The DoJ’s White Paper on Lethal Operations (use of Drones in Foreign Countries)

Pluses & Minuses
of New Technology

They are commonly called ‘drones’, and their accelerating development for civil aviation use is under the control of FAA, as Unmanned Aircraft Systems (UAS), also known as UAV’s.

Welcome to a brave new world.

Drones are in the news lately because of their use in the past few years to eliminate terrorist threats in the Middle East. What used to be done with greased Navy Seals sneaking up out of the dark is now done remotely and digitally from thousands of miles away, in what appears to be a fusion of online gaming with the reality of assassination. Today, the online gamer flies the drone, identifies the target, and launches the destruction. The push of a button that would destroy a pretend enemy in a fun interactive game … that button push now kills a real enemy. The button is pushed in Nevada or North Dakota or (?), and the real impact is felt in Afghanistan or Pakistan or (?). Sometimes, innocent bystanders are added to the casualty lists.

Predator firing a missile

Much of the concern about drones centers on the absence of accountability in their use. There is a sense that drone technology, when combined with the Authorization for Use of Military Force (AUMF, as approved by the U.S. Congress immediately after the 9/11 terrorist attacks) has made it too easy for a President to direct the pushing of too many buttons.

On the domestic front, concern about drones centers on surveillance and privacy. There is a perception that government (or, for that matter, private citizens) might use drones to spy, to invade the lives of selected people. Aerial imagery might show you sunbathing in the nude, or it might show that you are dumping tons of blood into a Texas creek (OK, this also assumes that YOU, as a corporation or slaughterhouse, are very much like a ‘person’). Some surveillance might be valuable, but some might be nothing but invasive.

What’s ‘Good’ about Drones?

Drones are smaller and quieter than regular aircraft, thus can allow for far more efficient use of resources, while also eliminating the noise impact. For example, most U.S. cities have traffic watch services and, everyday, one or more helicopters or small planes are in the air relaying traffic observations for radio broadcast, to aid drivers in their commutes. Thus, thousands of people living along these routes will hear the daily flights, almost like clockwork. Replacing them with a small network of drones would eliminate the noise, and save lots of fuel. Those drones could easily fly at around 1,000′ altitude, high enough to be unobtrusive, yet low enough to be safely under aircraft with real pilots.

Drones are an exceptionally effective platform for doing environmental reconnaissance. They are very non-intrusive (no need to endure all that rotor whine from helicopters) and they are more safely operated (if the helicopter engine fails while at low altitudes, the pilot normally dies; if the drone fails, the remote pilot takes a break and refills his coffee). Drone surveillance can be quite useful, too, identifying violations that constitute real hazards to public health and safety.

And, What’s Bad about Drones (the threat)?

Again, it is that privacy issue. We definitely do not want to see drones used as a weapon for political control. Used as Big Brother’s eyes and ears. Theoretically, we can eventually suppress liberties using drones. We can secretively spot activities, something as fundamental as the assembly of identified ‘dissidents’, and commence controlling activities (send in the troops, send in another drone with teargas – or a fumigant, strategize for the ‘removal’ of the dissident threat, etc.). An ugly picture…

And, while the current DoJ White Paper clearly focuses on the use of drones to deny Due Process to U.S. citizens (by directly assassinating them outside of our country), what happens if in another decade, the line is blurred and we justify drone attacks in Kansas or New Jersey? Another ugly picture…

The Solution: Accountable Drone Usage

Given the considerable benefits that can come from the use of drones, it seems the threat might be fully mitigated, by layering full transparency on drone usage. In other words, let local police, planners and other authorities use drones, but require that all data they produce be posted online, for everyone to see. That Texas creek filled with blood from the slaughterhouse? That event should have been disclosed to the world by the Government officials. The grieving families at the funeral of their 8-year-old daughter? Again, the evidence of this unfortunate tragedy, should have been shared with the world by the Government who knew the rest of the story, including the video record of the drone strike, as well as an explanation of what happened and their sincere regret for the collateral damage. If FAA and DHS are promoting the use of drones by law enforcement officials in my county (Clackamas County, Oregon), then my county sheriff’s office should be required to post a full accounting of when/where/how they used that technology; e.g., a log within seven days of drone usage, and including a link to stream the video collected by the County (and if they want to redact from that video stream, put the burden on the Sheriff to convince a judge that redaction is appropriate).

