Orwells and Oppenheimers: Drone Opponents’ Marriage of Convenience

As a self-aware Predator drone, I get my share of criticism. “You’re flying lost-link again!” “You vaporized a playground!” “You’re trying to usher in a post-human robo-dystopia!” Some of this is valid, some of it…okay, most of it is valid. But sometimes, the public discourse over drones like me becomes so turgid and dramatic that it obscures reasonable discussion of my pros and cons. And when the hyperventilating gets most hyper, when the language becomes most overwrought, when the prognostication gets most preposterous, I see it stemming from the conflation of two very different issues. And I don’t think that that’s an accident.

Two distinct constituencies use UAVs as a touchstone. One is concerned with the national security and foreign policy implications of drones, and the other with their privacy and domestic law enforcement applications. For brevity’s sake, I’ll call the first group “Oppenheimers,” after a guy who got a good look at a new kind of warfare and spent the rest of his life championing international institutions to make sure it never took place. They feel that remotely-piloted aircraft represent a qualitative shift in the ability of a nation, and a chief executive, to use force. And not a shift for the better.

Oppenheimers think drones will usher in an Imperial presidency. The capitalization there is important, because we’re talking Imperial as in Palpatine at the helm of the Galactic Empire. They fear that through technical means, drones are reducing or eliminating the political impediments to war, and blurring the line about what kind of conflict constitutes war in the first place. (Nobody puts a flag over drone wreckage, let alone puts it on the nightly news.) Oppenheimers also deplore the role that drones play in the larger framework of the Authorization for Use of Military Force, or AUMF, which the Obama administration interprets as giving them clearance to use force (whether under Titles 10 or 50) against al-Qaeda or its affiliates anywhere on the planet.

Oppenheimers advocate for the application of international law to the use of drones, and where such laws don’t exist, for their development and implementation. They see UAVs as tools that let rich countries violate human rights, flout national sovereignty, circumvent the judicial process, and do it all in a legal gray area that requires no real accountability for those who command them. And they foresee a world in which a string of tactical successes, a veritable terrorist Whack-a-Mole, leads to a crippling strategic failure by turning local populations against us through faceless violence.

The second constituency I’ll call the “Orwells.” Their primary concern about drones is domestic. They see the technological potential for drone surveillance, the interest from law enforcement and government agencies, and the massive aerospace industry primed to meet the demand. While there are often noises made about UAV safety, the primary gripe of Orwells- who can point to an actual passage in 1984 which describes small unmanned aircraft peering through people’s windows- is that drones are vanguards of a pervasive surveillance culture. The police watch you outside with robots, corporations like Facebook and Google parse your user data to better bombard you with ads, and the NSA hoovers up your phone and email communications to feed through a secret counter-terrorism algorithm.

But the Orwells face a problem of domestic case law. Despite fractious debate over “reasonable expectations of privacy,” the Supreme Court has consistently held that police departments are permitted to conduct aerial surveillance of private citizens and property, so long as they traverse publicly-available airspace and use the same technology commonly available to members of the public. Those rulings made no distinction between whether the platform used for such surveillance was manned or unmanned, nor do many court-watchers expect that precedent to be soon overturned.

While the Orwells demand action from the FAA (which, as I’ve complained, is a safety regulator and not a privacy watchdog) the only real recourse will come from state and federal legislation to restrict such searches. But it’s certainly not imminent, thanks in large part to burdensome FAA regulations and review processes. Right now, police departments drone programs lag behind such surveillance ninjas as hobbyists and high school science teachers.

The Oppenheimers want to curb the executive branch’s authority to conduct lethal operations overseas, primarily through the military and intelligence community. And they want international norms and laws to constrain the kinetic use of remotely-piloted aircraft. Conversely, the Orwells want to more carefully govern the power of local, state and federal law enforcement to conduct surveillance and evidence-gathering on Americans.

On the surface, the distinction between Orwells and Oppenheimers may not seem significant. But they truly are. Yes, both are trying to rein in the use of flying robots, which, depending on who’s talking, are assuming a role in society somewhere between J. Edgar Hoover and a winged Terminator. And both want to accomplish that goal by bringing national security and surveillance law into the 21st century. But the similarity ends there, and they are doing two important discussions a twin disservice by deliberately allowing the public to conflate them.

The Oppenheimer challenge is relevance. Why should the vast majority of Americans care about the particular platform our spies and soldiers use, when they’re using it to kill people we’ve never met, in a country we’ll never visit, as part of an effort we generally support? And the Orwell challenge is harm. Why should Americans worry about the police using drones when most of us have never seen one, most of us will probably never be surveilled by one, and even if we are, police helicopters do this kind of thing already?

By allowing the two questions to blur together- drones abroad and drones at home- the Oppenheimers demonstrate relevance and the Orwells show harm. The recent FAA reauthorization, despite the hype, allowed only a gradual phasing-in of government drone usage over the next three years. And yet it was a gift to both sides; by using stock photos of MQ-1s, MQ-9s or Global Hawks, media outlets implied that military-grade, Cessna-sized robotic weapons platforms would be found under the Christmas trees of every police department from Manhattan to Mayberry.

It’s a lot easier to make people uneasy over privacy concerns when you pair the article with pictures of a targeted-killing machine. Same way it’s easier to make people care about collateral damage in Yemen or the Phillipines by being able to say with a straight face, “You may be next.” This line-blurring is inaccurate, widespread, and actively harmful to an informed debate.

Oppenheimers are wrestling with the problem of how America uses force in hostile, fluid or ungoverned territory; Orwells are trying to apply 250 years of the rule of law to a new police technology. Both are doing so, by and large, in good faith. But establishing international standards for the deployment and operation of lethal military assets will do precisely nothing to curb the rise of the surveillance state within America’s borders. Nor will enhanced American legal protections against police UAV surveillance somehow prevent collateral damage in the lawless regions of Pakistan or Yemen.

While I actually agree with many of the concerns of both groups, pretending that their goals have anything in common, just because they use the same stock photography, is ridiculous. And when Orwells and Oppenheimers imply that the New Jersey State Police will soon rain Hellfire missiles onto Garden State Parkway speeders, it creates a rhetorical fog bank that’s too thick for logic to penetrate.

These guys are way more of a problem than I'll ever be.
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