Posted by: theoptimisticconservative | December 12, 2011

Air Force drones in local law enforcement: Yes or No?

You might want to get your think on regarding this question, because it has already come up.  The Los Angeles Times reports that Predator drones, operated for border security out of Grand Forks Air Force Base in North Dakota, have supported local law enforcement on at least two dozen missions since June 2011.  Although the first recorded instance involved a Predator returning from a border security mission, some of the missions have been launched specifically to support the sheriff and local police in Grand Forks.

In one case, a Predator supported the sheriff’s department in making an arrest at the property of suspected cattle thieves (who are also reportedly members of the Sovereign Citizen movement).

The cattle thieves – the cattle in question were indeed found on their property – had warned the sheriff’s deputies away with firearms prior to the Predator-assisted arrest.  They certainly seem to have coming whatever the due process of law ends up throwing at them.

But does the fact that they were on the wrong side of the law justify the use of US Air Force surveillance assets, working for US Customs and Border Protection (CBP), in apprehending them?  If the assets had been National Guard helicopters working for CBP, would it have been proper for them to provide surveillance for a local law-enforcement matter that had no connection to border security, illegal immigration, or illegal trafficking?

LAT quotes a retired USAF general as saying that drones under federal control are now being used routinely to support local law enforcement and emergency responders.

Former Congresswoman Jane Harman (D-CA), for one, says it’s a mistake to do this.  She chaired the House Intelligence Committee from 2007 to 2011 (and although I have political disagreements with her, she has been good overall on intelligence issues).  Harman helped block attempts by DHS in 2008 and 2010 to use military intelligence satellites in domestic (federal) law enforcement.  LAT quotes her as follows:

Using Predators for routine law enforcement without public debate or clear legal authority is a mistake, Harman said. “There is no question that this could become something that people will regret,” said Harman.

My own sense on this is that while the use of drones will be inevitable in the future, the real issue here is the casual incorporation of the federal military apparatus in local – police- and sheriff-level – law enforcement activities.  Big-city police departments will no doubt have their own fleets of drones in the coming years, as will the wealthier, more populous states.  Civil-rights law can accommodate that.  But civil-rights law must come first – and that means that any process for authorizing surveillance of citizens needs to go through the channels appropriate to the crime and the cognizant authority.  The use of US military assets to assist in local law enforcement, even when they are under federal agency control, is problematic, in terms of both constitutional limits and of the use of the military.

I believe a stop should be put to this at once.  Before anything like this is done again, there needs to be a debate in Congress.  The people need to mull it over.  Technology is going to keep racing forward, and it’s foolish to proclaim that the Constitution is a blanket prohibition on using it.  But the Constitution is the basis for asserting that due process of law must precede any government use of technology that crosses the rights and liberties of citizens.  This issue ticks all the boxes, from domestic use of the military to blurring the federal-state-local law-enforcement distinction, and it needs to be put in the spotlight and subjected to strenuous criticism and debate.

 

*UPDATE*

Alert readers have pointed out that the Predators are owned by CBP rather than the Air Force, which, having researched, I believe to be correct.  Posse comitatus was never my issue or argument, but the point is valid.

It doesn’t change the character of the problem, though, which is that lines that protect our civil rights are being blurred.

Two points need to be made.  One is that there’s no basis for relaxing about collaboration between federal agencies and the Air Force, when it comes to performing aerial surveillance of ground activities on US territory – which could, at any time, involve the activities of US citizens.  This isn’t speculative; it’s based on other pieces of information not included in the LAT report.

The 174th Fighter Wing of the New York Air National Guard (ANG), based near Syracuse, has completed a transition from manned fighters to the MQ-9 Reaper UAV, making it the first unit east of the Mississippi to operate UAVs.  In February, local media reported concern from citizens about the civil rights implications of the proposed mission for the Reapers in New York State.

