Government is not reason; it is not eloquence. It is force. And force, like fire, is a dangerous servant and a fearful master.
– George Washington
In February 2013, a sixteen-page undated white paper from the Justice Department made a dramatic splash on the front pages of newspapers around the world: high-ranking Obama administration officials can order the killing of American citizens as long as they’re believed to be “senior operational leader[s]” of the terrorist group al-Qa’ida or of an associated al-Qa’ida unit.1 The memo, which had been provided to members of Congress in June 2012, was leaked to the press at a time when the White House had dramatically ratcheted up its use of unmanned aerial – drone – attacks against al-Qa’ida suspects on foreign soil.2 It also came on the heels of widespread controversy over the September 2011 drone kill of US citizen Anwar al-Awlaki, a suspected recruiter for al-Qa’ida, and his sixteen-year-old son, Abdulrahman al-Awlaki.
Still, it’s not as if the assertions in the memo were completely new.
Then White House counterterrorism adviser John Brennan spoke similarly in an April 2012 speech at the Woodrow Wilson Center, maintaining that the American government certainly had the legal right to attack members of terrorist groups using drones. He also admitted publicly what was pretty much an open secret in the military and political worlds: “The United States is the first nation to regularly conduct strikes using remotely piloted aircraft in an armed conflict” against al-Qa’ida.3
A month earlier, in March 2012, Attorney General Eric Holder had also spoken of America’s right to conduct fatal drone operations against suspected members of al-Qa’ida – only Holder also addressed the point of when American citizens were the accused terrorists and targets.
Speaking at the Northwestern University School of Law, Holder first affirmed the president’s legal right to order the military to conduct fatal drone strikes on suspected al-Qa’ida operatives on foreign soil, clarifying that such attacks are acts of “self-defense,” not “assassinations.” He then confirmed that the United States has the right to target and kill absent federal court permission “a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans... [if] the individual poses an imminent threat of violent attack against the United States” and if capture is not an option.4
Civil rights groups howled, of course. The American Civil Liberties Union, for instance, called Holder’s claim that the president could target and kill American civilians overseas absent judicial review a chilling development in the war on terror.5
But a year later, the United States affirmed that presidential power to kill at a new level.
In a letter to Sen. Rand Paul dated March 4, 2013, Holder addressed a hypothetical and emerging concern: Does the president also have the right to authorize a fatal drone strike against an American, on American soil, under the same set of conditions – if the American was believed to be an al-Qa’ida operative planning to attack US citizens? In an explanation that reverberated around the nation, Holder replied: Yes.
Holder’s exact words: “It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States.” He then cited December 7, 1941, the Japanese attack on Pearl Harbor, and September 11, 2001, the al-Qa’ida attack on the United States, as two examples of when that presidential power might be exercised.6
And just a few months later, America learned that the federal government had, in fact, already used drones on domestic soil to root out various criminal activities.
A July 19, 2013, letter from the FBI’s director of legislative affairs, Stephen D. Kelly, to Senator Paul contained the shocking claim that the federal agency had dispatched unarmed, unmanned aerial craft to assist with ten different criminal investigations on domestic soil in the previous seven years – all without a court warrant. An excerpt:
The FBI uses [Unmanned Aerial Vehicles] in very limited circumstances to conduct surveillance when there is a specific, operational need. UAVs have been used for surveillance to support missions related to kidnappings, search and rescue operations, drug interdictions and fugitive investigations. Since late 2006, the FBI has conducted surveillance using UAVs in eight criminal cases and two national security cases... The FBI has no plans to use weapons with UAVs. The FBI does not use UAVs to conduct “bulk” surveillance or to conduct general surveillance not related to an investigation or assessment...
