re\xc2\xad\nnounce its shootdown policy but offered assurances that it would not use USGsupplied information or other assistance in carrying out shootdowns violating\n\xc2\xa7 32(b)(2). (In such a case, the foreign governm ent might carry out such activities\nusing inform ation or assistance obtained from other sources.) A bare assurance to\nthat effect, without more, would be insufficient to remove the risk of contravening\nthe statute, given what we understand to be the widespread use of USG-supplied\ninform ation, the commingling of USG and foreign government information, and\nthe tem ptation on the part of the foreign governm ent\xe2\x80\x99s operational officers to make\nuse o f information or assistance extrem ely valuable to effecting their own govern\xc2\xad\nm ent\xe2\x80\x99s law enforcem ent program.\nW e believe that there are conditions in which such assurances would be suffi\xc2\xad\nciently reliable to perm it the United States to continue to provide information and\nassistance to a foreign country\xe2\x80\x99s antinarcotics program even if that country de\xc2\xad\nclined to renounce its shootdown policy. First, the United States and the foreign\ncountry should agree that the sole purpose for which USG information and other\nassistance would be provided and used was to assist in the execution of a groundbased end game (searches, seizures and arrests), and that such information and\nassistance would not be used to target civil aircraft for destruction. Second, the\nagreem ent should establish mechanisms by which USG personnel would obtain\ndetailed and specific knowledge as to how the USG-provided information and as\xc2\xad\nsistance w ere in fact being used, and thus be able to identify at an operational level\nany instances o f non-compliance w ith the agreement. Third, the agreement should\nstipulate that if any incident should occur in which the foreign governm ent\xe2\x80\x99s agents\nfired on a civil aircraft, USG personnel would be able to verify whether USGprovided inform ation and assistance had been used in that instance, or whether the\nforeign country had employed only information and assistance from other sources\nin carrying out that operation. Finally, the agreem ent should provide for the termi\xc2\xad\nnation o f U SG -supplied information and assistance in the event of material noncom pliance. W ere it possible to reach an agreem ent that incorporated such safe\xc2\xad\nguards, we believe that it would insulate U SG personnel from liability in the event\nthe foreign governm ent destroyed a civil aircraft.\n\nIII.\nU nited States aid to Colombia and Peru m ight also implicate USG personnel in\nthose governm ents\xe2\x80\x99 shootdown policies on a conspiracy rationale. See 18 U.S.C.\n\n160\n\n\x0cU nited States A ssistance to C ountries that Shoot Down C ivil A ircraft Involved in D rug Trafficking\n\n\xc2\xa7 3 7 1 . The concept of conspiracy is distinct from that of aiding and abetting.21\nAiding and abetting liability does not depend on an actual agreement between the\nprimary actor and the aider and abettor.22 In contrast, \xe2\x80\x9cagreement remains the es\xc2\xad\nsential element of the crime, and serves to distinguish conspiracy from aiding and\nabetting which, although often based on agreement, does not require proof o f that\nfact.\xe2\x80\x9d lannelli v. United S tates , 420 U.S. 770, 111 n.10 (1975). In addition, li\xc2\xad\nability for participation in a conspiracy may attach to someone even though he or\nshe provides no material assistance toward the conspiracy\xe2\x80\x99s goals, and even if the\nprimary criminal activity that is the object of the conspiracy never takes place.