In August, homeland-security industry press reported that the 174th would operate the Reaper in a border security mission as well as for platform training.  (The article was also published in National Guard Today.)  In November, a spokesman for the 174th stated during a public display at Fort Drum that the Reaper would not be used for border security.  But the extremely detailed nature of the information about base-sharing and operational collaboration in the HS Today summary indicates that the concept of operations for incorporating military-operated UAVs in border security is well advanced.

That in itself is not surprising, of course, since military assets have been used for border security for a long time.  The high level of integration envisioned between federal civilian and military assets is important, however.  Such integration is discussed with enthusiasm in testimony like the summaries here and here.  And there are good reasons for boosting integration – for border security.

But the potential for law enforcement agencies to get sloppy and start using military assets in unsanctioned ways will only grow with all this integration, common basing, and use of similar or identical systems.

The second point is that we should be concerned about even civilian federal assets being detailed on missions for local authorities acting under state law.  The bottom line is that the mission conducted on behalf of the sheriff was outside the scope of the CBP’s authority for operating UAVs.  That’s not something we can tolerate the authorities at any level getting sloppy about.

It is a thoughtless citizenry that complacently assumes no government will ever try to abuse its authority.  The protection of civil rights and constitutional limitations can’t be left to chance or assumption.  It should be the central concern of the people and our lawmakers as new technology shows up in the skies above our cities, counties, and states.

J.E. Dyer’s articles have appeared at Hot Air’s Green Room, Commentary’s “contentions,Patheos, and The Weekly Standard online.


Responses

  1. It is a very fine line which needs thorough public debate first, for any use of drones. Military drones for LE use, except for national security issues could be okay, but with a paranoid public the outcry would be a problem.

  2. I actually agree with you on this.

    The securocrats are out of control and need to be reined in. The biggest threat to our freedoms is not government spending but the increasing amount of unnecessary paranoia-driven border and terror legislation and the armies of securocrats and paramilitaries this legislative and political environment is spawning. Ron Paul is right on the money on this issue.

  3. Opticon: I agree with you. Posse Comitatus is a constitutional issue and, since the drones are – by necessity – manned by the Air Force, then it is the Air Force that is conducting operations inside sovereign territory. This what the law says:

    SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress ; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment[8]

    The text of the relevant legislation is as follows:

    18 U.S.C. § 1385. Use of Army and Air Force as posse comitatus
    Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

    Also notable is the following provision within Title 10 of the United States Code (which concerns generally the organization and regulation of the armed forces and Department of Defense):
    10 U.S.C. § 375. Restriction on direct participation by military personnel
    The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

    Recent legislative events

    In 2006, the Congress modified the Insurrection Act as part of the 2007 Defense Authorization Bill (repealed as of 2008).
    On September 26, 2006, President Bush urged Congress to consider revising federal laws so that U.S. armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident, or other condition. These changes were included in the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on October 17, 2006.[9]

    So, as is so often the case when the US lawmakers toy with their favorite ambiguous “living breathing organism” (the Constitution to the uninitiated…) there have been other provisions and tweaks over the years but, I believe that, all in all, you remain right in spirit, word and intent in your assessment.
    rafa

    • that they were military assets is a concern, but that is really beside the point. the cost isn’t going to be beyond some police departments’ budget and there are already laws on the books that allow “surplus” military equipment to be given away to PDs that put in a request/claim.

      the real point is whether we should have a reasonable expectation of privacy when we walk about or whether any and all of our public appearances and activities may be monitored without the government being required to show cause.

