Washington, D.C., October 16, 2020 - Over the years, aerial and naval encounters have threatened to destabilize U.S-China relations as the two powers contest each other's rights in international airspace and waters. A major incident occurred on 31 March 2001 (Washington time) when a U.S. EP-3 reconnaissance aircraft made an emergency landing on China’s Hainan Island after a Chinese People’s Liberation Air Force aircraft collided with it in international airspace, some 62 miles from Hainan. Today, the National Security Archive is publishing for the first time “talking points” and position papers justifying the U.S. position in the EP-3 crisis prepared for Secretary of Defense Donald Rumsfeld. The documents are part of a release of Rumsfeld “snowflakes” acquired through an Archive lawsuit against the Pentagon.
In April 2001, the National Security Archive published several documents from 1969-1970 to contextualize the EP-3 incident as the latest moment in a long and complex history of U.S. aerial reconnaissance activity over and near Chinese territory, which sometimes resulted in mishaps. Declassified archival material from the first year of the Nixon administration sheds light on Cold War policy on reconnaissance flights near Chinese territory. The documentation confirms how risky the policy was: before April 1969, U.S. reconnaissance aircraft could fly as close as twenty miles from the Chinese coast.
Not surprisingly, U.S. policymakers have been reluctant to acknowledge reconnaissance flight activity, much less offer apologies when incidents occurred. Ironically, an incident that elicited an internal State Department policy review took place on Hainan Island, where a U.S. pilotless reconnaissance aircraft alighted in February 1970. To retain U.S. freedom of action to fly reconnaissance missions, State Department official Harry Thayer recommended that the United States refrain from offering an apology in the event the Chinese made a formal complaint. That freedom-of-action approach remained in effect at the time of the EP-3 incident in 2001 (and probably does to date), even when the balance of forces in East Asia has become considerably less advantageous to Washington than it was in 1970.
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Reconnaissance Flights and U.S.-China Relations
by William Burr
On 31 March 2001 (Washington time), a U.S. EP-3 reconnaissance aircraft made an emergency landing on China’s Hainan Island after a Chinese People’s Liberation Air Force aircraft collided with it in international airspace, some 62 miles from Hainan. A few days after the incident, Secretary of Defense Donald Rumsfeld received “talking points” from Defense Department lawyers, published today for the first time, who argued that if the pilot was flying so close underneath the EP-3 as reported, the pilot violated the “due regard” principle of international law. In addition, the pilot’s action was “provocative and dangerous and most probably resulted in the collision.” Thus, the U.S. refused to apologize for the incident as the Chinese had demanded. The talking points memo is one of the thousands of Rumsfeld “snowflake” that have been secured through a Freedom of Information Act (FOIA) lawsuit by the National Security Archive against the Defense Department, litigated on a pro bono basis by the Skadden Arps law firm.
The EP-3’s crew of 24 landed safely but the Chinese held them during nearly two weeks of tense negotiation (although visits by senior U.S. military officers were allowed). On 12 April 2001, however, the Chinese government released the crew after the United States expressed regret for the loss of the pilot’s life and for not consulting with the Chinese before landing the aircraft.
Washington rejected Beijing’s demands for an apology and its insistence that the overflight violated the 200-mile Exclusive Economic Zone permitted by the of the Law of the Sea Convention. Defense Department lawyers argued that the LOSC did not ban military flights within the zone and that Chinese pilots had been contravening international law by taking an increasingly aggressive approach toward U.S. reconnaissance flights, with the EP-3 incident exemplifying the problem. In recent years, Beijing’s ongoing expansive assertion of rights in air and ocean space in nearby waters has added to the possibility that future collisions and loss of life could precipitate serious conflict. 
In April 2001, the National Security Archive published several documents from 1969-1970 in order to contextualize the EP-3 incident as the latest moment in a long and complex history of U.S. aerial reconnaissance activity over and near Chinese territory, sometimes resulting in mishaps. During the Cold War days of the 1950s and 1960s, the CIA flew U-2 and other aircraft over Chinese territory, with many of the flights piloted by Taiwanese airmen. Other military agencies, the U.S. Navy and the U.S. Air Force in particular, working in conjunction with the National Security Agency, have operated aircraft flying near Chinese territory to collect radar and other electronic signals, to intercept communications, and to sweep up aerial debris from nuclear tests. The history of these activities is murky; for example, the CIA has yet to acknowledge fully the Taiwanese role in the U-2 program while the electronic intelligence programs are highly secret involving Sensitive Compartmentalized Information (SCI).