\nSee, e.g., U nited States v. Townsend, 924 F.2d 1385, 1399 (7th Cir. 1991).23 USG\nactivities \xe2\x80\x94 including information-sharing and technical advice \xe2\x80\x94 that would be\nof material assistance in effecting shootdowns do not in themselves constitute an\nagreement between USG personnel and others to carry out shootdowns, but as we\nunderstand the facts the following are both true. (1) The United States intends, and\nhas agreed with the governments of Colom bia and Peru, to bolster the antinarcotics\nlaw enforcement activities o f those countries. (2) The governments of Colombia\n(expressly) and Peru (in practice) regard shootdowns as an integral part o f their\nantinarcotics law enforcement activities. In those circumstances, courts might well\nview the distinction between USG assistance to their antinarcotics programs gener\xc2\xad\nally and USG assistance to the shootdown component o f those programs as thin or\nnon-existent, and thus construe ongoing USG assistance as evidence of an agree\xc2\xad\nment. See U nited States v. Lechuga, 994 F.2d 346, 350 (7th Cir.) (en banc), cert,\ndenied, 510 U.S. 982 (1993).\nW e believe that it is imperative to make this Governm ent\xe2\x80\x99s disapproval of\nshootdowns in violation of \xc2\xa7 32(b) clear in order to eliminate any suggestion that\nIn this m em orandum , we focus on the potential for aiding and abetting liability for tw o reasons First, it\nis unclear that under the circum stances outlined to us the relationship betw een the activities of U SG p e rso n \xc2\xad\nnel and shootdow n actions by foreign governm ents co u ld reasonably be deem ed an \xe2\x80\x9cagreem ent \xe2\x80\x9d to violate 18\nU S C \xc2\xa7 32(b)(2) A lesser degree o f association w ith a crim inal venture suffices to create aiding and a b e t\xc2\xad\nting liability, how ever, and we think that a more serious argum ent can be m ade that som e form s o f USG\nassistance could fall w ithin the definition o f aiding and abetting See U nited States v C owart, 595 F 2d\n1023, 1031 (5th C ir 1979) (the \xe2\x80\x9c \xe2\x80\x98co m m unity o f unlaw ful in te n t\'\xe2\x80\x9d present m aiding and abetting, although\n"sim ilar to the \xe2\x80\x98ag reem en t\xe2\x80\x99 upon w hich the crim e o f conspiracy is based, does not rise to the level o f\n\xe2\x80\x98a g re em en t\'\xe2\x80\x9d ) In addition, and vitally, as stated in the text w e believe the risk that U SG personnel m ight\nplausibly be view ed as conspirators can and should be elim inated by the com m unication to foreign g o v e rn \xc2\xad\nm ents and USG operational personnel o f the U nited S tates\xe2\x80\x99s firm opposition to any shootdow ns o f civil\naircraft c o n tra n to \xc2\xa7 32(b)(2) o r international law.\n" The Seventh C ircuit recently hypothesized a case illustrating this point.\nSuppose som eone w ho adm ired crim inals and hated the police learned that the police\nwere planning a raid on a drug ring, and, hoping to foil the raid and assure the success of\nthe ring, w arned its m em bers \xe2\x80\x94 w ith w hom he had no previous, or for that m atter subse\xc2\xad\nquent, dealings \xe2\x80\x94 o f the im pending raid He w ould be an aider and abettor o f the drug\nconspiracy, but not a m em ber o f it\nC arson, 9 F 3d at 586 (quoting Zajlro , 945 F.2d at 884)\nT hus, USG personnel theoretically could be liable for conspiracy if their actions w ere construed as\nconstituting an agreem ent with officials o f the foreign governm ent to carry out shootdow ns and if the latter\ntook som e overt action tow ard accom plishing a shootdow n It w ould be unnecessary under the law o f c o n \xc2\xad\nspiracy for a shootdow n to take place or for any U SG actions actually to contribute to a shootdow n\n\n161\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nUSG personnel have entered into a conspiratorial agreement with foreign officials\ninvolving unlawful shootdowns since liability as a conspirator attaches even if the\nsubstantive unlawful act never takes place. In addition, we think that USG agen\xc2\xad\ncies should specifically instruct their personnel not to enter into any agreements or\narrangem ents with the officials or agents of foreign governments that encourage or\ncondone shootdowns. S ee generally la n n elli , 4 20 U.S. at 777-79.\n\nIV.