Confessions of an Orwellian Oppenheimer

Drunken Predator has one of the smartest descriptions of what I agree are two of the biggest reasons to oppose drones. On one side, he describes “Oppenheimers” who oppose some international uses of drones out of concern for the way they expand the Imperial Presidency.

I’ll call the first group “Oppenheimers,” after a guy who got a good look at a new kind of warfare and spent the rest of his life championing international institutions to make sure it never took place. They feel that remotely-piloted aircraft represent a qualitative shift in the ability of a nation, and a chief executive, to use force. And not a shift for the better.

Oppenheimers think drones will usher in an Imperial presidency. The capitalization there is important, because we’re talking Imperial as in Palpatine at the helm of the Galactic Empire. They fear that through technical means, drones are reducing or eliminating the political impediments to war, and blurring the line about what kind of conflict constitutes war in the first place. (Nobody puts a flag over drone wreckage, let alone puts it on the nightly news.) Oppenheimers also deplore the role that drones play in the larger framework of the Authorization for Use of Military Force, or AUMF, which the Obama administration interprets as giving them clearance to use force (whether under Titles 10 or 50) against al-Qaeda or its affiliates anywhere on the planet.

The first part of his description–the way drones used outside of war zones change the way we wage war–gets at part of what I was trying to describe in my two posts on drones and sovereignty and the nation-state. Drones not only degrade the sovereignty of and therefore the ability to govern in states like Pakistan in dangerous ways, but they shift the relationship between us and our own government, allowing it to wage war relatively free of political limits, which in turn appears to be accompanying and related to fundamental changes in the social compact between the government and the governed.

I’d add two things to DP’s description, though. First, drones are not changing warfare alone. So are our expanded use of special forces (which, so long as they don’t fight in uniforms and fight in countries we’re not at war with, resemble the unprivileged enemy combatants and tactics this war started by targeting) and mercenaries. Those developments all work together to support the same changes in warfare; drones just happen to be the most visible evidence of those developments.

Also, this is not just about the AUMF. As I noted on Twitter, there are reasons to believe some of our drone strikes (and some of our paramilitary activities) are operating at least partially under the September 17, 2001 “Gloves Come Off” Memorandum of Notification, not the AUMF (or, as Stephen Preston suggested recently, an AUMF would be separate and independent from authorities that derived from Article II authority covered in a Finding). At this point, the distinction between Title 10 (military) and Title 50 (intelligence) authorities appears to have become a shell game, giving Presidents two different ways to authorize and approve various activities based on the buy-in from Congress, international sensitivities, the actual targets, and skill sets available. This–plus an urge toward “flexibility” in law enforcement and data sharing in intelligence generally–has made it easy to use tools justified for one target (like al Qaeda) to fight another target (like non-AQ terrorists or drug cartels or leakers).

The blurring between Title 10 and 50 and domestic intelligence and law enforcement is important when we get to DP’s second group, “Orwells,” who oppose drones because of concern about drones used in domestic surveillance.

Their primary concern about drones is domestic. They see the technological potential for drone surveillance, the interest from law enforcement and government agencies, and the massive aerospace industry primed to meet the demand. While there are often noises made about UAV safety, the primary gripe of Orwells- who can point to an actual passage in 1984 which describes small unmanned aircraft peering through people’s windows- is that drones are vanguards of a pervasive surveillance culture. The police watch you outside with robots, corporations like Facebook and Google parse your user data to better bombard you with ads, and the NSA hoovers up your phone and email communications to feed through a secret counter-terrorism algorithm.

Before I look at two characteristics of DP’s discussion of domestic drones, here’s where he goes with this discussion: he suggests, first of all, that drone opponents use the same stock photos because they most effectively–but inaccurately–generate support for both arguments.

It’s a lot easier to make people uneasy over privacy concerns when you pair the article with pictures of a targeted-killing machine. Same way it’s easier to make people care about collateral damage in Yemen or the Phillipines by being able to say with a straight face, “You may be next.” This line-blurring is inaccurate, widespread, and actively harmful to an informed debate.

