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The White Paper and its Critics

Monday, February 11th, 2013

Someone for reasons unknown last week leaked the classified Department of Justice “White Paper” on targeting with drone attacks the numerically tiny number of US citizens overseas who have joined al Qaida or affiliated groups. The leak set off an outburst of public debate, much of it ill-informed by people who did not bother to read the white paper and some of it intentionally misleading by those who had and, frankly, know better.

Generally, I’m a harsh critic of the Holder DOJ, but their white paper, though not without some minor flaws of reasoning and one point of policy, is – unlike some of the critics – solidly in compliance with the laws of war, broader questions of international law and the major SCOTUS decisions on war powers. It was a political error to classify this document in the first place rather than properly share it with the relevant Congressional committees conducting oversight

Here it is and I encourage you to read it for yourself:

Lawfulness of Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qa’ida

Much of this white paper debate has been over a legitimate policy dispute (“Is it a good idea if we use drones to kill AQ terrorists, including American ones?”) intentionally being mischaracterized by opponents of the policy (or the war) as a legal or constitutional question. It is not. The law is fairly settled as is the question if the conflict with AQ rises to a state of armed conflict, which SCOTUS dealt with as recently as Hamdi and for which there are ample precedents from previous wars and prior SCOTUS decisions to build upon. At best, framed as a legal dispute, the opponents of the drone policy would have a very long uphill climb with the Supreme Court. So why do it?

The reason, as I discern it, is substituting a legalistic argument and judicial process (“FISA court to decide drone killings”) to conceal what is really a debate over American war policy   and the President’s war powers in order to accrue domestic political advantage or at least avoid paying the costs of advocating a potentially unpopular position. Otherwise, opponents have to argue on the merits that the US should not as a matter of policy kill al Qaida terrorists sheltered by Pakistan or beyond the reach of government control in Yemen. Or that we are not “really” at war or that Federal judges are better suited for picking bombing targets than Air Force and CIA analysts and that “due process” should apply to enemy combatants on the battlefield. Many of these arguments are valid ones to raise and debate but are unlikely to be persuasive to the public or Congress; if they were, they would have prevailed in 2010 (drones) or 2001 (“are we at war?).

