Rand Paul is Right
Many disagree with Sen. Rand Paul on many issues, but he is spot-on about the need for a crystal clear framework regarding the domestic and international use of drones.
Inside the United States, without exception, an American suspected of plotting a terror attack should never be targeted by an armed drone. Period.
Rand Paul was right to end the 13-hour filibuster after getting a letter from Attorney General Eric Holder that provided modest clarification about presidential authority over drone use in the United States.
"Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" Mr. Holder wrote. "The answer to that question is no."
Still, the letter left more questions unanswered than answered. Indeed, a simple "no" is hardly reassuring when the policy it supports is not clear.
In the domestic context, drones should never be used against citizens unless there is an armed conflict on U.S. soil.
In "ticking-bomb" situations - when a person in the United States is poised to push the button and create large-scale mayhem - SWAT teams and helicopters can do the work. This is consistent with long-standing law enforcement protocol.
As former chair of the congressional Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment, I started to ring the alarm – as loudly as possible – about the implications of domestic satellite or drone use.
Three years ago, few were paying attention to moves being made by the Department of Homeland Security and a handful of U.S. police departments to use satellite imagery or obtain drones for routine law enforcement or emergency operations. Fortunately, Congress was able to force DHS to close its National Applications Office program that gave law enforcement access to sensitive satellites.
But since that success, there has been radio silence.
America has seen the "creeping executive power" movie before.
Using lethal tools without public debate or clear legal authority is a mistake, a slippery slope, something we will come to regret.
Why has Congress all but ignored concerns about domestic drones?
Only the Federal Aviation Administration has been tasked with reviewing safety of domestic drones - nothing related to legal or security issues.
House members like Zoe Lofgren and Ted Poe have offered proposals to put in place due process protections for Americans against government-operated drones in U.S. airspace and prevent them from being armed, but their bill is far from passage.
In the absence of congressional action, more than 30 state legislatures are banning or contemplating bills governing domestic drone use. But we need a national solution – not a fragmentation of state and local laws.
The federal government is forging ahead with plans to put drones into domestic airspace. DHS has a Robotic Aircraft for Public Safety Program, and it is testing multiple types of Unmanned Aerial Vehicles (UAV). After testing, DHS will transfer whatever UAV system it determines has the best capabilities for its "customers" – U.S. law enforcement.
Hold on! There are just too many unanswered questions.
Will law enforcement be able to fly a drone over Los Angeles or Topeka at will? How will the information gathered be used? What if increasingly capable drones can "see" into private homes and "hear" private conversations? Can such information gathered without an individualized warrant be used in a court of law?
Beyond the lack of rules for domestic drones, these vehicles are inexpensive. What’s more, the FAA predicts there may be 30,000 of them in the domestic airspace over the next decade and it may be difficult to track them – at least currently – like the drone sighting by an airline pilot in New York.
Don’t get me wrong. Drone technology is not going away and it can be a very useful tool. Fire crews use drones to get a closer look at wildfires when helicopters can’t. And helicopters are expensive for police departments to maintain and fuel.
But helicopters give a clear signal of their presence. Drones – in most cases – are nearly silent and can dwell longer over a particular area.
We need a comprehensive post-9/11 legal framework, which includes when and how to use drones domestically and overseas.
As I wrote weeks ago, the 35-year-old Foreign Intelligence Surveillance Act, passed by an overwhelming bipartisan vote, and amended and extended twice since 2008, should apply to the use of drones and offensive cyber strikes overseas. The Senate Select Committee on Intelligence is investigating this option.
We need rules. Rand Paul has managed to move the issue into the sunlight. It’s a shame it took the crunch time of a confirmation hearing to finally get some focus, but he is right-about the need to get the public into fashioning of public policy.