Policy Letter for Commanders and in the Senate Committee on Aeronautical and Space Science's compilation of selected worldwide space law papers.[1]
As had been the case in the 1950s within the Air Force, the judge advocate general and the secretary's general counsel were the most active regarding evolving space law issues. In February 1961 General Kuhfeld noted that "the Air Force has taken the lead in the exploration and development in aerospace medicine, we likewise now may make a substantial contribution at a most opporttme time to the development of the law concerning aerospace activities." Accordingly, General Kuhfeld requested that Air Force chief of staff Gen Thomas D. White approve Air Force sponsorship of an aerospace law symposium. The symposium was to include luminaries from the scientific, legal, and political fields. General Kuhfeld further noted that the American Bar Association (ABA) had accepted the position that current military satellite programs were within the meaning of "peaceful use of outer space." He observed that it would be in the Air Force's interests to expand on the ABA's conclusion regarding satellites. Kuhfeld asserted that using Air Force technical terminology regarding space as the standard terms of art would facilitate resolution of such issues more consistently with US national interests.[2]
In the spring of 1961, General Kuhfeld met and discussed his proposal with Gen Richard M. Montgomery, assistant vice chief of staff.[fn 1] Colonel Menter accompanied General Kuhfeld to this meeting, which took place about one year after Francis Gary Powers's U-2 was "downed" in the USSR.[3] After General Kuhfeld introduced Colonel Menter to General Montgomery as one of the US's experts in international space law, Montgomery asked Menter if the United States had violated international law by having Powers fly over Soviet territory. When Menter responded in the affirmative, General Montgomery angrily retorted to the effect that the colonel "didn't know what he was talking about."[4] Both Kuhfeld and Menter were taken aback by Montgomery's reaction. The meeting deteriorated further when the subject of General Kuhfeld's proposed space law symposium was raised. General Kuhfeld had made a sales pitch for the symposium as a way of encouraging Air Staff interest in the issue and as a means for protecting US security interests.
- ↑ As noted earlier, Montgomery had expressed a concern for the dilemma that the services felt they faced as a result of President Eisenhower's space-for-peace/"open skies" policy.
- ↑ "Legal Problems of Space Exploration," Senate Committee on Areonautical and Space Sciences, 87th Congo 1st sess., 22 March 1961, 73-77.
- ↑ Kuhfeld to White, memorandum; subject: Proposed USAF Aerospace Law Symposium, 24 February 1961.
- ↑ Contrary to Khrushchev's announcement on 1 May 1960 and the currently continuing public perception that Powers's U-2 had been shot down, the official explanation has always been that the plane was never actually hit. On 31 May 1960, Director of Central Intelligence Allen W. Dunes testified before the Senate Foreign Relations Committee that Powers plane had never been hit by Soviet ground-to-air missile. But Dunes further tested that the CIA had concluded that a flameout or an undetermined mechanical malfunction caused Powers to come down from the U-2's normal operating altitude to a lower altitude where his U-2 was no longer immune from Soviet missiles and planes. The critical point here is that Powers was no longer operating at a safe altitude. At that time, the CIA was not sure what had actually happened to Powers's U-2. L. Fletcher Prouty, in his book The Secret Team: The CIA and its Allies in Control of the United States and the World (Englewood Cliffs, N.J.: Prentice-Hall, 1973), asserts that a "secret team" deliberately scheduled the Powers's flight for the 1 May date without Eisenhower's prior approval. Prouty contends that the secret team then sabotaged Powers's U-2 by disrupting or ceasing the hydrogen flow to the U-2's engine so that the U-2 would be forced down within the USSR airspace. The United States would thereby be forced to admit that it had been violating Soviet air space, thus disrupting the peace summit that was scheduled shortly thereafter. The CIA, in its recently published declassified version of the history of the U-2 program, states that Eisenhower approved a mission to be flown no later than 1 May 1960. This history states that a Soviet SA-2 surface-to-air missile (SAM) had "detonated close to and just behind the aircraft and disabled it at 70,500 feet above the Sverdlovsk area" causing the plane to go out of control and spiral to earth. Thus, the CIA history implies that Powers may have been operating at an assigned altitude lower than 72,000 feet, apparently contradicting Dunes' testimony that a mechanical malfunction or other undetermined problem had caused Powers to descend from the U-2's normal operating altitude of 72,000 feet. Gregory W. Pedlow and Donald E. Welzenbach, The CIA and the U-2 Program. 1954-1974 (Langley, Va.:, Center for the Study of Intelligence, Central Intelligence Agency, 1998), 176-77. CIA project officials at first speculated that Powers had been operating too low because of pilot error or due to a mechanical malfunction. "Powers maintained that he had been flying at the assigned altitude and had been brought down by a near miss of a Soviet SAM." (ibid., 177.) In a recent conversation with this author, Powers's son said his father always disputed the allegation of pilot error and insisted that he had been flying at the altitude at which he had been directed to fly. Had Powers been flying at 72,000 feet he would have been above the effective range of any known Soviet antiaircraft or air defense weapons (ibid., 93). Whether a mechanical malfunction caused Powers to descend from the U-2's normal, safe altitude of 72,000 feet and thus brought him within range of Soviet air defenses or whether he was directed to fly the lower altitude (seemingly implied in CIA history) remains unclear. Based on information obtained in March 1963 (long after Dulles' testimony) from a US air attach6 in Moscow, the CIA learned that indeed the Sverdlovsk SA-2 battery had fired a "three-missile salvo that, in addition to disabling Powers's plane, also scored a direct hit on a Soviet fighter aircraft sent aloft to intercept the U-2." (Ibid.) Since Powers's aircraft was disabled at 70,500 feet, a valid and unanswered question remains as to why was his aircraft operating a critical 1,500 feet below its normal operating altitude at the time it was disabled.
- ↑ Clearly, Menter was right and Montgomery wrong. Even CIA director Dulles indirectly admitted that the US had violated Soviet airspace by the passage of the U-2 through it, but justified the espionage nature of the flights as being less offensive than other means of intelligence gathering. Further, Dulles justified the U-2 program as part of an effort to prevent a surprise attack on the US, which justification had also been made by President Eisenhower and Secretary of State Christian Herter. Specifically, President Eisenhower in his statement about the downing of Powers's U-2 made as his first point the fact that "no one wants another Pearl Harbor." Brig Gen Martin Menter, USAF, Retired, memorandum for record, subject: Oral Interview, Pentagon, 21 February 1990, and transcript of interview by Cols David M. Lewis and Ronald J. Rakowsky, US Air Force Oral History Program, July 1987-August 1989, 73-74.
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