A straightforward legal analysis begins and stops with ascertaining whether or not we are in a state of armed conflict with al Qaida. The white paper used a “kitchen sink” approach to try and cover all legal bases, perhaps to create a basis for a later freewheeling peacetime use of armed drones – which incidentally, I am not in favor of – but it is not required here and actually distracts from the strongest legal argument – the administration is lawfully fighting an enemy in an armed conflict declared by Congress.
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If we are in an armed conflict under international law with al Qaida – and the evidence appears here in fact, legislative action, context, historical and legal precedent to be overwhelming – renders most of the other justifications cited in the white paper for the policy regarding due process as well as nearly all of the criticisms of it moot, at least in terms of legality. Wartime enemy combatants are in a qualitatively different legal status vis-a-vis the United States government acting as a belligerent than are non-combatants or are civilians in peacetime (even civilians who commit criminal acts). No American citizen has a right to pick up arms and join an enemy army or armed group during a war, period. Or a subsequent right to be treated as anything but a combatant if they do. Combatant status is not determined by nationality under international law but by behavior and adherence to a belligerent party’s military forces and their physical disposition ( hors d’ combat, in the act of surrender etc.).
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American citizens fought in enemy armies, notably the Wehrmacht and Waffen-SS, against the United States in WWII and a handful defected to the enemy in the Korean and Vietnam Wars. While some of these men were tried for treason after these wars ended, others were treated as enemy POWs or simply allowed to come home at a later date, but none were accorded judicial due process *during* the conflict as potential targets of an American military attack. Only after capture, as with the saboteurs in the Ex Parte Quirin case, did judicial review and due process come in to play.. We see a similar phenomena with the Civil War where, even under the Lincolnian theory that the Confederacy merely represented “Combinations too powerful to be suppressed” (i.e. a private insurrectionist conspiracy and not the states themselves as corporate, legal, sovereign entities in rebellion), we do not see SCOTUS insisting on normal, civilian, judicial due process in Ex Parte Milligan except where “civil courts are in operation” (i.e. away from the battlefield). This was to prevent the application of martial law in civilian areas in the North, not to stop martial law in theater or occupational zones.
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Had this issue of due process for active enemy combatants been raised during WWII or even Vietnam, it would have been likely (and properly) regarded by US officials as ludicrous; if true, the logic would imply that enemy units could immunize themselves from attack (or substantially delay them)  by recruiting American citizens into their ranks. It would also beg the question why the US could lawfully bomb enemy targets and risk killing American POWs via collateral damage, but not directly target enemy fighters who happened to be American citizens. It would further beg the question why it would be lawful to indirectly target an American citizen in a group of enemy fighters with, say, artillery or gravity bombs from 52,000 feet but be an unlawful violation of due process to aim at him directly with a drone missile or a sniper rifle. Is a Marine rifleman who happens upon Adam Gadahn in Afghanistan and kills him therefore an “assassin” (to use Glenn Greenwald’s description of targeted killings) to be charged with murder?
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Even as a matter of “due process” (!) – never mind fighting a war – how could this legal argument possibly make any sense? What precedent under military law or international law from prior conflicts supports it?
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How would inserting judicial review – even SCOTUS – over operational planning and target selection as a step in the President’s exercise of his Constitutional authority as Commander-in-Chief likely to affect the Separation of Powers? This is not a trivial question – in military terms it is analogous to the judiciary usurping the position of the Rules Committee in the House of Representatives over legislative matters. How would this innovation impact our ability to fight our next war or wars?
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Much like the white paper’s lengthy, but entirely irrelevant discourse into the nature of threat “imminence” and “breadth”, this argument is sheer invention if a state of armed conflict with al Qaida exists. Most criticisms and not a few of the white paper’s own legal justifications consist of novel restraints alien to the historical practice of states prosecuting an armed conflict that we would be extremely unwise to adopt and sanctify as precedents for waging future wars.
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Let us take one of the more intellectually serious and responsible expert critics as an example, Steve Vladeck of American University. Not everything he has to say in his lengthy post is wrong and I even agree with some of his points, but things like this strike me as specious, or at least a very weak reed upon which to rest an argument that alters the constitutional balance:
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….First, many of us who argue for at least some judicial review in this context specifically don’t argue for ex ante review for the precise reasons the white paper suggests. Instead, we argue for ex postreview–in the form of damages actions after the fact, in which liability would only attach if the government both (1) exceeded its authority; and (2) did so in a way that violated clearly established law. Whatever else might be said about such damages suits, they simply don’t raise the interference concerns articulated in the white paper, and so one would have expected some distinct explanation for why that kind of judicial review shouldn’t be available in this context. All the white paper offers, though, is its more general allusion to the political question doctrine. Which brings me to…

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Second, and in any event, the suggestion that lawsuits arising out of targeted killing operations against U.S. citizens raise a nonjusticiable political question is almost laughable–and is the one part of this white paper that really does hearken back to the good ole’ days of the Bush Administration (I’m less sold on any analogy based upon the rest of the paper). Even before last Term’s Zivotofsky decision, in which the Supreme Court went out of its way to remind everyone (especially the D.C. Circuit) of just how limited the political question doctrine really should be, it should’ve followed that uses of military force against U.S. citizens neither “turn on standards that defy the judicial application,” nor “involve the exercise of a discretion demonstrably committed to the executive or legislature.” Indeed, in the context of the Guantánamo habeas litigation, courts routinely inquire into the very questions that might well arise in such a damages suit, e.g., whether there is sufficient evidence to support the government’s conclusion that the target is/was a senior operational leader of al Qaeda or one of its affiliates…