\nThis case is characterized by a com bination of factors: it involves a criminal\nstatute that explicitly has extraterritorial reach, that is applicable to foreign gov\xc2\xad\nernm ent m ilitary and police personnel, and that defines a very serious offense.\nM oreover, our governm ent is fully engaged in furnishing direct and substantial\nassistance that is not otherwise available to the foreign nations involved, and at\nleast some of the USG personnel w ho provide that assistance have actual knowl\xc2\xad\nedge that it is likely to be used in com m itting violations.\nGiven this com bination of factors, we conclude that, in the absence of reliable\nassurances in the sense defined above, USG agencies and personnel may not pro\xc2\xad\nvide inform ation (w hether \xe2\x80\x9creal-time\xe2\x80\x9d or other) or other USG assistance (including\ntraining and equipm ent) to Colombia or Peru in circumstances in which there is a\nreasonably foreseeable possibility that such information or assistance will be used\nin shooting down civil aircraft, including aircraft suspected of drug trafficking.\nFurtherm ore, we note that \xc2\xa7 32(b)(2) prohibits the destruction of civil aircraft\n\xe2\x80\x9cwhile such aircraft is in service,\xe2\x80\x9d as well as \xe2\x80\x9cdamage to such an aircraft which\nrenders that aircraft incapable of flight\xe2\x80\x9d (emphasis added). The statute defines\n\xe2\x80\x9c[i]n services\xe2\x80\x9d to \xe2\x80\x9cmean[] any time from the beginning of preflight preparation of\nthe aircraft by ground personnel or by the crew for a specific flight until twentyfour hours after any landing.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 31. Thus, USG assistance for certain\noperations against aircraft on the g rou n d may come within the statutory prohibi\xc2\xad\ntions. Section 32(b)(2) does not preclude ordinary law enforcement operations\ndirected at a plane\xe2\x80\x99s crew or cargo during those times.24 It does, however, appear\nto forbid airborne law enforcers to bomb or strafe a suspect plane that has landed\nor that is preparing to take o f f 25\n\n24 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\nplane 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\naircraft w ould not co n stitu te a violation of the statute ) N or does the section forbid the police to use deadly\nforce a g ain st a p lane if they are them selves en d an g ered by its c re w \xe2\x80\x99s arm ed resistance to their legitim ate\norders T he police m ay also use force to rescue any hostages held aboard the plane.\n25 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\nattack on the airplane itse lf in violation o f \xc2\xa7 3 2 (b )(2 ) m ay b o th result in the disabling or destruction o f the\naircraft. No liab ility un d er the section would attach, either to prim ary actors or to those w ho assist them , m\nthe fo rm er circu m stan ce. As described to us, how ever, the C olom bian and Peruvian counternarcotics pro\xc2\xad\ngram 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\nO bviously , on d ifferen t facts we co u ld reach a d ifferen t c o n clu sio n\n\n162\n\n\x0cU nited Sla tes A ssistance to Countries lhat Shoot D own C ivil A ircraft Involved in D rug T rafficking\n\nWe will be pleased to cooperate with legal counsel for other agencies in evalu\xc2\xad\nating specific programs or forms of aid under that standard.\n\nV.\nOur conclusions here must not be exaggerated. W e have been asked a specific\nquestion about particular forms of USG assistance to the Colombian and Peruvian\naerial interdiction programs. The application of the legal standard described here\nto any other USG programs \xe2\x80\x94 including other programs designed to benefit Co\xc2\xad\nlombia or Peru \xe2\x80\x94 will require careful, fact-sensitive analysis. W e see no need to\nmodify USG programs whose connection to those governm ents\xe2\x80\x99 shootdown poli\xc2\xad\ncies is remote and attenuated, and (as noted above) we perceive no implications for\nUSG assistance to any other foreign country unless another government adopts a\npolicy of shooting down civil aircraft.