Declassified archival material from the first year of the Nixon administration sheds light on Cold War policy on reconnaissance flights near Chinese territory. The documentation confirms how risky the policy was: before April 1969, U.S. reconnaissance aircraft could fly as close as twenty miles from the Chinese coast. Not surprisingly, U.S. policymakers had been reluctant to acknowledge reconnaissance flight activity, much less offer apologies when incidents occurred. Ironically, an incident that elicited an internal State Department policy review took place on Hainan Island, where a U.S. pilotless reconnaissance aircraft alighted in February 1970. To retain U.S. freedom of action to fly reconnaissance missions, State Department official Harry Thayer recommended that the United States refrain from offering an apology in the event the Chinese made a formal complaint. That freedom-of-action approach remained in effect at the time of the EP-3 incident in 2001 (and probably does to date), even when the balance of forces in East Asia was considerably less advantageous to Washington than it was in 1970.
Today’s updated posting includes the documents published in 2001 along with the recently declassified “snowflake” from the Rumsfeld collection held by the Department of Defense.
Memorandum from Winthrop G. Brown, Bureau of East Asian Affairs, to Under Secretary of State for Political Affairs U. Alexis Johnson, "Basing of U.S. Strip Alert Planes at Tainan Airfield on Taiwan," 29 May 1969, Top Secret
Source: National Archives, Record Group 59, Department of State Records (hereinafter RG 59), Subject-Numeric Files, 1967-1969 (hereinafter SN 67-69, with file cite), Def 1 Chinat
This document discloses policy decisions on Chinese-area reconnaissance flights during the early Nixon administration. The month before, on 15 April, the North Koreans shot down a U.S. EC-121 aircraft operating in the Sea of Japan, with the entire crew lost. In the wake of that incident, President Nixon temporarily halted reconnaissance flights in the region. After a few weeks, however, Nixon ordered the flights to resume although the U.S. Joint Reconnaissance Center (JRC), probably with White House approval, limited the closest point of approach (CPA) for future flights near China: instead of twenty miles as before, aircraft would be authorized to fly no closer than fifty miles. Moreover, the Pentagon sought special security measures for these flights: a U.S. fighter jet unit would be on alert on runways in Taiwan ("strip alert") in the event of an incident. As Brown's commentary indicates, the Pentagon's request made State Department China hands nervous because U.S. combat aircraft had not regularly operated from Taiwan since the 1958 U.S.-China crisis over the Taiwan Strait. Further, the new policy "risks a clash between U.S. and Chinese Communist aircraft." Not wanting the reconnaissance aircraft to fly unprotected, Johnson accepted Brown's "reluctant" advice to authorize the deployment at Tainan airfield on Taiwan, which was also the site of the U.S.'s nuclear weapons storage facility on the island.
Source: RG 59, SN 67-69, Pol Chicom-US
During the fall of 1969, after years of tensions, possibilities for improvement of Sino-American relations were substantially greater and senior officials on both sides were signaling their interest in a new relationship. To convey a new U.S. attitude, Marshall Green and other senior officials considered changes in the U.S. military posture, such as redeploying U.S. forces from Taiwan (see page 5 of this document). One such move was redeployment of the strip alert aircraft from Taiwan, a move that the commander-in-chief, Pacific Command had already endorsed. In this connection, Green noted that U.S. reconnaissance aircraft were then flying about seventy-five miles from the Chinese coast. Moreover, he observed that the "Chinese never threaten US reconnaissance aircraft in the Taiwan Strait area even when they fly closer" than seventy-five miles. Apparently, the close trailing of U.S. reconnaissance aircraft by Chinese jets was not then a standard practice. When the Pentagon finally de-alerted the fighter jet unit and moved it remains unclear; it would have been before 1974, when U.S. F-4s were withdrawn along with a small U.S. nuclear weapons stockpile.
Source: RG 59, Subject-Numeric Files, 1970-1973 (hereinafter SN 70-73, with file cite), Pol Chicom-US
In December 1969, Beijing and Washington agreed to resume formal discussions between their ambassadors in Warsaw. Talks were scheduled for 20 January 1970, but the State Department wanted to make sure that nothing derailed them. Thus, Alexis Johnson wrote David Packard to ask that the military take "special precautious" to avoid naval or aerial activities that could trigger an "incident" off the Chinese coast.
