Drones in America's Skies: The Policy for Targeting Americans

Amidst the hold up of President Barack Obama's nominee for Director of the CIA, John Brennan, in Congress, opposition Republicans are inquiring about the possibility of armed drones flying in American skies. This might seem like an Orwellian inquiry directed towards the Ministry of Peace, but the notion is not that distant from reality. An American, Anwar Al-Aulaqi, has already been killed by an armed CIA drone in Yemen. Also, UAV's have been authorized to fly over U.S. airspace. Currently, there have been zero missions involving armed CIA drones in the U.S. Regardless, here are the points needing to be addressed.

The Sanctioned Killing of an American Citizen:

Anwar Al-Aulaqi in Yemen (2008)
Anwar Al-Aulaqi was born in Las Cruces, New Mexico in 1971. He was an American citizen from birthright, but did adopt Yemeni citizenship, becoming a dual citizen. He sought to bring destruction and terror to American soil via his involvement with Al-Qaeda in the Arab Peninsula (AQAP). He eventually became Al-Qaeda's recruiter, having proven contact with Fort Hood shooter Major Nidal Hasan and the underwear bomber Umar Farouk Abdulmutallab [Link Here]. The Obama administration has authorized the killings of numerous foreign terrorists, but this case specifically deals with an American citizen. The uproar surrounding this has not been in defense of Anwar Al-Aulaqi, but rather concern that a U.S. President, with just a quick signature, can authorize the summary execution of an American once they leave U.S. borders. This notion is entirely false.

Upon learning about the addition of Anwar Al-Aulaqi to CIA and JSOC kill lists without "charge, trial, or conviction," his father, Nasser Al-Aulaqi sued Barack Obama, in his official capacity as President of the United States; Robert Gates, in his official capacity as Secretary of Defense; and Leon Panetta, in his official capacity as Director of the Central Intelligence Agency. In effect, Nasser Al-Aulaqi's filing of this suit expedited the process by which an American may be targeted. The U.S. District Court for the District of Columbia ultimately dismissed the charges, but the ruling to dismiss included a lengthy justification. On 30 September 2011, Anwar Al-Aulaqi was killed in Yemen by Hellfire missile fired by an Armed Reaper Drone. Interestingly, in Islam, 'Hellfire' is known as 'Jahannam' - a visceral image of hell - which Anwar Al-Aulaqi alluded to when making theological appeals for supporting Al-Qaeda. [Here is the full text for the court case]

The Drones in U.S. Airspace:

U.S. Customs and Border Protection Drone
This topic has two separate aspects. The FAA allows private citizens are allowed to fly small unmanned drones in certain conditions. This policy has precipitated such recent events as a pilot of an Alitalia flight reporting the sighting of a drone in dangerous proximity to New York's JFK airport [Link Here]. The small 4 rotor craft was not a government drone. On a technical note, while UAV does stand for Unmanned Aerial Vehicle, the U.S. Government refers to its aircraft as Unmanned Aircraft Systems (UAS) or Remotely Piloted Aircraft (RPA).

As for military grade drones like the MQ-1B Predator, MQ-9 Reaper, and the RQ-4 Global Hawk, the policy is quite different. U.S. Customs and Border Protection, an agency under the Department of Homeland Security, regularly uses 9 unarmed Predator drones for reconnaissance purposes along America's borders [Link Here]. The ethical questions enters the frame due to the lack of an active, hands on pilot, opting instead for a remote controller. Essentially, this is no different from conventional patrol aircraft, like helicopters - save for the fact that agents in conventional aircraft are generally armed.

Recent Developments:

Senator Rand Paul contacted both John Brennan, currently the 'Assistant to the President for Homeland Security and Counterterrorism' as well as aforementioned nominee for director of the CIA, and Attorney General Eric Holder to inquire about "the President ha[ving] the power to authorize lethal force, such as drone strikes, against a U.S. citizen on U.S. citizen on U.S. soil, and without trial." Senator Paul published both of the responses he received. An analysis of the documents have yielded important insight into the domestic drone program. John Brennan referred Senator Paul's question regarding the President's power to the Department of Justice.

John Brennan's Response:
John Brennan Nominee for Director of the CIA
"I can, however, state unequivocally that the agency I have been nominated to lead, the CIA, does not conduct lethal operations inside the United States - nor does it have any authority to do so. Thus, if I am fortunate enough to be confirmed as CIA Director, I would have no "power" to authorize such operations." [Full Text Here]

Eric Holder started his response by quickly outlining the fact(s) that "the U.S. government has not carried out drone strikes in the U.S. and has no intention of doing so." Furthermore, he highlights the fact that the U.S. has in place extensive resources with which to apprehend criminal elements in the U.S. - namely the Police and FBI. Thus, the explanation Attorney General Eric Holder gives is entirely hypothetical.

Attorney General Eric Holder
Eric Holder's Response:
"The President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland [United States of America] in the circumstances of a catastrophe like the ones suffered on December 7, 1941 [Pearl Harbor] and September 11, 2001. Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority." [Full Text Here]

Senator Paul's inquiry to John Brennan is either one from naivety or misunderstanding. Naivety because Senator Paul should be fully aware that the CIA, by rule of law, is not allowed to conduct operations in the United States. Misunderstanding because while the CIA is responsible for directing the drone program overseas, it is in fact the Joint Special Operations Command (JSOC) that executes the drone strikes - and they are fully capable and legally justified to conduct operations within the United States. This was clearly a redundancy of inquiry or political jockeying on the part of Senator Paul.

Senator Rand Paul
Furthermore, as referred to by Eric Holder, the FBI or local Police departments could conceivably be given drone to command for the purposes of apprehending or neutralizing a suspect, criminal, or fugitive. Like U.S. Customs and Border Protection these law enforcement agencies already posses conventional aircraft like helicopters which have been known to employ trained snipers to fire from said aircraft. These conventional aircraft now become armed aircraft, although they retain their human pilots and gunners. An argument could be made that armed drones are a safer alternative for law enforcement, as they would not directly risk a helicopter's crew or armed personnel on board.

This response given by Eric Holder is completely rational and justified - and is in no way contradictory with John Brennan's response. Any legal policy that Eric Holder puts forth could be utilized by local Police, FBI, National Guard, Army, Navy, Air Force, and even JSOC to justify legal drone strikes in the U.S and this would not be contrary to John Brennan's declaration regarding the CIA's non-involvement in such matters. Consider the need for rapid response in a Pearl Harbor like scenario, armed drones would most certainly be utilized. Similarly, in a airliner hijacking scenario like 9/11, a call by the President to shoot down the hijacked aircraft would amount to military actions contributing to the death of American citizens. This latter example was a question that surrounded the aftermath of the 9/11 attacks; "Why weren't the planes shot down?" Although an F-15 or F-16 has a human pilot, the authorization to shoot down an airliner is an ordered military action.

The Takeaway:

The journey towards armed drones in American skies has stopped at this crossroads. The Obama administration has unequivocally declared that the use of armed drones in the U.S. will not happen.  And even if the possibility of armed drones in American skies were to somehow become a reailty, the legal  path needing to be forged would be quite long and extensive.

However, current concerns may arise from the reconnaissance aspects of the unmanned drones. Could this be a violation of the Fourth Amendment and unreasonable search and seizure? That is a question for Congress and the FAA to decide. Well actually, they sorta already have. Check out the FAA Modernization and Reform Act of 2012 [Full Text Here]. Sections 332, 333, and 334 cover the inclusion and regulations of Unmanned Aerial Systems in American airspace.

More Information on Drones:
CIA Drone Strikes in Yemen (TheNolanK)

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