If Domestic Drones Are All Civil, Then Why Are They in the Defense Authorization, Too?

I’m working my way up to a post on the cognitive dissonance the government’s treatment of Hedges v. Obama seems to have created over at Lawfare. But first I want to note something odd about this Ben Wittes post, calling Conor Friedersdorf’s endorsement of Charles Krauthammer’s opposition (!) to domestic drones, “silly.” After excerpting what they said, Ben writes,

All of which provokes one question: Do either of these men have the slightest idea what they’re talking about?

[snip]

More fundamentally, the issue before the FAA right now is not the flying of “instruments of war” over the United States. It is, as Congress put it (see Section 332), the development “of a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.” The key word in there is “civil.” We’re not talking here about standing armies or using the military domestically. We’re not even talking about weapons at all. We’re talking about crop dusters. We’re talking about traffic-monitoring UAVs. We’re talking about journalism. We’re talking, in the longer run, about unmanned civilian cargo transport and, I suspect, air travel. And yes, we’re talking about law enforcement.

Now, like ACLU’s Catherine Crump, I’m not opposed to some domestic uses of drones, like disaster response and climate change response.

But I’m struck by the focus of Wittes’ so-called rebuttal. He seems to be focusing on the requirement–with a 270 day deadline–to set up a plan for civil drones in the national airspace.

(1) COMPREHENSIVE PLAN.—Not later than 270 days after the date of enactment of this Act, the Secretary of Transportation, in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry, shall develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system. [my emphasis]

He seems to be ignoring the other part of the section that requires FAA–with a 180 day deadline–to set up a program involving 6 test sites.

(1) ESTABLISHMENT.—Not later than 180 days after the date of enactment of this Act, the Administrator shall establish a program to integrate unmanned aircraft systems into the national airspace system at 6 test ranges. [my emphasis]

Which is curious, because this requirement specifically involves DOD and includes “public” drones, as well as civil ones.

(C) coordinate with and leverage the resources of the National Aeronautics and Space Administration and the Department of Defense;

(D) address both civil and public unmanned aircraft systems; [my emphasis]

So the first thing that’s happening is the roll-out of these test sites including “public” (DOD, NASA, and DHS) drones, not the plan for the roll-out of “civil” drones.

Not only that, but this requirement appears not just in the FAA reauthorization, but also–as Section 1097–in the Defense Authorization.

SEC. 1097. UNMANNED AERIAL SYSTEMS AND NATIONAL AIRSPACE.

(a) ESTABLISHMENT.—Not later than 180 days after the date of the enactment of this Act, the Administrator of the Federal Aviation Administration shall establish a program to integrate unmanned aircraft systems into the national airspace system at six test ranges.

[snip]

(3) coordinate with and leverage the resources of the Department of Defense and the National Aeronautics and Space Administration;

(4) address both civil and public unmanned aircraft systems;

Furthermore, the most public discussion of one of these test sites involves Reapers flown by the Air National Guard, though they would only be armed over Fort Drum.

The Air National Guard’s 174th Fighter Wing is a step closer to gaining federal permission to fly unmanned Reaper drones out of its base at Hancock Field, according to U.S. Sen. Charles Schumer.

The National Defense Authorization Act signed into law last week by President Barack Obama allows for the establishment of six national test sites where drones could fly through civil air space.

The Air National Guard’s 174th Fighter Wing is a step closer to gaining federal permission to fly unmanned Reaper drones out of its base at Hancock Field, according to U.S. Sen. Charles Schumer.

The National Defense Authorization Act signed into law last week by President Barack Obama allows for the establishment of six national test sites where drones could fly through civil air space.

[snip]

Hancock Field, which will eventually host a full squadron of Reaper drones, has the largest potential training space in the Northeast. Most of the drones assigned to the 174th Fighter Wing are now remotely operated in Afghanistan and Iraq by pilots at the Mattydale base.

[snip]

The drones would be armed with live ordnance only when used at firing ranges at Fort Drum near Watertown.

Is Wittes really suggesting that these Reapers are “crop dusters” or “journalists”?

More direct still is this 2010 DOD report (from which the map above derives) describing the urgency behind the operation of “public” drones in US airspace.

Unmanned aircraft of the Department of Defense (DoD), Department of Homeland Security (DHS), and National Aeronautics and Space Administration (NASA) have a need for safe and routine access to U.S. airspace in order to execute a wide range of missions including surveillance and tracking operations, training, test and evaluation, and scientific data collection. UAS are already a significant part of DoD, DHS, and NASA operations and will eventually require U.S. National Airspace System (NAS) access similar to manned aircraft.

Training, surveillance and tracking … that’s “crop dusters” too?

In addition to “real world training” in US airspace, the report anticipates drones will conduct missions for NORTHCOM.

