Wayward Drones and Other Tales

"Nor shall any person . . . be deprived of life. . . without due process of law." --Fifth Amendment to the U.S. Constitution

It had been an exciting spring for the drones. Notwithstanding ongoing reports of civilians in Pakistan and other countries being accidentally killed by drones, there was some good news. Amazon announced that it planned to begin using baby drones to quickly deliver packages to purchasers. Although the FAA put a hold on that plan, it nonetheless gave the baby drones something to look forward to. Law enforcement agencies were increasingly beginning to use medium size drones to aid them in surveillance activities. And big drones were once again getting to fly over Iraq to keep track of where the insurgents were. All in all, things were looking up for drones. Then along came June accompanied by three reports that put the drones in bad odor. One was a Justice Department Memorandum written some years ago. Another was a report from the Stimson Center entitled "Recommendations and Report on the Task Force on U.S. Drone Policy" and the last was an investigative report by a Washington Post reporter.

The Justice Department memorandum was released pursuant to a court order telling the administration to release large parts of the Justice Department memorandum that explained why the administration thought it was OK to target and kill Anwar al-Awlaki in Yemen in 2011. Mr. Awlaki was an American citizen who the government believed had gone from innocent citizen to global terrorist. Notwithstanding the fact that the United States had the capability to target and kill him, the memorandum said that Mr. Awlaki's capture was not feasible. According to the author of the memorandum, soon to be Federal Judge, David Barron, using Dickcheneysian logic, opined that because of the infeasibility of capture it was lawful for the government to kill him. That was accomplished in September 2011 when a drone strike in Yemen, a country with which the United States was not at war, killed him, together with another American citizen in the vehicle who was not a target of the strike. According to a report in the New York Times, that killing was the first time since the Civil War that the U.S. had deliberately killed an American citizen without a trial.

The Stimson Task Force on UAV Policy conducted an extensive examination of the use of drones at the present time. None of its conclusions was likely to give comfort to the drone family. The report observed that UAVs (drones) "have enabled the United States to engage in the cross-border use of lethal force against targeted individuals in an unprecedented and expanding way, raising significant strategic, legal and ethical questions." It observes that notwithstanding the use of drones, extremist groups "have grown in scope, lethality and influence" in the Middle East, Africa and South Asia. Among its conclusions is that the use of drones may contribute to the erosion of sovereignty norms. It says that situations in which the United States believes the use of drones justified may not be shared by other sovereign nations who may later use them for their own purposes. In support of its conclusion it says: "Imagine, for instance, if Russia began to use UAV strikes to kill individuals opposed to its annexation of Crimea and its growing influence in Eastern Ukraine. Even if the United States strongly believed those targeted by Russian were all nonviolent political activists lawfully expressing their opinions, Russia could easily take a page out of the United States' book and assert that the targeted individuals were members of anti-Russian terrorist groups with which Russia is in an armed conflict. Pressed for evidence, Russia could simply repeat the words used by US officials defending US targeted killings, asserting that it could not provide any evidence without disclosing sources and methods and creating a risk that terrorists would go underground. In such circumstances, how could the United States credibly condemn Russian targeted killings?"

Putting aside the morality of drone warfare the report by the Washington Post reporter discloses that there is something slightly whimsical about the behavior of drones when they are not engaged in killing people. Drones are flown by pilots who can be thousands of miles away from the drone they are piloting and among those pilots, pilot error is not uncommon. Several military drones have disappeared while at cruising altitude never to be found again. One drone crashed because the pilot failed to realize she was flying it upside down. Another crashed because the pilot pushed the wrong button on the control stick. The crews of two predator drones explained the erratic behavior of the drones in their charge by saying they had been "possessed" and plagued by "demons."

One camera operator gave a chronically nervous pilot of a predator drone a helpful piece of advice while the pilot was waiting to take off: "Stop saying 'uh oh' while you're flying. It's never good. Like going to the dentist or a doctor. . .oops. What the f---you mean oops?" According to the Post report, shortly after this exchange the drone "rammed a runway barrier and guardhouse. "Whoa" the pilot said. "I don't know what the hell just happened."

It would be interesting to know what the pilots who have accidentally killed civilians in Pakistan, Afghanistan, Yemen and other places say when they realize their mistakes. Probably something more than "oops" or "I don't know what the hell just happened." We will probably find out as the number of drones continues to climb and kill.