Originally Posted by
sunnySA
No, I think the US Army policies with regard to ADS-B will be found to be irrelevant to this accident. Brigadier General Matthew Braman is correct in that the US Army, and other government agencies with policing, security and counter intelligence responsibilities do not want their aircraft tracked on FR24 and the like. The MOU is key and may not see the light of day in the public domain. National Security will trump (sorry) other considerations, even safety, especially with so many high profile score buildings adjacent to DCA.
I'm applying SLF/attorney license here (hey, there's poetic license, so why not?) of repeating - with some editing - a post I placed on the R&N thread about testing at DCA.
1) Regarding ADSB-Out being turned off, what is the reason there was such emphasis placed on this at the recent Congressional hearing (and just scoring media points per usual in Committee hearings doesn't qualify as a "reason" in this context). Is the reason that there are objections to running the kinds of tests in question (per the R&N thread) in or near DCA airspace? Is it valid to say there is no connection to the chain of causes-and-effects which led to the midair collision on Janaury 29 (but if there is, what is that connection, specifically)? Is the reason some connection with the occurence of TA's and RA's on TCAS as documented by NTSB? (although other posts on the R&N thread indicate that ADSB-out isn't connected to TCAS advisories . . . that is, if I understood those other posts). Or something else? I'm dismissing the mere fact that FR24 doesn't provide information to enthusiasts as the reason for such emphasis in the hearing.
2) If the Army operates certain "missions" with ADSB-Out turned off, and it conducts these operations based on national security concerns, my initial thought about this practice is, . . . . . . . hey, isn't there a discretionary function involved in deciding what avionics (or electronics system if this isn't within the technical definition and scope of "avionics") to operate based on national security concerns? So the Senator declaring that there is "no justification" seems to deliberately overlook the existence in the Federal Tort Claims Act of the exception. (I realize there has not been, to my knowledge at least, any lawsuits filed yet. But they're certainly going to happen.)
Of course, this all said, the indictment of the structure and operation of the portion of the NAS in which DCA is situated might (as suggested previosly) itself be adjudged inconsistent and non-compliant with basic standards of aviation safety. The only not-crazy-sounding justification for that state of affairs would seem to be "but we have to move traffic in volume." As a legal wrangle over whether that obvious judgment of a "policy" nature is or is not a proper basis for keeping federal immunity in place in a particular matter . . . I am quite skeptical such a legal wrangle would ever make it as far as an actual courtroom proceeding. But will Congress not try to manuever itself into the issue for all the usual reasons - some people want actually to address the problem constructively, some just want to please their donors, and some just follow the crowd, or so it always appears.
3) Something about discovery in civil litigation was underscored by the exchange in the video clip: there's an Army memo, dated Aug. 9, 2024 as referenced by Sen. Cruz, about operating in the NAS with ADSB-Out turned off. And the Army so far declines to turn it over to the Committee. (Applying the rough equivalent of a pre-snap read by a QB, the manner in which the Army witness replied to Sen. Cruz's questions gave the impression that the Army and DoD will strongly resist the memo in question becoming public.)
[Okay, I'll refrain from speculating how much fun it would be to decide which officer or officers would be presented as the Person(s) Most Knowledgeable about the matters discussed in this memo (on the Army side, receiving the Rule 30(b)(6) deposition notice), or similarly, how much fun would be had by counsel describing the "subject matter(s)" which must be specifically iterated in a Rule 30(b)(6) deposition notice (on the plaintiffs' side).]
4. I'm very determinedly hoping this won't be read or even misinterpreted as an offensive point. In the YT video produced by "Mover" in which he interviewed a former Army helicopter aviator (post 1228), it was possible to draw the impression that Army helicopter pilots operating in the airspace in which DCA is situated have a certain attitude toward FAA ATC. That is, the Army operates - one could get the impression - in its own "airspace system" and deals with FAA ATC only as much and only as quickly as necessary. Listening to the pertient Jan. 29 ATC R/T, and knowing the visual difficulties presented by the basic facts of nighttime in that specific area of the DCA airspace, plus NVGs, an observer could get the impression that the Army aviator handling the R/T was doing so in a perfunctory manner on Jan. 29.
To explain further, upthread (in post 1261) in the context of a Mover/Gonky YT video (post 1228) someone much more knowledgeable than myself observed that the way in which the Army pilot interviewed in the video described communications with FAA ATCOs in DCA airspace was as if Army chopper pilots view FAA ATCOs somewhat as a nuisance. Far be it from me to fault any pilot over any practice or custom in anything, including comms with ATCOs. But faulting any pilot is not the point. The point is that in that YT video, as related that other poster, --
"it was suggested that it’s perfectly OK to second guess what ATC might have said to you, reply to that, and then if no correction is forthcoming you can comply with your guess. As others have pointed out implicitly, that works if there’s only one error involved, but here there were three: an untrue statement, leading to a wrongly issued clearance, and a missing read back."
It is known that ADSB-Out is not active on the Army and other certain missions in the relevant airspace. Is there also a pattern or practice of operating with a mindset that FAA ATC is a necessary nuisance, to be indulged but not focused upon as closely as other airspace users? If any reader asserts this question accuses the Army pilots or any one of them in the helicopter on January 29 of negligence - that would be incorrect. The way in which the airspace had been designed, managed and operated handed those pilots a pre-determined normalization of complacency - so it appears, does it not?. They operated their flight within the system they had been given, which does not constitute negligence. The designers, managers, and operators of that system . . . well, it will be for the courts to sort out whether the exception to the removal of federal immunity to tort claims applies to those systemic level actions, or not. If it were not for the existence of the discretionary function exception, I personally believe the race to the courthouse would already have been a feeding frenzy worthy of the most biting negative stereotypes about lawyers.
Speaking of immunities, wasn't it generally believed that the airspace within the NAS, and especially airspace in which major airports in the United States are situated, was immune to midair collisions, in general and not only collisions sudden, without actionable warning, and with at most two or three seconds' knowledge of impending death and disaster? Mere SLF/attorney as I am, I had believed that. It follows, but only under that mindset, that what occurred was obviously negligence, and even gross negligence. The point is, expect the lawsuits to be, in a word, consistent with the ugliness one feels seeing the wreckage pulled from the Potomac, or reading about the backgrounds of 67 people. Or both.