Turning the Drone Program into a Weekly Lawn Maintenance Program

Greg Miller has the first of what will be three articles on Obama’s efforts to institutionalize drone war in today’s WaPo. After describing the Administration’s efforts to systematize eliminating counterterrorist targets identified through a formalized process, he concludes with a reflection on how such systematization of the drone war might backfire.

In focusing on bureaucratic refinements, the administration has largely avoided confronting more fundamental questions about the lists. Internal doubts about the effectiveness of the drone campaign are almost nonexistent. So are apparent alternatives.

“When you rely on a particular tactic, it starts to become the core of your strategy — you see the puff of smoke, and he’s gone,” said Paul Pillar, a former deputy director of the CIA’s counterterrorism center. “When we institutionalize certain things, including targeted killing, it does cross a threshold that makes it harder to cross back.”

For a decade, the dimensions of the drone campaign have been driven by short-term objectives: the degradation of al-Qaeda and the prevention of a follow-on, large-scale attack on American soil.

Side effects are more difficult to measure — including the extent to which strikes breed more enemies of the United States — but could be more consequential if the campaign continues for 10 more years.

“We are looking at something that is potentially indefinite,” Pillar said. “We have to pay particular attention, maybe more than we collectively have so far, to the longer-term pros and cons to the methods we use.”

The entire article adds to the sense that drones have become a tactic in search of a strategy. Click through for Bruce Reidel’s analogizing of drones to mowing lawns.

Needless to say, the entire thing is worth reading.

I’m interested, as well, in a few of the details Miller provides.

He describes Brennan’s assumption of the Drone Assassination Czar role reported earlier this year, providing Brennan’s logic for why it’s a good thing he–rather than the Chairman of the Joint Chiefs–manages all the targeting.

Now the system functions like a funnel, starting with input from half a dozen agencies and narrowing through layers of review until proposed revisions are laid on Brennan’s desk, and subsequently presented to the president.

Video-conference calls that were previously convened by Adm. Mike Mullen, then-chairman of the Joint Chiefs of Staff, have been discontinued. Officials said Brennan thought the process shouldn’t be run by those who pull the trigger on strikes.

“What changed is rather than the chairman doing that, John chairs the meeting,” said Leiter, the former head of the NCTC.

One of the reasons Brennan is in the position he is is because he wasn’t considered confirmable: his background with torture (and illegal wiretapping) made him politically toxic. And yet this guy, who hasn’t been Senate confirmed and whose position evades almost all Congressional oversight, is the guy with power over life and death rather than a position over which Congress does exercise clear oversight?

And this detail–which echoes descriptions in earlier Miller stories as well as the Angler 2.0 story from earlier this year–haunts me.

Obama approves the criteria for lists and signs off on drone strikes outside Pakistan, where decisions on when to fire are made by the director of the CIA. But aside from Obama’s presence at “Terror Tuesday” meetings — which generally are devoted to discussing terrorism threats and trends rather than approving targets — the president’s involvement is more indirect.

“The president would never come to a deputies meeting,” a senior administration official said, although participants recalled cases in which Brennan stepped out of the situation room to get Obama’s direction on questions the group couldn’t resolve.

There are a number of famous examples where top White House officials claim to consult the President on an issue but–history ends up showing–never did (I suspect the Plame outing is just one of many things Cheney did this with, for example, and Al Haig used to do it too). Is there any reason we should believe that when Brennan steps out of the room he’s actually consulting Obama, or that he’s representing an apparently contentious debate faithfully? This is classic gatekeeping behavior, and on something as important as targeting, ought to concern everyone.

But it’s not just Brennan we need to worry about. This article also talks about how central the National Counterterrorism Center has become to all this.

The administration has also elevated the role of the NCTC, which was conceived as a clearinghouse for threat data and has no operational capability. Under Brennan, who served as its founding director, the center has emerged as a targeting hub.

Other entities have far more resources focused on al-Qaeda. The CIA, JSOC and U.S. Central Command have hundreds of analysts devoted to the terrorist network’s franchise in Yemen, while the NCTC has fewer than two dozen. But the center controls a key function.

“It is the keeper of the criteria,” a former U.S. counterterrorism official said, meaning that it is in charge of culling names from al-Qaeda databases for targeting lists based on criteria dictated by the White House.

“The keeper of the criteria”! This concerns me, first of all, because NCTC is totally data driven. As the article’s discussion of relative staffing suggests, NCTC’s analysts aren’t doing a whole lot more beyond datamining.

