Fighting Terrorism: Surveillance and Targeted Killing in Post-9/11 World [1 ed.] 9788024638447, 9788024638126

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Fighting Terrorism Surveillance and Targeted Killing in Post-9/11 World Tereza Krauzová Stanislav Matějka

Reviewed by: PhDr. Jindřich Dejmek, DrSc. Prof. JUDr. PhDr. Miroslav Mareš, Ph.D. Published by Charles University, Karolinum Press Edited by Alena Jirsová Layout by Jan Šerých Typeset by Karolinum Press First English edition © Charles University, 2018 © Tereza Krauzová, Stanislav Matějka, 2018 ISBN 978-80-246-3812-6 ISBN 978-80-246-3844-7 (pdf)

Charles University Karolinum Press 2018 www.karolinum.cz [email protected]

Contents

Acknowledgements 7 I. Introduction 9 II. Land of freedom or land of surveillance? Right to privacy in the U.S. after 9/11 15 Privacy and surveillance

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What is the right to privacy

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Rights of the government vs. rights of the governed

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Surveillance

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Historical development of surveillance legislation

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Legal context of the current surveillance issues

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Foreign Intelligence Surveillance Act



United States Patriot Act

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Section 218

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PRISM and upstream acquisition of Internet communications

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Bulk collection of telephony metadata program

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Challenges of Pandora’s Box

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Pendulum effect: back to land of freedom

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Exploitation of the collected data

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III. Unmanned Aerial Vehicles in U.S. National Security Policy: New Face of War on Terror 52 Unmanned aerial vehicles

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Definitions

History

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Unmanned aircraft in the military

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Significant manufacturers

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Cost-efficiency

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Limitations to the use of UAVs in the war on terror

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64

Legal issues



Collateral damage

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Principles of foreign policy

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Media coverage

71



Public opinion

72



Public polls

73



Technical, tactical, and operational challenges

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UAVs in the war on terror

81

Somalia

82

Yemen

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86

Afghanistan

Pakistan

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88

Iraq

Revolution in military affairs

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91

Theoretical concepts, definitions, schools

Warrior ethos and just war

97

IV. Conclusion

101

V. Bibliography

107

Acknowledgements

It is our pleasure to acknowledge PhDr. et Mgr. Kryštof Kozák, Ph.D., who was our tutor, for his support, valuable suggestions and scholarly advice throughout our research period. We are also thankful to professor Norma Hervey, Ph.D. and associate professor PhDr. Jiří Vykoukal, CSc., whose timely cooperation enabled us to complete this work.

I. Introduction

The United States has always been perceived as a land of freedom. Millions of people left their home countries and headed to America in pursuit of a new life. The freedom rhetoric can be easily tracked in speeches delivered by the U.S. presidents. George W. Bush mentioned in his second inaugural address the words “free,” “freedom” and “liberty” forty-nine times in total.1 Similarly, the U.S. national anthem contains the “land of free” wording. On September 11, when the terrorist attacks shocked the United States and the whole world, President George W. Bush assured his people: “Terrorist acts can shake the foundation of our biggest buildings, but they cannot touch the foundation of America.”2 That foundation, as explained by President Obama, is three documents – the Declaration, the Constitution and the Bill of Rights – anchoring “the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity around the world.”3 Since the 9/11 attacks, the threat of terrorism has occupied front pages of newspapers and prime time news on television for almost two decades now. The war on terror declared by President Bush after the 9/11 is waged inside as well as outside U.S. borders. Perception of the threat has led many countries to major reforms in their national security 1

2

3

William Safire, “Bush’s Freedom Speech,” The New York Times, January 21, 2005, available at http://www.nytimes.com/2005/01/21/opinion/21safire.html?_r=0 (last access December 13, 2014). Citation from the George W. Bush’s address on September 11, 2001, CNN, September 11, 2001, available at http://edition.cnn.com/2001/US/09/11/bush.speech.text/ (last access December 13, 2014). “Remarks by the President on National Security,” The White House, May 21, 2009, available at http://www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09 (last access December 13, 2014).

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policies. In the forefront of this development is the United States with its most advanced technologies at hand and very specific responsiveness to threat to homeland. In the years after the attacks, the United States has come with number of military, security as well as legislative concepts and innovations in order to defeat terrorism and protect security of its people. Even though these measures seem to be effective, as no other comparable attack has occurred on U.S. soil, many experts are voicing their concerns and the public debate is increasing especially after each revelation of the dark sides of the war on terror’s tools and measures. On the domestic level, civil rights organizations, academic experts and also authors of some of the provisions have been voicing concerns that the new pieces of antiterrorism legislation, intelligence provisions and military tools ceased to observe constitutional protection. In addition, in June 2013, Edward Snowden, a former employee of the National Security Agency, revealed together with journalist Glenn Greenwald secret files containing information about clandestine government surveillance programs affecting all U.S. citizens. On the level of waging war outside the U.S. borders, the morality of Unmanned Aerial Vehicles (UAVs) and other related issues has become a topic of heated public discussions in the U.S. First of all, it is arguably one of the most important changes in the U.S. military conduct in years. Second, the use of these systems plays a substantial role in shaping both national security policy and the foreign policy of the United States. The issue of robotic, possibly autonomous and lethal systems presents a great challenge for ethicists, military experts, foreign policy analysts and practitioners, philosophers and other thinkers. For these reasons, it is vital to think conceptually about the facts at hand regarding the use of lethal unmanned aircraft, commonly referred to as drones, as well as surveillance measures and legislation. As the world becomes more and more interconnected through a wider access to computers and the Internet, the debate on any such significant issue is becoming ever more global in a literal sense. In such a debate, there is a much greater risk of unintentional or even intentional misinterpretation, deliberate lies and propaganda by persons groups or even nation states stepping in with their respective agendas. Nowadays, advanced technology offers wide range of possibilities how to intrude one’s privacy and effectively kill people and legal and ethical considerations have to catch up the reality. The main aim of the publication is therefore to examine these two ambivalent sides of the war on terror – use of the UAVs abroad and issues related with the revealed

