I happened to watch Dr. K’s outburst last night regarding the use of drones for domestic law-enforcement surveillance purposes. My great admiration for him notwithstanding, this was not his finest hour.
It’s not my primary purpose to make an argument in favor of drone use. But his argument against it — to wit, that a drone is a “weapon of war” and we don’t use the military for domestic law-enforcement purposes — was extremely weak. There are lots of surveillance techniques that have application in both military and domestic contexts; we don’t shun them in the latter because of the former. My recollection is that Charles ultimately approved of the Bush warrantless surveillance program and — putting aside the question of whether judicial warrants should have been obtained — he spoke favorably about the use of the NSA’s advanced technology to ferret out potential terrorist communications. The fruits of national-security surveillance, whether it’s done with the blessing of the FISA Court or not, have long been admissible in criminal proceedings; being able to leverage potential criminal liability is one of the best ways to convince terrorist insiders to cooperate and provide us with life-saving intelligence. I’ve never heard anyone argue that we shouldn’t use such techniques domestically because they are also effective in gleaning battlefield intel. Moreover, regarding Charles’s posse comitatus objection, you don’t need the military to operate a drone — the FBI and other agencies can master it quite easily.
As Dr. K seemed to concede, we already have lots of surveillance techniques in domestic use that are at least as intrusive as drones would be. His objection to drones is not logical — it is sheer emotion. It just doesn’t feel right to him because of the drone’s association with battlefield operations (including kills). It wasn’t much different from listening to the complaint that Bush was “shredding the constitution”: In the right setting, it’s a great applause line, I suppose — and Charles’s protest certainly seemed to ring their chimes on the ol’ Fox News set last night. But it doesn’t tell us anything analytical so that we can make an informed judgment about whether the use of some technique in a particular set of circumstances is appropriate or inappropriate.
There is a considerable body of Fourth Amendment jurisprudence that applies to this subject. Even if the Framers never considered drones, the underlying search principles still inform us: Is the surveillance capable of searching private areas for which the police would otherwise need a warrant? Can it be limited to public areas where people have no expectation of privacy, where cops patrol even if there is no suspicion of criminal activity, and where drone surveillance would not be any different in kind from surveillance cameras (which are increasingly ubiquitous)? Is the use of a drone reasonable under the circumstances (i.e., is there some serious crime or threat, or do they want to use drones to see who’s running red lights)? What are the possible ways the executive branch can abuse the technique, and can this potential be discouraged short of an outright ban?
It may be that we ask all the familiar search-and-seizure questions and decide that drones are overkill. Or maybe they’re fine, at least in some circumstances and with some legislative privacy protections (the kind that attend other very intrusive search techniques). But why would you take off the table a potentially effective search method, for all purposes and for all time, just because it’s been used effectively in the military context — particularly when, in counterinsurgency strategy, where we seek not to conquer enemies but protect populations, there is already considerable blurring of the line between military and law-enforcement functions?