In addition, every request to use UAVs for surveillance is reviewed by FBI legal counsel to ensure there are not potential Fourth Amendment or privacy concerns... Every request to use UAVs for surveillance must be approved by senior FBI management at FBI Headquarters and in the relevant FBI Field Office.7
For example, the FBI said its management approved a drone surveillance operation for a criminal case in January 2013 involving sixty-five-year-old Vietnam veteran Jimmy Lee Dykes. The case grabbed the attention of the nation: Dykes was reported to have boarded a school bus in Alabama, shot the driver, abducted a five-year-old boy, and held him hostage for days in an underground bunker. Law enforcement officials ultimately rescued the boy and killed the suspect. The FBI said it used “UAV surveillance to support the successful rescue.”8
On a practical level, nobody could fault the FBI for using a surveillance drone in this instance. But the long-term effects of law enforcement’s warrantless use of drones on our constitutional form of governance is worrisome. At what point is a crime considered horrific enough to warrant the use of drones – and what’s the guarantee that boundary line won’t be moved? The issue of who determines those boundary lines is part and parcel of that long-term worry too.
The FBI in its letter to Senator Paul clarified and vowed that the agency would never use unarmed drones for surveillance on American soil without a warrant in those instances when “individuals have a reasonable expectation of privacy under the Fourth Amendment.”9
But that’s a rather broad phrase. In modern-day America, cameras are everywhere. So what would reasonably constitute an expectation of privacy nowadays?
The problem with drones is the technology is outpacing any policy that guides their lawful use. The regulations are being formed on a test-case basis, creating a horse-follows-the-cart scenario. Case in point: al-Awlaki.
Anwar al-Awlaki was born in New Mexico but became a radical Muslim cleric and a senior al-Qa’ida operative for the terrorist group’s Yemen branch. His fellow terrorist operative, Samir Khan – another American citizen, born in North Carolina – was the creative brains behind the al-Qa’ida Internet magazine, Inspire. In September 2011, drones operating out of the CIA’s Saudi Arabia base located the pair in a convoy of trucks in the desert region of Jawf Province. Using a combination of Predator and Reaper drones, US pilots operating thousands of miles away shot and killed the two, putting to end a years-long intelligence investigation among the CIA, the White House, and the Pentagon. A month later, another US drone killed al-Awlaki’s son, Abdulrahman, in what government officials said was an accidental shooting.10
All three were American citizens, killed without benefit of formal arrest and charge, trial, or jury conviction. Abdulrahman, born in America but moved to Yemen at age seven, wasn’t even considered a terrorist – he wasn’t on a White House “kill list” of high-ranking terrorist operatives – nor was he a member of al-Qa’ida. He hadn’t even seen his father, who had gone into hiding, in two years.11 On the night of his death, October 14, 2011, he was reportedly on a search to find his father.12
Their drone kills set off a constitutional firestorm, pitting civil libertarians, who waxed outrage, against politicians, who saw the attacks as justifiable parts and parcels of the War on Terror. Senator Paul called the killings assassinations; Rep. Peter King, then chairman of the House Homeland Security Committee, said they were entirely legal.13
Few would dispute that al-Awlaki was a dangerous terrorist, a traitor to America. US authorities believed he had a hand in the November 2009 fatal shootings by Muslim radical Nidal Hasan at Fort Hood, Texas, and in the December 25, 2009, failed underwear bombing attempt to bring down a plane en route from the Netherlands to Detroit.14 But the idea of our US government killing American citizens by drone without even charging them with any crime – or, in the case of sixteen-year-old Abdulrahman, even suspecting them of any crime – should give pause.
The fact that the Obama administration was able to conduct these fatal attacks without later retribution is the silent thumbs-up to new US policy: apparently, the federal government doesn’t need to submit to the Constitution when the perceived threat reaches a certain level.
If that’s the standard, then we as a nation are in trouble. With a precedent like that, America’s government can move this drone discussion off the battlefield and into law enforcement with ease – as the FBI has already admitted, to a limited degree. And here comes the slippery slope. First terrorism, then egregious crimes, then – what? High-speed chases down the highway?
The possibilities for drone uses are endless if the standard to determine their worthiness is to save or safeguard innocents. After all, isn’t it safer for police and for residents to track a car thief hightailing it down the highway via a drone than a speeding cop cruiser? The eye of a drone camera could simply survey the driver’s travel from a safe distance, and alert authorities to the location of the vehicle’s stopping point. No high-speed chase through residential neighborhoods or on congested interstates. No need to endanger the lives of the police officers in the chasing vehicles or the residents and drivers they pass. Information from the surveillance drone could just tell police where to show up and make the arrest.