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government surveillance programs in the United States. Both UAVs and surveillance legislation shall protect the security of American people and both raise significant concerns on under which conditions these tools are being used. Authors of this publication seek to answer the following questions: has the United States shifted from the land of freedom into the land of surveillance? What is the statutory and constitutional framework of the current surveillance measures? How are the UAVs in the war on terror currently being used and what are the limits of the utilization of UAVs in the war of terror? For this purpose, this work consists of two major parts focusing on further partial issues. The first part called Land of freedom or land of surveillance? Right to privacy in the U.S. after 9/11 examines the contradiction between the proclaimed freedom and the factual complex surveillance intruding privacy, whose legality and constitutionality is being questioned. After 9/11, a vast number of antiterrorism acts, executive orders, presidential directives and intelligence programs in the name of national security have been introduced. This work focuses on the two major National Security Agency eavesdropping programs, revealed by Edward Snowden. The first of them is the bulk collection of telephony metadata conducted under Section 215 of the USA Patriot Act and the other is PRISM and upstream acquisition of Internet communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978 modified by the Amendments Act of 2008. In order to elaborate on the legal context of the surveillance issues with focus on the statutory and Constitutional deficits of the NSA data collecting programs revealed by Edward Snowden and provide sufficient explanation of both programs, it is also essential to introduce the Foreign Intelligence Surveillance Act (FISA) as well. Even though the act does not belong among the legislation passed after 9/11, it is the crucial basis for the antiterrorism legislation, especially for USA Patriot Act, which builds significantly on FISA provisions, as it deepens, modifies and amends them. For purposes of this publication, only the Sections 215 and 218 of the Title II of the USA Patriot Act will be analyzed. The law itself is 365 pages long and consists of ten Titles, encompassing a wide variety of issues. However, only Title II, “Enhanced surveillance procedures,” is thematically connected with our topic, as it brought new rules for surveillance procedures. Sections 215 and 218 raise high concerns regarding privacy rights. This work focuses primarily on the disputed surveillance provisions violating the right to privacy. It does not include the Guantánamo prison

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issue, indefinite detention and imprisonment, although these are important and controversial issues arising directly from the 9/11 legislative measures as well, but they are beyond the scope of this work. Similarly, this publication is not involved with any deeper examination of the commercial tracking of one’s online activities by private companies for purposes of marketing and targeted advertising. The second part called Unmanned Aerial Vehicles in U.S. National Security Policy: New Face of War on Terror identifies major limitations of the use of unmanned lethal systems in warfare and outlines how these challenges contribute to a Revolution in Military Affairs (RMA). The use of unmanned systems as a part of the U.S. national security policy is here analyzed with regard to more abstract questions of morality and the concept of just war and warrior ethos. Unmanned systems challenge not only the military conduct but many other areas of society and it is an ambition of this publication to address those as well. As this work aims to demonstrate, the U.S. strategy of using UAVs has the potential to change the overall conduct of national security policies in the future. It also aims to prove that the implementation of UAVs in combination with other technologies has caused a RMA. This current revolution is beyond even the traditional theories of RMA as will be proven in the following chapters based on theoretical concepts of the warrior ethos and the ideal of the just war. The intent is to prove that these new technologies will change warfare far more than expected. Traditional concepts of warfare, its justification and the role and perception of the warrior may all eventually become irrelevant due to expansion of UAVs. Some authors conclude that, although UAVs present a revolutionary technology, they are not a disruptive one. That means that even if drones provide the President with the extraordinary capability of striking an enemy without the political consequences of having American servicemen and servicewomen put into harm’s way, this does not imply an absolute alteration of national security or foreign policy. This work argues that the RMA is a gradual process. The potential of this RMA is one of the greatest in history, comparable for instance to the invention of the nuclear bomb. Among the sources used in this work there are some worth deeper explanation. The Privacy and Civil Liberties Oversight Board is an independent, bipartisan agency within the executive branch, established by implementing the 9/11 Commission recommendations. The 9/11 Commission – officially named National Commission on Terrorist Attacks Upon the United States – was created in 2002 to examine circumstances

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of the 9/11 attacks and draft adequate suggestions how to improve the U.S. political system and avoid repeating similar events. The five member Privacy and Civil Liberties Oversight Board is appointed by the President and confirmed by the Senate. The Board’s mission is to balance federal government’s efforts to prevent terrorism with the need to protect privacy and civil liberties. For this purpose, the PCLOB analyzes actions of the executive branch and ensures that the liberty concerns are appropriately considered in the development and implementation of antiterrorism law and policies.4 The PCLOB work began approximately since the early summer of 2013, which corresponds with the months of Snowden’s first revelation. In this respect, the Board issued two comprehensive reports about National Security Agency’s programs. Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 5 and Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court.6 Both reports were issued in the year 2014 and play important role in this work, as they introduce not only the government position but thoroughly examine privacy and civil rights concerns. The PCLOB recommended shutting down the NSA phone program and retaining the PRISM and upstream collection program. Of special value to this work are the separate statements of two Board members – Rachel Brand and Elisabeth Collins Cook – who did not agree with the majority conclusions of the Board. Their opinions are part of the final Report. Daniel J. Solove is a law professor at the George Washington University Law School. He is an internationally known expert in privacy law and author of number of books and textbooks about this topic. Solove’s books offer deeper legal and historical understanding of the privacy issue, introducing it in more detailed context. Especially the book Noth-

4

5

6

Official webpage of the Privacy and Civil Liberties Oversight Board, available at: http:// www.pclob.gov/meetings-and-events/2014meetingsevents/23-january-2014-public-meeting .html (last access December 13, 2014). “Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act,” Privacy and Civil Liberties Oversight Board, July 2, 2014, available at: http://www.pclob.gov/Library/702-Report-2.pdf (last access November 26, 2014). “Report on the Surveillance Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court,” Privacy and Civil Liberties Oversight Board, January 23, 2014, available at: http://www.pclob.gov/Library/215 -Report_on_the_Telephone_Records_Program-2.pdf (last access November 22, 2014).

