07/24/2014 11:58 am ET Updated Sep 23, 2014

Whose Decision? The President's or the FAA's?

When it comes to the handling of complex pressing foreign policy issues, national security considerations of the executive branch generally trump rulings of U.S. courts, as well as those of U.S. government agencies. The FAA is no exception, although the matter is usually handled in more subtle than direct ways. In this perspective, the decision to ban U.S. flights into Israel, and then to resume them, has to be seen as a White House decision, not one by the FAA.

To put the matter in perspective, in 1995, when in private practice, I was approached to see if I could do something about the heavy fine imposed upon Egypt Air, Egypt's national airline, by the Department of Commerce for leasing Libyan airplanes. Such leasing violated U.S. regulations. I went to the Department of Commerce, but was told that this is what the law required, just as the FAA contended that stopping Israel-bound flights was required by FAA regulations.

In 1995, in light of the Commerce Department's statement that its action was required by law, I went directly to the White House. As a result, the NSC, over President Clinton's signature, sent a note to the secretary of commerce stating that the president has determined that fining Egypt at this time is not in the national interest in bolstering U.S. relations with Egypt (direct Arab-Israeli talks had started in Spain) absent clear countervailing legal considerations, and was asked to be advised.

Not surprisingly, the advice that came back from the Department of Commerce was that there were no countervailing legal considerations.

The White House could have acted similarly in the current situation where Middle East peace is much more directly affected. In fact it is clear from the FAA spokesman that before they made a public declaration of their intended ban ruling they released it to the White House. The White House could have written to the FAA Director that, unlike the FAA, the president must examine the whole gamut of U.S. national security interests. In this case, rewarding Hamas terrorism by allowing the landing of a random rocket which Israel decided not to destroy one mile from Ben Gurion Airport did not, he could have written, warrant the proposed FAA ban, absent clear countervailing legal considerations. The FAA director would then likely have withdrawn the proposed ban.

Seen in this perspective, the ultimate decision rested in the president's hands. He could have chosen to explain to the American public both the shoot down of the Malaysian jet and the gamut of U.S. national security considerations which compelled a decision on this case. Instead the context of U.S. national security concerns, when terrorism is at issue, was ignored as if all that was at stake was a routine FAA ruling.

The writer, an attorney, was deputy assistant U.S. Attorney General for legal counsel during the Reagan administration.