My first criticism would be that Vladeck’s premise that the question of a targeting decision of an American citizen who is a senior leader of al Qaida during a state of armed conflict who is active outside the territory of the United States is a matter for adjudication by US courts is incorrect. He is essentially arguing that the political question doctrine does not cover the exercise of the Constitutionally specified war-making powers of the executive and legislative branches during a war. I am highly skeptical this is an argument any Supreme Court would entertain lightly, much less the Roberts Court.
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My second criticism is more practical – that Vladeck in seeking judicial review of the decision process by which an American citizen is determined to be senior or not senior leader in al Qaida leadership is a distinction without a difference from a court having a priori judicial review of the larger military operation in wartime but with the added detriment of exposing the intelligence process, to discovery. Targeting decisions involve assessment of intel about the target from a variety of perspectives – confidence, effect, probability of success/costs and the “fusion” of (usually) USAF and IC in a targeteering shop. Why  judicial scrutiny should apply only to drone strikes targeting a specific US citizen among other al Qaida operatives in wartime vice simply bombing an al Qaida safe house in which a US citizen might be employs a legal reasoning that is obscure to me. If a US citizen being a potential casualty is the critical constitutional variable here, then not also judicial review of a bayonet charge?
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The proposal for judicial review of potential attacks during an armed conflict (not peacetime) is rife with a host of counterproductive second and third order constitutional and military effects. It represents a sweeping change in our political order by a technical legal fiat. It would also be an exceedingly dumb way to run a war. It might test our powers of imagination, but somehow, we faced down Hitler and the Imperial Japanese without Federal judges running our strategic bombing campaigns.
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This preference for legalistic arguments is partly a product of over representation of lawyers among the American political elite. Highly competent attorneys are very skilled at framing arguments on behalf of clients so that they begin litigation not only from a favorable explicitly stated position but, where possible, with several layers of one-sided implicit premises built in that you accept uncritically only at your peril. When a lawyer comes into a public policy debate saying that a political question is a legal question, he is making a political argument to remove a political dispute in a democratic polity to the courts where the matter will be decided under very different procedures and will remain as a legal question thereafter.
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Sometimes, this is the constitutionally correct thing to do; more often, it is simply an expedient thing to do that diminishes democratic accountability while rendering policy and process needlessly more complex and adversarial than even open public debate. It is also a self-aggrandizing feedback loop for lawyers as a class – when all political questions are legal questions, then should we not all defer to their superior expertise and training? It is the road to technocracy and the rule of law becoming “rule by lawyers”.
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Does that mean the critics have no point whatsoever regarding the use of drones in “targeted killings”? No. The idea that targeting American citizens is bad *policy* because it might, for example, be poorly employed against innocent people by mistake or, in slippery slope fashion, lead to a normalization and extension of the practice of targeted killing outside of an officially recognized armed conflict is a completely valid *political* argument. It is even, in my view, a very wise caution. It just does not hold water as a legal argument on behalf American citizens who go overseas and pick up arms and wage war against the US by joining al Qaida.
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More importantly, there are better, simpler remedies to a “slippery slope” with drone attacks that can be employed legislatively and through vigorous oversight that can be enacted that will strengthen rather than undermine and confuse our constitutional system of governance. First, the Obama administration, for it’s part, should allay critics fears by removing “targeted killings” from the arbitrary hands of unnamed “senior officials” (code for the President? The National Security Adviser? A random White House lawyer?) and either return to a more traditional Pentagon target assessment procedure or use the NSC process with a PDD/NSDD and a properly and timely “finding” being presented to Congress.
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Secondly, the proper body to review the judgement of the administration in tactics, operations, and strategy is not the judicial branch, but the legislative, which has done so in prior conflicts and holds the power of the purse to control the extent of campaigns and the raising of armies. The Joint Committee on the Conduct of the War was the oversight mechanism the Congress employed during the Civil War to review and influence the actions of the Lincoln administration. I would argue that the US Congress is more than sufficient to do the same task today with a far less existential conflict, if it chose to do so. Congress could, if it wished, forbid these operations or cease funding them. Quite pointedly, they have done neither.
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If Congress does not engage in rigorous oversight, it does not follow that a Federal Court is the appropriate constitutional substitute for Congress abdicating it’s wartime responsibilities. Targeted killings of enemy combatants during a declared armed conflict is a question of war policy, not due process, and is the purview of the political branches, not the judiciary
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Thirdly, the “slippery slope” danger is genuine and should be interdicted with legislation prohibiting or severely restricting the use of armed drones at home or forbidding their use against civilians resident in the territory of the United States entirely. A definition from Congress of under which circumstances that terrorism is a matter for law enforcement or military action is something that is likewise years overdue.
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Congress should be taking up it’s weighty responsibilities in war policy and not punting them to the executive or the judiciary, so that the actions of the US government in a matter of extreme gravity like a war are constitutionally clothed in democratic consent.

