The Miami Herald
January 5, 2000

 Daredevil flier won't be jailed

 U.S. law doesn't address Cuba flyover


 The daredevil pilot who dropped anti-communist leaflets over Havana has already
 accepted the toughest punishment the U.S. government can impose: He gave up
 his pilot's license.

 Ly Tong, the 51-year-old former South Vietnamese air force pilot, also might have
 to pay a fine for flying over Cuba's air space on New Year's Day, but he won't be
 going to jail.

 The United States has no criminal laws that affect a pilot who enters a foreign
 country's territory without properly notifying its officials.

 Indeed, Tong probably escaped his worst possible fate when a Cuban MiG fighter
 took no action against his small rented Cessna. Under its aviation regulations,
 which follow international rules, the Castro government could have ordered Tong to
 land his plane after he crossed Cuba's 12-mile territorial boundary. And it could
 have imposed whatever restrictions it wanted against him -- including

 But Cuba merely tailed Tong.

 Like Tong, any pilot who flies over the island and returns without incident will find
 little turbulence with criminal authorities back home.


 A U.S. State Department official said Tong's raining of leaflets over Havana may
 be pollution, but it's not a violation of the Neutrality Act. That law forbids any U.S.
 citizen from taking a hostile action against a foreign country not at war with this

 For its part, the Federal Aviation Administration is continuing its investigation into
 Tong's risky flight over Cuba -- but it's strictly a civil matter.

 ``If pilots don't follow the regulations, they are subject to enforcement action,''
 FAA spokeswoman Kathleen Bergen said, declining to comment on the agency's
 probe of Tong.

 Tong voluntarily surrendered his license to authorities after landing at
 Kendall-Tamiami Executive Airport. Bergen said that even if the FAA permanently
 revokes Tong's aviation license, he could apply for a new one after a year.

 But Bergen and other federal officials strongly discouraged similar stunts, saying
 the 1996 shoot-down of two Brothers to the Rescue planes showed what the
 Cubans might do.

 In this case, the Cuban government said it does not plan to lodge a complaint
 with the U.S. government or with the International Civil Aviation Organization, a
 U.N. agency based in Montreal that establishes worldwide flight standards.

 ``There is a fundamental principle that each country is sovereign of its own air
 space,'' said Chagnon Denis, an ICAO spokesman. ``But if Cuba does not
 complain, I suppose there would be no case.''


 In the weekly newspaper Trabajadores -- Workers -- Cuban officials mocked the
 U.S. government's handling of the Tong case:

 ``They'll detain him for a few hours. They won't even send him to a psychiatrist
 and will free him. Otherwise, they would have to apply the same punishment to
 [Brothers to the Rescue leader Jose] Basulto and his gang, which is

 The unsigned article pointedly referred to Basulto because his group flies over the
 Florida Straits looking for Cuban rafters fleeing the island nation.

 The FAA revoked Basulto's pilot's license after he was accused of penetrating
 Cuba's air space on Feb. 24, 1996 -- the infamous day two Cuban MiGs shot
 down the Brothers to the Rescue planes, killing four volunteers.

 That summer, a National Transportation Safety Board administrative law judge
 ruled that Basulto's license should be suspended for 150 days instead. The ruling
 applied not only to the Feb. 24 incident, but also to Basulto's flight on July 13,
 1995, when he dropped leaflets over Havana.

 The FAA appealed the suspension, and Basulto ended up losing his license. But
 the exile leader was granted another license a year later.


 ``Basulto did not ask the Cuban government for permission to go into Cuban
 territorial air space,'' said Miami attorney Sofia Powell-Cosio, who represented
 him. ``That was simply his only violation.

 ``That's a rule everybody has to follow on a regular basis, but it's violated all the
 time,'' she added. ``There are a lot of small private planes that fly over Cuba on a
 regular basis, and a lot of them don't ask for permission.''

 The shoot-down of the Brothers to the Rescue planes sparked an outcry from
 Cuban exiles and the Clinton administration, leading to a probe by the
 International Civil Aviation Organization. It was only the fifth investigation in the
 ICAO's 55 years of existence.

 Other inquests included the U.S. Navy downing of an Iranian jetliner in 1988, the
 Soviet downing of a Korean Airlines Flight 007 in 1983 and the Israeli downing of a
 Libyan commercial plane in 1978.

 In June 1996, the United Nations agency backed the U.S. claim that the Brothers
 to the Rescue shoot-down occurred over international waters, not in Cuban
 territory. Its report struck a blow to Castro government's argument that it acted in
 defense of Cuba's air space -- leading to the Clinton administration's suspension
 of certain travel privileges to the island nation.