Shooting down planes

[Michael Froomkin - U.Miami School of Law]

I read that after the attacks on the World Trade Center, the White House
ordered a shoot-down of civilian planes not responding to communications
if they were threatening Washington D.C.  Fortunately there were no more
planes hijacked that reached near DC, so the order never had to be carried
out.

Leaving aside all questions of the wisdom/morality of the order, a debate
that I suspect people on this list would prefer be carried out elsewhere,
I got to wondering about the Constitutional authority for this order.

I assume that such an order comes under the President's inherent power to
protect the US from attack; given the facts at hand, I also think it was
reasonable to proceed under the assumption that this was an attack.

So my first question is whether these assumptions are shared, or if there
was also some other authority for the order to shoot down civilian planes
over US airspace.

My second question is, I think, harder.  If, next month/year, a single
plane veers towards a military or civilian target, given that it might be
a lone madman or part of an organized assault, does the President have the
Constitutional authority to issue a similar order?  Is the decision
subject to meaningful subsequent review in a court (e.g. in some claim for
damages from civilian passengers or their families, or from people with
the misfortune to have debris land on them or their property)?

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