The DoD needs to be able to respond rapidly to operational tasking, typically from a COCOM such as the United States Northern Command (NORTHCOM). Many of these tasked missions relate to homeland defense, homeland security, and defense support to civilian authorities. This includes border and port surveillance, maritime operations, counter-drug operations, and disaster or special event support.

I guess Wittes thinks these all amount to more crop dusting, too?

And that’s all before you get to DHS’ use of drones to “accomplish persistent border and maritime surveillance to detect, interdict and prevent acts of terrorism and the unlawful movement of people, illegal drugs and other contraband toward or across the borders of the United States.” That is, similar to functions the drones are doing on Afghanistan’s border (or Turkey’s). More crop dusting.

I could go on with more and more evidence that domestic drones are–in very significant part–about DOD’s drones or DHS drones operating in a counterterrorism or counternarcotics mission.

Which is all a very long-winded way of saying it isn’t the drones that are crop-dusting. It’s Wittes himself.

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.

10 replies
  1. MadDog says:

    Ta EW for a well-deserved smackdown on Ben Wittes!

    I know there are folks who hold he and Lawfare in regard (perhaps not high regard, but regard nevertheless), but I can’t seem to avoid concluding that fealty and obeisance to the all-knowing gods of government is Ben’s and Lawfare’s primary brief.

    I think your post provides undeniable evidence that government-worshipping blinders are their de rigeur eyewear of choice. I have no desire to share the same road when they are driving with these “corrective” lenses.

  2. jo6pac says:

    Well that was a fun read thanks for the link MD.

    I do have one question, why are colleges purchasing drones and is there a list of which ones are asking for permission?

  3. emptywheel says:

    @jo6pac: I think there are a lot of reasonable research uses. Atmospheric sampling, geography, engineering. Those all have real applications though probably involve much smaller drones. And those drones often fall outside of the guidelines set up by FAA for coverage.

  4. MadDog says:

    @jo6pac: Perhaps they see a new employment opportunity for their students and wish to cash in, plus its another justification for those mushrooming tuition fees, and lastly the National Security State is the biggest game in town, so “Right on drones!”

  5. ondelette says:

    They are going to have to coordinate all use of drones with both civilian and Defense use of the airways. So the plan will include the DoD even if it includes zero DoD drones. Unless you think it will be okay if NORAD scrambles a paranoid response to an M.I.T. drone flying over Hanscom Field and starts shooting at Tarek Mehanna’s parents house in Sudbury.

    At this point, in order to stop surveillance, you should want to stop all of it. A weather drone has very little in common with one which looks for information for a company which wants to advertise to you, regardless of the fact that their drones may both be ‘civil’. Corporations are gathering data faster than the government. And corporations are very much ready to go with ‘civil’ drones which will gather data on people in the U.S. I’m sure the government can and will get their hands on much of what the corporations collect at some point, but if you are going to nitpick, throw out the civil drones first. Nobody gave the corpies a sacrosanct right to spy, either.

    There were no modern corporations around at the time that the 4th amendment was written. And the civil libertarians refused to show up to the party when the people from MPEG, W3C, ITU, and other standards bodies were meeting to decide what would and wouldn’t be accessible to be abused from among your electronic private parts.

  6. MadDog says:

    Will the Pentagon finally talk about its drone operations? This WSJ article hints yes, and this coming Monday, the Obama Administration must finally respond in federal court to suits on the US drones by the ACLU and the NYT:

    U.S. Rethinks Secrecy on Drone Program

    The Obama administration is weighing policy changes that would lift a tattered veil of secrecy from its controversial campaign of drone strikes, a recognition that the expanding program has become a regular part of U.S. global counterterrorism operations…

    [snip]

    …The changes considered most likely to win adoption would bring about greater openness regarding the military drone program, while keeping most or all details of CIA strikes classified, U.S. officials said. CIA officials are opposed to publicly acknowledging the details of drone programs under its control, for fear of setting precedents that could affect other covert programs…”

  7. MadDog says:

    And on topic via POGO:

    Drones: Unmanned, but Inherently Governmental?

    U.S. Air Force Captain Keric D. Clanahan has written a paper on the legal and policy controversies surrounding the Air Force’s use of unmanned aircraft systems (UAS), more commonly known as drones. Specifically, Clanahan examines the kinds of tasks contractors are performing in the Air Force’s drone program and discusses whether these tasks should be entrusted to contractors…

    …Clanahan is somewhat vague about whether contractors in the program are performing or have performed inherently governmental functions, stating only that “there have been situations” where contractors might have crossed the line and either commanded military forces or participated in combat operations, activities which would be in violation of the Federal Acquisition Regulation (FAR) and the White House’s 2011 policy letter on inherently governmental functions…”

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