Drones are different

The recent crash of a $176 million Navy drone in a Chesapeake Bay marsh highlights a number of brewing issues over the domestic use of this new technology. Over the past decade, since the United States' invasion of Iraq and Afghanistan and framed by the Bush and Obama administrations' war on terror, the use of drones as both a surveillance tool and a means to kill insurgents has increased. This is a story about effective law enforcement, proper training, the associated costs — and the deadly consequences, intentional or not.

Although there was some public consternation last year regarding the use of drones (also known as unmanned aerial vehicles or UAVs) to kill Anwar Awlaki, an American citizen who was alleged to have been involved withal-Qaidain Yemen, there have been both subtle and noticeable developments stateside. Most Americans appear willing to accept the use of drones on foreign soil, even if there is collateral damage. But given the tenor of news media coverage, many also believe that UAVs are either not appropriate for use on American soil or that their use needs to be seriously examined and controlled.

Since 2005, drones have been used by the U.S. Customs and Border Protection Agency (part of the Department of Homeland Security) on the U.S.-Mexican border to monitor illegal immigration, human trafficking and drug smuggling. Since 2009, drones have been selectively relied on for surveillance purposes by law enforcement agencies above locations where armed standoffs occurred. Notwithstanding safety issues, like the occasional crash of a UAV, some have speculated that the use of drones brings domestic surveillance to a different level, and it will only be a matter of time before drones are used in the United States in shoot-to-kill situations.

This has motivated some acute observers (especially civil libertarians) to wonder about the legal implications. What kinds of legal precedents will be considered in the application of this new technology and practice?

In terms of surveillance, both the Department of Justice and the Supreme Court have been grappling with important surveillance-related cases that involve the use of infrared sensors on buildings and the planting of GPS devices on the vehicles of suspected criminals. In both cases, the Supreme Court has ruled in favor of the plaintiffs. Domestic drones take this argument to a whole new territory of legal and ethical precedents: What happens when, for example, an individual who is on the Federal Bureau of Investigations' "most wanted" list is discovered via drone? How will law enforcement react? In particular, under what conditions will a drone strike be ordered?

I'm not alone in seeing similarities between the use of UAVs and helicopters or light planes in American law enforcement. Since the 1940s, aircraft have been deployed in police operations. The essential difference is that helicopters and small planes are manned and easily seen and heard; a drone is not. Just as a SWAT team may enter the wrong house, destroy the premises and injure (or even kill) the occupants, drones have the same potential for "flying blind." Law enforcement and homeland security must carefully balance the relative advantages and disadvantages of using drones that are parked 15,000 feet up and surveying a situation on the ground, rather than bringing in a SWAT team. Similar to the MOVE crisis in Philadelphia in 1985, in which a house in a residential neighborhood occupied by a militant group was bombed, what happens if the drone also takes out the neighbor next door? Is the solution simply to pay off those whose property was damaged, those injured, and the relatives whose loved ones died? Drones have the advantage of protecting officers' lives in dangerous situations. But what about the potentially higher margin for error?

There is something fundamental about giving a trained police officer on the ground the right and ability to use deadly force. When this decision is now mediated by an expensive piece of technology hovering high above a crime scene, it takes on a different meaning. True, in wartime situations we are willing to consider the use of bombing runs that kill numerous civilians. But the remarkable detachment that a drone could afford law enforcement demands close analysis. Really, what are we getting into?

It comes down to this essential question: What are we willing to accept as collateral damage on our own soil? Clearly, there are precedents when there is a door-busting raid and the police have gone to the wrong house and caused property damage, injured or killed an innocent person, or even shot the family dog because it was perceived as a threat (which happened to the mayor of a town inPrince George's Countya few years back). We've seen all of that on TV. But again, drones are different.

Imagine this scenario: Police have surrounded a residence, and via phone, email or text, they order the individuals inside to come out with their hands up, or else they will blow up the place with a drone strike.

How would things have gone if, for example, survivalist Randy Weaver or cult leader David Koresh were subjected to this command? When it comes to standoffs, law enforcement is usually willing to wait out the alleged perpetrator. But in a hostage situation, police may quickly realize how cost-effective it is to use drones for all kinds of operations — especially surveillance, and perhaps shoot-to-kill cases as well. They will weigh the negative publicity and make a decision.

For more than a year now, Department of Justice lawyers have been dancing around this issue as it unfolds in Iraq, Pakistan and Afghanistan. It came to a head when a drone was used to kill Mr. Awlaki. Yes, there was plenty of fretting over his status as a U.S. citizen, but it doesn't appear to be all that dissimilar to our killing individuals who were born here but who have allegiances elsewhere. In a war setting, mostly this has been business as usual.

But on the home front, Americans seem to be especially concerned about a drone crashing, and, even more so, about being spied on in their home or business, or on the street. Privacy matters a lot, but we appear to have a fair amount of trust that a drone strike will be accurate and that the dead guy was demonstrably bad.

As I see it, we're on a dangerous course toward using these things as weapons against Americans. As impressive as UAVs are as weapons and reconnaissance tools, they are coarsening us as prosecutors of increasingly difficult struggles — whether against drugs, illegal immigration or domestic terrorism. I think the time has come to ask serious questions about drones over our homes. What is acceptable, and what will never be? What are we willing to give up in order to feel safe?

In the field of criminology/criminal justice, we are looking at whether law enforcement at the local, state and federal levels can be trusted to use drones fairly, within the bounds of existing law. Can they gather information on Americans who are breaking the law without laying waste to whatever we believe is our right to privacy? Are there situations where a drone gets you the result you want, with no loss of life or limb, and a dangerous, desperate criminal is captured or killed? Is this the "eye in the sky," the Big Brother that Orwell warned us about?

Some of the rhetoric in the debate over drones is misplaced. When it comes to warfare, we've been killing people from afar since the third century, when the first landmine was developed. We've had remotely operated bombs since World War I.

If we are to move forward with drones as part of U.S. law enforcement, we must do it with an excess of caution and work out the legal implications as best we can before there is a tragedy. It's simply too ironic to consider "we didn't see it coming" as an excuse for something bad that happens because a drone is hovering over the neighborhood.

Jeffrey Ian Ross is a professor with the School of Criminal Justice and a research fellow with the Center for Comparative and International Law at the University of Baltimore. His most recent book is "An Introduction to Political Crime." His email is jross@ubalt.edu.

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