Posted in 2013, 21st century, academia, Air Force, al qaida, America, analytic, CIA, counterterrorism, debate, defense, democracy, drones, foreign policy, framing, government, history, IC, ideas, insurgency, intellectuals, intelligence, international law, law enforcement, legal, legitimacy, military, national security, non-state actors, politics, SCOTUS, security, Strategy and War, Tactics, terrorism, theory, war | 14 Comments »

Foust on “False Fears of Autonomous Weapons”

Friday, December 21st, 2012

Hat tip for a strong recommendation from Adam Elkus:

Josh Foust has a very sensible piece up about the seemingly endless furor about “killer drones” (we never called our warplanes “Killer F-16’s” or guided weapons “killer cruise missiles”).

The false fear of autonomous weapons 

….Many of the processes that go into making lethal decisions are already automated. The intelligence community (IC) generates around 50,000 pages of analysis each year, culled from hundreds of thousands of messages. Every day analysts reviewing targeting intelligence populate lists for the military and CIA via hundreds of pages of documents selected by computer filters and automated databases that discriminate for certain keywords.

In war zones, too, many decisions to kill are at least partly automated. Software programs such as Panatir collect massive amounts of information about IEDs, analyze without human input, and spit out lists of likely targets. No human could possibly read, understand, analyze, and output so much information in such a short period of time.

Automated systems already decide to fire at targets without human input, as well. The U.S. Army fields advanced counter-mortar systems that track incoming mortar rounds, swat them out of the sky, and fire a return volley of mortars in response without any direct human input. In fact, the U.S. has employed similar (though less advanced) automated defensive systems for decades aboard its navy vessels. Additionally, heat-seeking missiles don’t require human input once they’re fired – on their own, they seek out and destroy the nearest intense heat source regardless of identity.

It’s hard to see how, in that context, a drone (or rather the computer system operating the drone) that automatically selects a target for possible strike is morally or legally any different than weapons the U.S. already employs.

Yep.

Most of the anti-drone arguments are a third hand form of opposition to US foreign policy or Counterterrorism policy for a variety of reasons, sometimes tactical and strategic, but mostly just political. Saying you are against inhuman drone strikes sounds a hell of a lot better than honestly saying that you would be against any kind of effective use of military force by the US against al Qaida and the Taliban in any and all circumstances. I can’t imagine Human Rights Watch would be happier if the US were using F-16’s and B-52’s instead.

Or commandos with small arms for that matter.

Posted in Air Force, drones, legal, legitimacy, military, Perception, planes, politics, robotics, tech, war | 12 Comments »

Of films, riots and hatred I: Benedict XVI in Lebanon

Sunday, September 16th, 2012

[ by Charles Cameron — where to begin? let’s start with peace ]
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Photo credit: Ciro Fusco, EPA

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Pope Benedict XVI has been in the Lebanon these last three days, and after an extremely turbulent week in which many discordant religious and / or “religious” notes have been sounded, I thought I’d begin what I imagine will be a series of posts from my POV on the mayhem with some words of peace (Heb: Shalom; Ar: Salaam) from the Pontiff, seen above celebrating an open air mass on the Beirut beachfront.

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The Pope was in the Lebanon to sign a Catholic document of some significance, the Apostolic Exhortation Ecclesia in Medio Oriente, and it is from that document that I would like to extract some specific paragraphs:

Here’s the kernel of the situation as the Pope sees it, going into it —

How many deaths have there been, how many lives ravaged by human blindness, how many occasions of fear and humiliation! … How sad it is to see this blessed land suffer in its children who relentlessly tear one another to pieces and die!

— grief at human folly.

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Benedict then begins to address the situation, offering us his definition of peace:

For the sacred Scriptures, peace is not simply a pact or a treaty which ensures a tranquil life, nor can its definition be reduced to the mere absence of war. According to its Hebrew etymology, peace means being complete and intact, restored to wholeness. It is the state of those who live in harmony with God and with themselves, with others and with nature.

Since we are not yet in harmony with each other…

Authentic witness calls for acknowledgment and respect for others, a willingness to dialogue in truth, patience as an expression of love, the simplicity and humility proper to those who realize that they are sinners in the sight of God and their neighbour, a capacity for forgiveness, reconciliation and purification of memory, at both the personal and communal levels.

