Home Grown Drones

February 16, 2013, 2:15 p.m.

Drones Abroad, Drones at Home

The drones are coming! The drones are coming!

"The chickens will come home to roost," they say. So apparently do drones.

Drones Abroad

The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."

We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. No frontline, or field of battle. No enemy equivalent of the Pentagon, or our Joint Chiefs. No easily identified uniforms worn by enemy soldiers. No way to produce an obvious victory, enemy surrender, armistice agreement, or even fashion an exit strategy. [Photo credit: multiple sources.]

We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so.

After Lee Harvey Oswald assassinated President John Kennedy, Jack Ruby shot Oswald before he could be tried in court. Suppose the Secret Service, or Dallas local law enforcement, had reason to believe that Oswald, and then Ruby, were giving serious thought to murder. Would those suspicions (or "knowledge," if you wish) have justified assassinating Oswald -- or later, assassinating Ruby before he could kill Oswald, in order to enable a trial of the latter? Because that is, in effect, what we are doing with our drones abroad. [Photo credit: multiple sources.]

When Timothy McVeigh blew up the federal building in Oklahoma City, it was considered a crime, not an act of war. Our response? He was given his constitutional rights and convicted of that crime in a court of law. Although he had come from a community of like-minded folks in Idaho, we did not respond by bombing Idaho or otherwise killing his former "fellow travelers" (to borrow Senator Joseph McCarthy's phrase) who shared his rhetoric.

We're not paranoid. We have real enemies. What they are doing to our property and people abroad is much more than a "crime" -- even if that is what it would be if we stopped offering them targets abroad, and they had to come here to vent their hostility. But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one; see, "Department of Justice White Paper; Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force," (undated).

And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home.

Drones at Home
We read that "A future in which unmanned drones are as common in U.S. skies as helicopters and airliners has moved a step closer to reality with a government request for proposals to create six drone test sites around the country. . . . Possible users at home include police, power companies wanting to monitor transmission lines, farmers needing to detect which crops need water or even ranchers counting cows. Privacy advocates worry that a proliferation of drones will lead to a 'surveillance society' in which Americans are routinely monitored, tracked, recorded and scrutinized by the authorities." Joan Lowy, "FAA takes step toward widespread US drone flights," Associated Press/Yahoo!News, February 15, 2013.

I can't say as I mind the idea of ranchers using drones to count cows. Neither does the FAA. It's just worried about drones getting in the way of piloted planes, and there are not a lot of them out where the deer and the antelope roam.

However, I'm not so thrilled about this small step forward for surveillance that is such a giant step backward for privacy.

The Fourth Amendment to our Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials.

The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind.

The Fourth Amendment works pretty well when a judge is required to approve a search warrant before one person's emails can be seized and read. But how effective has it been, or could it possibly work administratively, when the government can simultaneously monitor all the emails flowing throughout the Internet?

We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?

The law is years, often decades, behind technology. And so it is again, with drones.

Drones abroad, drones at home. Drones offer us, like the airline captain told his passengers, "Both good news and bad news. The good news is we're making very good time. The bad news is we have no idea where we're going."

We're skiing too far over our skis, folks. Plummeting downhill before our ethicists and legislators, just droning on, can even find their snow shoes.

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Excerpts from this blog essay appeared in the hard copy edition of The Gazette, in its "Blogfeed" section: Nicholas Johnson, "From DC 2 Iowa," February 24, 2013, p. A10, as follows:

The drones are coming! The drones are coming! "The chickens will come home to roost," they say. So apparently do drones.

The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."

We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. . . .

We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so. . . .

We're not paranoid. We have real enemies. . . . But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one.

And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home. . . .

The Fourth Amendment to our Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials. The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind. . . .

We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?

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