Speech to Accompany Drones 101 Presentation by Lydia Bates
First I want to discuss to discuss how drones are being used to carry out
international strikes and the legality of these actions with regards to international
humanitarian law and international human rights law. Then I’ll move into how
drones are being used for surveillance both internationally and domestically.
Drones, which are also widely referred to as Unmanned Aerial Vehicles are
pilotless aircrafts that are operated by remote control a great distance from the area
of conflict. While drones have been used since the mid 1800s it wasn’t until World
War I that modern drone technology was first developed. These “dumb” drones
were largely used to “test and train combat pilots, missile men, and anti-aircraft
gunners”1. Currently there are two main types of drones that the government has
developed for this warfare purposes. The first, called the MQ-1B Predator, was
developed during the Second World War and was used during the Vietnam War,
Gulf War and in the Balkans for reconnaissance purposes. It wasn’t until 2000 that
the Predator was equipped with hellfire missiles and was first used in a fatal strike
in April of 2002 in Afghanistan 2. The Predator is currently equipped with two
hellfire missiles a laser designator and can stay aloft for 40 hours. The Predators
successor, the MQ-9 Reaper is roughly 9 times more powerful since it can carry
500% more payload, as it is equipped with 4 hellfire missiles, 2 bombs and has the
1 Shaw, Ian G. R. "The Rise of the Predator Empire: Tracing the History of U.S.
Drones." Understanding Empire. N.p., 2013. Web. 2 May 2014.
<http://understandingempire.wordpress.com/
2-0-a-brief-history-of-u-s-drones/>.
2 Shaw, Ian G. R. "The Rise of the Predator Empire: Tracing the History of U.S.
Drones." Understanding Empire
ability to fly for 27 hours3. The Reaper is what the United States currently relies on
as its most lethal weapon in drone warfare.
There are several different types of strikes that these machines carry out.
The first and most precise is called a personality strike. This is when the target has
been specifically identified and is on the United States’ “kill list”. The next is a
signature strike, which is carried out when the target matches the governments
enemy combatant profile as being a middle aged, mobile, Muslim man. A second
strike, called a double tap, is sometimes used to target first responders while a just
in case strike is aimed at observers4.
Now, when looking at drone strikes in the Middle East it is important to note
that there are two distinct governing bodies of international law at play. The first,
called international humanitarian law, is only applicable during times of armed
conflict and aims to provide room for military necessity while preventing human
suffering. This body of law is made up by the Hague and Geneva Conventions as
well as customary international law. The second set of laws, human rights law,
regulates international conduct during times of peace. Their main governing
document is the Universal Declaration of Human Rights as well as many subsequent
international and regional treaties.
The United States is currently only at war with Afghanistan, thus
International Humanitarian Law is only applicable in this state. The most
prominent collection of treaties in international humanitarian law is the four
3 “Predator B UAS." General Atomics Aeronautical. General Atomics, n.d. Web. 22
Apr. 2014. <http://www.ga-asi.com/products/aircraft/predator_b.php>.
4 "Background and Context." Living under Drones. Stanford Law School, n.d. Web. 2
May 2014. <http://www.livingunderdrones.org/background-and-context/>.
Geneva Conventions. The first convention was adopted in 1864 to protect the sick
and wounded in the armed forces in the field. The next two were designed to
protect the sick wounded and shipwrecked members of the armed forces at sea and
to lie out parameters for the treatment of prisoners of war. In 1949, following the
conclusion of World War II the three previous treaties were revised and fourth and
final Geneva Convention was passed which delineated the protection of civilians
during a time of armed conflict5.
While the Obama Administration touts the potential accuracy of such
weapons their usage seems to show otherwise. Unfortunately, in a nation already
torn by what seems to be an endless war drone strikes are only contributing to the
number of civilian casualties. Strikes are oftentimes aimed at a target that matches
the profile of what the government deems to be a terrorist. In addition, civilians
who are killed in drone strikes are often considered collateral damage in the pursuit
of killing a suspected terrorist. In a report by the United Nations Assistance Mission
in Afghanistan it was found that civilian casualties tripled in 2013 and that drone
strike deaths accounted for over a third of all civilian deaths due to air strikes6.
Such statistics reflect a grave transgression of Afghan civilians protection under the
Fourth Geneva Convention.
The United States Government is currently operating two distinct drone
programs; one through the Department of Defense’s Joint Special Operations
5 "The Geneva Conventions of 1949 and Their Additional Protocols." Geneva
Conventions. International COmmittee of the Red Cross, n.d. Web. 14
Apr. 2014. <http://www.icrc.org/eng/war-and-law/treaties-customary-law/
geneva-conventions/>.