He observes that such a dialogue should be theologically oriented rather than politically driven:

The Church’s universal nature and vocation require that she engage in dialogue with the members of other religions. In the Middle East this dialogue is based on the spiritual and historical bonds uniting Christians to Jews and Muslims. It is a dialogue which is not primarily dictated by pragmatic political or social considerations, but by underlying theological concerns which have to do with faith.

This dialogue can be grounded in in the one God common to the Abrahamic faiths:

Jews, Christians and Muslims alike believe in one God, the Creator of all men and women. May Jews, Christians and Muslims rediscover one of God’s desires, that of the unity and harmony of the human family. May Jews, Christians and Muslims find in other believers brothers and sisters to be respected and loved, and in this way, beginning in their own lands, give the beautiful witness of serenity and concord between the children of Abraham.

It will demand humility rather than triumphalism:

The truth cannot unfold except in an otherness open to God, who wishes to reveal his own otherness in and through my human brothers and sisters. Hence it is not fitting to state in an exclusive way: “I possess the truth”. The truth is not possessed by anyone; it is always a gift which calls us to undertake a journey of ever closer assimilation to truth. Truth can only be known and experienced in freedom; for this reason we cannot impose truth on others; truth is disclosed only in an encounter of love.

I imagine that some will find here an echo of the Qur’an:

Let there be no compulsion in religion.

— Quran 2. 256

Thus far the pope has expressed his grief at the circumstances, and outlined the basic issues between religions. He now turns his analysis to the situation within the religions:

Like the rest of the world, the Middle East is experiencing two opposing trends: secularization, with its occasionally extreme consequences, and a violent fundamentalism claiming to be based on religion.

Benedict is well know for his opposition to the “occasionally extreme consequences” of secularism: here he speaks in favor of what he terms “healthy secularity”.

Some Middle Eastern political and religious leaders, whatever their community, tend to look with suspicion upon secularity (laïcité) as something intrinsically atheistic or immoral. It is true that secularity sometimes reduces religion to a purely private concern, seeing personal or family worship as unrelated to daily life, ethics or one’s relationships with others. In its extreme and ideological form, secularity becomes a secularism which denies citizens the right openly to express their religion and claims that only the State can legislate on the public form which religion may take. [ … ]

A healthy secularity, on the other hand, frees religion from the encumbrance of politics, and allows politics to be enriched by the contribution of religion, while maintaining the necessary distance, clear distinction and indispensable collaboration between the two spheres.

Religious fundamentalism is the second challenge the Pope addresses:

Economic and political instability, a readiness on the part of some to manipulate others, and a defective understanding of religion help open the door to religious fundamentalism. This phenomenon afflicts all religious communities, and denies their long-standing tradition of coexistence. It wants to gain power, at times violently, over individual consciences, and over religion itself, for political reasons.

Here he addresses his colleagues in religious leadership:

I appeal urgently to all Jewish, Christian and Muslim religious leaders in the region to seek, by their example and by their teaching, to do everything in their power to eliminate this menace which indiscriminately and fatally affects believers of all religions.

He then drives the point home by quoting his own words on an earlier occasion:

“To use the revealed word, the Sacred Scriptures or the name of God to justify our interests, our easy and convenient policies or our violence, is a very grave fault.”

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That’s the substance of the Pope’s message in the context of recent disturbances in the region. There were a couple of notes he touched on, however, that interested me not for any connection with recent events, but for specific theological connotations:

Growth by individuals in the life of faith and spiritual renewal within the Catholic Church will lead to the fullness of the life of grace and theosis (divinization).

Theosis is a term more commonly found among Eastern Christians, and I wouldn’t want to define the doctrine in words, though I’ll suggest that its spirit is captured in the English mystic Thomas Traherne‘s magnificent meditation [Century I. 29]:

You never enjoy the world aright, till the Sea itself floweth in your veins, till you are clothed with the heavens, and crowned with the stars: and perceive yourself to be the sole heir of the whole world, and more than so, because men are in it who are every one sole heirs as well as you. Till you can sing and rejoice and delight in God, as misers do in gold, and Kings in sceptres, you never enjoy the world.