      —–

      SCOTUS last month heard US v Jones

      Plain English Issue: Whether the Constitution allows police to put a tracking device on a car without either a warrant or the owner’s permission; and whether the Constitution is violated when police use the tracking device to keep track of the car’s whereabouts.

      http://www.scotusblog.com/case-files/cases/united-states-v-jones/

      far as I can see, if the govt prevails here, flying cameras gotta be kosher

      • This constitutional issue has already been considered by the courts in two other very similar english-speaking, common-law, democracies with constitutions not very dissimilar to ours: Australia and Ireland.
        In both cases the right of the police to conduct reasonable surveillance was upheld. However, the authority to do so had to be subject to judicial authority. In other words, a police officer had to bring an affidavit showing substantial cause as to why the surveillance is required before a judge. The Judge (in chambers, for obvious reasons) has the decision as to whether a warrant should issue to permit the surveillance.
        On the other hand, CCTV camers are now everywhere to the extent that in our cities our movements are always under surveillance. The location of anyone with a cellphone can be pinpointed anytime they make or receive a call.
        We need stronger laws to protect us from increasing intrusion by both state and private agencies.

  4. The film “Brazil” becomes more prescient every day. By the way, opticon, what’s your opinion of the ideas of Angelo M. Codevilla?

    • Chuck, “Brazil” is fabulous! Mr. Codevilla either has read Charles McCarry or vice versa. Read “Shelley’s Heart” by McCarry. A political thriller that excoriates the “Ruling Class” and the “throw away minions”. The best I have read since Advise and Consent.
      I have read this book numerous times. Even Bob Woodwad likes it!
      Tears of Autumn was his first book. He is an extraordinary writer. His books document the history of a New England insider family,spies,Ivy League connections,wealthy, powerful people,etc. etc.
      Regards to you.

  5. In the body of the LA Times article is the important point:

    The drones belong to U.S. Customs and Border Protection, which operates eight Predators on the country’s northern and southwestern borders to search for illegal immigrants and smugglers.

    The key word there is ‘belong.’ These are not military UAVs. They belong to a civilian federal law enforcement agency and Posse Comitatus does not apply. For more details you might look at the CBP Unmanned Aircraft Systems web page.

    • I am inclined to agree that for the purpose of legality it is the character of the user rather than the nature of the weaponary that is the crucial issue. Military-type weaponary employed by “civilian” agencies is prima-facie legal.
      The problem is that in the “security-state” within-a-state we are spawning more and more paramilitary agencies whose appearance and organization is becoming indistinguishable from the military proper. Worse still, they are arrogating to themselves increasingly intrusive powers more in keeping with a police-state than a nation of the free.
      I am all for effective law-enforcement. However, the balance between effective law-enforcement and the liberty of the citizens must always be in favour of the latter. We are slowly but surely altering that balance in a malign way.

  6. The evolution of the FBI and ATF into, in effect, military organizations with substantially unlimited jurisdiction is so near to complete that posse comitatus is meaningless anyway.

    • Sully: Sadly so many inroads have been made against the Constitution’s original intent that many of the early checks and limitations that the document imposed on government have been eroded beyond recognition.

      rafa

  7. The legal and privacy issues are all important, but there is also another problem with using UAV’s within our borders. They are a definite threat to general aviation in airspace where Visual flight rules apply – meaning it’s the pilots’ responsibility to see and avoid other traffic.

    How airspace is divided up is a very complex subject, but in general, below 18,000 feet and away from major metropolitan areas is airspace where Visual Flight Rules apply. Making it even more dangerous is that there are many areas around and within metropolitan areas where VFR flight is allowed.

    Pilots of smaller craft are not looking for fast moving, quick maneuvering, almost-model-airplane-like vehicles. There is technology coming on-board that will help with this, but it’s not prevalent yet. Maybe UAV’s have it already, but the General Aviation fleet sure doesn’t.

    I might trust the military to be more aware of this than civilian agencies, but it’s an issue for anyone operating a UAV in VFR airspace.

    Can’t wait for the first collision over a suburban home or 2…

    • Are UAVs arms?

      Does the Constitution give citizens the right to “bear” UAV’s?

      And perhaps more to the point, does it give these militias the right to bear UAV’s?

      And are our burgeoning and pervasive paramilitaries, both private, state, and fedral, “militias” within the meaning of the constitutional right to bear arms?