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ing to Hide. The False Tradeoff between Privacy and Security7 is an important source for understanding of the Constitutional background and recent perception of the right to privacy. As the issue of deploying UAVs became a headline in the world media, there are amounts of literature being published analyzing every aspect of robotics in a war. For this research the most vital documents were the official reports to Congress and publicly released reports of various Departments of the Government. When it comes to assessing the current state of affairs in the U.S. military, there is the Strategic Plan 2011 to 2016, Defense Technical Information Center, Information for the Defense Community and Unmanned Systems Integrated Roadmap FY2013-2038. These are not only descriptive of the current situation, but also offer a detailed insight into future developments. Peter W. Singer is a Senior Fellow at the Brookings Institution and Director of the Center for 21st Century Security and Intelligence. Singer describes various aspects of the history of robotics, the current state of the field and the possible future of robotics in military use.8 He analyzes the implications of various autonomous systems, mostly in military use. Nevertheless, his analysis throughout most of the book deals with the future, when artificial intelligence reaches a whole new level of capabilities. Singer’s analyses and implications drawn from them are more of a futuristic reading. His cultural references enable the reader to understand the history of robotics in the military and its possible future use with more ease. Similarly, an important source of information for the research on UAVs in the military is the journal, Foreign Policy. A project called The Complex offers thought-provoking articles on issues related to national security, spying and use of unmanned systems. Several articles cited in this research served as an inspiration for the authors as to what issues to focus on and how to address them. These articles are included also provide the more current context.

7 8

Daniel J. Solove, Nothing to Hide: The False Tradeoff between Privacy and Security (New Haven: Yale University Press, 2011). Peter W. Singer, Wired for War, The Robotics Revolution and Conflict in the 21st Century (New York: Penguin Press, 2009), Kindle edition.

II. Land of freedom or land of surveillance? Right to privacy in the U.S. after 9/11

Privacy and surveillance What is the right to privacy The right to privacy developed both in the European and American legal framework as an essential element in the palette of indispensable individual rights related to human dignity. The right to privacy creates a protected legal space for individuals, excluding intrusive acts of government and others. Rights of privacy developed gradually over centuries as a legal response to growing expectations of people, whose lives were changing and evolving. At the present time, there are three legal foundations of the right to privacy in the United States: common law, constitutional law and federal statutes.9 An important milestone in this process was achieved in the article “The Right to Privacy” by two lawyers, Louis D. Brandeis and Samuel D. Warren, in the Harvard Law Review in December 1890. The authors were among the first to use the term “right to privacy” in U.S. legal history. In the text, they are advocating for this right, which was at their time becoming essential, defining it as “a right to be left alone.” Brandeis and Warren declared that the dynamics of social and technological progress required an adequate legal response. Earlier, British common law declared only physical interference with one’s life and property to be legally significant – people were protected from physical assault. Later, as the law evolved, protection from verbal assault as well as concepts of nuisance and defamation became part of the law. Brandeis 9

Robert Sprague, “Orwell Was an Optimist. The Evolution of Privacy in the United States and Its De-evolution for American Employees,” The John Marshall Law Review 83 (2008–2009), p. 93.

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and Warren argue that while liberty was originally meant freedom from actual restraint, personal immunity was extended beyond the body of the individual.10 “Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, – the right to be left alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession – intangible, as well as tangible.”11 The authors experienced the very dynamic era of rapid development of new technologies and increasing influence of media, when privacy began to be threatened and defamation became a serious issue.12 The right to privacy, as a new legal term, evolved and gained specific features in the decades after this groundbreaking article. In the United States, the right to privacy is explicitly mentioned neither in the Constitution, nor in the Bill of Rights. However, according to consistent rulings of the Supreme Court, it is based on these documents and arises especially from the First and Fourth Amendment. Mainly during the 20th century, the constitutional conception of privacy rights in various aspects of people’s lives gradually developed. According to the Supreme Court, privacy as constitutional right is stemming from concepts of individualism, limited government, and private property.13 Consistent legal interpretations state that privacy is implied also in number of the Amendments to the Constitution, besides the First and Fourth from the Third, Fifth and Fourteenth. Several Supreme Court decisions focusing on privacy in various contexts of human life are also significant. General public connects the right to privacy mostly with cases in the sphere of personal, especially sexual, intimacy. The effort to “keep government out of bedrooms” – a slogan used by activists – became more and more insistent in recent decades. Griswold v. Connecticut (1965), Roe v. Wade (1973) and, quite recently, Lawrence v. Texas (2003) define legal boundaries, which the government is not allowed to cross with respect to interference with sexual behavior. Nevertheless, enlarging the untouchable autonomous sphere of people at the same time limits government powers. This chapter focuses on the clash between privacy of people and the need of government to have some kind of control over society.

10 Louis D. Brandeis, Samuel D. Warren, “The Right to Privacy.” Harvard Law Review, vol. IV, no. 5 (December 1890), pp. 193–194. 11 Ibidem, p. 193. 12 Sprague, “Orwell Was an Optimist,” p. 98. 13 Sprague, “Orwell Was an Optimist,” p. 102.