\nOther limitations on our conclusions should be noted. In certain circumstances,\nUSG personnel may employ deadly force against civil aircraft without subjecting\nthemselves to liability under \xc2\xa7 32(b)(2). \xe2\x80\x9cThe act is a criminal statute, and there\xc2\xad\nfore must be construed strictly, \xe2\x80\x98lest those be brought within its reach who are not\nclearly included.\xe2\x80\x99\xe2\x80\x9d26 Although these circumstances are extremely limited, they\nmay in fact arise.\nSpecifically, we believe that the section would not apply to the actions of\nUnited States military forces acting on behalf of the United States during a state of\nhostilities.27 As discussed above, \xc2\xa7 32(b)(2) was intended to implement the United\nStates\xe2\x80\x99s obligations under the Montreal Convention. That Convention does not\nappear to apply to acts o f armed forces that are otherwise governed by the laws of\narmed conflict.28 (The general rule under the law of armed conflict is that civil\n~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\nO p ^A tt\xe2\x80\x99y 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))\n27 We do not m ean to confine a \'\xe2\x80\x98state o f hostilities\xe2\x80\x997 to som e specific legal category, such as a state of\ndeclared w ar in the constitutional sense, see U S C onst, art I, \xc2\xa7 8, cl. 1 1, or a situation su ch as to trig g er the\nreporting requirem ents o f the W ar Pow ers R esolution, see 50 U S C \xc2\xa7 1543(a)\n28 International agreem ents such as the M ontreal C onvention are generally concluded with a v iew to\nregulating ordinary, peace-tim e conditions. A ccordingly, one treatise w riter has stated it to be the general\nrule that *\xe2\x80\x9c [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 \xc2\xad\ntraordinary m easures tem porarily affecting the application o f such conventions in order to protect its n e u tra l\xc2\xad\nity or for the purposes o f national defence, it is entitled to do so even if no express reservations are m ad e in\nthe convention. \xe2\x80\x99\xe2\x80\x99 Bin C heng, The Law oj In tern a tio n a l A ir Transport 483 (1962) (quoting The S S W im \xc2\xad\nbledon (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\nA 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\nC 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,\n203 (M ar 4, 1991) ( \xe2\x80\x9cthe M ontreal C onvention w as intended to prevent and deter saboteurs and terrorists\nfrom unlaw fully interfering with civil aviation and endangering innocent lives The d rafters of the C o n v en \xc2\xad\ntion 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\nreason to believe that they intended the C onvention to extend to such actions . . . Infringem ents on the law s\no f arm ed conflict through international agreem ents prim arily addressing situations other than arm ed con flict\nare not to be presum ed. There is no indication that the d rafteis o f the M ontreal C onvention intended it to\napply 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\nm 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\n\n163\n\n\x0cOpinions o f th e O ffice o f L eg a l Counsel\n\naircraft are im mune from attack unless they are being used for military purposes or\npose an im m ediate military threat.29) W e do not think that \xc2\xa7 32(b)(2) should be\nconstrued to have the surprising and almost certainly unintended effect of crim i\xc2\xad\nnalizing actions by military personnel that are lawful under international law and\nthe law s o f arm ed conflict. We note specifically that the application o f \xc2\xa7 32(b)(2)\nto acts of U nited States military personnel in a state of hostilities could readily lead\nto absurdities: for exam ple, it could mean in som e circumstances that military per\xc2\xad\nsonnel would not be able to engage in reasonable self-defense without subjecting\nthem selves to the risk of criminal prosecution. Unless