Oppenheimers are wrestling with the problem of how America uses force in hostile, fluid or ungoverned territory; Orwells are trying to apply 250 years of the rule of law to a new police technology. Both are doing so, by and large, in good faith.

[snip]

While I actually agree with many of the concerns of both groups, pretending that their goals have anything in common, just because they use the same stock photography, is ridiculous.

The practical problem with doing this, DP argues somewhat persuasively, is that these two problems with drones have different solutions; solving one of the problems will not solve the other.

But establishing international standards for the deployment and operation of lethal military assets will do precisely nothing to curb the rise of the surveillance state within America’s borders. Nor will enhanced American legal protections against police UAV surveillance somehow prevent collateral damage in the lawless regions of Pakistan or Yemen.

Note, however, what DP does here: the international threat is military, the domestic one is civilian police. As I’ve suggested–and as DP’s invocation of DOD’s NSA among the known expanding surveillance risks–such neat lines no longer exist, though suggesting they do makes DP’s argument easier. Which brings us, ultimately, to what I consider a straw man argument, the suggestion that domestic drone opponents are worried primarily that armed drones will be used for speeding enforcement.

And when Orwells and Oppenheimers imply that the New Jersey State Police will soon rain Hellfire missiles onto Garden State Parkway speeders, it creates a rhetorical fog bank that’s too thick for logic to penetrate.

First, as bmaz and I argued on Twitter, it will be a long time before armed drones target New Jersey’s speeders. But it will probably be a much shorter time until armed drones operate either in northern Mexico or on the border, hunting drug cartels, against which the Obama Administration has already started applying counterterrorism tactics, to say nothing of ratcheting up fear based on cartels’ alleged ties to both al Qaeda and non-AQ terrorists we’re fighting. While it is a stretch to imagine armed drones used in day-to-day law enforcement in the US, it is not a stretch to imagine armed drones seeping across the border in search of drug traffickers, as many other Executive Branch abuses already have.

Moreover, there is plenty to fear from drone-based surveillance well before they start shooting down New Jersey’s speeders.

DP, for example, argues that helicopter surveillance represents a bigger threat than drones, as they currently are. But that ignores the added sensor technologies that represent further incursions on privacy–and under Fourth Amendment precedent on thermal imaging surveillance would be a legal problem. Plus, I think the debates about using satellite surveillance for precisely the same applications currently envisioned for drones and the Court’s treatment of GPS technology in Jones suggest that there will be a lot of fluidity in privacy law in upcoming years, which ought to invite a robust discussion about whether and for what drones are appropriate. All that said, the most extensive government surveillance currently takes place behind the veil of secrecy-protected intelligence collection, which has prevented anyone from challenging the most intrusive GPS surveillance (the Secret PATRIOT application) and would likely prevent anyone from challenging the most abusive potential uses of drones, so their unquestioning use is, by itself, a problem.

I also think DP focuses too closely on the FAA roll out of drones, and too little on the NDAA’s rollout of six test sites for military drones in civilian airspace. Sure, I never much worried about the omnipresent F-15s [correction: F-18s?] flying over my head when I lived and worked near Miramar, which like these drones would be in part, were engaged in training. But that was before our government expanded the use of unwarranted DOD (NSA) surveillance in the US. In other words, it is one thing to envision police use of drones to help capture cattle rustlers targeted for probable cause, it is another to imagine DOD use of drones for unwarranted surveillance–the kind of surveillance that is already in place through NSA and certain DOJ authorities. Besides, the rollout of domestic drones explicitly envisions the kind of resource sharing that went into that cattle rustler bust, which means in the era of flexibility and data sharing, authorities can get around limits on the use of posse comitatus and CIA surveillance.

