Both Democratic and Republican members of Congress recently have challenged President Barack Obama to defend the presumption of authority to order drone strikes on American citizens with neither congressional nor judicial review. Opposition to this unchecked power is not merely coming from the fringes of American politics.
“Even in today’s hyper-partisan political climate, conservatives and liberals find something to agree about,” writes Jim Huffman, Dean Emeritus at Lewis & Clark Law School in dailycaller.com.
Wednesday, Feb. 6, The New York Times stated the issue of executive authority to order the killing of American citizens believed to be engaged in anti-U.S. terrorism is one that “goes to the fundamental nature of our democracy, to the relationship among the branches of government and to their responsibility to the public.” Thursday, Feb. 7 the paper charged “Mr. Obama has stretched executive power” in claiming this authority.
Both the American Civil Liberties Union and the Center for Constitutional Rights have filed a lawsuit claiming that the drone killings of U.S. citizens Anwar al-Awlaki, Samir Khan and 16-year-old Abdulrahman al-Awlaki violated the constitutional guarantee of due process.
Huffman commented, “Surely the ACLU and CRC have this one right. Even madmen who shoot school children in cold blood are presumed innocent until proven guilty, unless, of course, they kill themselves and pre-empt due process.”
In the wake of Thursday’s Senate Intelligence Committee hearing on the confirmation of John Brennan as CIA director, Andrew O’Hehir in Salon described explanations of drone killings as “post-Orwellian Newspeak”.
O’Hehir suggested, with reservation, that the hearing indicates “a small but significant step in the direction of openness, a chink in the armor of secrecy that the last two presidential administrations have erected around the ‘war on terror.’ Maybe that will turn out to be correct, and the incoming CIA director – the principal architect of President Obama’s drone war, and until recently a defender of rendition and ‘enhanced interrogation’ – will launch a new era of transparency in Langley. While we wait for that, would you like to see this bridge I’ve got for sale in Brooklyn?”
Regarding the elusive white paper setting out legal justification for targeted drone killing, O’Hehir writes, “The more you read this damn thing, in fact, the less illuminating it becomes. The war against al-Qaida, we are told, is a borderless and indefinite global struggle, ‘a non-international armed conflict’ with ‘a transnational non-state actor,’ and the government recognizes no ‘strict geographical limit on [its] permissible scope.’ In other words, a potential enemy combatant, and the substitution of the laws of war for normal international law, may be found anywhere at any time – potentially within the United States itself, although that possibility is not mentioned. … Brennan sought to reassure politicians, protesters and the public that the U.S. did not use drones to punish terrorists for past misdeeds, only to prevent them from committing future carnage. Yet the white paper casts things in a somewhat different light, ultimately making clear that ‘imminent’ does not actually mean, you know, imminent.”
Controversy over drone use is not limited to matters of war on terrorism. State governments are channeling their concerns about domestic drone use, and Federal overreach, into legislation. Tuesday, the Virginia House and Senate approved a two-year ban on the use of drones by law enforcement and regulatory agencies in that state by a bipartisan majority reports Anika Kempe of The Capital News Service.
“A two-year moratorium buys us time to try and work toward permanent legislation that will dictate how and when the technology will be used,” Del. Todd Gilbert (R-Woodstock) said. “It gives us not only time, but the overwhelming vote to approve the moratorium. This should be a signal to those that opposed any limitations that the legislature may well continue unless there is some framework in place by those oppose.”
Kempe reported the bill, HB 2012, introduced by Del. Benjamin Cline (R-Rockbridge), places a moratorium on the use of unmanned aircraft systems by state and local law enforcement and regulatory entities until July 1, 2014. SB 1331, whose chief patron is Sen. Donald McEachin (D-Richmond), directly mirrors the House version.
Fox News reports the full Montana Senate endorsed a measure Tuesday that bans information collected by drones from being used in court and also bars local and state government ownership of drones equipped with weapons, such as stunning devices. According to Fox, state legislatures looking at the issue also include California, Oregon, Texas, Nebraska, Missouri, North Dakota, Florida, Virginia, Maine and Oklahoma.
Joe Wolverton, II, J.D. addresses the critical issue of fourth amendment issues in thenewamerican.com, noting “While the sight of drones over U.S. cities and towns is rare now, the Federal Aviation Administration (FAA) predicts that by 2020, 30,000 of these unmanned aerial vehicles (UAV) will be patrolling American airspace. Scores of these UAVs will be deployed by state and local law enforcement, adding to the many that will be sent airborne by the federal government.”
Wolverton elaborated, “one of the most crucial … inquiries concerns the application of the Fourth Amendment’s prohibition against ‘unlawful searches and seizures’ and the requirement that warrants be supported by affidavits ‘particularly describing the place to be searched, and the persons or things to be seized.’”
Drone manufacture and contracting is big business with a future at this juncture, in both defense and law enforcement planning. Hundreds of defense contractors, including participating drone companies from 40 countries, assembled in August 2012 in Las Vegas: the mushrooming industry’s Unmanned Systems North America 2012 conference. Executives and technicians from Lockheed Martin, Raytheon and Pratt & Whitney were prominent. Many of the largest arms-makers in history came to the Mandalay Bay Convention Center to convene on how to profit from the biggest boom technology since homeland security: unmanned aircraft.
Las Vegas City Life reported, “This wasn’t so much a multiday sales pitch as it was an unofficial coming-out party. Thanks to a Congress heavily lobbied by an industry that hopes to double its money in a decade, new laws are opening American skies to these unmanned aircraft. Soon, police departments and other public agencies, in Nevada and across the country, will be able to fly their own, less expensive versions of military drones just about anywhere, deploying them for just about anything they choose.”
Drone technology is so cheap and fast-evolving, many knowledgeable commentators hold that virtually any state or non-state entity today conceivably is capable of developing lethal drone force capabilities in a foreseeable time frame. The U.S. Air Force currently is prioritizing training for drone operators over fighter pilots. Drone technology is widely considered by military technology experts as a key element of the new and future face of American warfare.
According to The Guardian, “The military concentrates on multimillion pound kits that look like small aircraft without a cockpit, whereas the first choice vehicle for civilian applications is a small copter, a metre across and with a maximum flight time of 20 minutes. But some of the most sophisticated autopilot and stabilisation technologies are built for these devices. One iPad-controlled copter can be bought ready-made for a couple of hundred pounds, and has sold 300,000 units worldwide.”
Given the low budgetary and technical thresholds involved, the salient issues public debate must grapple are not limited only to critical questions of constitutionality and accountability. They likely must include practical questions of drone proliferation and counterforce capabilities, both domestic and worldwide.