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It’s also not clear whether a human being has to be doing the watching in order for overhead surveillance to constitute a search. Automated drones over Iraq and Afghanistan use software to keep track of the comings and goings of individuals on the ground. They can be programmed to alert a human operator only when the targets deviate from a pattern of normal behavior, or when someone new shows up on the scene. Police will probably use the same kinds of software to have drones keep an eye on high-crime zones and send an alert when they spot trouble. That looks a lot like everyday policing. And the cops don’t need a warrant to patrol the streets.
Rand Paul’s March filibuster raised the hypothetical scenario of a president ordering a drone strike on an American terrorist suspect sitting in a cafe in the United States. Attorney General Eric Holder, in a glib response, assured the senator that the president does not have “the authority to use a weaponized drone to kill an American not engaged in combat on U.S. soil.” Nothing in Holder’s statement prohibits a police department from using an armed drone to fire upon an armed suspect. It’s possible to imagine the use of a small, lethal drone to kill a hostage-taker or end an armed standoff, acts not fundamentally different from using human snipers. What’s far more likely, though, is that law enforcement will keep increasing their use of drones with non-lethal force. A SWAT team responding to a hostage standoff will arm a drone with tear gas, for example. Such a “strike” would be more legally defensible.
Most research on drone engineering today has focused on making the robots smaller, so that a camera-equipped drone the size of a spider could crawl through an open window or under a door and beam video to the armed police outside. The real money is in smaller drones that last longer on tinier batteries, not aerial brutes with bigger guns and bombs.
Today, American drones watch suspected terrorists congregating in overseas camps. They watch over U.S. forces, alerting them to the presence of enemy forces nearby. Armed with extraordinarily powerful and sensitive cameras, the drones can observe anything and everything at once in their field of vision, which can encompass dozens of square miles, and, if the camera is strong enough, an entire city.
The drones are also workhorses. The military has begun to transport cargo in Afghanistan using unmanned helicopters. Unlike their human counterparts, the drones don’t take breaks. They don’t need food. And they don’t sleep. In the past 20 years, the Army and Air Force’s unmanned aerial fleets have logged more than 1 million hours of flying time—each. The Air Force’s drones racked up more than 500,000 hours in 2010 alone. Today, at any given time, the Air Force is operating at least 57 unmanned combat air patrols around the world.
But the U.S. is hardly alone in its appetite for drones. According to the Government Accountability Office (GAO), the number of countries that have acquired unmanned aerial vehicles since 2005 has nearly doubled, from 40 to 76. Most of these countries are using the aircraft for surveillance exclusively. Only the United States, the United Kingdom, and Israel are known to have used armed drones in combat.
Building a drone isn’t absurdly difficult, but arming it with a missile is much harder than outfitting it with a camera. The guidance systems and associated technology required to weaponize a drone are complex and available mostly to countries with sophisticated militaries. (The United States only figured out how to successfully arm a Predator with a Hellfire missile in 2001.)
Although the GAO warned that “the United States likely faces increasing risks as countries of concern and terrorist organizations seek to acquire [unmanned aerial vehicle] technology,” we don’t yet need to fear Iran or North Korea, or even China, sending drones over American soil. For starters, they’d have to base the drones close enough to enter U.S. airspace, where they’d be swiftly shot down. Also, those countries lack the constellation of global communications satellites that let American pilots bounce signals from an air-conditioned trailer in Nevada to a drone over North Waziristan. There’s some risk that a terrorist could equip a drone with chemicals or a lethal weapon, but there are plenty of easier, lower-tech ways to inflict damage.
Of all the countries intent on acquiring drones, China concerns U.S. officials the most. The Defense Science Board finds it “worrisome” that “China has ramped up research in recent years faster than any other country.” Five years ago, at China’s biggest air show, visitors saw a crude computer animation of a Chinese drone, looking suspiciously like a Predator, firing a missile at what looked suspiciously like a U.S. carrier group floating off Taiwan. Even if China can’t send drones over San Francisco, or even Hawaii, it could use them to monitor or attack neighboring countries such as Japan and to harass or kill its own citizens.
Analysts believe that China is in the advanced stages of developing a so-called medium altitude, long endurance (MALE) drone, a class to which the Predator belongs. A MALE drone would allow for 24-hour surveillance orbits in the country. The total number of drones in China today is not known, but it is presumed low.
The barriers to entry into the armed-drone club won’t remain high forever. Many military strategists take it as a given that drones and other robotic forces will be a common feature of future wars between nations. In theory, using a drone to kill your enemy shouldn’t present a challenge to the law of armed conflict any more than the lethal use of a manned aircraft does: A country has the legal right to use force in war zones, and even to do so preemptively in self-defense. Under international law, the operations must target legitimate combatants, and the attacking country must take precautions to minimize collateral damage to civilians and ensure that the use of force is proportional to the threat. The kind of weapon used—so long as it’s not prohibited by laws or treaties—is incidental.
Where it is used, however, is not. Opponents of the Obama administration’s targeted killing program, which has sent drones to kill U.S. citizens abroad, object that many lethal strikes have occurred in places where the United States is not at war, namely Pakistan, Yemen, and the Horn of Africa. How can a country be in compliance with the laws of war if it’s using force in a country where there is no recognized armed conflict, or if the host government hasn’t given official permission to intervene?
These basic questions, which could easily be applied to cruise missiles or teams of commandos, are not resolved under international law. Considering that the United States is the only country with a long and observable track record of using drones to kill people, it will probably set the standards that other nations follow—whether those actions are technically legal or not.
In May, President Barack Obama defended the use of drone strikes outside recognized combat zones under the September 2011 Authorization to Use Military Force, which gives the commander in chief broad latitude to attack the Taliban, al Qaeda, and associated forces wherever they congregate. “Beyond the Afghan theater, we only target al Qaeda and its associated forces,” Obama said. “Even then, the use of drones is heavily constrained.”