Which brings us, ultimately, to DP’s too narrow treatment of the Imperial Presidency. When Arthur Schlesinger Jr. wrote the Imperial Presidency, he talked about the waging of secret wars, but he also cited a list of things that made Nixon historically worse, including illegal wiretapping, illegal electronic surveillance, tampering with witnesses, misprision of felonies. When John Conyers invoked the term, his list included illegal wiretapping and abuse of PATRIOT Act authorities as well as torture and rendition.

That is, the post-9/11 presidents, like the archetypal Imperial President, have done more than just unilaterally wage secret (and not-so secret) wars. They have also invoked domestic enemies at a time of war to use novel tools against them. To some degree the war on terror is custom made to do so–to roll out massive surveillance in hunt of people who are or might be entrapped to become enemies amongst us. And both the Bush and Obama Administration have expanded the targeting using such authorities from just Muslim extremists to include Occupy protestors, Tea Partiers, hackers, peace activists, journalists. Furthermore, while in the current political environment, it is unlikely a President will use a drone to kill an alleged terrorist within the US, the Administration is currently using the Imperial President’s favorite tool–secrecy–to avoid admitting that they believe they have legal authority to do so in some circumstances.

Yes, the discrete solutions to the international problems drones present are different than solutions to metastasizing domestic surveillance, including drones.

Yes, the first abusive use of drones in the US probably won’t be the targeted killing of New Jersey’s speeders. But there is plenty there that resembles the continuum of drone uses overseas. Ultimately, the Imperial Presidency claims the authority to ignore the laws of sovereign or private property.

And both (potential or actual) uses of drones are the two faces of the Imperial Presidency, one directed outward to conduct foreign wars with few checks, the other directed inward to target “domestic enemies” protected by a great deal of secrecy. Neither, by itself, fully empowers the Imperial Presidency. Both spheres–war and surveillance–are among the ways the Imperial Presidency operates outside of traditional legal limits.

And at that level, only legislative efficacy–to the extent such a thing exists anymore, particularly in light of the surging drone lobby–supports distinguishing between the two reasons.

Drunken Predator provides excellent summaries of–and superb names for–the two main reasons to oppose drones. But I think he mistakes the degree to which they are simply two sides of an Imperial President continuum.

Update: As if on cue, the Air Force makes it clear that it can incidentally (though not intentionally, unless the Secretary of Defense tells it to) collect US person images in the US. It won’t keep that data, but will instead pass it onto a civilian law enforcement agency, which will almost certainly, in turn, pass it onto the National Counterterrorism Center.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

24 replies
  1. MadDog says:

    Ahhh…where to begin?

    First, a really well-thought-out, and written post. Congrats!

    Right now as I try to assemble my jumble of thoughts, I’ve decided to ponder them a bit more before making too much a fool of myself.

    So I’ll end this particular comment by noting a really minor quibble. You mention F-15s flying overhead near Miramar. Miramar is currently a Marine Air Station, and was formerly a Naval Air Station.

    F-15s are flown by the Air Force. The Marines and the Navy fly, and flew, other planes like F-14s, FA-18s, etc. But not F-15s.

  2. emptywheel says:

    @MadDog: Hmm. Proably F-18s on a daily basis. But a lot of what flew out of Miramar at that time was air porn, and did include F-15s.

  3. MadDog says:

    Ok, now having also read Drunken Predator’s post, I agree with the compliment you give him EW on his descriptions of Oppenheimers and Orwells. They are particularly apt descriptions.

    And then I agree with you EW that Drunken Predator doesn’t venture far enough afield to capture some of the broader implications in either description. It well may be that Drunken Predator has thought about and considered some of these broader implications as evinced by his apt descriptions, but if so, we are short-changed by his lack of writing about them.

    In regard to another point, correct me if I’m wrong EW, but I believe you see the Orwellian description of drone usage by Drunken Predator as a relatively minor surveillance addition to the already massive unwarranted NSA vacuum cleaner drift netting of electronic signals of all voice and data communications from websites visited to GPS location tracking.

