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Drone Panic IV: Drones at home

June 17, 2012

If I were to go and make a list of every U.S. military base which operated helicopters, and then explain to you how each helicopter base could potentially launch helicopters, generally used for covert operations or reconnaissance missions abroad, within the domestic United States, and how this was a potentially serious concern for our civil liberties, you would probably assume I was a conspiracy theorist. Replace helicopter with “drone,” however, and we move from the realm of militia mythos and tinfoil-hat paranoia to that of serious national security analysis.

Take, for example, this report in Wired, sadly just one of many similar pieces (and even more sadly, one of the more sober ones):

We like to think of the drone war as something far away, fought in the deserts of Yemen or the mountains of Afghanistan. But we now know it’s closer than we thought. There are 64 drone bases on American soil. That includes 12 locations housing Predator and Reaper unmanned aerial vehicles, which can be armed.

Yes, shockingly, America does not base the entirety of its military capability in foreign bases. In fact, like every other piece of American military equipment in history, it is also operated and supported form bases within American borders. Why this is shocking is completely beyond me. So what if the potentially-armed Reaper and Predator unmanned aerial vehicles are based in the U.S.? B-2 bombers and AH-64 Apache attack helicopters also have U.S. bases but nobody worries about “shock and awe” bombing campaigns or helicopter strafing runs coming home either.

The report notes that the ACLU is concerned about domestic drone use, but this has literally nothing to do with military bases that operate drones. The infamous Drunken Predator Drone has already ably dissected the Orwellian fears of drones and the needless elision of the very clear differences between the “drone war” being waged abroad and the use of domestic surveillance drones within the U.S. Even though drones can “accidentally” spy on Americans, the vast majority of drone surveillance is going to be conducted by normal domestic authorities, just like most law enforcement helicopters or manned aircraft performing similar roles (By the way, while we’re at it, could we all note that manned surveillance aircraft can be upgraded with all the same enhanced sensor suites as drones, and are often preferable for conducting those sorts of operations?). In other words, the growth of U.S. drone bases has very little to do with the growth of actual domestic uses of drones.*

At the very least, the report goes on to acknowledge that drone technology hasn’t changed the basic nature of laws governing use of any kind of military forces domestically:

The Posse Comitatus Act prohibits the U.S. military from operating on American soil, and there’s no evidence that drones have violated it so far.

Even with this caveat, though, talking about the “domestic proliferation” of drones is completely silly. Yet some people continue to hold the completely ridiculous belief that technology with military utility should never be deployed domestically, and that this argument is somehow supported by Posse Comitatus and the beliefs of the Founding Fathers. Take Charles Krauthammer here:

I’m going to go hard left on you. I’m going to go ACLU. I don’t want regulations. I don’t want restrictions. I want a ban on this. Drones are instruments of war. The Founders had a great aversion to any instruments of war, the use of the military, inside of the United States. They didn’t like standing armies. It has all kinds of statutes against using the army in the country. A drone is a high-tech version of an old Army-issue musket. It ought to be used in Somalia to hunt the bad guys. But not in America. I don’t want to see it hovering over anybody’s home. You can say we’ve got satellites, we’ve got Google Street, and London has a camera on every street corner.

This statement is a beautiful distillation of the utter incoherence of using the beliefs of the Founders to argue about the legality of drone technology. First of all, what in the blazes is Krauthammer talking about when he says “Army-issue musket?” The difference between civilian weapons and military weapons in the days of the founders, at least in terms of muskets, is negligible – the American frontier longrifle was put into military service for its superior accuracy, while the “Army issue” (that really doesn’t mean anything in 18th or early 19th century procurement terms) muskets such as the Brown Bess were owned by individual private citizens.

But maybe Krauthammer and the civil libertarians are saying that military-grade technology should never be used against American citizens, because the Constitution forbid the use of a standing army. Which is still just as wrong: the injunction against a standing army was against a federal army, not against the kind of weapons a federal army used. State and local militias, which the Founders were totally fine with used basically the same technology as the regular military. Militias used military-grade technology, even if they did not have access to the same degree of funding as the federal government could potentially unleash. But pretending that somehow there was a difference, in the Founders’ era especially, between “Army issue” federal muskets and privately-owned or state-funded militia muskets is an exercise in ahistorical fantasy.

The creation of the Posse Comitatus Act, for example, had very little to do with preventing heavily-armed, military-style  groups interfering with domestic law enforcement, and everything to do with preventing the Federal government from interfering with state militias and paramilitary groups from suppressing the black vote and Reconstruction-era reforms. In other words, the Act protected the rights of states to suppress the rights of their individual citizens, and to impede the federal government from intervening on their behalf. It was absolutely not about preventing non-federal military and paramilitary organizations from using their instruments of war at home, which is why state governors can deploy the National Guard for domestic public order maintenance – something entirely in keeping with how American national security was run in areas where U.S. federal volunteers were not active (and even then, many U.S. volunteer units, until the late 19th century, were run with a great deal of state government oversight).