One of Benedict’s comments specifically addresses an issue of importance as Christianity and Islam find common ground in the Middle East:

In those unfortunate instances where litigation takes place between men and women, especially regarding marital questions, the woman’s voice must also be heard and taken into account with a respect equal to that shown towards the man, in order to put an end to certain injustices.

He gives an account of the Catholic doctrine of scriptural interpretation, which will be of interest to those concerned with such things in specifically Catholic, more generally Christian or comparative contexts:

The representatives of the various schools of textual interpretation were agreed on the traditional principles of exegesis accepted by the Churches of both East and West. The most important of these principles is the conviction that Jesus Christ incarnates the intrinsic unity of the two Testaments and consequently the unity of God’s saving plan in history (cf. Mt 5:17). The disciples would only come to understand this unity after the resurrection, once Jesus had been glorified (cf. Jn 12:16). A second principle is fidelity to a typological reading of the Bible, whereby certain Old Testament events are seen as a prefiguration (a type and figure) of realities in the new Covenant in Jesus Christ, who is thus the hermeneutical key to the entire Bible (cf. 1 Cor 15:22, 45-47; Heb 8:6-7). The Church’s liturgical and spiritual writings bear witness to the continued validity of these two principles of interpretation, which shape the ecclesial celebration of the word of God and inspire Christian witness. The Second Vatican Council went on to explain that the correct meaning of the sacred texts is found by considering the content and unity of the whole of Scripture, in the light of the living Tradition of the whole Church and the analogy of faith.

He also addressed the question of liturgical renewal, in a similar spirit, both orthodox (little o) and catholic (little c):

Such a renewal must of course be undertaken, to the extent possible, in cooperation with those Churches which are not in full communion, yet are also heirs to the same liturgical traditions. The desired liturgical renewal must be based on the word of God, on the proper tradition of each Church, and upon the new insights of Christian theology and anthropology.

As an aside — anthropology is an interesting word to have made its way into that statement. I must admit I am not sure whether he’s in any way suggesting something along the lines of “cultural anthropology” — which has a fair amount to say about ritual and how it functions — but I’m pretty sure his main meaning here is something closer to the original meaning of the word — along the lines of the “sound understanding of man” that he’d mentioned in an earlier passage in the Exhortation.

One passage suggested to me that Benedict might be alluding to the Muslim terminology of the Companions of the Prophet, and suggesting some measure of similarity with the disciples of Christ:

By rediscovering its original inspiration and following in the footsteps of those first disciples whom Jesus chose to be his companions and whom he sent out to preach (cf. Mk 3:14), the Christian presence will take on new vitality.

I’m hoping that will prove to be a deft touch, a tiny but significant gesture of friendship.

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Finally, Pope Benedict makes another reference which must have resonated with his Eastern Catholic and Orthodox co-religionists, returning to the grief with which he began his orations, appealing to Mary as Theotókos, “the one who gives birth to the one who is God”:

The heart of Mary, Theotókos and Mother of the Church, was pierced (cf. Lk 2:34-35) on account of the “contradiction” brought by her divine Son, that is to say, because of the opposition and hostility to his mission of light which Christ himself had to face, and which the Church, his mystical Body, continues to experience. May Mary, whom the whole Church, in East and West alike, venerates with affection, grant us her maternal assistance. Mary All-Holy, who walked in our midst, will once again present our needs to her divine Son. She offers us her Son. Let us listen to her, for she opens our hearts to hope: “Do whatever he tells you” (Jn 2:5).

In so doing, he remembers also, and reminds us all, of those who are martyred for their Christianity in a world where religion can so often be your excuse to kill, or another’s excuse to kill you.

Posted in anthropology, Benedict XVI, Charles Cameron, christianity, extremists, Islam, judaism, Lebanon, legal, peace, Religion, scriptures, Uncategorized | 15 Comments »

Judaism, Islam and the death penalty

Sunday, August 12th, 2012

[ by Charles Cameron — surprising infrequency of capital punishment, though mandated in Sharia and Torah ]
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I’m always struck by formal parallelisms, particularly in matters religious — so when I came across this fascinating reference to the infrequency of capital punishment by stoning in the Ottoman Empire in a book review today (upper panel):

I was immediately reminded of a similar Jewish reluctance to use capital punishment — stoning being one of the four choices — as recorded in Tractate Sanhedrin (lower panel)

And i thought the Dalai Lama (inset) might like it too…

Of course, there’s more detail and nuance to be had in each case, but the parallelism is nevertheless instructive.