Moreover, while the context here is clearly foreign targeting, remember what happened earlier this year: NCTC got the authority to access all government databases–including social security databases or tax records–that it deems to have a counterterrorist purpose. Which means some very personal data is part of the NCTC borg–along with inaccurate reports such as that Ford Motor Company is a terrorist suspect. That is, NCTC’s are maximalist databases, not terrible accurate ones, and ones that include a lot of American citizens.

And that’s the entity that’s “the keeper of the criteria.”

That’s a problem.

The larger story clearly shows that the Administration is making drone killing a factory process, that needs to be fed with Muslim men like fuel. But it also reinforces the picture of a dangerous concentration of power in some highly unaccountable hands.

UK to Double Drone Fleet, Move Control From Nevada to England

While David Petraeus continues stewing over whether his request to expand the CIA’s fleet of drones will be honored, The Guardian announced yesterday that the UK will double its drone fleet and move control of its drones from Nevada to England.

It will come as a surprise to most that the UK already has a fleet of five drones. They are operated out of Creech Air Force Base in Nevada. From the article in The Guardian:

The UK’s existing five Reaper drones, which are used to target suspected insurgents in Helmand, have been operated from Creech air force base in Nevada because Britain has not had the capability to fly them from here.

/snip/

The most recent figures from the Ministry of Defence show that, by the end of September, the UK’s five Reapers in Afghanistan had flown 39,628 hours and fired 334 laser-guided Hellfire missiles and bombs at suspected insurgents.

The blog Drone Wars UK has collected the public reports it could find of the missiles fired by the UK’s fleet of drones. Skimming the list of entries, it appears that so far, the bulk of UK drone strikes have been aimed at presumed insurgents in the process of engaging with coalition troops in Afghanistan.

For information on how these attacks have turned out, we go back to The Guardian:

The MoD insists only four Afghan civilians have been killed in its strikes since 2008 and says it does everything it can to minimise civilian casualties, including aborting missions at the last moment.

However, it also says it has no idea how many insurgents have died because of the “immense difficulty and risks” of verifying who has been hit.

It would seem that in learning from the US how to operate drones, the UK also has learned from the US how to declare with certainty that exceedingly few civilians have been killed, but at the same time admit that it’s just too darned difficult to count all those bad guys we splat. The public is asked to simultaneously trust the military that civilians aren’t killed but we must accept that verifying just who has been killed is not possible.

It seems that the UK has built its own video game room drone control facility:

Pilots based at RAF Waddington in Lincolnshire will fly the recently bought American-made UAVs at a hi-tech hub built on the site in the past 18 months.

The most recent post currently at Drone Wars UK has conveniently provided a map for the location of this facility, presumably to aid protesters who may wish to be there on Friday when the new RAF squadron (“XIII”) is officially commissioned.

With a fleet of ten drones and the ability to control them anywhere in the world from the facility in Lincolnshire, how long will it take for mission creep to set in? After all, NATO says that it will have withdrawn from Afghanistan by the end of 2014. Where will these drones go then? As the article in The Guardian points out, there are not many areas within the UK where drones can be allowed to fly under current regulations. The allure of developing their own “hit list” must be overwhelming to the folks at 10 Downing Street about now.

Oh, and one last thought. The next James Bond film is set to release in about two and a half weeks. It’s title? That would be “Skyfall“. That is most likely just a coincidence, but seems entirely fitting as further advertisement of the fact that the UK is now announcing its drone capability and independence.

Petraeus Pouts About His Small Drone Fleet, But Did He Hide Benghazi Intelligence?

Is Petraeus still an untouchable Washington darling?

CIA Chief David Petraeus wants to expand his drone fleet by about one third, according to the Washington Post. We learn from the Post that the CIA now has a fleet of about 30 to 35 drones capable of use in attacks and Petraeus would like to increase that number by about ten.

An expansion of this offensive capability gets at the heart of what the role of the CIA should be:

The CIA is urging the White House to approve a significant expansion of the agency’s fleet of armed drones, a move that would extend the spy service’s decade-long transformation into a paramilitary force, U.S. officials said.

/snip/

The outcome has broad implications for counterterrorism policy and whether the CIA gradually returns to being an organization focused mainly on gathering intelligence, or remains a central player in the targeted killing of terrorism suspects abroad.

Paramilitary activity seems to be quite a stretch for an agency whose name describes its role as intelligence rather than fighting.

