Remotely-controlled unmanned aerial vehicles, or drones, have already transformed the nature of war; and drone technology has now been authorized for domestic chores from forest fire fighting to crime surveillance. But the moral, legal and tactical issues that drones present have barely been addressed.
Today, Americans do not object when the President launches a drone attack on the home of an al-Qaeda leader, even when collateral damage includes innocent children. Perhaps understandably, Americans feel justified in these attacks, given the mass slaughter of innocents on 9/11 and are relieved that American soldiers are not in harm’s way. On the domestic front, the prospect of saving lives seems to mute concerns about high tech “big brother” invasions of privacy.
Drones are the technological answer to terrorism. They allow the U.S. President himself to approve attacks on non-military, non-state- sponsored combatants on a case-by-case basis. And, drones have been used on the U.S. – Mexican border for several years.
Research by scientists to modify inspects to create a hybrid form of an electronic and biological bug that can, for example, turn a moth into an unmanned aerial vehicle, was first reported three years ago and continues to develop. Thus, in the not to distant future, that bug that you swat on a hot summer day may be government surveillance equipment.
And now, drones have been authorized under U.S. law for use in domestic airspace by government, law enforcement, first responders, and yes, the public. Does that mean your neighbor could buy a drone to check when you let the dog out? Or, could candidates for the U.S. Presidency buy their own drones to oversee campaign events of their challengers? Or, can a drug cartel purchase drones to watch the police department? Might a suspicious spouse purchase a drone to check on the whereabouts of his or her partner?
The answers to the questions are not yet clear, because the regulations are yet to be written by the Federal Aviation Administration. The rules will deal with privacy, safety, and priorities.
In early 2012, the U.S. Congress passed, and President Obama signed, — without a lot of fanfare — the Federal Aviation Administration Air Transportation Modernization and Safety Improvement Act of 2012, which gives authorization for the integration of civil unmanned aircraft systems into U.S. national airspace on a schedule of dates, beginning with some use this year, and opening up more areas for their use by 2015.
News organizations and filmmakers, farmers and builders will all have a legitimate interest in the innovation that drones can give their industry. There have been questions raised by Congressional representatives. In April, in a bipartisan request, Reps. Edward J. Markey (D-Mass.) and Joe Barton (R-Texas) sent a letter to the Federal Aviation Administration (FAA) saying that “The surveillance power of drones is amplified when the information from onboard sensors is used in conjunction with facial recognition, behavior analysis, license plate recognition, or any other system that can identify and track individuals as they go about their daily lives.”
Another Congressional proposal would limit the use of drones by the government except when a warrant is issued for its use in accordance with the requirements of the Fourth Amendment, but that has not received support.
The new law, authorizing the opening of U.S. airspace, has not gone totally unnoticed. Congressional representatives, bloggers, and the ACLU have questioned how the new law will work and whether or not the drones can be hacked. But the bill passed, and the details will be in the Regulations.
Some of the issues facing the regulators of the domestic use of drones may be found in the questions raised by critics of drones in international affairs.
The use of drones, or unmanned aerial vehicles, has revolutionized the battlefield since the war on terror expanded in the wake of the attacks of September 11. The search for perpetrators of terror has transformed what world powers have thought of as combatants, and the use of advanced technology will continue to grow as an integral part of military strategy to aid U.S. military forces: to replace boots on the ground in Afghanistan and Pakistan; for the detection of the nuclear plans of North Korea and Iran; and aid in the transition of governments.
With the rapid advance of technology in armed conflict come moral, ethical and legal questions about its use. The answers to the questions will become the basis of international engagements as well as the blueprint for the use of drones by individuals and among law enforcement and first-responders within the U.S.
Growth in the use of larger drones by the U.S. – from a few dozen in the 1990’s to an estimated 7,000 today – has been exponential and used in Libya, Iraq, Afghanistan and Pakistan. At the U.N., the use of unmanned aerial vehicles has been a topic of heated debate as is the possible use of retrieved data if drones are recovered by a hostile nation.
U.S. drone strikes in the tribal area of North Waziristan have been the subject of controversy and tension between the U.S. and Pakistan. Military analysts and U.S. government officials point to the success in the reduction of the Pakistani Taliban and of al-Qaeda in the region as well as the killing of Osama bin Laden, but the killing of two dozen Pakistani soldiers in a NATO air strike in November, led Pakistan to close supply routes to U.S. troops in Afghanistan, and for Washington to suspend drone use for a few months.
