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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Terrorism, War, 9/11 and Looking Within

September 10, 2011, 11:30

Reflections September 10, 2011, About Terrorism September 11, 2001
On the eve of 9/11's tenth anniversary, and all the reflecting that date triggers, it's useful to put it in context -- as we wait to see the outcome of the threatened truck bomb attack. Eric Schmitt and Scott Shane, "Hearing Rumors of a Plot, Cities Make Their Security Forces Seen," New York Times, September 10, 2011, p. A9

Given that milestone, this semester's Cyber and Electronic Law has led off with a focus on national security and the legal issues surrounding the role of technology as a weapon of war, a defensive shield, and a force eroding our civil liberties and privacy.

So the students and I naturally tend to keep an eye out for the new developments that seem to pop up on a daily basis, and informally share news stories with each other.

Thus, this morning's [Sept. 10] Associated Press story on the Gazette's front page, "An Intel Q&A: How the U.S. Gets It, Where It Goes," caused me to seek out the original and full story online. Kimberly Dozier and Calvin Woodward, "An intel Q&A: How the US gets it, where it goes," Associated Press/Panama City [Florida] News Herald, September 10, 2011.

It turned out to be a partial and not too detailed overview, mostly material we've already discussed in class, but useful basic information if you haven't been tracking what's going on.

What caught my eye, however, was an accompanying interactive document, "Government Targeted: Nine charged in radical U.S. Christian militia plot."

The only opening text is brief: "People who have attacked the government range from neo-Nazis and other racist and religious radicals to members of armed militias. A look at some of the most notorious attacks or plots the last 15 years."

What follows, as you scroll right, are descriptions of various anti-government attacks, with dates, pictures of the perpetrators, and the scenes of their damage.

Here are some of the first few:

It begins with April 19, 1995, and a picture of the Oklahoma City federal building after the bombing by "militia movement sympathizer Timothy McVeigh and assistant Terry Nichols."

Next is a deliberate derailment of an Amtrak train in Arizona six months later by the "Sons of Gestapo" (never caught).

Two months after that, December 18, 1995, "Tax protester Josephy Martin Baillie" is arrested when a "plastic drum packed with ammonium nitrate and fuel" is found behind the Reno, Nevada, IRS building.

"Seven members of Mountainer Militia are arrested in a plot to blow up the FBI's national fingerprint records center in West Virginia" the following year.

In 1997, "anti-government extremists" in what is "believed to be a protest against taxes" set fire to a Colorado Springs, Colorado, IRS office.

"Armed anti-government activists" near Fort Hood, Texas, chose July 4th of that year to attempt "an alleged planned invasion of an army base."

"Materials to make the deadly poison ricin" were found in the home of James Kenneth Gluck following his "10-page letter to judges in Colorado threatening to 'wage biological warfare' on a county justice center." That was 1999.

The list goes on: a plot to assassinate the governor of Washington, someone trying to buy sarin nerve gas and C-4 explosives who says "it would be a 'good thing' if somebody could detonate a weapon of mass destruction in Washington, D.C.," the discovery of "stockpiles of weapons allegedly intended for attacks on government officials," a "white supremacist, shoots a security guard to death at the U.S. Holocaust Memorial Museum," an IRS dispute "and a hatred of the government" led to injury and death when a private plane was deliberately flown into an IRS building, someone "fascinated with conspiracy theories, libertarian ideas and the science of warfare" shot Pentagon police.

Obviously, there are many more -- and probably far more than what the AP interactive feature describes -- up to and including last year:

"March 28, 2010

Nine alleged members of a Christian militia group that was girding for battle with the Antichrist were charged with plotting to kill a police officer and slaughter scores more by bombing the funeral - all in hopes of touching off an uprising against the U.S. government. The Hutaree militia members were arrested in raids in Michigan, Indiana and Ohio."

What are we to make of this history?

1. "Crime" often involves a theft of property, or aggression toward another arising out of a personal encounter. That is not what these incidents represent. All of the cases cited by the AP, however criminal, and whatever the mental health of the perpetrators, are in one degree or another politically or ideologically driven -- in this case, often by a hatred of the American government in general or a specific agency (such as the IRS) in particular.

The Southern Poverty Law Center reports a variety of additional ideological and hatred-driven attacks -- primarily representing racial and religious, rather than anti-government, hatred -- in its Hate Map, Intelligence Files, Intelligence Report, and Hate Incidents.