With a former Pentagon darling now running the CIA, we see that the CIA now may be seen as more friendly territory by DoD:

In the past, officials from the Pentagon and other departments have raised concerns about the CIA’s expanding arsenal and involvement in lethal operations, but a senior Defense official said that the Pentagon had not opposed the agency’s current plan.

It would appear that this time, as usual, Petreaus has found the proper location for applying more of his charms and has aligned the political forces to favor his objectives.

And speaking of Petraeus’ actions in the political realm, the timing of his speaking up for more drones is very “convenient” for him, because the issue of the CIA, what it knew, when it knew it and, most importantly, when it shared what it knew, seems to be at the heart of the political shitstorm brewing over the September 11 Benghazi incident. Read more

Shorter Stafford Smith to Obama: “Don’t Drone Me, Bro!”

On Saturday, a march is planned into South Waziristan in the Federally Administered Tribal Areas of Pakistan. Three groups are involved in the march: Reprieve, of the UK, headed by attorney Clive Stafford Smith, CodePink, of the US, headed by Medea Benjamin and Pakistan’s Pakistan Tehreek-e-Insaf (PTI) political party, headed by former cricket star and likely presidential candidate Imran Khan. The march is intended to draw attention to the plight of innocent civilians suffering from drone strikes aimed at militants who hide out in the area.

Prior to leaving for Pakistan, Stafford Smith wrote a letter (pdf) to President Obama (with a copy also going to CIA head David Petraeus), asking that he not be targeted by drones while he is in South Waziristan. From the letter:

This letter makes a simple request: when I march into Waziristan on October 7th, 2012, please do not let the CIA kill me, Pakistani politician Imran Khan, or the others – including many Americans – who will be marching with me to highlight the plight of the innocent people, including at least 174 children, targeted by drones in recent months and years. Indeed, should my picture come up in your weekly Powerpoint display, please remember that you and I are both lawyers from the same tradition, and it would be unseemly (as well as being both illegal and upsetting for my family) if you were to authorize my assassination.

/snip/

In terms of the studied leak to the NY Times that you and John Brennan studied St Augustine and Thomas Acquinas before authorizing a “hit”, I fear you guys must have been reading an edited edition of the ‘just war’ theory. We won’t even get into the rights and wrongs of the drone strategy, since Acquinas’ first principle was that the war had to be declared by an acknowledged sovereign: here there has been no declaration – only obfuscation by the secretive CIA — and we are waging war on an ally, Pakistan, without its consent. Arguments that these drone attacks are legal are, sad to say, hollow advocacy.

/snip/

I would be grateful if you would assure me – a simple email will do – that the CIA will not target me and my colleagues as we do what little we can to right these tragic wrongs. Surely I don’t ask much: simply not to be killed. In order that we may proceed in peace, I would appreciate such an assurance by 10am EST, on Monday, October 1st, 2012.

It does not appear that Stafford Smith has gotten Obama’s assurance that he will not be targeted.

There is now a “threat” against the march, prompting officials in the region to say that it cannot be permitted to take place, but the threat comes from a previously unknown militant group: Read more

About That FBI Investigation of the Benghazi Attack…

The NYT’s Eric Schmitt reports that JSOC is preparing target packages for those who attacked the Benghazi consulate.

The American military’s top-secret Joint Special Operations Command is preparing detailed information that could be used to kill or capture some of the militants suspected in the attack last month in Libya that killed Ambassador J. Christopher Stevens and three other Americans, senior military and counterterrorism officials said on Tuesday.

[snip]

It remained unclear precisely how many of the “target packages” are being prepared — perhaps a dozen or more — but military and counterterrorism officials said that the Libyan authorities had identified several suspected assailants based on witness accounts, video and other photographs from the scene.

“They are putting together information on where these individuals live, who their family members and their associates are, and their entire pattern of life,” said one American official who has been briefed on the target planning now under way.

American intelligence-gathering assets — spies, satellite imagery, electronic-eavesdropping devices, among others — are finite, so counterterrorism authorities preparing the “target packages” must prioritize which militants in Benghazi — or elsewhere if they have fled the area since the attack — need to be monitored on a nearly hour-by-hour, if not minute-by-minute, basis.

To help with this effort since the attacks, the Pentagon has increased the frequency of surveillance drones that fly over eastern Libya, collecting electronic intercepts, imagery and other information that could help planners compile their target lists. American intelligence agencies have assigned additional analysts to concentrate on the suspects. [my emphasis]

Schmitt doesn’t breathe a word about this in yesterday’s article, but four days before he wrote that JSOC article, he contributed to this article describing the FBI’s difficulties investigating the attack.