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Rights of the government vs. rights of the governed Political philosophers have always studied the concept of the state, providing explanations as to the purpose of the state, the origins of government authority and justification of those powers. In modern times – leaving aside various anarchistic and radical ideologies – the theory of state generally explains the purpose of existence of states as a social contract of people living in a defined area, who give some of their rights to a government in order to ensure protection of life and property and achieve a value often called “common good,” “good life” or “general interest.”14 These terms include numerous values and qualities people seek for satisfactory living. To make a step back from the level of values such as privacy, the elemental human need for a good life, essential to this work, is physical safety. People naturally look for peaceful environments in which they can live, raise children, go to work and enjoy their free time undisturbed by fear of threats to their lives, health and property. Famous political philosopher Thomas Hobbes explained in his milestone book Leviathan that protection of the life of citizens is the vital and essential duty of every government, as the natural environment is very dangerous and would lead to anarchy – a war of all against all. Therefore people, who cannot fully protect themselves, give up some of their freedoms in exchange for services the government should provide. To make this concept functional, every individual committed to a social contract must obey the laws of the state. In addition to Hobbes, John Locke, another influential political philosopher, further elaborated the theory of the state but coming from different assumptions about human nature. Locke, a representative of the Enlightenment, included in purposes of existence of states apart from obvious protection of lives of citizens also the responsibility to safeguard unalienable human rights – property and liberty. In the state of nature, people are maybe equally free and independent, but some of them endanger peace and safety. For this reason, people created states and authorities to ensure security. However, to make this social contract work, government should also protect people’s rights and freedoms.15 This liberal perception influenced strongly the Founding Fathers of the 14 Henk E. S. Woldring, “On the Purpose of State: Continuity and Change in Political Theories.” Available at: http://maritain.nd.edu/ama/Sweetman/Sweetman12.pdf (last access November 2, 2014). 15 Woldring, “On the Purpose of State,” p. 158.

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United States, as Thomas Jefferson expressed in the Declaration of independence – life, liberty and pursuit of happiness are there described as unalienable. These concepts still resonate in the American society. According to prevalent liberal theory, a government that is expected to be able to provide for common good and security of its inhabitants needs to dispose of necessary power and authority to impose rules and make all subjects of law obey these regulations. Those coercive powers as well as other authority of government are derived from rights of the governed, who chose their leaders in order to lead the society and protect it from external as well as domestic threats. Accordingly, the level and extent of rights the citizens are still able to exercise, are thus inevitably being limited. For this reason, there arises the question of where should a balanced line be drawn between the inviolable rights of individuals on the one hand, and powers of governments ensuring security and enforcing adherence to laws on the other. As a consequence, in reality there occurs an inverse relationship between freedom and security: the more freedom individual citizens in their country possess in their hands, the fewer tools remain available for effective actions of the government. There is no simple and evident answer to this question that could be applicable and appropriate everywhere and under all conditions, as it depends – among others – on the culturally political customs of each particular society and the level of threat the society is facing. Thorough human history, people have experienced different approaches to this issue in different places of the world. In addition, it is a political problem, as there are groups within each country which push the state to adapt their version of the border. Perception where this boundary dividing authorities of the government and the rights of the governed should be placed has differed distinctively under various political ideologies. To illustrate, imagine a comparison where totalitarianism at one end constitutes one extreme, and libertarianism at the other represents the opposite approach.16 The Encyclopaedia Britannica defines libertarianism as a political philosophy that puts emphasis on individual liberty and personal freedom; those objectives are of the primary political value for the supporters of this view.17 Libertarianism builds on the heritage of John Locke, Adam Smith and Thomas Jefferson and in the light of natural rights to life, liberty, private property, freedom of speech and association, freedom of 16 Kenneth Janda, Výzva demokracie. Sytém vlády v USA (Prague: Slon, 1998), p. 29. 17 Encyclopaedia Britannica, s.vv. “Libertarianism,” available at: http://www.britannica.com /EBchecked/topic/339321/libertarianism (last access October 27, 2014).

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worship, equality under law and moral autonomy, thereby favors very limited government by consent, whose activities would be restricted to protection of lives, properties and freedoms of people.18 The Libertarian Party of the United States proposes to cut taxes to a minimum and thus limit the government agenda significantly.19 Nevertheless, the Libertarian Party plays a marginal role in the political process dominated by the two major parties, Democratic and Republican. Totalitarian government, on the other hand, subscribes to an opposite approach theoretically permitting even no individual freedom and seeking to subordinate all aspects of the individual’s life to the authority of government through coercion and repression.20 Totalitarian regimes usually develop very complex systems of controlling society and psychology and advanced technical measures of surveillance. Those governments justify their mass repression of society and even control of private lives as necessary for common good, even though they simply want to gather more tools that would help them stay in power. In reality it is hardly possible to achieve a pure form of either libertarianism or totalitarianism, as these are abstract ideals of extreme forms of political ways of thinking and governing. Even though in history several totalitarian regimes came very close to the absolute Orwellian form of controlling society, most of the undemocratic states in today’s world are authoritarian instead. Authoritarian regimes do not use a complex state ideology explaining and justifying every aspect of life. Authoritarian governments target repression only at opposing movements and individuals. Nazi Germany or the Soviet Union under Joseph Stalin are among totalitarian regimes, as the level of control over the society was extremely high; however some of the socialist regimes in the former Soviet bloc, especially in the last decade or their existence, could be classified rather as authoritarian regimes, since inhabitants who did not challenge the regime were able to achieve quite undisturbed lives.21

18 Janda, Výzva demokracie, p. 29. 19 Official webpage of the Libertarian Party of the United States. How do Libertarians, Republicans, and Democrats differ? Available at: http://www.lp.org/how-do-libertarians-republicans -and-democrats-differ (last access October 27, 2014). 20 Encyclopaedia Britannica, s.vv. “Totalitarianism,” available at: http://www.britannica.com /EBchecked/topic/600435/totalitarianism (last access October 27, 2014). 21 Ladislav Cabada, Michal Kubát, Úvod do studia politické vědy (Prague: Vydavatelství a nakla­ datelství Aleš Čeněk, 2007), pp. 369–372.