  8. I think this is a very valuable discussion (here and elsewhere). However it often seems to fall short of what impresses me as the salient point. Most discussions seem to focus on the military connotation of such tools, or they focus on the sense that a right to privacy is being violated.

    The fact that this technology is dominated by military organizations and military paintjobs and military terminology is a concerning point in a society that historically loathes domestic military activity. However, it is mostly based in appearances and as the drone tech field gets cheaper and easier it will subside. That is a dangerous thing, because when you invest your reaction in surface appearances you risk being fooled later by something that simply looks less scary. So to me simply trying to address the military connotations (outside of the obvious case where drone is actually owned or operated by the department of defense) is to me, missing a potential crux of the issue.

    Discussions surrounding privacy are to me, similarly unhelpful. Police agencies have watched people from the air since the 1920’s. They have used helicopters for nearly a half century. There is nothing a drone can see that a helicopter observer, aided by easily available technology, cannot see. So if police have been whirling around the sky since the 1940’s watching you go to the post office or the strip club, if they have been following people into stores on foot and following people in cars and staking out houses forever, where does the discomfort come from? Is it because, there is not an actual human in that thing in the sky?

    In a way the answer is yes, but I think it is because of a point under the surface. Its not the presence of the human that promotes comfort, but the implied lack of capacity. Similarly, I think the civil solution here lay in addressing the capacity. We all know intuitively that while driving around on our errands or walking around in the mall we have no right to privacy. Thats why we can’t sue the newspaper for following us and reporting that we drive a Prius or that we visit our mom every Sunday, or that we wear stylish clothes. However, we don’t worry about that because we know that unless we become famous, no one is going to bother. Similarly, (with exceptions for the clinically paranoid and clinically vain) we know intuitively that the police aren’t following us because we are simply not criminally interesting, or interesting otherwise for that matter. More to the point, we know that they simply do not have the time and resources to follow us around. Its not the legal restrictions that protect us, nor some privacy right we have. Its simply the limitations of money, time, manpower and capacity to endure the trivial.

    The problem posed by drones is that they have far fewer of these limitations, as do data mining programs and other technology based investigative tools. They are cheap, you can operate a lot of them simultaneously and they don’t get tired or bored.

    So I think a productive angle would be to reach some societal consensus on capacity. A crude version of this might be, “x police department can have 2 drones and run them up to 50 hours a month averaged over a calendar year”. I think this might be a useful paradigm for other emerging capabilities.

    • There is an essential difference between the police, paramilitiaries, and the actual military prying on us, and mining companies prospecting. However, we citizens need protection from abuses by both.

      The “security state” must always be kept subservient to the the courts and judicial arm. Moreover, private agencies must be prevented from passing inadvertantly aquired information to the state save in situations which are supervised by the courts of law. This is the situation that applies in most of our fellow democracies. I fear that we are lagging in our legal protections for the citizen from state intrusion in the face of recent technologies.

      • I agree with where you are going, but I disagree about the path to the destination. I think there will always be problems in working under an arrangement where the executive branch (of which the police are a part) will be “subservient” to the judicial branch.

        At its most obvious, this goes against the long held and constitutionally prescribed doctrine that the three branches are equal. On a more subtle level, the judiciary, because it requires things like standing, ripeness, precedent and a case at issue is, at least in my observation, a rather inconsistent and tardy resolver of these issues. Moreover, despite its reputation as a defender of liberties for litigants, the courts are a poor monitor for the more general social contract.

        • tardy by design…..it’s an institution that has to resist the passions of the moment and can not continuously fight them at the crest.

          • Yes, and rightfully so. I started to mention that but left it out. I have fairly high regard for this audience.

    • Very good points TJ. Truly effective face recognition software and the ability to combine the information with data mining on a real time basis will be here before drones are so cheap each police car is equipped to carry and control a few of them. That’s the threat – that government can have total grasp of what everyone is up to. The political implications alone are frightening.

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