Can the Government Use Armed Drones in US Airspace?

John Glaser, February 18, 2013

Last week, the Military Times ran a report based on statements from James Williams, the man from the Federal Aviation Administration that is “in charge of integrating unmanned aircraft into US airspace.” The story had an encouraging headline: “No Armed Drones in US Airspace.”

Over the next 10 years, unmanned aircraft could fill a number of commercial and government uses here at home – but those uses don’t include putting ordnance on target, said James Williams of the Federal Aviation Administration.

“We currently have rules in the books already that deal with releasing anything from an aircraft, period,” Williams said Wednesday. “Those rules are in place and are there that would prohibit weapons from being installed on a civil aircraft. We don’t have any plans on changing them for unmanned aircraft.”

An all out prohibition on armed drones over US airspace would indicate a significant check on the government’s growing powers expanding into uncharted territory thanks to the technological advances of unmanned aerial vehicles. Drones have made it easier for Washington to conduct covert warfare and surveillance in other countries, and those that are critical of their use have for years warned of their inevitable domestic application.

While Williams’s comment seems categorical – no armed drones over US airspace – his meaning is less clear. He mentions laws that prohibit weapons being installed on “civil aircraft.” What about the government? Certain US senators, including Sen. Rand Paul (R-KY) have made it a mission of theirs to get clarity on “whether or not the president can kill American citizens through the drone strike program on US soil,” given Obama’s declared authority to do so on foreign soil.

Steven Aftergood of Secrecy News gives further specificity to the question, citing a US Army manual. The army’s use of drones over US airspace is “constrained, not prohibited,” he reports.

There are significant barriers to the Army’s use of unmanned aerial systems within the United States, according to a new Army manual, but they are not prohibitive or categorical.

“Legal restrictions on the use of unmanned aircraft systems in domestic operations are numerous,” the manual states.  The question arises particularly in the context of Defense Support of Civil Authorities (DSCA), refering to military assistance to government agencies in disaster response and other domestic emergencies.

“Use of DOD intelligence capabilities for DSCA missions–such as incident awareness and assessment, damage assessment, and search and rescue–requires prior Secretary of Defense approval, together with approval of both the mission and use of the exact DOD intelligence community capabilities. Certain missions require not only approval of the Secretary of Defense, but also coordination, certification, and possibly, prior approval by the Attorney General of the United States.”

As a general rule, “military forces cannot use military systems for surveillance and pursuit of individuals.”  This is precluded by the Posse Comitatus Act, as reflected in DoD Directive 5525.5.

But there is a possibility that exceptions may arise, the manual indicates.  “[Unmanned aircraft] operators cannot conduct surveillance on specifically identified U.S. persons, unless expressly approved by the Secretary of Defense, consistent with U.S. laws and regulations.”  See U.S. Army Field Manual FM 3-52, Airspace Control, February 2013 (especially Appendix G).

So there are regulatory and procedural constraints on the government’s use of domestic drones in general, and the US Army manual prohibits the use of military systems for surveillance and “pursuit of individuals.” That would suggest pursuing individuals with drones – armed or unarmed – is not allowed. Furthermore, the Posse Comitatus Act restrains in principle the military’s domestic capabilities. So again, in principle, it would seem illegal.

But nothing here yet specifies what are the rules for the police force’s use of drones, to which Army manuals and Posse Comitatus do not apply.

Furthermore, many legal experts agree the President’s use of drones in targeted killings abroad is illegal. But that hasn’t prevented their expansive application. Indeed, to avoid legal scrutiny, the Executive Branch simply keeps the program technically secret and conducted by the CIA. Covert activities are those that would be illegal…if the government would make them public and submit to judicial review, which it refuses to do.

When it comes down to it, the question of whether armed drones will be used to pursue domestic targets depends on how robust the rule of law is – as opposed to rule by men. To what extent does the state submit itself to its own rules, laws, and promises? Not very much, especially in cases of “national security.”

Update: Josh Harkinson at Mother Jones reports that there are barely any specific rules restricting the state and local government’s use of drone technology. Harkinson illustrates the growing move for domestic police forces to get drones. Many of them, like Alameda County Sheriff Gregory Ahern, claim they want the drones for search and rescue purposes, and only to catch the worst federal criminals. But it isn’t hard to determine their true intent:

“I think this is the future of technology,” [Ahern] said, “and we can work together to make sure that this works appropriately.”

But barring written rules, privacy groups aren’t convinced that Ahern or other sheriffs can be trusted with drones. Last year, Ahern publicly pitched the drone to county lawmakers as a search-and-rescue tool, but told a different story in a grant application submitted to the Department of Homeland Security, which said the drone would assist with “surveillance (investigative and tactical)…intelligence gathering…suspicious persons, large crowd control disturbances, etc.” (Alameda County includes Oakland, where police battled with Occupy protesters last year.)




12 Responses to “Can the Government Use Armed Drones in US Airspace?”

  1. [...] Read more at Antiwar.com (blog). [...]

  2. http://www.youtube.com/watch?v=ssoOASanKao

    Published Feb 2013

    Emmy-winning journalist, Shad Olson, explores the controversy over U.S. drone policy, both at home and abroad.

    While technological sky supremacy gives America strategic superiority on the battlefield, the prospect of drone proliferation over U.S. cities is causing concern about loss of privacy, an end to Habeas Corpus and judicial due process and the destruction of Constitutional rights.

    South Dakota U.S. Senator John Thune and former U.S. Senate candidate, Sam Kephart share their views about the consequences of domestic drone deployment in the fight against terrorism.

    Originally aired on KNBN-TV, (NBC) NewsCenter1, Rapid City, South Dakota in February 2013.

  3. [...] Can the Govt Use Armed Drones in US Airspace? [...]

  4. I'm surprised the LAPD, the FBI or the military didn't "drone" Christopher Dorner, but one was used for surveillance. The cop heroes decided to burn him out, Waco-style. Maybe next time, right?

  5. Why would the government ever need to use armed drones in US airspace unless there was an invasion of the USA, or an large armed insurrection that actually controlled territory? Armed drones are most useful where the USA does not have control on the ground. Of course, surveillance drones are an entirely different matter.

  6. It's not "if" but "when" they arm them. Who would have thought pre-1968 there would be militarized police units battering down doors, snipers shooting people and tasers used to "pacify" even to the point of death? That would have been so out in left field as to boggle the mind and yet, daily, this is our present circumstance brought on by the very people who "promise" never to escalate. They'll find the excuses to fit the narrative they desire and provide the iron and muscle to make you comply to their wishes. Sound far fetched? Dream on. It's coming so get ready.

  7. I see a new gun law coming.. not legal to defend private property more than 100 feet above your home.
    So much for shooting at your friendly drone!

  8. Not according to James Williams, the FAA official in charge of integrating unarmed drones into civilian airspace.

    If you think using armed drones in Pakistan, Yemen, etc. is bad, can you imagine the same being done in large cities such as Los Angeles, New York, or Chicago? I surely don't; the civilian death toll would be unfathomable, and the US public would not tolerate it.

  9. ZZZZTTT! Stop resisting! ZZZTTT! ZZZTTT! Stop resisting citizen, I mean slave!

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  11. The Us public has already shown that they can tolerate a lot when the media tells them it good for them.

  12. I'm grateful that Randal Paul is fighting this issue hard and is willing to filibuster to get it a national debate.

    Rand Paul 2016