Congress by a clear and\nunequivocal statem ent declares otherwise, \xc2\xa7 32(b)(2) should be construed to avoid\nsuch outcom es.30 Thus, we do not think the statute, as written, should apply to\nsuch incidents as the dow ning on July 3, 1988 o f Iran Air Flight 655 by the United\nStates Navy cruiser Vincennes .3I\nFurtherm ore, even in cases in which the laws o f armed conflict are inapplicable,\nwe believe that a USG officer or em ployee may use deadly force against civil air\xc2\xad\ncraft w ithout violating \xc2\xa7 32(b)(2) if he or she reasonably believes that the aircraft\nposes a threat o f serious physical harm to the officer or employee or to another\nperson.32 A situation o f this kind could arise, for example, if an aircraft suspected\nof narcotics trafficking began firing on, or attempted to ram, a law enforcement\naircraft that was tracking it. Assuming that such aggressive actions posed a direct\nand im m ediate threat to the lives of USG personnel or of others aboard the tracking\n\nC hicago C o n v en tio n , w hich declares in part th a t \xe2\x80\x9c [i]n case o f w ar, the provisions o f this C onvention shall not\naffect 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 \xe2\x80\x99*\nSee 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\nR e sp o n sib ility , 16 Y ale J In t\xe2\x80\x99l L 245, 267 (1 9 9 1 ) (\xe2\x80\x9cthe n atu re o f the M ontreal C onvention as an antih 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\nlaw 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 \xe2\x80\x9d ) See also 1 G reen H ackw orth, D igest o f\nIn te rn a tio n a l L a w 5 52-55 (1 943) (describing e a rlie r practice and theory).\n29 Se e D ep artm en t o f the A ir Force, In tern a tio n a l L a w \xe2\x80\x94 The C onduct o f A rm ed C onflict a nd A ir O pera\xc2\xad\ntions, <][ 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 \xe2\x80\xa2 Can a Shootdow n\nP olicy F lv?, su p ra n o te 6, at 1321\n30 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 \xc2\xad\nstruction 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 \xe2\x80\x99s arrest for m urder); N ardone\nv 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\xc2\xad\nguage e m b racin g all persons because \xe2\x80\x98a read in g w hich w o u ld include su ch officers w ould work obvious\na 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\nfire e n g in e re sp o n d in g to an a la rm \'5).\n31 S e e M arian N ash Leich, D e n ia l o f Liability\xe2\x80\x99. Ex G ra tia C om pensation on a H um anitarian B asis, 83\nA m . J. In t\xe2\x80\x99l L. 319, 3 21-22 (1 9 8 9 ) (quoting C ongressional testim ony o f State D epartm ent Legal A dviser\nS ofaer that \xe2\x80\x9c [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\nthe law ful use o f force\nT h e com m ander o f the U.S S. Vincennes evidently believed that his ship was\nunder 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\naircraft b efo re taking d efensiv e action T h erefo re, the U nited States does not accept legal responsibility for\nthis in c id e n t. . M).\n32 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\nforce); 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 ) (\xe2\x80\x9cthe law o f self-defence ju s ti\xc2\xad\nfies 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\xe2\x80\x9d).\n\n164\n\n\x0cU nited States A ssistance lo C ountries that Shoot Down Civil A ircraft In vo lved in D rug T rafficking\n\naircraft, and that no reasonably safe alternative would dispel that threat, we believe\nthat the use of such force would not constitute a violation of \xc2\xa7 32(b)(2).33\n\nW ALTER DELLINGER\nA ssistan t A ttorn ey G eneral\nOffice o f Legal Counsel\n\n31\nT o the extern that \xc2\xa7 32(b)(2) does not apply to the use o f deadly force by USG m ilitary or o th e r p erson\xc2\xad\nnel in the circum stances described above, it w ould o f necessity be inapplicable as w ell to the actions of\nsim ilarly situated personnel o f the C olom bian o r Peruvian governm ents T hat is, such foreign governm ental\nagents could em ploy deadly force against civilian aircraft in the sam e circum stances in w hich USG personnel\nw ere able to do so USG personnel w ho assisted foreign governm ent agents in such law ful and legitim ate\nacts 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\nabetting 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\nU S . 2 6 2 (1 9 6 3 )\n\n165\n\n\x0c'