Sixteen days after the death of four Americans in an attack on a United States diplomatic mission here, fears about the near-total lack of security have kept F.B.I. agents from visiting the scene of the killings and forced them to try to piece together the complicated crime from Tripoli, more than 400 miles away.

[snip]

The Libyan government has advised the F.B.I. that it cannot ensure the safety of the American investigators in Benghazi. So agents have been conducting interviews from afar, relying on local Libyan authorities to help identify and arrange meetings with witnesses to the attack and working closely with the Libyans to gauge the veracity of any of those accounts.

“There’s a chance we never make it in there,” said a senior law enforcement official.

Read more

Rebecca Solnit’s Mirror

I’ve been laughing my ass off at the number of lefties who have linked to–or republished–this Rebecca Solnit piece scolding her “dismal allies” for being such grumps.

It’s not so much I mind someone trying to persuade progressives of the importance of voting for Obama in November. Solnit acknowledges that Obama has done some horrible things and recognizes the dilemma that might present. And as a swing state resident, I’m used to blue state residents imploring me about the importance of my vote. I’ve always weighed the responsibility of living in a more closely contested state seriously and in 2004 worked many many hours to elect a John Kerry I believed was a problematic choice. Solnit appears not to realize it (allowing one of her interlocutors from NV to equate voicing this dilemma with actual voter suppression, which is after all, a real thing that involves affirmative attempts to make it hard for people of color to vote), but we lefties in swing states actually do think about this stuff and weigh it seriously. It is fair to try to persuade us that voting for Obama is a better choice than not voting or voting third party.

It’s just that I’m stunned that anyone–particularly people who work with words–could imagine Solnit’s piece effectively accomplishes her goal.

This is a piece the 7th word of which is “briefly” that doesn’t wind down for another 2,765 words. It’s the 6th paragraph before Solnit gets around to providing an example of her complaint, and before you get there, you have to wade through vacuous language like, “There are bad things and they are bad. There are good things and they are good, even though the bad things are bad“–italics original.

By the time readers have gotten to the moral of Solnit’s story,

Every minute of every hour of every day you are making the world, just as you are making yourself, and you might as well do it with generosity and kindness and style.

She has called or implied her audience is “dismal,” “rancid,” “Eeyore,” “snarky,” “poison[ing],” “sour” “complainers,” “kvetchers,” “caustic,” “pile of bile,” She accuses her audience of “bitch[ing],” “pound[ing] down,” “habitual[ly] tearing down,” engaging in “recreational bitterness.” She disdainfully labels the “lesser of two evils” metaphor a cliché, but then informs her readers that, “when you’re a hammer everything looks like a nail”–and that’s just one of her many clichés. And all that’s before she accuses her audience of asking that “Che Guevara give them a spa pedicure.” She calls other people snarky?

Given the way she attacks her audience, I find it hard to believe that Solnit didn’t see the irony when she suggests we “thrive in this imperfect moment [] through élan, esprit de corps, fierce hope, and generous hearts.”

And then there are Solnit’s details. She repeatedly implies that she “already know[s] most of the dimples on the imperial derriere.” But that’s not always clear. Three times she suggests Obama’s re-election is about access to health care; just once does she get it right that it’s about access to insurance. And here’s the complaint–the one that first shows up in the 6th paragraph–that appears to have set her off:

Recently, I mentioned that California’s current attorney general, Kamala Harris, is anti-death penalty and also acting in good ways to defend people against foreclosure. A snarky Berkeley professor’s immediate response began, “Excuse me, she’s anti-death penalty, but let the record show that her office condoned the illegal purchase of lethal injection drugs.”

Apparently, we are not allowed to celebrate the fact that the attorney general for 12% of all Americans is pretty cool in a few key ways or figure out where that could take us. My respondent was attempting to crush my ebullience and wither the discussion, and what purpose exactly does that serve?

Not only does Solnit seem to misunderstand what has happened on the foreclosure front, but she also projects motives onto a guy who appears to have insisted on measuring Harris by her deeds, not her words. Was he really “attempting to crush Solnit’s ebullience”? Does she have evidence to that fact? Can she–someone who writes for a living and in this piece demands that people “describe [this political system] and its complexities and contradictions accurately”–really not imagine that this guy was simply providing precisely that complexity?

