Headlines have recently alerted us to objects floating overhead without our express permission. Politicians and pundits have vigorously expressed their views as to whether our military should shoot down these objects and, if so, whether to do it immediately upon entry into our airspace or perhaps later at a time and place of our own choosing.
A knee-jerk response is rarely, if ever, the best approach to any issue. So how should we make these decisions? What’s our framework for analysis?
Our uninvited guests have, thus far, included a Chinese spy balloon and other objects of uncertain origin or purpose. President Joe Biden ordered each shot down. Many Americans applauded his response; many chastised his delay.
As an Air Force attorney, I couched my advice to commanders on a wide variety of issues in terms of “Can we or can’t we?” and then “Should we or shouldn’t we?” That same approach would serve us well in this context.
Basic international law begins with the concept of sovereignty and then asks where nations enjoy sovereign rights and thus the right of national self-defense. In general, the answer is a nation’s land mass and its territorial waters, plus the airspace over each — up to, but not including, outer space.
Discussions regarding the spy balloon have included the term “near space,” frequently defining it between 12 and 62 miles above the Earth’s surface. Most authorities contend that outer space begins at 62 miles, although there is no international agreement. Yet it is well settled that there is no sovereignty in outer space, so a nation’s sovereign rights clearly exist in near space and in the airspace beneath it. Nations have a legal right to defend against breaches of sovereignty in both.
Having resolved the “can/can’t” question in favor of “can,” we’re still faced with whether we “should/shouldn’t” shoot down any intruding balloon or other object — and also when and where.
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The commander in chief’s decision should be based on the specific facts of each case. What do we know with certainty about the object? Is it unmanned? Does its altitude present a hazard to aviation? Is it controllable? Have we discerned a particular flight path? Is it merely collecting weather or other scientific data?
If the object is simply off course, the responsible party should notify the U.S., apologize and then provide details so we can determine our appropriate response. In none of the recent cases has any responsible party done so.
What would be the worst-case scenario if we delay or forego a shootdown? If it is spying, then its intelligence-gathering would continue — unless, of course, we act to preclude its transmissions. Could it be carrying a nuclear device or other weapon? Such possibilities are most unlikely, especially if they leave us the opportunity to retaliate with overwhelming force.
It may very well be best to allow an object to remain airborne for some time. There’s a general rule within the Intelligence Community: Never pass up an opportunity to collect intelligence. So, we could observe the object, learn as much as possible, and then shoot it down where it’s safe to do so and where we could recover as much debris as possible for our own intelligence purposes.
Sovereignty is sacrosanct. We must always defend it. How, when and where we do so are matters of utmost national security. May our commander in chief never decide as a knee-jerk response but, instead, make informed decisions based on the best available intelligence. Let’s not shoot first and ask questions later.
Col. Wayne E. Dillingham, USAF (retired), taught air and space law at the U.S. Air Force Academy. Later, he was legal advisor to U.S. Space Command and NORAD. He resides in Murfreesboro.
This article originally appeared on Nashville Tennessean: Opinion: Don't be hasty in shooting down spy balloons, other objects