    To me, these are far more of Orwellian concern than whether a drone follows my car or someday in the future, a butterfly drone is peeking in my window or a nano-drone is perched on my shoulder.

    Yes, it will be icing on the National Security State cake, but the cake is still the meal.

    As to the Oppenheimer description of drone usage, like you I find this reminiscent of much that marks other periods of Imperial eras. I’ve been recently thinking of the Roman Imperial era where the Romans became too lazy to do their own “blank” (fill in that blank with any of the following: fighting, building, populating, and yea, even ruling).

    Like those Roman elite of long ago, the US elite have lazily latched onto drones as the apparent least-costly and least-risky method for enforcing (note the “force” component of the word) our rule, our opinions, and our animus.

    Combined with your point EW about lack of “we the governed’s” input into this tool of Imperial US’s governance, another aspect of Empire should be apparent to all. Just as empires rise, so do they decline.

  4. tjallen says:

    Among uses of aerial surveillance will be enforcement of EPA and Interior dept regulations, as this example from Europe shows:

    http://www.bbc.co.uk/news/world-europe-16545333

    Main quote: “Farmers who claim more EU subsidies than they should, or who break Common Agricultural Policy rules, are now more likely to be caught out by a camera in the sky than an inspector calling with a clipboard. How do they feel about being watched from above?”

    This story includes photos of the surveillance planes, and examples of aerial photos showing violations of EU Farm policies.

  5. emptywheel says:

    @MadDog: It’s hard to say that the drone surveillance is just icing. Just consider how something as innocuous and relatively low-tech as smart phones apparently has led to us all being logged in databases from which they plan to triangulate locations.

    The point being, we don’t KNOW what new ways they’re layering on the surveillance. And while drones suggest just very intense surveillance of very few people, it’s no more clear they’d be real suspects than wiretapping is. That is, there’s a parallel to the use of signature “strikes” in domestic surveillance: pattern of life targeting that then serves as justification for more intense surveillance. We know they do this, all the time. There’s no reason to expect that, once they get drones in the air full time, they won’t do the same here.

    What we do know is drones are not just quieter helicopters. Both their ability remain “stationary” and their additional sensing capabilities make it possible they’d do far more.

  6. emptywheel says:

    @tjallen: And frankly, I–but likely not the elite–think EPA has a lot of logical uses for drones. Even if they just cracked down on CAFOs, it’d be a plus, to say nothing of likely applications for drones in climate change and related issues.

    Part of the problem is secrecy. Until they are VERY transparent about all this, there’s no reason they should get a pass.

  7. MadDog says:

    @emptywheel: I agree that we don’t know where exactly drone technology will lead us in regards to surveillance, but I still feel it’s icing when compared to the truly massive electronic surveillance “cake” capabilities that already exists.

    In any event, I do find myself more concerned about the Oppenheimer aspects of drones, and perhaps I should be as concerned about the Orwellian aspects, but there I be. *g*

    I do think you’ve advanced the discussion by introducing the “pattern of life” surveillance concept to domestic drone usage. I hadn’t ever considered that before.

  8. tjallen says:

    @emptywheel: Not sure who your “they” is. I expect all branches of government and industry will get into the unmanned aerial surveillance game, mostly to our benefit. The FAA will leave a layer above the wires but below the clouds for these small planes. Recent improvements in lightweight batteries have made electric motors practical, at surprisingly low cost – just a couple hundred bucks for the whole outfit – plane, cameras, battery packs. Look on ebay! Actually the US govt and industry are behind the curve on this one. There are so many positive uses – disasters, flood surveys, counting pigs and cows (as you mentioned), seeing whose steers are getting all the free grazing, directing first responders, and on and on. And yes, I’m sure state sheriffs want to use these aerial platforms to catch the speeders – but not to missile them, just to photograph their plates and direct the officer there. I guess it will cross the line when any of these planes are armed with more than a camera – and you KNOW they will not let us in on that secret!

