Froomkins question, U.S. Liability for shooting down civilian planes

[lweinberg]

9//17/01
Dear Michael,
        In your second question (below), you ask whether there would be liability
to the U.S. for a borderline reasonable decision to shoot down a civilian
plane.  I think there would be a cause of action even if the decision were
reasonable or fully warranted, although in these days it would probably
have to fit within the parameters of some federal tort claims statute
waiving immunity.  I am reasoning from the general common law rule that if
one seizes a neighbor's blanket to put out a fire threatening one's own
person or property, one then becomes liable for compensation to the owner
of the blanket.  Does that sound right?
Louise

At 09:10 AM 9/17/01 , you wrote:
>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)?
>
>--
>                Please visit http://www.icannwatch.org
>A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
>U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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