6 Ross, Alice K. "Civilian Drone Deaths Triple in Afghanistan, UN Agency Finds."
The Bureau of Investigative Journalism. N.p., n.d. Web. 20 Apr. 2014.
<http://www.thebureauinvestigates.com/2014/02/08/
civilian-drone-deaths-triple-in-afghanistan-un-agency-finds/>.
Command and the other through the CIA. The Department of Defense program
operates in Afghanistan, Yemen and Somalia under US Title 10, which is public
military doctrine. The CIA program operates in Pakistan under US Title 50, which
classifies its actions as covert operations, therefore allowing the government to
deny strikes carried out by the CIA7. Due to this it is very difficult to actually know
how many casualties there are in the CIA’s Pakistani drone strikes. The Bureau of
Investigative Journalism, a British based organization, has begun a campaign called
Naming the Dead in order to identify the between 2,562 and 3,325 people that have
been killed in Pakistan, civilians and militants alike. This is proving to be a tedious
process as only 20% of those killed have been identified8.
As the discussion of drones shifts to Pakistan, a state with which the United
States is not at war, international human rights law is now the area of. In this nation
drone strikes are violating the most fundamental international law that underlies all
other aspects of law and that is the right to life. This right is protected in both
Article 6 of the International Covenant on Civil and Political Rights as well as Article
3 of the Universal Declaration of Human Rights, both of which the United States is a
party to. In addition, the use of drones in Pakistan violates Article 2 of the United
Nations Charter, which states that “all member states shall refrain in their
international relations from the threat or use of force against the territorial integrity
7 Zenko, Micah. "Transferring CIA Drone Strikes to the Pentagon." Council on
Foreign Relations. N.p., n.d. Web. 14 Apr. 2014. <http://www.cfr.org/
drones/transferring-cia-drone-strikes-pentagon/p30434>.
8 "Naming the Dead." The Bureau of Investigative Journalism. N.p., 4 Feb. 2013.
Web. 17 Apr. 2014. <https://www.thebureauinvestigates.com/2013/02/04/
naming-the-dead-bureau-announces-new-drones-project/>.
or political independence of any state…”9. Interestingly enough, this is the same
article that the United States cites as currently being violated by Russia in Ukraine.
While this is entirely accurate it is a very hypocritical stance for the Obama
Administration to take.
In defense of the strikes in Pakistan President Obama has referred to Article
51 of the United Nations Charter, stating that the United States is acting in selfdefense. However, there are several problems with this claim. First, the United
States may only act in self-defense if an armed attack is carried out against them by
the sovereign state of Pakistan, however there has been no such attack on the
United States. The United States cannot carry out attacks in a sovereign states
territory on a criminal actor since these drone strikes are viewed as attacks on the
state rather than those individual perpetrators10. In addition, the Security Council
has not authorized the attacks and there is no concrete evidence that the Pakistani
government has given their expressed consent for the attacks to be carried out in
their territory.
Drone warfare brings up several questions grounded in the morality of their
usage. Since these machines are being remotely controlled a great distance from
where the strikes are being carried out there is an increasingly depersonalized
sense of war. In a collaborative effort to attach a human face to the thousands of
deaths that have occurred in the Middle East, several American and French artists
joined with Pakistani villagers in a campaign called Not a Bug Splat, a name
9 Charter of the United Nations. N.p., n.d. Web. 4 May 2014. <http://www.un.org/
en/documents/charter/>.
10 O'Connell, MaryEllen, narr. Drones Attacks & International Law. University of
Notre Dame, 2014. Film.
referring to the “military slang” used to describe a post drone strike scene. They
placed a massive poster of a young girls face in a field in Pakistan with the hopes
that the despair and suffering in her eyes would force drone operators to better
understand the implications of their actions11. In addition, while drones are
currently only a tool of Western power their usage could easily spread to other
countries. Such a drone proliferation would forever alter the pretexts of war,
sending the world into a dangerously desensitized age.
In addition to being used for warfare in the Middle East the United States also
uses drones for surveillance purposes. The Global Hawk is a large drone that was
developed in 1995 as a High-Altitude, Long-Endurance drone. Equipped with
multiple high tech surveillance mechanisms such as infrared and electro-optical
sensors, these drones have the ability to stay aloft for a maximum of 32 hours12.
This constant surveillance produces grave psychological effects for those it is
observing. The droning noise from which they receive their name makes those
below feel as though there is an impending attack, forcing them to live in perpetual
fear.