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Surveillance As explained above, the vital purpose of national security measures is to create a state, which is undisturbed by potential domestic or external threats, even though these threats can be easily socially constructed, especially if they are potential. In order to provide for these conditions, governments are endowed with various tools and powers. Governments use their military forces to confront open hot conflicts. At the same time, to support prevention, states use diplomacy and economic influence to create favorable international environments of stability where deployment of military troops will not be necessary. Among external threats belong also non-states actors – various hostile movements and often even terrorist organizations that are difficult to combat. However, destructive effects also arise from within the state itself. Maintaining domestic social order might be an even trickier challenge requiring more delicate approaches. For this purpose, governments use various forms of monitoring people’s behavior – so-called surveillance measures – even though these can be used to counter some forms external threats as well, e.g. foreign spies. In this sense, surveillance is a form of social control, whose task is to recognize and prevent possible threats and then investigate criminal activities. There are many options that can be used at different levels of intruding into personal spheres of people, ranging from violating confidentiality of correspondence to complex networks of secret police and random house searches. In our technically advanced society, means of surveillance are mostly electronic, such as the highly discussed and widely used surveillance cameras at public places, high speed computers able to search through all forms of electronic communication or sophisticated biometrics software which analyzes physical features of a human in a second and connects it with a database of suspect individuals. It depends on the character of a state and the level of threats it faces when a state decides what means and to what extent to use against domestic dangers. Some countries reject extensive intrusions and decide to fight only against imminent threats such as political extremists who manifest their destructive views openly, and respect private sphere of those citizens, who do not show hints of dangerous attitudes. This approach, however respectful to rights of individuals, cannot reveal all threats in a timely way. Therefore, some countries facing higher levels of danger might decide to favor crime prevention over freedom and liberty. Adopted measures can thus slowly move the balance between freedom and

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security more towards the totalitarian end of the scale, as people under surveillance would suppress their activities in order to avoid problems. In times of national crisis, the balance between national security measures and civil liberties of people is disrupted in favor of national security. We can observe this trend throughout the history of the United States, when various more or less serious security threats provoked waves of public hysteria and higher level of government intrusions. Even though Americans believe in the reliability of their system built on checks and balances, history shows that judiciary in times of crises does not always stop excesses of the executive and legislative infringing on civil liberties.22 During World War II, targeted enemies were the Japanese-Americans, who were deprived of their rights and imprisoned in camps. An era of fear of increased communist influence on the American society – the so-called Red Scare – came in two waves: the first after the Russian revolution 1917 and then especially during McCarthyism in the post-World War II era. In these times, people whose loyalty was believed to be questionable or who criticized government actions faced higher level of surveillance, intimidation and detention.23 Spreading of communist ideas and potential enlargement of the Soviet block was understood as an existential danger to the United States. In the following decades, United States got involved in the Vietnam War, because it was scared of the domino effect in Southeast Asia. The geopolitics of the Cold War was considered as a zero-sum game. Today, there is still a threat, but it is now in the form of radical Islamist terrorism instead of communism. And similarly to Cold War, the fight is being led in the world as well as on the domestic front. In the war on terror, as in the previous war on communism, much is allowed and acceptable for the government. The terrorist attacks of 9/11 influenced the security issues in numerous national states, not only the United States. In addition to the U.S., Great Britain, France, Australia and Canada also significantly expanded the scale of antiterrorist surveillance. In all of these countries, new patterns of tracking money transactions have been introduced; retention time of records of telephone and electronic communication has been extended; restrictions on monitoring suspicious individuals have been 22 Nancy Murray, Sarah Wunsch, “Civil Liberties in Times of Crisis: Lessons from History.” Massachusetts Law Review, available at: http://www.massbar.org/publications/massachusetts-law -review/2002/v87-n2/civil-liberties-in-times-of/ (last access December 15, 2014). 23 Murray, Wunsch, “Civil Liberties in Times of Crisis.”

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eased, and multiple new ways of checking a person’s identity have been introduced.24 Proponents of the surveillance measures often use the nothing to hide argument, an assumption that people who did not do anything wrong do not need to be afraid of the fact that government possesses their personal information. This argument might be viable only under ideal conditions, when the democratic government strictly obeys all rules and acts constitutionally limited by the system of checks and balances. Problems arise, however, when this legitimate and favorable system is eroded – either by domestic or foreign factors. In such cases, new rulers how do not bother with obeying laws would have direct access to sensitive information that can and most probably will be misused. This can be illustrated with an example, which happed during German occupation of the Netherlands during the Second World War. At that time, the Nazis discovered census registries of the Dutch government, which included data on people’s religious preferences. These could have served for a beneficial purpose; however, the Nazis used them to identify Jews and sent them to concentration camps.25 It is impossible to anticipate today what kind of threat the future will bring; all the government can do is to approach this issue wisely. Because storage of the information as a result of technological development is easy and cheap, the less data that can be potentially misused, the better.

Historical development of surveillance legislation The First and Fourth Amendment included in the Bill of Rights are crucial for the right to privacy as they work together as keystones in the protection against government power, which cannot gather information without proper oversight and limitation. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise of thereof; or abiding the freedom of speech, or of the free press; or he right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”26

24 James B. Rule, Privacy in Peril: How Are We Sacrificing a Fundamental Right in Exchange for Security and Convenience (New York: Oxford University Press, 2009), pp. 82–83. 25 Rule, Privacy in Peril, p. 42. 26 “Bill of Rights of the United States of America,” Bill of Rights Institute, available at: http:// billofrightsinstitute.org/founding-documents/bill-of-rights/ (last access December 26, 2014).