2. None of the anti-American-government terrorists mentioned above were of the Muslim faith, let alone driven, or even influenced, by Muslim beliefs.

Some were overtly "Christian" (as was the recent Norwegian terrorist, Anders Behring Breivik, "described as a right-wing fundamentalist Christian" -- notwithstanding some media's early assertions he must have been Muslim).

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Virtually all of the individuals involved in the AP examples, one suspects, would self-identify as either Christian or non-religious. [The one possible exception, which the AP mentions and I did not include above, is "Nidal Malik Hasan, an Army major, allegedly opens fire at Fort Hood military base in Texas, killing 13 people and wounding many others. The motive behind the shooting is unclear. Hasan was in contact with a radical American-Yemeni cleric before the attack."]

3. We still confront real threats. Most responsible public officials, and American citizens, have made a genuine effort to distinguish between "anti-American radical Islamic fundamentalist jihadists" (or some similar phrase) and the peaceful American citizens who are their own neighbors, colleagues and friends of the Muslim faith.

We do this as naturally as we distinguish between members of the "Christian Hutaree Militia" and the Congregationalists and Catholics of our acquaintance.

Yet make no mistake, the evil motives of all responsible for the thousands of deaths, and subsequent consequences, of the attacks on September 11, 2001, in New York, Washington, and Pennsylvania, are among the worst in the trail of incidents of unspeakable cruelty throughout human history. I join all who continue to grieve over the loss of life on that day -- and the continuous loss of life, and $4 trillion in treasure, that have continued until the present day.

That kind of threat continues, despite our efforts.

The old line is still valid: "You're not paranoid, you've got real enemies."

America has real enemies. Eric Schmitt and Scott Shane, "Hearing Rumors of a Plot, Cities Make Their Security Forces Seen," New York Times, September 10, 2011, p. A9.

But if we are truly concerned about "terrorism," and seek to preserve our "homeland security," we need to look within as well as without. We need to recognize that by all odds the greatest source of terrorism in America -- criminal acts driven by political ideology and hatred -- comes from those who look like us and attend our churches.

As I have written elsewhere on this subject:

President Bush at one time said that those who finance, or “harbor” terrorists and their training camps, are as much our enemy as those who attack us.

OK, but surely we don't want to argue that it is only "terrorism" when others do it to us. And yet, if not, how do we justify "harboring" -- to use President Bush's word – the American Catholics who were financing terrorist acts of the IRA against Protestants in Ireland?

What about the "harboring" of our former "School of the Americas" (“SOA”) training camp in Georgia? It's trained those we've called "freedom fighters," and others might call “terrorists,” in Central and South America.

School of the Americas Watch charges that, "Graduates of the SOA are responsible for some of the worst human rights abuses in Latin America.” Does that make the former School of the Americas a terrorist training camp?

Apparently our government thinks not. At least there was no known plan to bomb the State of Georgia -- to be distinguished from our military forces sent to the Republic of Georgia.

Should we have bombed the State of Idaho [Timothy McVeigh's home] after the Oklahoma City bombing?

Nicholas Johnson, "General Semantics, Terrorism and War," Fordham University (speech text), New York City, September 8, 2006 (with endnotes of sources).

4. Rhetoric is relevant. Do I think right-wing, hate-spewing, haranguing talk shows are the sole motivating force responsible for the incidents itemized by the AP, or Jared Lee Loughner's shooting Arizona Rep. Gabrielle Giffords on January 8th of this year? No; of course not. Nicholas Johnson, "Glenn Beck: 'Shoot Them in the Head;' Beck Says 'Progressives' Are Radical, Revolutionary Communists Who May Shoot You," January 24, 2011.

On the other hand, there is a distressing similarity between what was said or espoused by some of those involved in the AP's cases, and some of the rhetoric coming from politicians, talk show hosts, and TV's chattering classes as they repeat their talking points.

With "freedom of speech" should go a certain "responsibility of speech," especially from those enjoying the awesome power and reach of our mass media.

Just some thoughts as we show our respect for our military, those who have survived as well as those who did not, patriotically following orders fashioned by others than themselves, and those civilians who also lost their lives ten years ago tomorrow.*
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* Chris Matthews just used [September 10, 5:00 p.m.] the following numbers: 6000 U.S. military killed (two times U.S. civilians on 9/11), 250,000 civilians killed in Iraq and Afghanistan, 100,000 U.S. military injured and requiring care (some, for life), and a cost of $4 trillion.

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