b'February 2, 1979\n\n79-11\n\nMEMORANDUM OPINION FOR THE\nADMINISTRATOR OF VETERANS AFFAIRS\nFederal Labor Relations Council\xe2\x80\x94LaborManagement Relations for Executive Agencies\n(Executive Order No. 11491)\xe2\x80\x94Jurisdiction of the\nCouncil in Labor Disputes Concerning the\nConditions of Employment of Medical, Dental,\nand Nursing Personnel of the Veterans\nAdministration\n\nThis responds to your request for the opinion o f the Attorney General\nconcerning the obligation o f the A dm inistrator o f Veterans Affairs (VA)\nto abide by the decision o f the Federal Labor Relations Council (FLRC) in\nAmerican Federation o f Government Employees, Local 1739 and Vet\xc2\xad\nerans Administration Hospital, Salem, Va., No. 76A-88 (1978) (Union\nand Hospital, respectively), that Executive O rder No. 11491 required the\nHospital to negotiate with the Union the procedures for the evaluation of\nprobationary professional medical employees. VA contends that 38 U.S.C.\n\xc2\xa7 4108(a) exempts its Departm ent o f Medicine and Surgery (DMS) from the\norder\xe2\x80\x99s requirement. The A ttorney General referred the m atter to this of\xc2\xad\nfice. We conclude that 38 U .S.C . \xc2\xa7 4108(a) does not exempt VA, and that\nVA will not be acting unlawfully in implementing FLRC\xe2\x80\x99s decision.\nExecutive O rder No. 11491 established a system o f labor-management\nrelations for executive agencies.\' It applied, with exceptions not relevant\nhere, to all agencies o f the executive branch, including VA.2 The order\nauthorizes a majority o f the employees in an appropriate unit o f an\n\n1 See, generally. Old Dominion Branch No. 496, National Association o f Letter Carriers v.\nAustin, 418 U.S. 264, 273-75 (1974). Exec. O rder N o. 11491 has been superseded, effective\nJanuary 13, 1979, by Title Vll o f the Civil Service Reform Act o f 1978, 92 Stat. 1111, 5\nU .S.C . \xc2\xa7 1101 et seq. (Supp. 1979). However, the Act does not affect administrative pro\xc2\xad\nceedings initiated under Exec. O rder No. 11491. See \xc2\xa7 902(b), 92 Stat. 1224.\n1 Exec. O rder No. 11491, \xc2\xa7\xc2\xa7 2(a), 3(a); see 38 U .S.C . \xc2\xa7 201.\n\n74\n\n\x0cagency to select a union as its exclusive representative.3 To the extent per\xc2\xad\nmitted by law and executive-branch-wide regulations, \xc2\xa7 11(a) of the order\nrequires an agency to negotiate in good faith with an exclusive representa\xc2\xad\ntive o f the bargaining unit with respect to personnel policies and practices\nand matters affecting working conditions. But an agency is not required to\nnegotiate over the content o f its own agency-wide regulations \xe2\x80\x9c for which a\ncompelling need exists under criteria established by the Federal Labor\nRelations Council.\xe2\x80\x9d 4\nWhen an agency contends that a subject on which a union proposes to\nnegotiate is controlled by an agency-wide regulation, the union may ap\xc2\xad\npeal to the FLRC .5 If the FLRC determines that there is no compelling\nneed for the regulation, the agency is required to negotiate on the subject.6\nFailure to negotiate then becomes an unfair labor practice, and the Assist\xc2\xad\nant Secretary o f Labor for Labor-Management Relations may order the\nagency to negotiate.7 The agency may appeal the Assistant Secretary\xe2\x80\x99s\ndecision to the final administrative authority, the FLR C .8\nThe dispute in question concerns the negotiability o f VA\xe2\x80\x99s procedures\nfor retaining or dismissing probationary medical professional employees.