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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?

Published December 15, 2006 12:50PM (EST)

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.

Back at the press conference, to further deflect responsibility and avoid tough questions, Ferreira made efforts to point out that, at the time of impact, the Legacy had been flying at a different altitude from the one specified in its flight plan. To somebody with a limited aviation background -- say, oh, an Associated Press reporter -- is that not a red flag of culpability? "The executive jet also was flying 1,000 feet higher than called for in its flight plan," continued the AP's Nov. 16 article. "Putting it on a collision course with the airliner."

No further analysis by the correspondent of what, exactly, the colonel's fluffery might mean, if anything. The public never learns that for a plane not to be cruising at its flight-plan-specified altitude, be it in Brazil, the United States, or most other countries, is not the least bit unusual. Flight plan altitudes are just that: for planning purposes. (Additionally, they may have meaning in the event of radio communications failure, depending on circumstances.) Commercial aircraft are routinely reassigned to other altitudes, sometimes multiple times.

The International Federation of Air Traffic Controllers' Associations, an organization based in Montreal, believes that substandard equipment and software used by Brazil's controllers are at the root of the tragedy. Shortly after the accident, representatives of the group visited the ATC facility that had been monitoring the Legacy, and, according to a prepared statement, were "very much surprised" by what they saw there. Software at the sector was found to be "badly designed" and was deemed "a major contributor to an unsafe and dangerous system."

"Unsafe" and "dangerous," in addition to being redundant, aren't words to throw around loosely, and I chafe at any nation's airspace being described that way. But that's not to say Brazilian ATC doesn't have its problems. In recent weeks, Brazilian controllers themselves have organized slowdowns and other protests, citing poor working conditions and deficient technology.

Is it safe to fly to Brazil? Yes. If it were not, dozens of daily flights operated by American, Delta, United and Continental, along with several European and South American airlines, wouldn't be flying there or utilizing Brazil's airspace en route to other countries. As many as 10,000 people per day pass through Brazilian airspace aboard U.S.-registered jetliners. No flights by any carrier, U.S. or foreign, have been embargoed. At the same time, is Brazil's ATC system top-notch, and are authorities coming clean about the collision? No.

Pilots Lepore and Paladino are furloughees from large commercial airlines. The Air Line Pilots Association was one of few voices lobbying for their release. Though pleased with the decision to allow the pilots to return to the United States, the association remains unhappy at the way the men were publicly condemned by certain Brazilian authorities and does not believe that the filing of criminal charges was justified. Not only because there's scant evidence of wrongdoing, but also because of the precedent set by such action.

"Criminalizing action by pilots involved in aviation accidents is a serious concern," read a statement from Paul Rice, an ALPA vice president. "The threat of prosecution of pilots undermines a healthy safety culture. It interferes with the effective and efficient investigation of aircraft accidents, [and] it inhibits the collection of information needed to prevent the reoccurrence of a similar accident."

Prosecution of crew members is seldom seen in the United States, except in extremely egregious cases such as the Northwest Airlines crew convicted of flying while intoxicated in 1990. (Capt. Norman Lyle Prouse received a presidential pardon from Bill Clinton in 2001, and the story of his atonement and recovery from alcoholism is a rather moving one.) Typically, if there is legal action at all after an incident, it's a civil suit -- levied not against crew members, but against the airline. Although pilots don't carry malpractice insurance the way doctors do, their employers can face billions in liability claims. "Pilot error" notwithstanding, it's the carriers themselves with the deeper pockets, not some first officer making $16,000 a year.

Globally, however, it is less unusual for crew members to face criminal indictment. We're reminded of incidents discussed in this space previously:

In 2000, three pilots of a Singapore Airlines 747 were held in Taiwan on accusations of "professional negligence" after a fatal crash at Taipei's Chiang Kai-shek airport. The crew lost its bearings on a rain-swept tarmac, and commenced takeoff on a closed runway full of construction equipment.

In New Zealand, the captain of a de Havilland Dash-8 that crashed in 1995 was tried, and ultimately acquitted, on charges of manslaughter.

In Japan, in a case condemned by ALPA and other organizations, Japan Airlines Capt. Koichiu Takamoto was prosecuted for the death of a flight attendant aboard JAL Flight 706 in 1997. The aircraft encountered strong turbulence at 25,000 feet, and it was alleged that Takamoto responded improperly, inducing violent oscillations. He was found not guilty.

And eerily prescient of the Brazil affair, two Japanese air traffic controllers and a JAL captain faced possible prison sentences stemming from a near midair collision between two aircraft in 2001. The controllers had inadvertently transposed the two planes' flight numbers, and the captain became confused by conflicting commands from air traffic control and his cockpit TCAS alerts (pilot training dictates that TCAS commands always override ATC commands -- a rule not always adhered to in the heat of battle). The men were finally absolved by a district court in Tokyo earlier this year.

"I find it ironic," an ALPA spokesperson told me, "that some of the same Western countries that decry things like the death penalty or the excesses of some forms of Islamic law still have this medieval attitude toward imposing criminal punishment on people for accidents."

Most reasonable people would, I think, sympathize with that. But if, in the minds of some, the state has failed in its duty to punish, vigilante justice might prevail. In 2004 in Switzerland, 36-year-old air traffic controller Peter Nilssen was stabbed to death in his backyard by a distraught Russian architect named Vitaly Kaloyev. Two years earlier, Kaloyev's wife and children were among the dead after a DHL cargo plane collided over the Swiss-German border with a Bashkirian Airlines Tu-154. Nilssen had been the controller on duty, responsible for keeping the jets apart.

But much like the Japanese near-miss, the crash resulted from a combination of ATC and crew error -- including, again, a pilot who did not defer in time to an urgent TCAS command.

That pilot could not be hunted down by Kaloyev, of course, because he was already dead.

There's a lesson in there for Ferreira and his "warning systems" down in Brazil, and also for the rest of us. Even in the most catastrophic circumstances, pilots are not, as a rule, willfully reckless. Do you expect that a crew member wishes to be injured or killed any more than his or her passengers wish to be injured or killed? People -- even competent, highly trained, intelligent people -- occasionally do the wrong thing. Feeling comfortable with that is not to tolerate incompetence, it's to acknowledge those things can never be engineered, or prosecuted, away.

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By Patrick Smith

Patrick Smith is an airline pilot.

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