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The purpose of this sentence is to restrict the government from creating a chilling effect on freedom of speech, association, and receipt of ideas, as people would naturally suppress these knowing that government can draw consequences.27 In addition to this, the Fourth Amendment is worded as follows: “The right of people to be secure in their persons, houses, papers and effects, against a unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon a probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”28

As is clear from the wording, the Fourth Amendment protects against those searches and seizures that are unreasonable under the law, and requires authorities to obtain a court warrant upon a probable cause before acquiring information. The probable cause is understood as reasonably trustworthy information that the search will turn up needed evidence of a conducted wrongdoing.29 The Fourth Amendment does not apply always, just in cases when an individual can reasonably expect privacy. Therefore a vast number of situations is not covered, for example police can collect evidence on suspect’s plots, where only the immediate surroundings of a house is considered protected under Fourth Amendment. Similarly, trash – abandoned things – cannot be reasonably expected private. These examples are only a fraction of situations where the application of the Fourth Amendment is questionable or excluded.30 When the Fourth Amendment was created, there was not the number of decentralized government agencies such as the FBI and the NSA, but the government was rather a narrow group that did not dispose of sophisticated means of intruding people’s private sphere. Over time, as the law enforcement body was developing, the Supreme Court had to fill in this emerging gap between the original focus of the Fourth Amendment on the government and the new decentralized agencies.31 Briefly, the Supreme Court has to determine how the Fourth Amendment applies in 27 Daniel J. Solove, Nothing to Hide: The False Tradeoff between Privacy and Security (New Haven: Yale University Press, 2011), pp. 147–148. 28 “Bill of Rights of the United States of America.” 29 Solove, Nothing to Hide, p. 95. 30 Solove, pp. 99–100. 31 Ibidem, p. 95.

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cases that were not expected by the Founding Fathers. This development is still ongoing and depends on the available surveillance technology.32 During the first decades of the twentieth century, a legal question arose as to whether the Fourth Amendment protection of people’s privacy applies only to tangible things, or if also intangible things, as for example conversations, are equally protected. Several Supreme Court decisions at the turn of nineteenth and twentieth centuries favored only tangible things, since at that level of technological development not so many types of violation were possible.33 Subsequently in 1928, a milestone Supreme Court decision Olmstead v. United States was reached. In this case, the Supreme Court considered the question, whether it is in accordance with Fourth Amendment to wiretap telephone conversation and use information thus obtained as evidence in criminal procedure, since the Fourth Amendment plays a crucial role in guaranteeing the privacy rights of people. In Olmstead v. United States the justices ruled, that this does not constitute any constitutional violation, as “the well-known historical purpose of the Fourth Amendment, directed against general warrant and writs of assistance, was to prevent the use of governmental force to search a man’s house, his person, his papers, and his effects, and to prevent their seizure against his will.”34 The majority ruling established the so-called trespass doctrine, which lasted for decades. Essence of this doctrine rests in the fact, that there occurred no real physical trespass and thus no truly illegal search under the Fourth Amendment. In another words, a physical entry to defendant’s premises is necessary before he would be entitled to complain that his rights were violated.35 In the year 1928 Louis D. Brandeis, author of the above-mentioned Right to privacy article, was a Supreme Court Justice and he did not agree with the majority ruling in the Olmstead case. He was convicted, that technological progress provided Government with means of espionage on its own people. Brandeis expressed his dissenting opinion: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They sought to protect Americans in their beliefs, 32 Solove, Nothing to Hide, p. 95. 33 Sprague, “Orwell Was an Optimist,” p. 104. 34 Ibidem, p. 103. 35 William S. Doenges, “Search and Seizure: The Physical Trespass Doctrine and the Adaption of the Fourth Amendment to Modern Technology.” Tulsa Law Review, vol. 2, no. 2 (1965), p. 2.

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their emotions and their sensations. They conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”36

Similarly, Brandeis warned: “Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to jury the most intimate occurrences of the home.”37 In this ruling in which the issue of eavesdropping was negotiated for the first time, the justices of the Supreme Court favored literal interpretation of the Constitution and did not apply it in the new context. Decades later, in 1967, the Supreme Court overruled the Olmstead decision in Katz v. United States, stating that the Fourth Amendment protects people, not places and therefore it covers also electronic communications. In this case, FBI obtained information through recording device attached to the outside of a public telephone booth used by the defendant.38 The trespass doctrine was overruled: “The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”39 The constitutional scope of privacy protection was thus redefined. Justice Harlan defined two key privacy conditions: “First, a person must have an actual, subjective expectation of privacy; and second, that expectation must be one that society is prepared to accept as reasonable.” 40 For this reason, surveillance communications, even though done without physical intrusion, such as wiretapping, became a violation of the right to privacy, because what a person seeks to keep private was to be protected by the Constitution. What seems to be more problematic in practice, however, is evaluation of what privacy expectation society is prepared to accept as reasonable. 36 U.S. Supreme Court, Olmstead v. United States 277 U.S. 438 (1928). Judge Brandeis, dissenting, available at: https://supreme.justia.com/cases/federal/us/277/438/case.html (last access October 31, 2014). 37 Ibidem. 38 U.S. Supreme Court, Katz v. United States 389 U.S. 347 (1967), available at: https://supreme .justia.com/cases/federal/us/389/347/case.html (last access October 31, 2014). 39 Sprague, “Orwell Was an Optimist,” p. 106. 40 Ibidem.

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Considering the year when Olmstead v. United States was decided – 1928, the Supreme Court was not facing that high level of technology, which could effectively intrude into everyday lives of all people. We can assume, that in the Katz ruling the Supreme Court judges realized the dangers hidden in the quickly developing technology and reflected this in the perception of the Fourth Amendment privacy protection. All government wiretappings, of both state and federal authorities, became subject to the Fourth Amendment warrant requirements. The Katz decision also incidentally laid foundations for a crucial issue – foreign intelligence surveillance and its compliance with the Fourth Amendment warrant requirements. Justice White pushed through in the final wording of the Katz ruling footnote number 23, which states: “Whether safeguard other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving national security is a question not presented by this case.”41 According to many authors, footnote twenty-three proved to have lasting historical significance, since even though Katz case was not dealing with the foreign surveillance issue, the executive branch used the footnote twenty-three for its purposes which was accepted by the lower courts.42 Several years later, in 1972, the United States v. U.S. District Court, also known as the Keith Case, reviewed the Katz’s reference to the national security exception. In this case, three members of the White Panther Party were sued for bombing of CIA office. The investigation discovered that agents used warrantless wiretapping of defendant’s conversation. Government argued that national security exception is sufficient excuse for this search in order to protect the nation from attempts to subvert the existing structure of the government.43 The Supreme Court, however, upheld unanimously that the Fourth Amendment warrant requirement applies when domestic security issues are involved.44