\nPhysicians and other medical professionals in the DMS are appointed\n\xe2\x80\x9c after [their] qualifications have been satisfactorily established, in accord\xc2\xad\nance with regulations prescribed by the Administrator, without regard to\ncivil service requirem ents.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 4106(a). Under 38 U.S.C.\n\xc2\xa7 4106(b):\nSuch appointm ents as described in subsection (a) o f this section\nshall be for a probationary period o f three years and the record\no f each person serving under such appointm ent in the Medical,\nDental, and Nursing Services shall be reviewed from time to time\nby a board, appointed in accordance with regulations o f the A d\xc2\xad\nministrator, and if said board shall find him not fully qualified\nand satisfactory he shall be separated from the service.\nThe implementing VA regulations provide that each employee subject to\n\xc2\xa7 4106(b) will have his record reviewed in a fair and impartial m anner by a\nprofessional standards board (PSB) during the employee\xe2\x80\x99s probationary\nperiod. Although the regulations authorize the employee to submit a writ\xc2\xad\nten or oral statement to the PSB during the review, the employee \xe2\x80\x9c is not\nentitled to legal or other representation.\xe2\x80\x99\xe2\x80\x9d The Union requested the\nHospital to negotiate the professional employees\xe2\x80\x99 right to legal or other\nrepresentation during the review o f their records by the PSB. The VA\n\n1 Exec. Order No. 11491, \xc2\xa7 10(a); c f 29 U .S.C . \xc2\xa7 159.\n4 Exec. Order No. 11491, \xc2\xa7 11(a).\n\xe2\x80\x99 Exec. Order No. 11491, \xc2\xa7 ll(c)(4)(ii).\n6 Exec. Order No. 11491, \xc2\xa7 4(c)(2).\n7 Exec. O rder N o. 11491, \xc2\xa7\xc2\xa7 6(a)(4); 6(b); 19(a)(6). The agency cannot reopen the nego\xc2\xad\ntiability dispute in the unfair labor practice proceeding. Exec. O rder No. 11491, \xc2\xa7 19(d).\n\xe2\x96\xa0 Exec. O rder No. 11491, \xc2\xa7 4(c)(1).\n\xe2\x80\x99 Veterans\xe2\x80\x99 Adm inistration M anual, MP-5, Part 11, Ch. 4, \xc2\xa7 4-06(b)(4).\n\n75\n\n\x0cdetermined that the proposal was contrary to its agency-wide regulations,\nand the Union appealed to the FLRC for a \xe2\x80\x9c compelling need\xe2\x80\x9d\ndetermination.\nThe VA argued before the FLRC that it was deprived o f jurisdiction by\n38 U.S.C. \xc2\xa7 4108(a), which provides in pertinent part:\nNotwithstanding any law, Executive order, or regulation, the\nAdm inistrator shall prescribe by regulation the hours and condi\xc2\xad\ntions o f employment and leaves o f absence o f physicians, den\xc2\xad\ntists, podiatrists, optom etrists, nurses, physician assistants, and\nexpanded-function dental auxiliaries appointed to the Depart\xc2\xad\nment o f Medicine and Surgery * * *.\nIn its decision dated February 28, 1978, the FLRC first decided that it had\njurisdiction over the case. On the merits, it held that no compelling need\nexisted for the regulation prohibiting probationary professional medical\nemployees from being assisted by counsel in a PSB review. The VA con\xc2\xad\ntinues to contend that 38 U .S.C . \xc2\xa7 4108(a) excluded this type o f dispute\nfrom the FLRC\xe2\x80\x99s jurisdiction, and therefore, the Hospital refused to\nnegotiate with the Union on the subject.\nThe VA claims first, that 38 U .S.C . \xc2\xa7 4108(a) exempts it from the\nauthority o f any other statute or Executive order in determining the\n\xe2\x80\x9c hours, conditions o f employment, and leaves o f absence\xe2\x80\x9d 10 o f DMS pro\xc2\xad\nfessional employees. Further, it argues that evaluation procedures under\n38 U .S.C . \xc2\xa7 4106(b) are \xe2\x80\x9c conditions o f em ploym ent.\xe2\x80\x9d Based on these\narguments it concludes that notwithstanding Executive Order No. 11491,\n\xc2\xa7 4108(a) deprived FLRC o f jurisdiction, and VA was not required to\nnegotiate on these procedures. It is not necessary, however, to determine\nwhether \xc2\xa7 4108(a) or the Executive order would control should they con\xc2\xad\nflict. Such a conflict would arise only if the issue on which the Union\nwishes to negotiate\xe2\x80\x94procedures before professional standards review\nboards\xe2\x80\x94is in fact a \xe2\x80\x9c condition o f employm ent\xe2\x80\x9d within \xc2\xa7 4108(a). O ur ex\xc2\xad\namination o f the legislative history o f the statute that established the DMS\nhas convinced us it is not.