But the principle of unintended consequences kicks into high gear here. In February 2011, a high-profile criminal search for suspected cop killer Christopher Dorner led officials with the Los Angeles Police Department to dispatch surveillance drones to assist with his location – or did it? Initial media reports indicated the police force used borrowed drones from the US Customs and Border Protection agency to root out Dorner. But in subsequent media interviews, police spokespeople backtracked and said drones weren’t used.15 Yes, drones were used – no, they weren’t.
The fact that citizens can’t get a straight answer is a problem.
As in the case of the five-year-old boy who was held hostage in an Alabama bunker for days, the use of surveillance drones by law enforcement in the Dorner case might actually be understandable. But what’s not is the secretive spirit that law enforcement adopts when it comes to drone use. That’s just a step even further down the road to a government that holds itself higher than the average American – a bit smarter, a tad superior – and by logical extension, above the law, outside the confines of the Constitution. In a word, arrogant.
Either way, Dorner wouldn’t have been the first criminal suspect placed under drone surveillance by a local police department. That honor belongs to a North Dakota family, the Brossarts, who in 2011 reportedly failed to return some cows that wandered onto their three thousand acres.16 Police located the cattle and tried to remove them from the property, but the three Brossart sons allegedly pointed shotguns and rifles at the officers and refused to let them take the cows until they paid for the feed they ate.17 So the sheriff, absent court warrant, sent into the air a Predator drone – a military-grade, $154 million MQ-9 Predator B borrowed from Grand Forks Air Force Base – to monitor the sixteen-hour armed standoff that ensued between police and family members, on the family’s private property. As soon as the drone camera captured a moment when the family put down their weapons, agents dressed in SWAT gear stormed into their home and arrested them without incident.18
The family moved to dismiss the arrests, arguing through an attorney that law enforcement’s use of a military-type unmanned surveillance aircraft without first obtaining a warrant was an egregious abuse of power.19 But a judge in August 2012 shot down that request, denying that the use of the drone was improper – and in so doing, marked the first time in America that a court gave a judicial stamp of approval to an unmanned drone arrest of a US citizen.20
The law enforcement trend to use drones to capture suspected criminals is not going away anytime soon.
In September 2013, an audit from the Department of Justice’s Office of Inspector General found taxpayers spent more than $5 million to buy drones for the Justice Department, the FBI, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, between 2004 and 2013.21 The audit report also revealed that the Justice Department gave out $1.26 million in grants during that same period for several local police departments and nonprofit groups to buy their own drones.22 In 2012 alone, the Department of Homeland Security had on hand $4 million in grant funds earmarked for small-town sheriff departments and local police units to obtain unmanned aerial craft to assist with criminal investigations and apprehensions.23
But law enforcement isn’t the only interested segment of society. Local governments and private businesses are grabbing for the technology too.
A new list released by the Federal Aviation Administration in early 2013 indicated eighty-one different entities from around the nation – from colleges and universities to city governments and private businesses, as well as police departments – had petitioned the FAA for Certificates of Authorization to fly drones on domestic soil.24 Among the petitioners: National Aeronautics & Space Administration; Ogden Police Department in Utah; the Department of Energy’s Oak Ridge National Laboratory; Pennsylvania State University; all major branches of the US military – the Army, Air Force, Navy, and Marine Corps; the US Department of State; and the US Department of Agriculture.25
Farming, it seems, is a big draw for drone supporters.
