Air Force drones in local law enforcement: Yes or No?

posted at 5:00 pm on December 12, 2011 by J.E. Dyer

You might want to get your think on regarding this question, because it has already come up.  The Los Angeles Times reports that Predator drones, operated for border security out of Grand Forks Air Force Base in North Dakota, have supported local law enforcement on at least two dozen missions since June 2011.  Although the first recorded instance involved a Predator returning from a border security mission, some of the missions have been launched specifically to support the sheriff and local police in Grand Forks.

In one case, a Predator supported the sheriff’s department in making an arrest at the property of suspected cattle thieves (who are also reportedly members of the Sovereign Citizen movement).

The cattle thieves – the cattle in question were indeed found on their property – had warned the sheriff’s deputies away with firearms prior to the Predator-assisted arrest.  They certainly seem to have coming whatever the due process of law ends up throwing at them.

But does the fact that they were on the wrong side of the law justify the use of US Air Force surveillance assets, working for US Customs and Border Protection (CBP), in apprehending them?  If the assets had been National Guard helicopters working for CBP, would it have been proper for them to provide surveillance for a local law-enforcement matter that had no connection to border security, illegal immigration, or illegal trafficking?

LAT quotes a retired USAF general as saying that drones under federal control are now being used routinely to support local law enforcement and emergency responders.

Former Congresswoman Jane Harman (D-CA), for one, says it’s a mistake to do this.  She chaired the House Intelligence Committee from 2007 to 2011 (and although I have political disagreements with her, she has been good overall on intelligence issues).  Harman helped block attempts by DHS in 2008 and 2010 to use military intelligence satellites in domestic (federal) law enforcement.  LAT quotes her as follows:

Using Predators for routine law enforcement without public debate or clear legal authority is a mistake, Harman said.

“There is no question that this could become something that people will regret,” said Harman.

My own sense on this is that while the use of drones will be inevitable in the future, the real issue here is the casual incorporation of the federal military apparatus in local – police- and sheriff-level – law enforcement activities.  Big-city police departments will no doubt have their own fleets of drones in the coming years, as will the wealthier, more populous states.  Civil-rights law can accommodate that.  But civil-rights law must come first – and that means that any process for authorizing surveillance of citizens needs to go through the channels appropriate to the crime and the cognizant authority.  The use of US military assets to assist in local law enforcement, even when they are under federal agency control, is problematic, in terms of both constitutional limits and of the use of the military.

I believe a stop should be put to this at once.  Before anything like this is done again, there needs to be a debate in Congress.  The people need to mull it over.  Technology is going to keep racing forward, and it’s foolish to proclaim that the Constitution is a blanket prohibition on using it.  But the Constitution is the basis for asserting that due process of law must precede any government use of technology that crosses the rights and liberties of citizens.  This issue ticks all the boxes, from domestic use of the military to blurring the federal-state-local law-enforcement distinction, and it needs to be put in the spotlight and subjected to strenuous criticism and debate.

*UPDATE*

Alert readers have pointed out that the Predators are owned by CBP rather than the Air Force, which, having researched, I believe to be correct.  Posse comitatus was never my issue or argument, but the point is valid.

It doesn’t change the character of the problem, though, which is that lines that protect our civil rights are being blurred.

Two points need to be made.  One is that there’s no basis for relaxing about collaboration between federal agencies and the Air Force, when it comes to performing aerial surveillance of ground activities on US territory – which could, at any time, involve the activities of US citizens.  This isn’t speculative; it’s based on other pieces of information not included in the LAT report.

The 174th Fighter Wing of the New York Air National Guard (ANG), based near Syracuse, has completed a transition from manned fighters to the MQ-9 Reaper UAV, making it the first unit east of the Mississippi to operate UAVs.  In February, local media reported concern from citizens about the civil rights implications of the proposed mission for the Reapers in New York State.

In August, homeland-security industry press reported that the 174th would operate the Reaper in a border security mission as well as for platform training.  (The article was also published in National Guard Today.)  In November, a spokesman for the 174th stated during a public display at Fort Drum that the Reaper would not be used for border security.  But the extremely detailed nature of the information about base-sharing and operational collaboration in the HS Today summary indicates that the concept of operations for incorporating military-operated UAVs in border security is well advanced.

That in itself is not surprising, of course, since military assets have been used for border security for a long time.  The high level of integration envisioned between federal civilian and military assets is important, however.  Such integration is discussed with enthusiasm in testimony like the summaries here and here.  And there are good reasons for boosting integration – for border security.

But the potential for law enforcement agencies to get sloppy and start using military assets in unsanctioned ways will only grow with all this integration, common basing, and use of similar or identical systems.

The second point is that we should be concerned about even civilian federal assets being detailed on missions for local authorities acting under state law.  The bottom line is that the mission conducted on behalf of the sheriff was outside the scope of the CBP’s authority for operating UAVs.  That’s not something we can tolerate the authorities at any level getting sloppy about.

It is a thoughtless citizenry that complacently assumes no government will ever try to abuse its authority.  The protection of civil rights and constitutional limitations can’t be left to chance or assumption.  It should be the central concern of the people and our lawmakers as new technology shows up in the skies above our cities, counties, and states.

J.E. Dyer’s articles have appeared at The Green Room, Commentary’s “contentions,” Patheos, The Weekly Standard online, and her own blog, The Optimistic Conservative.

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