Are U.S. Pilots Being Made Scapegoats in Brazil?

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The American pilots of the private jet whose wings clipped a Brazilian airliner at 37,000 feet last September, causing the death of all 154 people on board, have finally been charged by Brazilian authorities. They are the only people to face formal accusations in the case. But the Federal Police's decision to charge them with "endangering a vessel or aircraft," a crime roughly equivalent to involuntary manslaughter, wasn't serious enough to keep them in the country, and many see it as much an indictment of their nationality as of their role in the crash. Moreover, critics argue that the charges simply mask the shortcomings of Brazil's own deteriorating military-run commercial aviation system.

From the beginning, it was clear to at least some observers that the two American pilots, Joe Lepore and Jan Paladino, were not principally to blame for the tragic incident. Indeed, after telling Lepore and Paladino they were suspects, Federal Police spokesman Bruno Craesmeyer admitted: "The Federal Police believe that the American pilots are not as responsible as other people. There are more serious causes of the accident." The pilots' lawyer Theo Dias called the decision to charge them "premature, irresponsible and absurd," especially since his clients were told they would be charged before police even questioned them.

But Dias was not entirely shocked that his clients were shouldering the blame. Brazil may have an admirable air safety record, but it also has collectively thin skin — and once the shock of the tragedy wore off and the investigation began, Brazilians immediately rushed to point the finger at others. Leaks from police, investigators or military officers who run Brazil's air traffic system portrayed the two pilots as irresponsible amateurs who flew at the wrong altitude, ignored controllers' orders, performed reckless maneuvers, changed their flight plan without notifying the tower or switched off crucial equipment that could have warned the approaching jet of their presence in the same air lane.

Police detained Lepore and Paladino and confiscated their passports so they could not leave the country. But after they had been cooped for two months in a Rio hotel, a judge earlier this month issued a habeus corpus order to return their confiscated passports. Before they could get on a plane home, however, police rushed to formally charge them — even before a formal inquiry report was completed. The best reason they could find was, in Craesmeyer´s words, that the pilots "didn't see that the transponder wasn't working and didn't take any action."

Those charges were not serious enough to warrant their arrest, and the two are now back in Long Island, says their lawyer. The charges carry a maximum sentence of four years, and such relatively short sentences are often commuted. Even though the two could theoretically be called to give more evidence from the U.S. under the two countries' Mutual Legal Assistance Treaty, their lawyer makes it clear they won't be returning to Brazil.

Still, their indictment — and the lack of similar action against anyone else — highlights the flaws in the process. Federal Police officials told TIME they expect to charge others in the case, but who or where depends on the federal judge who is handling the case and the country's powerful military. The judge is now reviewing evidence and must decide whether military personnel, if they are involved, should face a civilian or armed forces tribunal. The military, which runs Brazil's air traffic control system, is not happy about its personnel being implicated. Military officers refused to hand over black box transcripts to police, delaying the inquiry and exacerbating the rivalry between the two bodies.

In the meantime, the focus is firmly on the air traffic control system at the center of the controversy. If anyone doubted that the system urgently needs an overhaul, the weeks after the crash provided ample proof.

What was a tragedy has turned into an institutional crisis. The air traffic controllers on duty the day of the disaster were removed pending further inquiries, causing manpower shortages. Those that remain on the job are angry at the levels of on-the-job stress, overwork and low pay and as a result are on a work slowdown. Problems with fiberoptic cables and radio transmitters have cut communications and left passengers stranded at airports. Hundreds of flights have been cancelled and many days a third take off late. Irate travelers have threatened staff, trashed check-in counters and even stormed the tarmac in protest.

In response, President Luiz Inacio Lula da Silva has promised to hire 60 new controllers. But in declaring the problem resolved, as he did two weeks ago, he has also showed how little he understands the situation. The day he spoke, more than a third of all flights were at least an hour late. On Wednesday, as travelers went home for the holidays, almost half of all flights were delayed by an hour or more.

The reality is that there is no quick fix. Turning the air traffic control system over to a more accountable civilian body would be a start, and investing money in modernizing the system and training new and more people to run it is also crucial. For now, passengers taking off for a Christmas break can only heed the advice of Defense Minister Waldir Pires. As he put it, "Have faith and pray."