Along with her ironic call for generosity and kindness, Solnit also suggests people consider how they’re engaging in this movement.

ask yourself just what you’re contributing, what kind of story you’re telling, and what kind you want to be telling.

Solnit might ask herself these same questions. Indeed, she might take a lesson from Obama, a master story-teller. Rather than attacking the students and Latinos and struggling workers whose enthusiasm had waned–a strategy Solnit apparently shares with Mitt Romney–Obama has told stories about kids getting insurance coverage and students getting Pell grants and factory workers working longer hours again. Given the increased enthusiasm among his base, those stories appear to have worked like a charm.

But rather than tell those kind of stories, Solnit has opted for precisely the kind of attack she criticizes.

The Mushroom Cloud Thinking Fostered By Our War on Terror

Foreign Policy has a must read article describing how much more support for torture there is now than there was when it was the affirmative policy of our country.

Respondents in 2012 are more pro-waterboarding, pro-threatening prisoners with dogs, pro-religious humiliation, and pro-forcing-prisoners-to-remain-naked-and-chained-in-uncomfortable-positions-in-cold-rooms. In 2005, 18 percent said they believed the naked chaining approach was OK, while 79 percent thought it was wrong. In 2012, 30 percent of Americans thought this technique was right, an increase of 12 points, while just 51 percent thought it was wrong, a drop of 28 points. In 2005, only 16 percent approved of waterboarding suspected terrorists, while an overwhelming majority (82 percent) thought it was wrong to strap people on boards and force their heads underwater to simulate drowning. Now, 25 percent of Americans believe in waterboarding terrorists, and only 55 percent think it’s wrong. The only specific interrogation technique that is less popular now than in 2005, strangely enough, is prolonged sleep deprivation.

I actually find that last statistic–that people oppose the one torture technique we still use more than they did in 2005–rather interesting. There really hasn’t been any outcry about our “isolation” treatment, which can include sleep deprivation and sensory manipulation. Nevertheless, that’s the only thing people are more opposed to than they used to be.

But I’m just as interested in FP’s throwaway question, showing that a quarter of Americans would support nuking terrorists.

A quarter of all Americans are willing to use nuclear weapons to kill terrorists. No joke. This was among many surprising findings in a new national poll that YouGov recently ran for me on hot-button intelligence issues. (The poll, conducted between Aug. 24 and 30, 2012, surveyed 1,000 people and has a margin of error of +/- 4 percentage points).

To be honest, I threw in the nuclear bomb question on a lark, not expecting to find much. Boy, was I wrong.

Now, I don’t think we’re about to drop any nukes on Waziristan anytime soon (though now that we’ve improved our bunker busters, I don’t guarantee we wouldn’t use them the next time someone hides in a place like Tora Bora). I assume these 25% are just crazies who don’t think about much beyond force.

But consider what it says about the general mood in this country, 11 years after 9/11, that a quarter of the country would consider both violating all norms of civility that have grown out of WWII and killing lots and lots of innocent civilians to take out a few terrorists.

That’s the background lurking behind our drone debate, I think. I’m not saying that drone supporters are this idiotic. I do take their discussion of “surgical strikes” in good faith, regardless of how questionable that claim can be in light of our dodgy intelligence and use of signature strikes. And no matter how hard they have to twist to claim the drone strikes are legal, I also believe that is also good faith argumentation.

What I am suggesting is that the underlying mood in this country is such that low information citizens embrace astounding views. In the same way that lots of dog whistle racism from the elite encourages birthers to sustain outrageous beliefs, so too does the assumption that our best weapon against terrorism is force permits people who don’t think things through to believe that nukes would ever be an effective–much less appropriate–response to terrorism.

Drones: Nation-Unbuilding in Pakistan and the US

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Stanford’s International Human Rights and Conflict Resolution Clinic and NYU’s Global Justice Clinic have joined the debate on drones with a long report presenting what it argues are the counter-productive aspects of drone strikes. It argues:

  • The US has downplayed the number of civilian casualties
  • Even short of drone deaths, those living under drone surveillance suffer other harm from them, most notably terror
  • Evidence that drone strikes have made the US safer is ambiguous
  • Drone strikes undermine rule of law

To remedy these problems and bring about a real debate, the report calls for more transparency from the Administration so we can debate the real effects of the drone war, and more discipline on the part of reporters in reporting drone strikes.

Some of what the report describes will be familiar to regular readers of this site. The report is most important, I think, for its discussion of the way drones undermine society in both Pakistan and the US.

