September 30, 2012
By James Jay Carafano, Ph.D.
He hosted some of the 9/11 hijackers before they launched their deadly mission. Later, he reportedly inspired U.S. Army Major Nidal Malik Hasan to gun down his fellow soldiers at Fort Hood. Now, Anwar al-Awlaki was organizing attacks against America for Al Qaeda in the Arabian Peninsula.
It was a Friday, the day of prayers. At a remote spot about 90 miles east of Yemen’s capitol, the radical cleric was getting into a car. Suddenly, it—and al-Awlaki—disappeared in a fireball.
Drones strikes have become a mainstay in battling the transnational networks who aim their hatred toward America. And the terrorists have noticed. Developing security practices to keep their top people from being vaporized by drone has become Job 1 for the bad guys.
Some of America’s “friends” aren’t happy about the drone strikes, either. This June, Christof Heyns, the UN special rapporteur on extrajudicial killings, told a Geneva conference that some of these operations might constitute “war crimes.”
Indeed, an international campaign against the U.S. drone strategy has grown steadily. It is fueled, in part, by an Islamist “information campaign” that insists the strikes are (a) illegal, (b) slaughtering innocents and (c) inspiring more terrorists.
Stateside, Americans are increasingly concerned about what Washington does with its drones—but not because Obama is using them to play whack-a-mole with al Qaeda. More and more they worry about the drones over America.
Even a decade ago the notion of planes-without-pilots crisscrossing American skies seemed far-fetched. But the technology is now here; the cost of putting useful platforms overhead is coming down fast, and the number of companies that can deliver the goods is rising.
What has really brought the issue to the fore, however, is the Federal Aviation Administration—the agency responsible for writing the rules of the road in the skies over America. Congress has been pressing them to publish regulations that would permit and facilitate drone use in domestic airspace.
But the FAA is responsible for determining what can safely fly in U.S. airspace—not what the federal government should be flying in domestic airspace. Congress and other federal agencies should to play a more proactive role in making that decision. What’s needed are “rules of the skies” that enhance security, promote prosperity, and—most importantly—protect the liberties of all Americans.
The Constitution demands that government provide for our security and our freedom—not to compromise one for the other. Our use of drones in domestic airspace must be consistent with that principle.
But expect few direct constitutional limits on domestic drones. Dow Chemical Co. v. United States involved using helicopters to survey the walled compound of a chemical facility. The Supreme Court declared the helicopters did not require a warrant. Why, then, would a drone might need one?
On the other hand, there’s Kyllo v. United States, a case involving infrared sensing devices to spot lamps for cultivating marijuana inside a house. The justices found “novel sensors,” not generally available to the public, infringed on the reasonable expectation of privacy—a warrant was required. Kyllo suggests that drones with unusual sensor arrays (say, a ground-penetrating radar) would require warrants, whereas those with more common sensors (say, a camera) would not.
This is helpful, but not enough. Congress and the administration ought to start by dividing potential drone uses into different categories: acceptable uses (e.g., commercial activities like crop dusting) that require minimal restrictions; operations such as law enforcement surveillance which require more thoughtful oversight; and “red lines” activities (e.g., armed drones) that ought to be prohibited or severely restricted.
First appeared in The Washington Examiner.
James Jay Carafano, Ph.D.
Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow
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