Use of drones abroad is not the only issue that Americans need to concern
themselves with. Currently Customs and Border Protection operate 7 Reaper
drones to survey the US’s borders, a program they plan to expand to 24 by 201613.
11 "A Giant Art Installation Targets Predator Drone Operators." Not a Bug Splat.
N.p., n.d. Web. 20 Apr. 2014. <http://notabugsplat.com>.
12 "Global Hawk." Northrop Grumman. Northrop Grumman Corporation, 2014. Web. 20
Apr. 2014. <http://www.northropgrumman.com/capabilities/globalhawk/Pages/
default.aspx>.
13 Thompson, Richard M. "Drones in Domestic Surveillance Operations: Fourth
Amendment Implications and Legislative Responses." Federation of American
Scientists. N.p., n.d. Web. 18 Apr. 2014. <http://www.fas.org/sgp/
crs/natsec/R42701.pdf>.
In addition, several law enforcement agencies as well as the FBI and DEA are
attempting to achieve drone operation authorization throughout the country. In
order to further this trend in the Federal Aviation Administration Modernization
and Reform Act of 2012 Congress gave the FAA the task of integrating drones into
the national airspace system by September 2015, a task that could be completed by
changing the laws that currently govern navigable airspace. Before the proliferation
of aviation, navigable airspace laws stated that one owns all the space above their
land extending up to the heavens. However, the Air Commerce Act of 1926 and the
1938 Civil Aeronautics Act gave the United States sovereign control of its airspace
and allowed for the “public right of freedom of transit in air commerce through the
navigable airspace of the United States”14.
These Acts came into clear contention with the notion of perpetual airspace
ownership but it wasn’t until 1946 that the conflict was resolved in the
groundbreaking Supreme Court case, United States v. Causby which laid the
groundwork for the current laws governing airspace over private property. Causby,
a farm owner in Greensboro, NC claimed that the military planes flying low
overhead were disturbing his chickens and making his farming business impossible
to maintain. He cited the Fifth Amendment Takings Clause, which lays out the
parameters of eminent domain. The conclusion of this case found that private
property airspace rights extend to the immediate reaches of the property necessary
to use and enjoy the land, however they did not draw a distinct line between private
14 Dolan, Alissa M., and Richard M. Thompson. "Integrations of Drones into Domestic
Airspace: Selected Legal Issues." Federations of American Scientists. N.p.,
n.d. Web. 20 Apr. 2014. <http://www.fas.org/sgp/crs/natsec/
R42940.pdf>.
airspace and the public domain15. This decision has led to multiple interpretations
of navigable airspace laws such as a fixed height theory or simply employing
analysis of the effects rather than calculating navigable airspace. Nevertheless, as it
currently stands, fixed wing aircraft in a congested area must be 1000 feet above the
highest obstacle within a 2000-foot radius and 500 feet above in a non-congested
area. Helicopters may operate outside this navigable airspace if they do so without
creating hazards for any people or property on the ground16. Currently there are no
specific parameters for drone operation but it is predicted that they will be able to
fly anywhere within these preconceived boundaries.
There are currently numerous types of drones being developed for domestic
surveillance. One called the ScanEagle is 5 feet long and has a 10-foot wingspan. It
has the ability to stay aloft for 24 hours and has been recently tested by the Houston
Police Department17. Another type of drone that is being developed is called the
Nano Hummingbird. It can fly for up to 8 minutes at 11 miles per hour and has the
distinct ability to fly both backwards and forwards18. These different types of
drones are equipped with varying types of surveillance technology, such as highpowered zoom lenses, night vision, see-through imaging allowing subjects to be
tracked through walls and distributed video which allows a fleet of drones to
coordinate their surveillance of a large areas such as an entire city. In addition,
15 Dolan, Alissa M., and Richard M. Thompson. "Integrations of Drones into Domestic
Airspace: Selected Legal Issues."
16 Dolan, Alissa M., and Richard M. Thompson. "Integrations of Drones into Domestic
Airspace: Selected Legal Issues."
17 "ScanEagle System." INSITU. N.p., n.d. Web. 2 May 2014.
<http://www.insitu.com/systems/scaneagle>.
18 Nosowitz, Dan. "DARPA's Nano-Hummingbird Spy Drone Can Fly For Eight Minutes And
Perch On Your Sill." Popular Science. N.p., 17 Feb. 2011. Web. 4 May 2014.
<http://www.popsci.com/technology/article/2011-02/
video-darpas-nano-hummingbird-spy-drone-action>.
drones can be equipped with nonlethal weapons such as tear gas, Tasers and rubber
pellets.