Pakistan’s U.N. Ambassador Abdullah Hussein Haroon offered a broader perspective on fighting insurgents on the Afghanistan-Pakistan border and on strikes not authorized by Pakistan: “Politics should be transactional, not coercive. We want success. We don’t want this mess on our doorstep for the next 100 years. It’s not of our making, not of our choosing, not of our doing. We’ve paid the highest price for this war.”
Hoping to continue the use of U.S. drones in the fight against al-Qaeda in Pakistan, U.S. officials offered to give advance notice of any strikes within Pakistan’s borders but Pakistan’s Foreign Minister Hina Rabbani Khar called for a halt of all drone strikes after Pakistan’s Parliament voted for a cessation of their use.
The U.N. has been the venue for some of the complaints about unmanned aerial vehicles. In December 2011, Iran sought U.N. action with regard to a downed U.S. drone for surveillance it called an “act of provocation.” As state-run television in Tehran broadcast images of a RQ-170 Sentinel drone, Iran’s U.N. Ambassador, Mohammad Khazaee, sent a letter to the Secretary General, the President of the General Assembly and the Russian President of the Security Council, calling their attention to the increased “provocative and covert operations against the Islamic Republic of Iran by the United States Government.”
Drones have also been central in the protection of civilians during the revolutionary turmoil of the Arab spring. In March 2011, the U.N. Security Council authorized member states to take all “necessary measures” to protect civilians from attacks by now-deposed Libyan leader Muammar Qaddafi’s forces in a vote that established a no-fly zone. As a result, President Barack Obama authorized the deployment of drones in the NATO-led action that followed.
To better understand their lawfulness under international law, U.N. investigations and legal analyses on the use of drones have flourished. Philip Alston, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions presented one of the most comprehensive studies to the Human Rights Council in May 2010. “The use of drones for targeted killings has generated significant controversy,” Alston wrote. “The greater concern with drones is that because they make it easier to kill without risk to a State’s forces, policy makers and commanders will be tempted to interpret the legal limitations on who can be killed, and under what circumstances, too expansively.” He went on to say that a nation must ensure that the criteria used to determine who is a lawful combatant or what constitutes direct participation in hostilities, regardless of whether the killing is by a soldier or by an unmanned aerial vehicle. “The proportionality of an attack must be assessed,” he said, “for each individual strike.”
In addition, a background note for the American Society of International Law Annual Meeting published by the Human Rights Institute of Columbia Law School in March of last year said that none of the controversies in the use of drones in war focus on the fact that drones are inherently unlawful: “To the contrary, most observers recognize the potential benefits of drone technology to minimize unintended casualties or damage to property.”
The Columbia Law School study foreshadowed a larger question: “drones may be the future of warfare, and the U.S. may soon find itself at the ‘other end of the drone,’ as other government and armed non-state groups develop drone technology,” and the report called for clarity on U.S. and international law regarding their use.
Elisabeth Bumiller and Thom Shanker, writing in the New York Times, said, “The Pentagon has asked Congress for nearly $5 billion for drones next year, and by 2030 envisions ever more stuff of science fiction: ‘spy flies’ equipped with sensors and micro cameras to detect enemies, nuclear weapons or victims in rubble.”
U.N. agencies and analysts of international humanitarian law – as well as the U.S. Congress – have just begun to fully assess the impact of and criteria for the use of advanced technology in modern warfare and the protection of civilians, but there is little doubt that advanced aerial technology has shaped modern warfare and intelligence and will be used extensively both on the battlefield and within the U.S. in the coming years. U.S. and international airspace is the new frontier.
# # #
Pamela Falk, whose father was a pilot, is a CBS News Foreign Affairs Analyst and U.N. Resident Correspondent, based at U.N. Headquarters in New York City. Dr. Falk reports on air for CBS TV & Radio and writes for CBSNews.com.
She is the former Staff Director of a U.S. Congressional Subcommittee of the House of Representatives International Relations Committee.
She received her J.D. from Columbia University School of Law and her Ph.D. from New York University. She is Distinguished Lecturer of American Foreign Policy and International Relations & Law at Hunter College of the City University of New York, where she is on the Faculty of the Human Rights program, Director of the Roosevelt Scholars Program, and the Faculty Advisor of the College’s Model U.N. Team.
Dr. Falk reports on all areas of international relations from the U.N. and traveled with the U.N. Secretary General, Ban Ki-moon to the Middle East.. Dr. Falk’s career has involved work in academics, international organizations, for the U.S. government on Capitol Hill, and the private sector and she has written and edited six books on international relations.