41 Katz v. United States, footnote no. 23. 42 Rush Atkinson, “The Fourth Amendment’s National Security Exception: Its History and Limits.” Vanderbilt Law Review, vol. 66, no. 5 (October 2013), p. 1380. 43 Atkinson, “The Fourth Amendment’s National Security Exception,” pp. 1381–2; Rebecca A. Copeland, “War On Terrorism or War on Constitutional Right? Blurring the Lines of Intelligence Gathering in Post-September 11 America.” Texas Tech Law Review, vol. 35, no. 1 (2004), p. 10. 44 Elizabeth B. Bazan, “The Foreign Intelligence Surveillance Act: An Overview of Selected Issues.” Congressional Research Service Report for Congress, Library of Congress, July 7, 2008, p. 1, available at: https://www.fas.org/sgp/crs/intel/RL34279.pdf (last access January 2, 2015).

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Nevertheless, further judicial decisions following Keith and immediately preceding the Foreign Intelligence Surveillance Act of 1978, to be the focus of the next chapter, decided in favor of the legality of warrantless surveillance in cases when foreign intelligence purposes were involved in order to protect national security.45 The national security justification of warrantless surveillance proved to be problematic, as cases of governmental spying on American citizens were also revealed. Subsequently, in Zweibon v. Mitchell (1975), the court held that a court order is necessary for surveillance of domestic organizations even though the surveillance was installed under Presidential order for purposes of national security protection.46 The Zweibon v. Mitchell decision can be understood as a judicial step back from the extensive national security concept and as a return to giving more weight to First and Fourth Amendment protections. As a consequence, the Foreign Intelligence Surveillance Act was adopted as a legislative act responding to the events of the time reacting to the courts’ decisions by providing clear legal boundaries of surveillance under clearly specified conditions.

Legal context of the current surveillance issues Foreign Intelligence Surveillance Act In June 2013, Edward Snowden, an employee of the National Security Agency, revealed the bulk collection of telephony metadata gathered by the NSA, prompting public discussions about privacy issues in relation to national security. At the same time, revelation of the PRISM and upstream acquisition of Internet communications added fuel to the fire of general anger. Even though both programs declare to arise from the valid law, their existence and control by the National Security Agency was secret. The NSA is an intelligence agency with two more or less interconnected missions. It provides intelligence products and services to the White 45 United States v. Brown in 1973 and United States v. Butenko in 1974. 46 Elizabeth B. Bazan, “The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions.” Congressional Research Service Report for Congress, Library of Congress, February 15, 2007, p. 5, available at: http://www.fas.org/sgp/crs/intel /RL30465.pdf (last access January 2, 2015).

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House, executive agencies, U.S. allies and other customers. Among the intelligence products and services belong collecting foreign intelligence from communications and information systems. This data usually needs to be decrypted. NSA also prevents unauthorized access to sensitive or classified national security information and systems.47 NSA was established by President Harry Truman in November 1952. Since breaking codes of Germany and Japan proved to be crucial for successes of Allied forces in the Second World War, the NSA was designed to continue in the codebreaking achievements in the post-war era. The NSA’s authorities were originally set up by the National Security Agency Act and after the 9/11 expanded especially by a number of Presidential Executive Orders. The agency was designed as secretive therefore its full spectrum of programs and activities is unknown. It is probably the largest, most costly and most technologically sophisticated spy agency in the world.48 This chapter introduces both programs analyzing major statutory and constitutional concerns. In order to explain the context, it is necessary to introduce also the Foreign Intelligence Surveillance Act (FISA), which was not originally a part of antiterrorism legislation, but approved earlier in different historical circumstances. It has served, however, as the cornerstone for legislative development after 9/11 – the Patriot Act and both programs revealed by Snowden. FISA was approved in the year 1978. Its purpose was to create a legal framework solely for the collection of foreign intelligence information through electronic surveillance, to get access to communications of foreign powers and foreign agents. However, the scope of FISA today is much greater because since 1978 numerous bills amending the original act and changing its content have been approved. FISA, as it was designed, entitled the President through the Attorney General to authorize electronic surveillance49 without a court order to obtain foreign intelligence information,50 in maximum period of one 47 Official webpage of the National Security Agency, available at: https://www.nsa.gov/about /faqs/about-nsa-faqs.shtml (last access August 24, 2017). 48 Solove, Nothing to Hide, p. 81. 49 The term of electronic surveillance in this context equals using electronic devices to keep surveillance over a person. 50 “Foreign Intelligence Information means– (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against– (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or (C) clandestine