In fact, the U.S. government has always historically allowed non-federal entities to use military-grade weapons domestically. The 1903 Militia Act, which streamlined “organized” elements of the militia (excepting State Defense Forces) into the National Guard, maintained the very clear precedent for state governments to maintain military-grade formations  for their own domestic use. Drones, like any other military equipment the National Guard operates, are available for use by state governors at their own behest in accordance with state laws. Federal drones, of course, require some kind of Congressionally-delegated authority or request from a state government to operate within the domestic sphere, just like federal aircraft, federal tanks, or federal troops in general.**

In any case, Krauthammer and many other critics have hopelessly confused the difference between military technology and federal authority. The Founders cared about the latter, not the former. State militias operated artillery and other military-grade technology, the key was avoiding ensuring that control of these militias and their equipment resided, in peacetime, with the states, not with the federal government.

Anyway, there’s really no reason to be concerned about the growth of federal military bases operating drones within the United States, unless you’re concerned with any military technology under federal command having a domestic base. Few people fret about the construction of bases for the actual U.S. Army, even though the U.S. Army has used its troops to pacify labor violence, intervene in civil rights disputes, and crush protests with tanks. That’s because the mere existence of federal military bases doesn’t change the fact there are serious legal constraints on the use of any federal military force for domestic purposes, and drones are no different. To the extent federal drones get involved in domestic action, it will be through the normal legal channels which regulate any law enforcement appropriation of federal military forces. At the same time, folks such as Krauthammer ought to realize that there’s no historical or legal precedent forbidding the use of military technology in domestic spheres, provided they’re operated by rightful state and domestic authorities – moreso in the Founders days, when tools of international war were perfectly acceptable for domestic and civilian use. We can object to the use of military-grade technology domestically for different reasons, but invoking the Constitution, the Founders, or really any chapter in American history is a poor way to do it.

* Another thing about that piece – the notion that the very embarrassing BAMS crash should make us afraid of the safety implications of domestic drone use is also pretty silly. A heck of a lot more people – even people on the ground – are always going to be at risk from normal manned flights, since manned commercial aircraft are generally much larger and their  far more highly-trafficked aerial corridors are located in heavily populated major metropolitan areas. There’s really no statistically meaningful evidence that the increasing number of drone bases is going to present any kind of safety hazard that the massive amounts of commercial aviation within the United States does not.

**Also, while we’re at it, we should probably note that the entirety of the U.S. Navy and Marine Corps are not subject to Posse Comitatus Act except because of a DoD directive, and that the Founders not only allowed but mandated a “standing navy.” But nevertheless continue to expect people losing their minds over USAF drones which are subject to extensive legal restrictions on domestic use which the DoD cannot revoke without a Congressional change to the Act.

6 Comments leave one →
  1. June 18, 2012 9:26 am

    What are your thoughts on the use of drones for by domestic law enforcement?

    To me it seems that relatively inexpensive, and therefore potentially ubiquitous, unmanned vehicles for almost any local police department would constitute something new, and open up all sorts of constitutional questions questions over “illegal searches and seizures”.

    • June 19, 2012 9:27 pm

      Rick, How is a drone different than a light aircraft or helicopter? These are already operated by all manners of civilian law enforcement agencies at the federal, state and local level. Have you driven I-10 lately from Texas to California? Aerostats all along the border.. think they’re just big balloons? Why isn’t anybody talking about those? They’re just like the ones we fly in Afghanistan, but nobody seems to give them a second look.

      • June 21, 2012 9:28 pm

        Don’t get me wrong, I do think there is indeed a lot of hype on the question of drones, but this is what I see as the issue; perhaps not today’s technology, but in the very near future, unmanned vehicles, hold out the promise, and peril, of near continuous aerial surveillance, by almost anyone. Most local police departments can’t afford a helicopter or any other type of airborne vehicle. They will soon be able to afford a fleet of cheap UAVs. This will undoubtedly be a good thing when it comes to emergency response and basic policing, but it also opens up some questions in terms of civil liberties. Only if we take the drone issue seriously, despite the hyperbole that surrounds the issue, will we be able to tackle these questions before we wake up one day to a society wholly transformed in terms of the capabilities and rights of law enforcement and the capacity of the state- in both its largest and smallest manifestations- to spy on its citizens. This is no even to mention the potential abuse from private security entities.

      • June 21, 2012 9:54 pm

        I understand your point, but I’ve got to say that I have more faith in the rule of law and courts here in the US. There will always be room for abuse and misuse of technology. I’m not saying that we shouldn’t be worried.. I just don’t see any reason to believe that our current protections against unlawful search and seizure won’t be extended to data collected by UAV. Your concern with private security falls into this category. Sure, Wackenhut could feasibly fly a drone and shoot all kinds of video, but as far as I know they have no ability to prosecute anybody. I think our court system—while not perfect—is solid enough to handle these situations. Is the first guy going to get screwed? Probably. Does that mean we should make drones illegal in the US? Probably not. Look, if the Government wants to know what I’m up to, all they have to do is look at my Twitter Feed. Thanks for the reply.

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  1. » What To Read This Week: 18 June THE KABUL CABLE کابل تلگرام
  2. An excellent read. | Deep Thoughts

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