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Two U.S. pilots involved in a collision over the Amazon jungle were held in Brazil for more than two months. Should pilots involved in aviation accidents be treated like criminals?

By Patrick Smith

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Dec. 15, 2006 | They were held without charge for more than two months, their passports confiscated. They'd been kept under guard, with little idea of when the courts might get around to sorting out the circumstances of their detainment. Their captors kept the media distracted with a steady stream of obfuscation and lies.

You're thinking Guantánamo Bay, but the individuals in question are Joe Lepore and Jan Paladino, the two American pilots of a U.S.-registered executive jet that collided with a Gol Airlines 737 over the Amazon jungle in late September. Their captors were the Brazilian government.

All 154 people on the Boeing were killed. The executive jet, an Embraer Legacy, was damaged but landed safely at a remote air force base. It was South America's worst-ever air disaster.

Lepore and Paladino were finally given their passports back and released from custody a week ago. They returned home on Saturday, Dec. 9. But as a going-away present, Brazilian police officially levied charges of "endangering air safety" against both men, meaning they may have to return to the country at a later date for trial. The statute carries a potential four-year prison term.

Chances are, unless Brazil chooses to prosecute the pilots on some token technicality, they won't be summoned back. As it stands, there is nothing in the available evidence, including cockpit voice-recorder tapes reviewed by authorities in both countries, to suggest the American pilots were in any way negligent. On the contrary, there is mounting evidence that Brazilian air traffic control was at fault.

You'd be forgiven for thinking that Brazil's decision to hold the pilots contains a whiff of politics. There's rising anti-U.S. sentiment in Brazil, and relations between the two countries have chafed over the past few years. Unhappy about the strict visa and entry requirements imposed against its citizens by the Department of Homeland Security, Brazil enacted a fingerprinting and photographing program for arriving U.S. passengers and crew. In 2004, an American Airlines pilot was arrested at the São Paolo airport after flipping the bird at an immigration camera. Lines at Brazilian airports became so long, then-U.S. Secretary of State Colin Powell complained that Americans were being discriminated against. Brazil's president at the time, Luiz Inácio Lula da Silva, was rebuffed after proposing to George W. Bush that the two nations reciprocally ease their visa and entry rules. There's an element of retribution, perhaps, in the unfortunate saga of the Legacy pilots.

But more than that, what we've been seeing and listening to is the nervous posturing of a country that has developed neither a sufficiently modern air traffic control infrastructure, nor an independent, unbiased body -- something akin to our own National Transportation Safety Board -- to determine accountability.

The investigation into the midair collision is being conducted by the Brazilian military, which happens to administer the country's ATC system. Thus far, despite having fired two of the country's top ATC officials, it refuses to concede that an air traffic control breakdown is the likely culprit, instead throwing up a smokescreen of intentionally ambiguous reports and falsehoods.

At one point, the Legacy pilots were publicly accused of performing aerobatic stunts moments before the crash. That charge is flatly denied by one of the Legacy's passengers, New York Times columnist Joe Sharkey. "I've been up with the Blue Angels," Sharkey told me. "I've been on combat helicopters cutting through palm trees, and I've landed on aircraft carriers. I think I have a rough idea what aerobatic stunts feel like in an airplane." He says the Legacy was flying straight and level prior to the impact.

As Lepore and Paladino languished under round-the-clock quarantine in a suite at the JW Marriott in Rio de Janeiro (OK, it wasn't exactly a concrete cell, and their employer, ExcelAire of Ronkokoma, N.Y., was picking up the $2,000-per-day tab), the major media were mostly silent on the pilots' predicament, choosing instead to parrot the meaningless "findings" of the local investigators.

"Warning systems failed on both [planes]," began an Associated Press wire story from Nov. 16. The piece was basically a stenography session from a news conference in Brasilia held by air force Col. Rufino Antonio da Silva Ferreira, who took the opportunity to highlight a scary-sounding, but mostly irrelevant facet of the accident.

Did the warning systems fail? Possibly, but that's not the issue. The real question, which the media hasn't been asking and which the Brazilians have failed to address, is why two aircraft, on converging headings, were assigned to the same altitude in the first place. The answer to that question solves the accident.

But for the record, here's what Ferreira was talking about: It appears to be true, for reasons not fully understood, that as they converged, neither of the two jets' TCAS units gave proper alerts. The Traffic Alert and Collision Avoidance System gives pilots a graphic display of nearby aircraft, providing aural and visual alarms once parameters of distance and altitude are breached. But TCAS is dependent on another cockpit device called a transponder, and for TCAS in either plane to have worked properly, both planes' transponders would have to have been operational.

Transponders sometimes fail or temporarily drop off-line, and the Legacy's avionics suite has a known quirk that makes it relatively easy for pilots to unknowingly switch the device into standby mode, effectively shutting it off. That may prove to be exactly what happened over the Amazon. With the Legacy's transponder disabled, it became invisible to the 737's TCAS, and vice versa. In other words, "Warning systems failed on both [planes]" really means one failure, not two.

Regardless, this normally would not be a problem, as aircraft are not normally assigned to collision courses. TCAS is there as a last-resort safeguard; it is not a means by which aircraft navigate around one another. Thus, the reason behind any TCAS failure is only somewhat pertinent.

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