Sources:

Review of Kadri in Pakistan’s Express Tribune
Jewish Virtual Library, Capital Punishment

On a personal note, highly subjective: you gotta love R. Akiva — but you gotta respect R. Simeon, too.

As usual, life is nuanced and — dare I say this? — “systems dynamic”.

Posted in complex systems, Islam, judaism, legal, sharia, tibet, torah, Uncategorized | 1 Comment »

Drones at Volokh, Drones at the Times, Send in the Drones…..

Sunday, February 19th, 2012

Kenneth Anderson, one of the legal eagles at The Volokh Conspiracy, has taken up some of the legal questions in my private drone war post:

Drones, Privacy, and Air Rights 

….Private parties over private property, engaged in aerial surveillance.  Is it lawful and in what ways?  And, lawful or not, what countermeasures are permitted to the property owner, if any?  And what general bodies of law and regulation are implicated here – property law, trespass, nuisance, etc.  Comments are open, but I’m particularly interested in informed comments that run to the possible questions of law here.  More general comments are better directed to Zenpundit’s site.

Note in advance that the pigeon shoot story is different from the precise question I am asking here.  According to the animal rights group, the drone was over public property (although this was simply one side of the story).  There is a further interesting question of whether it would ever be lawful to shoot down a surveillance drone over public property, on some theory of nuisance or trespass or the like affecting private property. But please leave that possibility in order to deal with the more obvious and conceptually prior question – what about a surveillance drone in air space over private property?

Comments there are interesting and useful.

Dr. Venkatesh Rao also drew my attention to this drone article in the New York Times:

Drones Set Sights on U.S. Skies

….A new federal law, signed by the president on Tuesday, compels the Federal Aviation Administration to allow drones to be used for all sorts of commercial endeavors – from selling real estate and dusting crops, to monitoring oil spills and wildlife, even shooting Hollywood films. Local police and emergency services will also be freer to send up their own drones.

But while businesses, and drone manufacturers especially, are celebrating the opening of the skies to these unmanned aerial vehicles, the law raises new worries about how much detail the drones will capture about lives down below – and what will be done with that information. Safety concerns like midair collisions and property damage on the ground are also an issue.

American courts have generally permitted surveillance of private property from public airspace. But scholars of privacy law expect that the likely proliferation of drones will force Americans to re-examine how much surveillance they are comfortable with.

“As privacy law stands today, you don’t have a reasonable expectation of privacy while out in public, nor almost anywhere visible from a public vantage,” said Ryan Calo, director of privacy and robotics at the Center for Internet and Society at Stanford University. “I don’t think this doctrine makes sense, and I think the widespread availability of drones will drive home why to lawmakers, courts and the public.”

Some questions likely to come up: Can a drone flying over a house pick up heat from a lamp used to grow marijuana inside, or take pictures from outside someone’s third-floor fire escape? Can images taken from a drone be sold to a third party, and how long can they be kept?

Drone proponents say the privacy concerns are overblown. Randy McDaniel, chief deputy of the Montgomery County Sheriff’s Department in Conroe, Tex., near Houston, whose agency bought a drone to use for various law enforcement operations, dismissed worries about surveillance, saying everyone everywhere can be photographed with cellphone cameras anyway. “We don’t spy on people,” he said. “We worry about criminal elements.”

Still, the American Civil Liberties Union and other advocacy groups are calling for new protections against what the A.C.L.U. has said could be “routine aerial surveillance of American life.”

Under the new law, within 90 days, the F.A.A. must allow police and first responders to fly drones under 4.4 pounds, as long as they keep them under an altitude of 400 feet and meet other requirements. The agency must also allow for “the safe integration” of all kinds of drones into American airspace, including those for commercial uses, by Sept. 30, 2015. And it must come up with a plan for certifying operators and handling airspace safety issues, among other rules.

The new law, part of a broader financing bill for the F.A.A., came after intense lobbying by drone makers and potential customers….

Posted in 21st century, America, innovation, legal, new york times, robotics, society, tech | Comments Off on Drones at Volokh, Drones at the Times, Send in the Drones…..

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