Some Question Whether Predators Used By Police Are Legal, Constitutional

A growing controversy surrounds the sudden use of unmanned surveillance aircraft designed for the military against private citizens in the US. The issues being raised include whether there is an expectation of privacy on your own property if you can still be seen from public airspace, and whether the use of drones violates the Posse Comitatus Act or the Fourth Amendment of the US Constitution.

The Los Angeles Times cites as an example a case in North Dakota in which Nelson County Sheriff Kelly Janke obtained a search warrant to look for missing cows on a family's farm in June. He says he was chased off by three armed men, so he called in the help of a Predator B drone operated by US Customs and Border Protection. The first known arrests of US citizens made with the help of a Predator came the following morning without further incident after the suspects were located by the drone, and determined to be unarmed.

The Posse Comitatus Act was passed in 1878 in response to abuses by the Union Army during its occupation of southern states following the Civil War. It blocks the use of the US Army and Air Force in law enforcement roles on US soil without specific approval by Congress. The US Navy and Marine Corps have similar restrictions in their own internal policies. But National Guard units and domestic law enforcement agencies such as Customs and Border Patrol are not covered, and while Congress has been nervous about funding spy drones for domestic use, there's no actual restriction on the use of surveillance aircraft, manned or unmanned, by civilian law enforcement.

The Fourth Amendment outlaws unreasonable searches and seizures, and requires probable cause and judicial approval for search warrants. But there is legal precedent established which holds that if you are visible from the air, even in your own back yard, you have no expectation of privacy.

On the other side of the argument, there is no question the US reaction to the 9/11 attacks has resulted in popular sentiment and Congressional action to shift priorities in the direction of law enforcement and away from personal freedoms. Florida Republican Congressman John Mica now openly ponders dismantling the TSA he worked to create. The US Senate has authorized a suspension of the protections in the Posse Comitatus Act for agencies spying on suspected al Qaeda sympathizers in the US. But the idea that unmanned aircraft could be routinely positioned where they are unseen and unheard without a warrant is something many find disconcerting.

Former Congresswoman Jane Harman, a California Democrat who once chaired the House Homeland Security Intelligence Subcommittee, says there needs to be a public discourse and creation of clear legal authority before the implementation of civilian surveillance drones becomes common. She tells the LA Times, "There is no question that this could become something that people will regret."

The case of the five arrests on the Brossart family farm in June may not turn out to be a good example of abuse of drone technology. Sheriff Janke did have a warrant, the missing cows allegedly were recovered there, and in explaining the benefits of the Predator Janke tells the Times, "We don't have to go in guns blazing. We can take our time and methodically plan out what our approach should be."

FMI: www.ga-asi.com/products/aircraft/predator.php