In terms of privacy concerns regarding domestic drone usage there are
several factors that would be looked at when deciding whether or not drone
surveillance is a violation of American’s Fourth Amendment right of protection
against unreasonable searches. First, the location of the person being observed is
important, i.e. whether they are in their home, yard or public space. For instance, a
person in the public sphere enjoys very little protection under the Fourth
Amendment, therefore making it legal for law enforcement drones to monitor their
every move with high-powered surveillance drones. In ones own backyard people
may receive a bit more protection against searches, with the most protection being
within the confines of their own homes.
In spite of the safety people may feel on their own property, away from the
public eye this may be a false sense of security. In previous Supreme Court cases
pertaining to the Fourth Amendments reasonable search clause the court upheld
law enforcement agencies right to use helicopters and planes in order to see into
peoples backyards that were not visible from any other public angles. These actions
were deemed lawful because the helicopter and airplane were operated within
navigable airspace, at 400 and 1000 feet respectively19. However, since navigable
airspace laws have yet to be determined for drones it is plausible that drones would
19 Thompson, Richard M. "Drones in Domestic Surveillance Operations: Fourth
Amendment Implications and Legislative Responses." Federation of American
Scientists. N.p., n.d. Web. 18 Apr. 2014. <http://www.fas.org/sgp/
crs/natsec/R42701.pdf>.
be able to operate in much closer proximity to citizens and their private property
than other aircrafts, due to their size and maneuverability.
In addition, when discussing the Fourth Amendment as it pertains to people
within their own homes there are also loopholes that could allow drones the ability
to observe people while indoors. One factor that comes into play when deciding the
legality of drone surveillance is the sophistication of the technology. Drones would
not be able to be equipped with thermal imaging equipment that would allow them
to monitor people’s movements in their houses through walls and ceilings.
However, the use of low-powered cameras or other “unsophisticated technology” to
view people in “plain sight” within their homes would be deemed legal20. With
technology advancing at the rate it currently is and Congress pushing for drones to
be integrated into airspace next year this provides a very slippery slope into a
surveillance society and begs the question at what point does drone surveillance
become too invasive? Maybe a 1984-esque society isn’t as unfathomable as we
previously believed.
Another concern that plagues the introduction of drones into national
airspace is safety. Many critics of the domestic drone surveillance program believe
that drones should be held to the same certification levels as manned aircrafts.
Airplane pilots are able to follow the movements of other aircrafts by either tracking
them visually or through air traffic controllers, technologies that drones currently
lack. In addition, since drones don’t carry a human passenger, controllers are far
20 Thompson, Richard M. "Drones in Domestic Surveillance Operations: Fourth
Amendment Implications and Legislative Responses."
more likely to fly them recklessly. Drones have an accident rate that is 7 times
higher than general aviation and 353 times higher than commercial aviation21.
The FAA is currently making strides in integrating drones into national
airspace. In December 2013 they introduced the six drone test sites that were
chosen based on “geographic diversity, climatic diversity, location of ground
infrastructure and research needs”22. In order to develop privacy regulations for
these sites the Federal Aviation Administration held two webinars in April 2012 to
solicit public input. Many organizations with an interest in the domestic usage of
drones submitted extensive privacy regulation suggestions, however the final
output was less than impressive. Rather than develop a uniform standard of privacy
the FAA allowed each test site to create its own privacy regulations. This is
problematic for several reasons. First it creates very little accountability in the test
site program, the FAA can’t enforce any standard. In addition in order to gather
information about what is actually going on at the test sites one cant just file a
lawsuit with the FAA they must go through each individual site since they maintain
their own records.
In the future we can expect to see some vast changes in the way drones are
used domestically. It’s predicted that over the course of the next 20 years 30,000
drones will be flying in American skies. In addition, the industry will cost up to $89
21 Eddlem, Thomas R. "Drones over America." The New American. N.p., 9 May 2012.
Web. 4 May 2014. <http://www.thenewamerican.com/usnews/constitution/item/
11274-drones-over-america>.
22 "Fact Sheet - FAA UAS Test Site Program." Federal Aviation Administration. N.p.,
30 Dec. 2013. Web. 4 May 2014. <http://www.faa.gov/news/fact_sheets/
news_story.cfm?newsid=15575>.
billion in the next decade23. These extreme changes in the our domestic surveillance
landscape opens up difficult questions regarding transparency with the drone
program and whether or not such surveillance practices will become normalized in
the United States to a point where constant surveillance is a part of every minute of
everyday life.
23 Thompson, Richard M. "Drones in Domestic Surveillance Operations: Fourth
Amendment Implications and Legislative Responses."