Kansas State University agricultural experts said they asked the FAA for permission to fly drones in order to replace the existing means of checking on crop problems – walking by the fields and performing spot checks on plants – with a faster, fly-by method. Whereas it takes hours for an individual to walk and inspect a field, a camera-carting drone can swoop through in just minutes and relay pictures and problems back to the piloting station. Agriculture specialists can even pinpoint troubled crop areas with the drone technology and spray and treat just those areas, saving farmers money.26
Useful – true. But the dark side of agricultural-related drone use was highlighted by a congressional bill brought forward in June 2012 by West Virginia Republican Rep. Shelley Moore Capito.27 Called the Farmer’s Privacy Act, the measure was aimed at prohibiting the Environmental Protection Agency from conducting aerial surveillance on land to ensure owners were complying with the Clean Water Act.28 The bill, had it passed, would have required the EPA to give public notice of its intent to conduct the air surveillance, to have reasonable suspicion that a violation had occurred, and to first obtain the property owner’s permission in writing.29
Capito’s legislation didn’t specifically mention drones – but it was more than implied. The EPA already expressed interest in just that notion in a published study in the mid-2000s. In a summary document entitled “Landscape Characterization and Change Detection Methods Development Research” for 2005 to 2007, on how the EPA might meet its growing mission and keep pace with emerging technologies, the agency specified it was forming partnerships to develop Unmanned Aerial Vehicle missions.30 The jargon, right from the EPA website, is this:
EPA is collaborating with NASA to develop terrestrial, coastal ocean and surface-troposphere flux unmanned aerial vehicle (UAV) missions. These missions will combine advanced multi-sensor packages with the extended duration UAV platform capabilities to provide the Agency with a next generation environmental monitoring capability. The ultimate goal is to provide EPA staff with a new data rich environment to significantly increase productivity and enhance the scientific knowledge base to support environmental decision making.31
In layman’s terms, that means the EPA has been mulling for years how to tap into drones for aerial surveillance of environmental law violators. And they partnered with NASA to get the technology.
What a nightmare of regulatory policing that will be for landowners around the nation. The solution, though, is so simple. Capito’s bill, or a lookalike, would effectively squash those plans.
Unfortunately, though, it seems unlikely the drone genie will be put back in the bottle. Even the media wants them. The University of Missouri Drone Journalism Program was flying the unmanned aerial craft for months to take pictures and record video from afar. So was the Drone Journalism Lab at the University of Nebraska–Lincoln. The FAA shut them down in August 2013, prohibiting them from operating drones without first obtaining Certificates of Authorization.32 But the fact that journalists see drone use as a potential career tool only highlights how deeply the technology’s dug into the national consciousness.
Private companies want them too. The FAA in mid-2013 granted permission for the first time to a private company, Conoco Phillips, to fly unmanned aerial vehicles off the coast of Alaska to monitor oil-drilling activities. By 2015, the skies could be littered with commercially owned unmanned aircraft. That’s the year the FAA is supposed to open the doors to private businesses to operate drones on American soil for commercial interests.33 How to tell the difference between a privately owned drone and a government-operated UAV? And moreover, does it really matter?
In 2011, researchers announced the creation of the Nano Hummingbird, a technological advancement that’s the size of a real hummingbird.34 It can flit onto a windowsill, hover and snap photographs and shoot video – and fly away with barely a sound.
The Defense Advanced Research Projects Agency, or DARPA, spent years perfecting this technology. The latest version is able to fly forward, backward, and sideways, as well as turn completely in both directions, clockwise then counterclockwise. Its wingspan is just inches, allowing for close-up scrutiny and recording of subjects, in complete secrecy.35
And given the latest invention from Harvard University, it won’t be long before even that drone technology has moved into the ubiquitous column.
Following a decade of research, scientists at the school said they have successfully made and test-flown a robot that’s modeled after a bee and about the size of a fly.36 It’s dubbed “RoboBee,” and while its first model still requires a tether to a power source to fly, scientists are optimistic that later models will cart their energy supply while flying.37 Hopes are that the little robot bugs will also be able to carry tiny video cameras and recording devices and feed the surveillance data back into controllers’ and users’ iPads.
One can only wonder where all this drone technology might lead.
In January 2014 remarks during a Senate Commerce Committee hearing on drone policy, California Sen. Dianne Feinstein provided a little heads-up of where America was heading. She told a crowded room that she was in her home, listening to activists protest outside, and went to the window for a peek. Inches from her face was a drone. Apparently, she said, her appearance startled the operator of the drone and the device abruptly turned and flew from her window. But her message to other senators at the hearing was blunt: Go slow with this new technology. The negative repercussions on personal privacies could prove significant.38