Source: National Archives, SN 70-73, Pol Chicom-US
On the day that the first round of Warsaw talks began (see Document 3), Packard assured Johnson that the Pentagon had reviewed "current operating rules" to keep U.S. forces away from "incident prone" areas near China. Admiral John McCain was the command-in-chief, Pacific Command, the future U.S. senator's father.
Memorandum from Harry Thayer, Bureau of East Asian and Pacific Affairs, Office of Asian Communist Affairs, to Morton Abramovitz, Office of Under Secretary of State, "Warsaw Meeting: Shootdown of U.S. Drone," 19 February 1970, Secret
Source: RG 59, SN 70-73, Pol Chicom-US
Whatever precautions the U.S. may have been taken, an accident occurred on the afternoon of 10 February 1970, when a U.S. reconnaissance drone (pilotless) aircraft, strayed over PRC airspace on Hainan Island. The drone was a Ryan 147SK – generally known as the SK-5 – which failed as it was heading toward North Vietnam, not the PRC. Operated by the U.S. Navy, the SK-5 was used for assessing pre-and-post-strike targets in North Vietnam; that is, to evaluate targets before or after they were bombed. According to a 1982 account prepared by veterans of the program, on the 10 February mission, the SK-5's beacon failed and its U.S. Navy operators, flying in an E-2 Hawkeye, could not fly it properly. The drone ran out of fuel and after its operators deployed its parachute, it alighted on Hainan Island. Although a Chinese People's Liberation Army (PLA) naval air defense unit claimed to have shot down the drone, apparently it only fell into their hands. The Chinese press publicized the incident and festivities occurred on Hainan Island on 16 February, as the air defense unit celebrated its victory over "American imperialism," beginning the event with the song "The East is Red" and concluding with "Sailing the Sea Depends on the Helmsman."
Celebrations notwithstanding, the Chinese made no protest, Nine days later State Department officials did not know exactly what had happened, but they speculated, as Harry Thayer put it, that Beijing was not going to "make a major issue of the incident" with another round of Warsaw talks about to begin in a few days. In the event that the Chinese complained, Thayer recommended that the U.S. hold to its traditional stance of not acknowledging reconnaissance flights. Moreover, he urged that U.S. Ambassador to Poland Walter Stoessel make no apologies because that would set the wrong precedent: apologies could lead to explanations and Chinese demands that the United States forswear future flights. As it turned out, the question of an apology was moot because the Chinese did not mention the incident during the Warsaw discussions.
Daniel J. Dell’Orto, Acting General Counsel of the Department of Defense memorandum to Secretary of Defense [and] Deputy Secretary of Defense, “EP-3 Incident – Guidance on Legal Issues,” with enclosures attached, 6 April 2001
Source: Freedom of Information lawsuit release by Department of Defense
This memorandum from Daniel J. Dell’Orto spelled out the Pentagon’s position on the international law issues involved in the collision of the EP-2 and the PRC aircraft. Prepared in coordination with State Department lawyers, the memorandum addressed the central legal issues involved: that the EP-3 was flying in international airspace, the legal violation by the Chinese pilot of the “due regard” principle, the intentional harassment of a U.S. aircraft “exercising high seas freedom of overflight,” the legal permissibility for the damaged EP-3 to make an emergency landing, the EP-3’s status as a “sovereign instrumentality of the United States entitled under international law to sovereign immunity,” and the obligation of the Chinese to “respect the dignity and integrity” of the U.S crew and to return them safely.
The position taken by U.S. government lawyers in the matter underlines the refusal to make an apology for the incident. Contrary to the Chinese position, they argued that with respect to China’s claims about the 200-mile EEZ, Article 58 of the Law of the Sea Convention only required “due regard” to “limited resources-related rights of coastal states.” The United States did not, and still does not, “recognize any coastal state authority foreign military activities in the EEZ.” Nevertheless, the statement in the talking points about “sincerely regret[ing] the loss of the Chinese aircraft and pilot” was consistent with the position that the Bush administration would take throughout the crisis to settle the matter and expedite the return of the crew.