A copy of the DoJ White Paper (as compiled by aiR)

As a step forward, and within that same spirit of transparency, aiREFORM.com located a copy of the DoJ White Paper. This is the paper allegedly shared last week with Congress, to show the legal basis for drone strikes to kill U.S. citizens believed to have joined the enemy, with the requirement that the strike happen on foreign soil. It appears that a copy of this DoJ White Paper was provided to NBC News. They then posted it online, but made it less useful by adding excessive watermarks. So, a few hours were spent stripping those watermarks, and here is a full copy of the DoJ White Paper, in HTML, ready for your review. Hopefully, the processing errors in this public record are minimized and insignificant (readers who find errors, please advise, so they can be promptly corrected).

“The Alice-in-Wonderland nature of this pronouncement is not lost on me … I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”

-Judge Colleen McMahon of U.S. District Court
of Southern New York, related to a
FOIA lawsuit (as quoted by NBC News)

 

The DoJ White Paper is an important public document, one that should be carefully considered and debated by concerned citizens. Such discussion is at the heart of our democratic process.

A few links…

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A Tale of Two FOIAs

The FOIA law was passed by our Congress in 1966, on the belief that each us has a right to look inside the government, to see how things are done. Given the nature of politics, it is to be expected that acceptance of this FOIA transparency principle has been variable, depending on who resides in the White House.

When the 9/11 Attacks happened, an emphasis on security caused officials to reduce individual civil liberties. The right of the individual to obtain various federal records via FOIA was cut back. The Attorney General at the time, John Ashcroft, issued a new FOIA policy on 10/12/2001. At it’s heart, Ashcroft’s memo basically told federal managers to err on the side of non-disclosure:

“…when you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records….”

The Ashcroft policy stood unchanged through the duration of the ‘W’ administration. Then, the Obama Administration did a complete reversal. On the very day he was inaugurated, President Obama issued a White House Memo. The first three paragraphs stated:

“A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.” In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

“All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government….”

Obama’s Inauguration Day memo started the shift. Two months later, Attorney General Eric Holder officially replaced the Ashcroft Memo with a new policy that declared his office would NOT defend Agencies who improperly used FOIA exemptions to conceal releasable documents:

“…pursuant to the President’s directive that I issue new FOIA guidelines, I hereby rescind the Attorney General’s FOIA Memorandum of October 12, 2001, which stated that the Department of Justice would defend decisions to withhold records ‘unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records….”

The official FOIA policy shift within FAA was decreed eight months later. Rosalind Knapp, Chief FOIA Officer for the Department of Transportation (DoT), issued a memo on 11/2/2009 which included:

“…Agencies are directed to respond to requests ‘promptly and in a spirit of cooperation’. The President also called on agencies to ‘adopt a presumption in favor of disclosure’ and to apply that presumption ‘to all decisions involving FOIA’. The President’s memorandum directs agencies to take ‘affirmative steps to make information public’, and utilize ‘modern technology to inform citizens about what is known and done by their Government’. The Attorney General, in his March 19, 2009 memorandum on FOIA, established a new standard for defending agency decisions to withhold information. When a FOIA request is denied agencies will now be defended by DOJ ‘only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law’.”

The final step in FAA’s FOIA policy shift has proven to be the most difficult. A President, an Attorney General, and a Deputy General Counsel in charge of FOIA for a very large Department can all clearly articulate a shift in policy, but it still takes years for habits to change on the front line. FAA is doing a much better job on FOIA in late 2012 than they were doing in late 2008, but there is still much room for improvement. [link to Seattle Times article]