\nThe Departm ent o f Medicine and Surgery was established by Pub. L.\nNo. 293, 79th Cong., 1st sess., 59 Stat. 675. In creating the departm ent the\nCongress intended to insure that VA may hire and discharge medical,\ndental, and nursing professionals without regard to competitive examina\xc2\xad\ntion and procedural protections given employees in the classified civil serv\xc2\xad\nice." Accordingly, \xc2\xa7 6 o f the statute, now 38 U.S.C. \xc2\xa7 4106, regulated the\nappointm ent, tenure, \xc2\xa3nd prom otion o f professional probationary\n\n10 We note that 38 U .S.C . \xc2\xa7 4108(a) is incorrectly quoted on page 3 o f your request as em\xc2\xad\npowering the A dm inistrator to prescribe \xe2\x80\x9c term s and conditions of employm ent.\xe2\x80\x9d\n" See H . Rept. 1316, 79th C ong., 1st sess., at 1-2; S. Rept. 853, 79th C ong., 1st sess., at 1;\nHearings before the Com mittee on W orld W ar Veterans Legislation o f the House o f Repre\xc2\xad\nsentatives on H .R . 4225, 79th C ong., 1st sess., at 36-39 (statem ent o f Paul Hawley, Surgeon\nGeneral, Veterans\xe2\x80\x99 Adm inistration).\n\n76\n\n\x0cemployees appointed \xe2\x80\x9c without regard to civil-service requirem ents.\xe2\x80\x9d P ro\xc2\xad\nbationary tenure, governed by \xc2\xa7 6(b), 38 U.S.C. \xc2\xa7 4106(b), permits the dis\xc2\xad\nmissal o f unsatisfactory probationers after a 3-year period. The pro\xc2\xad\ncedural protections given classified civil service employees were not\ngranted to this class o f employees.12 Further, section 10 o f the statute, 38\nU .S.C. \xc2\xa7 4110, establishes a disciplinary system for permanent employees\nindependent o f the civil service laws.11\nSection 4108(a) o f title 38 was enacted as 7(b) o f the statute. In his re\xc2\xad\nmarks on behalf of the House Committee on World W ar Veterans Legisla\xc2\xad\ntion, Representative Scrivner explained:\nIn section (b), we provide that notwithstanding any law, Ex\xc2\xad\necutive order, or regulation, the Adm inistrator shall prescribe by\nregulation the hours and working conditions and leaves o f ab\xc2\xad\nsence o f doctors, dentists, and nurses.14\nThis is the only discussion o f \xc2\xa7 7(b) in the legislative history.\nFrom its context in the statute and its limited legislative history, the\n\xe2\x80\x9c conditions o f employment\xe2\x80\x9d in 38 U.S.C. \xc2\xa7 4108(a) are matters similar to\nhours and leave, i.e., duties and workload; tenure and discharge o f pro\xc2\xad\nfessional employees are regulated by other portions o f the statute.\nMoreover, if \xe2\x80\x9c conditions o f employment\xe2\x80\x9d included tenure and discharge,\nthe breadth o f \xc2\xa7 4108(a) would have made it unnecessary for Congress to\nexpressly exclude appointm ents under \xc2\xa7 4106 from the civil service laws or\nto provide a separate disciplinary system under 38 U.S.C. \xc2\xa7 4110. The pro\xc2\xad\ncedures for professional evaluation are set out in 38 U .S.C . \xc2\xa7 4106(b).\nTherefore, \xc2\xa7 4108(a) does not exempt the Department o f Medicine and\nSurgery from the FLRC\xe2\x80\x99s jurisdiction in this case.\nJo h n M . H a rm o n\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n11 Section 6 and subsection 6(b)\nRept. 858, 79th Cong., 2d sess., at 1,\nRec . 11656 (Representative Rogers),\native Engle).\nM See S. Rept. 858, 79th Cong.,\nScrivner).\n\nwere extensively discussed in the legislative process. See S.\n3; H. Rept. 1316, 79th Cong., 1st sess., at 1-2; 91 C o n g .\n11659 (Representative Cunningham ), 11665 (Represent\xc2\xad\n1st sess., at 4; 91 C o n g . R e c . 11663 (Representative\n\n14 91 C o n g . R e c . 11662-63 (R ep resen ta tiv e Scrivner).\n\n77\n\n\x0c'