  9. tjallen says:

    In the military realm, I expect an arms race just like the one after airplanes were first introduced in WW1. There will be fighters, escorts, flying battery rechargers, mini-missiles, mini-ack-ack and more, all built in the 2 feet to 12 feet range (the sub-piloted range).

  10. ryan says:

    OT, my mom brought an old college friend over today. Her son-in-law is a Michigan National Guardsman. While his unit has been stateside for a while, one small unit out of his larger, um, division? – I don’t know the gradations well – anyway, one small unit was assigned to Afghanistan in November or December and went on communications black out for several weeks a couple months ago, leaving loved ones anxious. It later turned out they were in one of the Panjwai bases. (She told it as ‘the’ base, but I don’t know.)

    Nothing more to report. Hardly worth posting, but I thought EW would be interested to learn there was a Michigan unit in the thick of that situation.

  11. MadDog says:

    @ryan: If it should so happen that you hear any more info about what he may have heard/seen, we are all ears!

  12. P J Evans says:

    I can see pipeline companies wanting drones to do photo surveys. There’s also aerial traffic watch. (In urban areas, drones might be better: they could be below normal flight level for copters and aircraft, and still do the job.)

  13. Steven Walcott says:

    hey, great post.

    the way that both of our political parties have so whole heartedly embraced both the external and domestic drones makes me feel like they’ve concluded that drones help them consolidate their political power.

    any future public protest can be so thoroughly documented by these drones it’s very frightening.

  14. Bob Schacht says:

    Great post, and great discussion!
    As tjallen points out, drones are here to stay for a whole bunch of reasons, some good, some bad. The FAA is going to need a whole new book of regs. But I don’t want to take anything away from your prescient comments about the Imperial Presidency. Does Obama really know what he’s unleashing?

    Your observations are really important. Thanks for articulating them so well!

    Bob in AZ

  15. MadDog says:

    OT – I wanted to mention that I think I’ve come up with an important point that folks should be aware of in EW’s previous post about the latest updated underwear bomb plot, and I would appreciate others’ chiming in.

    My long, but hopefully not too rambling, comment about it is back here.

  16. justbetty says:

    As always, it’s not just the technology that is a concern, but the mentality of those using it. That is why I disagree with Drunken Predator that the 2 use of drones are so unrelated. If those with the technology feel free to do as they please without limits, either domestically or internationally, we are in deep trouble.

  17. emptywheel says:

    @justbetty: Right. I don’t think I emphasized it enough. It’s sort of a high tech advance on the panopticon, which not only has full view of world with added sensors, makes a quiet buzz so you know it’s there, and can kill you at will.

  18. emptywheel says:

    As if on cue, the Air Force makes it clear that it can incidentally (though not intentionally, unless the Secretary of Defense tells it to) collect US person images in the US. It won’t keep that data, but will instead pass it onto a civilian law enforcement agency, which will almost certainly, in turn, pass it onto the National Counterterrorism Center.

  19. earlofhuntingdon says:

    @emptywheel: Yes, yes, yes. They are cheaper, quieter, and there could be many more of them. Depending on size, they are harder to detect and avoid. They are built around digital sensing technologies and weapons delivery systems in ways that current civilian and police helicopters are not. Most of all, they are behind the secrecy wall in ways that police and civilian helicopters are not. “Experimental” uses of drones and drone-delivered technologies would develop without meaningful oversight.

    As you point out, with pervasive federalization of state and local law enforcement, the “terrorism” inspired sharing of data – with everyone but the people – means that massive amounts of new data would find its way into those new federal “data centers” in Utah and elsewhere.

  20. matt carmody says:

    @tjallen: I seriously doubt anyone in either party is much concerned about EPA or Interior Dept regs unless it’s how they can be ignored without anyone knowing so that crony capitalism can proceed apace. Enforcement isn’t high on anyone’s agenda.

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