Why domestic drones stir more debate than ones used in warfighting abroad

The use of drones domestically has sparked heated debate around the potential threats to both privacy and safety. The digital rights group Electronic Frontier Foundation warns that drones "raise significant issues for privacy and civil liberties" since they are capable of "highly advanced surveillance." In terms of commercial use, the Federal Aviation Administration has proposed rules to limit where drones can fly.

While military drone usage abroad has been opposed by various groups, it hasn't drawn the same kind of attention stateside as the emergence of commercial drones. The US appears more interested in whether drones will be approved for package delivery than whether it's acceptable to use drones for targeted killings in Yemen.

I recently spoke with John Kaag about that contradiction. Mr. Kagg is an associate professor of philosophy at the University of Massachusetts at Lowell. He recently coauthored a book called "Drone Warfare" with Sarah Kreps, an associate professor in the Department of Government at Cornell University. Edited excerpts follow.

Selinger: Why is the American public more concerned about the government using drones for domestic surveillance than putting the technology to military use abroad? 

Kaag: The first reason has to do with the legal and political origins of the United States. US citizens know – quite rightly – that the country was set up in such a way, at least in theory, to protect its citizens from the abuse of governmental power. Most of us have internalized some version of the Fourth Amendment that prohibits the government from conducting searches of citizens without probable cause and requires a court to issue a warrant prior to a search commencing. The abuse of domestic drone surveillance would violate this amendment, and so Americans are quick to get their hackles up. Using drones in targeted killings abroad is different. There’s a sense – again, an accurate one – that the laws of war are different than the domestic laws that govern a nation. 

That said, we should worry about Americans not caring about the targeted killing program. Lethal drone strikes are described as precise and “clean” – much cleaner than traditional forms of warfare. The public can use this reassurance to assuage its moral concerns and direct its attention to more immediate, if not more morally pressing, issues at home. If you have to decide between confronting injustice in your backyard and addressing injustices half a world away, the backyard, for better or for worse, gets cleaned up first. In this case, I think it’s for the worse. 

Selinger: Why has Congress pushed for more oversight on the government using drones for domestic surveillance than international military missions?

Kaag: There’s a simple answer to this question. It can. Once Congress approves the Authorization of Use of Military Force (AUMF), an extension of the War Powers Resolution, it has relatively little authority over the actions taken by the executive in military actions abroad. Historically, most armed conflicts were initiated by a declaration of war. Not so anymore. When President Obama ordered strikes to be carried out against ISIS in fall of 2014, he cited the “authority” granted by the AUMF in 2001. But that authorization was made against Al Qaeda, not ISIS, and these two organizations are largely rivals.

So, an extension of presidential power has occurred, and Congress has little power to curtail it. At the same time, Congress has considerably more oversight over domestic matters, and members of Congress have been consistently pushed by their constituents to oversee the FBI and other government agencies to secure their constitutional rights. 

Selinger: Do you think it’s wrong that we’re more concerned about domestic uses of drones than foreign ones?

Kaag: Yes. This attitude reflects a disturbing mix of provincialism and exceptionalism that Americans should acknowledge and oppose. We need to come to grips with the “wars” that are being fought in our name and critically evaluate their justifications. And we need to put pressure on the media to continue to cover the stories that allow us to make this crucial evaluation. 

The asymmetry suggests a strange political and moral myopia. Yes, it’s true that domestic drone surveillance might erode civil liberties, and degrade the political fabric of the United States. To some extent the American public knows this is the case and is invested in moving forward carefully.

But it’s equally true in the case of an abuse of drones in the targeted killing program abroad. Drones keep boots off the ground and allow political leaders to execute military strikes without the fear of losing troops. This is mixed blessing. It also allows leaders to circumvent the traditional safeguards that protect against illegitimate military actions. The American public tends to become more interested in armed conflict – its execution and justification – when it faces the traditional sacrifices associated with war. I fear we’ve entered an era of continual warfare where the American public has little incentive to monitor the actions of its leaders. This means we risk losing our democratic hold on an important political issue, shifting power back to leaders who were, at least originally, supposed to be checked by the will of the people. 

The issue of moral myopia is a bit simpler. Just because it may be true, psychologically, that it’s easier to turn a blind eye to injustice far away, does not mean that it’s morally justified to do so. Many drone strikes are in fact legitimate. But certain signature strikes, I would argue, are not. And the American public should be aware of this difference. 

Selinger: Why have some argued new courts should be created to review when drones are used for targeted killings that are modeled upon the Foreign Intelligence Surveillance Court system? 

Kaag: On the face of it, the implementation of FISA-like courts makes sense. The FISA courts were created in 1978, after Watergate, to regulate government eavesdropping. When government agencies such as the NSA or the FBI want to spy on American citizens, they often have to go through the FISA court to get approval before doing so. The FISA courts are an extension of domestic law enforcement that issues warrants without compromising the secret nature of intelligence collection activities.

Many senators, particularly Angus King [of Maine], have called for establishing similar courts to monitor and approve the “kill lists” used in the US drone program. The proposed drone courts would evaluate the imminence of threat, whether the drone strike upholds “distinction” and “proportionality” in the laws of war, and whether a target could be captured rather than killed. Senator King, sticking to the model of the FISA courts, is especially worried about the targeting of American citizens abroad. 

Selinger: Why are you skeptical about replicating the FISA court model in this context?

Kaag: The FISA courts are very weird. Our legal system is based on an adversarial model. In other words, courts are places to dispute charges and impartial parties – a judge and jury – make a decision about the case. The FISA courts aren’t like this. At all. FISA requests are not disputed. Only a very, very small percentage of FISA requests have been denied over the courts’ 30 year history. Most are approved as a matter of course.

Sarah Kreps and I have argued that one of the more disturbing aspects of the FISA courts are their recent expansion of the “special needs” doctrine, which allows the government to carry out surveillance without detailed warrants in order to address an “overriding public danger.” We are concerned that this sort of governance, when applied to the issue of drones, might provide strategists and policy makers with a type of carte blanche over the targeted killing program. The alternative proposed by the Obama administration – what the President called “an independent oversight board in the executive branch” – doesn’t make us feel much better. It does not address the question of checks and balances that has prompted calls for judicial oversight.  

Selinger: What do you mean by “checks and balances?”

Kaag: The call for transparency in the targeted killing program was amplified early in 2013 around the confirmation hearings of John Brennan as the director of the CIA. At this time, there was a call for the Obama administration to release secret legal memoranda concerning the targeting of American citizens on foreign soil. Some of these documents were released to Congress in the lead up to the Brennan confirmation. This is the sort of information exchange at the heart of “checks and balances.” And this exchange shouldn’t simply be used in the deal making of a confirmation hearing, but rather should slowly and carefully become the norm in our age of drone warfare.

Obviously, Congress is regularly briefed about the drone program, but the Brennan hearing highlighted that there is a long way to go for sufficient oversight. This is what would happen in an ideal word: Without making significant compromises to national security, we, the people, could have an informed debate not only about the status of American terror suspects abroad, but also about the deeper political and military rationale for targeting foreign nationals in accord with international law.   

What exactly is the risk that these targets pose to US national security? That’s a question Americans need to ask and answer in a sober and detailed way.