Unbuilding Pakistan

While some of this has been discussed with regards to Pakistan (and Yemen), the report cites FATA residents (who were interviewed outside of the FATA) describing drones impacting commerce.

One college student from North Waziristan explained that “Because of these drones, people have stopped coming or going to the bazaars. . . . [I]t has affected trade to Afghanistan.”578 The owner of a shop selling toys in a North Waziristan market stated that ever since the drone strikes began, “It’s very hard for us, we just barely get by [with what we make in the shop]. . . . People are afraid of dying. They are scared of drones.”579 One man, who once owned a car that he used to transport goods to and from the rest of Pakistan, said that in the past he would agree to be hired for 200 rupees a day. 580 Now, however, because of drones and the risks associated with their presence, “nobody is even willing to work for 500 rupees.”581

And the Jirga system of problem resolution.

One of the most troubling community-wide consequences of the fear of gathering is, in several interviewees’ views, the erosion of the jirga system, a community-based conflict resolution process that is fundamental to Pashtun society.584 Khalil Khan, the son of a community leader killed in the March 17, 2011 jirga strike, explained that “everybody after the strike seems to have come to the conclusion that we cannot gather together in large numbers and we cannot hold a jirga to solve our problems.”585 Read more

Mitt’s Election Would Just Mean Cofer Black Would Get His Kill List Back

Amidst all the partying and pandering, some actual journalism did take place in Charlotte. Gawker’s John Cook asked the following people about whether Americans could trust Mitt Romney to decide which American citizens to assassinate with drones (definitely click through for the video):

  • Kay Hagen, Armed Services Subcommittee Chair on Emerging Threats
  • Carl Levin, Armed Services Committee Chair and ex officio member of Senate Intelligence Committee
  • Cary Booker, Newark Mayor
  • Lanny Davis, Asshole
  • Brad Woodhouse, DNC Spokesperson
  • Chuck Schumer, Judiciary Committee Member
  • Gloria Allred, bane of bmaz’ existence
  • Bill Press, lefty radio personality
  • Unnamed Arizona delegate

Only Bill Press gives an answer that even recognizes the gravity of the answer.

It’s an interesting question, though, for another reason.

If Mitt were elected, then the Kill List’s rightful owner, Cofer Black, might well get it back. The Kill List–like so much else–goes back to the September 17, 2001 “Gloves Come Off” Memorandum of Notification that Black threw together as a wish list of expansive counterterrorism approaches. (Also on there, btw, was partnering with Libya on torture, which Human Rights Watch further exposed the other day and I plan to return to.) And remarkably, when Cofer Black was in charge of the Kill List, it was used more judiciously than Obama has used it (Black had moved out of the Counterterrorism role at CIA before Kamal Derwish became the first American killed in a drone strike on November 5, 2002). And who knows? If Black took responsibility for the Kill List back, he might choose to focus on torture like he did before.

Don’t get me wrong–I don’t want Cofer Black back in any official capacity. But it’s worth remembering that Obama’s Kill List is really just a hand me down from the guy who, along with the Kill List, also instituted torture and partnership with Moammar Qaddafi.

Congress Finally Gets Around to Learning about Domestic Drones and Privacy

After Congress has spent the last several years telling DOD and FAA to speed up the roll out of drones in domestic airspace, and partly in response to efforts (by Rand Paul, among others) to protect all of our privacy and other efforts (by Shelley Moore Capito) to protect farmers from observation by the EPA, someone finally thought to ask the Congressional Research Service about the Fourth Amendment implications of drones.

The analysis largely tracks what I wrote in this post: drones would be permitted to do simple observation, and would be permitted to do even more when operating close to a border. The big question about drones, though, is whether all the fancy technology they’ve got distinguishes them from the kind of naked eye surveillance a cop would be able to conduct.

Currently, UAVs carry high-megapixel cameras and thermal imaging, and will soon have the capacity to see through walls and ceilings. 98 These technologies are not generally available to the public, and under current jurisprudence, their use by law enforcement would probably constitute a search covered by the Fourth Amendment. However, the use of low-powered cameras or other unsophisticated technology to view people and objects in plain view while in their home might not trigger Fourth Amendment protections.

[snip]

The crucial question, then, is whether drones have the potential to be significantly more invasive than traditional surveillance technologies such as manned aircraft or low-powered cameras— technologies that have been upheld in previous cases. In this vein, some have asked whether using sophisticated digital platforms on a drone is any different from attaching the same instrument to a lamppost or traditional aircraft. 108 Read more