- By Konstantin KakaesKonstantin Kakaes is a Schwartz fellow at the New America Foundation. He reported this piece with funding from the International Reporting Project and the Stanley Foundation. Follow him on Twitter @kkakaes.
Senator Rand Paul (R-KY) is right to worry about perpetual war, but wrong to worry about drones killing Americans in America. His concerns about domestic drone strikes unfortunately obscured a far more pressing debate about how to manage and regulate surveillance via drones and other techniques such as wiretaps and Internet traffic monitoring.
The truth is, drones are not actually all that good at killing people, nor at bringing them to justice. The reason they are used in Pakistan, Yemen, and Somalia is because no better alternatives are readily available. Within the United States, the president has far more capable means at his disposal for using force. In terms of surveillance, however, drones are among the most effective tools in existence.
During his 13-hour filibuster on Wednesday, Paul proposed a resolution against the use of drones to "execute or target American citizens on American soil." The resolution is superfluous because the chief limitation on the use of drones is how well they work — not legal, moral, ethical, or constitutional considerations.
The question is not what drones themselves are capable of, but how those capabilities compare to the alternatives available to military, intelligence, and law enforcement officials. Compared to other means the American government has at its disposal for the domestic use of force, a drone-launched missile is a crude, blunt, and ineffective instrument. It is not possible to deploy the FBI to Pakistan’s tribal areas or to rural Yemen. Drones are being used in these countries because they provide a capability that is better, in the eyes of the national security apparatus, than the alternatives of inaction or bombing from manned aircraft.
The reason for "signature strikes" in Pakistan and Yemen — where patterns of behavior are targeted instead of specific individuals — is because of a paucity of information. It is far easier for the U.S. government to gather information inside the United States than it is in Waziristan.
Drones, will, of course, grow more technologically capable of flying for a longer time, seeing with keener sight, and aiming explosives still more precisely. But even the apotheosis of these efforts will do no more than replicate the abilities of a trained sniper. There is no reason to be more fearful of a drone-based assassin than one armed with a rifle. The same existing laws and norms that prevent the president from capriciously bombing, say, Texas or ordering commando squads to assassinate American citizens, also apply to domestic drone attacks.
During his filibuster, Paul worried that the government might "kill people in America without even knowing their name." This worry is baseless. National security hawks can save face by agreeing that using drones to kill American citizens in the United States would be wrong and unconstitutional. But other infringements on constitutionally protected freedoms are not notional. By grandstanding on the issue of drone attacks, Paul loses the credibility that he and other advocates for limitations on the executive’s power need to hold the president to account on the use of present-day surveillance technologies.
Unfettered surveillance from drones would be useful to law enforcement, just as it would be useful to not require search warrants. It is easy to convince the military, and law enforcement authorities, to give up capabilities that were never that useful to begin with. This is why the United States ratified the international treaty banning chemical weapons with comparatively little controversy — chemical weapons never were all that effective as a tool of war (there was a heated debate about tear gas, which is useful). But the international treaty against land mines remains unsigned despite decades of effort by human rights advocates (and a Nobel Peace Prize), because land mines are seen as a useful force multiplier. The true challenge is to place limitations on tools that are genuinely useful to authorities but whose use infringes on the rights of citizens.
As the ACLU’s Jay Stanley and Catherine Crump have written, the domestic use of drones by various state, federal, and local law enforcement agencies is already widespread, and is not effectively regulated. "Because of their potential for pervasive use in ordinary law enforcement operations and capacity for revealing far more than the naked eye, drones pose a more serious threat to privacy than do manned flights," they wrote in a 2011 report. Since then, the domestic use of surveillance drones has only increased, with only a scant patchwork of regulation by some states. (Bills have been introduced into the legislatures, though not yet passed, in Florida, Maine, Missouri, Nebraska, North Dakota, Oklahoma, Oregon, Virginia, Montana, and Texas, according to the ACLU.) None of those state-level regulations would restrict federal efforts.
The 5th Amendment’s due process protections are not at risk from drones within America’s borders for the simple reason that drones are an ineffective tool for bringing people to justice — as was shown when Navy SEALs were sent to apprehend Osama bin Laden, rather than a drone. But the power of drones that can loiter indefinitely overhead, tracking the past and future movements of all who pass below, is real. The questions of how the 4th Amendment’s prohibition of unreasonable searches applies to drones, and of privacy concerns more broadly, are vexing ones that Senator Paul can help us, as a nation, come to terms with.
Konstantin Kakaes is a Schwartz fellow at the New America Foundation and can be found on Twitter @kkakaes.