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year, or alternatively, seek an order from the FISA Court (FISC), which remains a special court set up to oversee surveillance activities under FISA. Congress was responsible for the supervision of the process.51 When considering the roots of FISA adoption, it is crucial to take into consideration the context of the Cold War and the political affairs of Nixon’s presidency. The struggle with the Soviet Union was perceived to be essential for the survival of the United States and the checks and balances of the American political system, to a certain extent, limited the effectiveness of adequate political responses to current events. In order to make the U.S. system more operational, a slow shift in the factual balance of power away from Congress towards the executive branch occurred.52 Intelligence agencies became more powerful and were able to eavesdrop on people who were not agents of foreign powers and, as individuals, posed no serious threat to national security, i.e., Vietnam War protesters or army personnel who refused to fight in the conflict.53 In addition, in 1973 the Watergate affair revealed the extensive spying of the Nixon administration on the Democratic Party headquarters. As a response, the Church Committee54 was established in 1975 to examine the warrantless intelligence gathering by CIA, FBI and NSA. This committee published 14 reports reviewing the warrantless intelligence activities of previous years.55 Consequently, the Foreign Intelligence Surveillance Act was a legal response to these revelations, banning any further warrantless eavesdropping on people, but allowing some legal space for authorities to adequately respond to the needs of national security by enabling surveillance of potentially dangerous foreign individuals and organizations, suspected of acting on behalf of foreign powers, under specific statutory conditions. intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning the United States person is necessary to– (A) national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States.” Foreign Intelligence Surveillance Act, 50 U.S. Code, §1801, available at: http://www .law.cornell.edu/uscode/text/50/1801 (last access November 28, 2014). 51 Francoise Gilbert, “Demystifying the United States Patriot Act.” Journal of Internet Law 16, no. 8 (February 2013), p. 5. 52 “Foreign Intelligence Surveillance Court,” in AllGov. Everything Our Government Really Does, available at: http://www.allgov.com/departments/department-of-justice/foreign-intelligence -surveillance-court?agencyid=7206 (last access November 28, 2014). 53 Ibidem. 54 United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Senator Frank Church. 55 “Foreign Intelligence Surveillance Court,” AllGov.

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President Carter’s signature of FISA took the authorization of secret surveillance out of the exclusive hands of the President’s office. All three branches of government were to work strictly in the system of checks and balances again. It is important to stress, that FISA was not drafted as a criminal law statue, but a measure regulating secret eavesdropping on people suspected of cooperation with foreign powers.56 Briefly, FISA was adopted to ensure separation of intelligence gathering important for national security from that of criminal investigation by law enforcement.57 FISA worked under these conditions for more than two decades, until the terrorist attacks of 9/11 changed the rules. The Patriot Act, together with further FISA and Patriot Act amendments, breached the legal safeguard separating these two processes.

United States Patriot Act The United States Patriot Act of 2001 is the crucial piece of the U.S. antiterrorism legislation. The act was adopted very quickly and also under questionable, as well as highly problematic circumstances. The usual components of a legislative procedure in the U.S. Congress were ignored, as the negotiations took place behind closed-door, there was no conference committee, no committee report and no final hearing at which opponents could testify.58 Records from the negotiations are poor, which complicates any effort to get an idea of the legislative intent of the Congressmen.59 It was signed into law by President George W. Bush only six weeks after the terrorist attacks, on October 26, 2001. It is difficult to read the Patriot Act, as it is not a consistent text regulating concrete topics, but rather a set of amendments to statues already in place for many years before the Patriot Act was approved, which covered a great range of issues. Given the fact that law, in general, should serve the public in familiarizing people with what they are or are not allowed to do, this act does not serve that purpose. For a casual reader the Patriot Act does not make any sense. Instead of complete formulations of new provisions, the Patriot Act includes only sentences and formulations, 56 Bryan Denson, “FISA: Understanding the Foreign Intelligence Surveillance Act (FAQ).” The Oregonian, November 26, 2013, available at: http://www.oregonlive.com/news/index .ssf/2013/11/faq_what_is_fisa.html (last access November 28, 2014). 57 Murray, Wunsch, “Civil Liberties in Times of Crisis.” 58 Robert E. Levy. “The USA Patriot Act: We Deserve Better.” Cato Institute, available at: http:// www.cato.org/publications/commentary/usa-patriot-act-we-deserve-better (last access November 17, 2014). 59 Ibidem.

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cancelled by this statute, added or modified. Consequently, for the reader who is not familiar with exact formulations in the older amended acts, the Patriot Act cannot have any informative value and is very confusing. Just for an illustration, Section 206 states: “Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting ‘, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such as other persons,’ after ‘specified person.’”60

Ideally there should be available a full wording of the affected laws, such as FISA. It is obvious, that those provisions can cause levels of confusion and legal uncertainty, which is generally understood to be undesirable as democratic states should try to make their legal system as transparent as possible in order to clearly inform the public and prevent the emergence of legal loopholes. The Patriot Act is also poorly organized and its sentences vaguely formulated. Expressions such as “or in similar cases” or “in general” are common. Taking into consideration those problems together with the length and complexity of the act, as well as the short negotiation process, it is not surprising that there have been concerns about how the bill was prepared at the time of its adoption, and whether Congressmen had enough time to become familiar with what they voted for, especially given the bill’s importance to fundamental constitutional questions. The Patriot Act generates concerns as to whether the government still obeys the Constitution, particularly privacy rights of American people as guaranteed by the Fourth Amendment.61

Section 218 Criminal investigation requires a higher standard of Constitutional guarantees than foreign intelligence information gathering. Section 218 illustrates very well how the Patriot Act uses slight wording changes to shift balance between government authorities with regard to national security 60 Section 206, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) of 2001.” 61 AMERICAN CIVIL LIBERTIES UNION, “Surveillance Under the USA Patriot Act,” available at: https://www.aclu.org/national-security/surveillance-under-usa-patriot-act (last access November 20, 2014).

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and privacy rights of U.S. citizens. Even though the Section 218 has only one sentence, its impact is far-reaching, as it states: “Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking ‘the purpose’ and inserting ‘a significant purpose’.”62

The right to privacy is implied also in the Fourth Amendment which requires a warrant for all searches and seizures in order to prevent unreasonable intrusion in an individual’s life, property, papers, and effects.63 As was mentioned in the previous chapter, since 1967 the Katz v. United States Supreme Court decision, this warrant requirement was extended to all areas, where a person can reasonably expect privacy, which now include also emails, phone calls and other private records, where people do not expose the content of communications publicly. The Fourth Amendment requires authorities to present a probable cause, after which a court warrant can be provided.64 Under FISA it was not necessary for the authorities to provide a probable cause that a crime had been committed, but only a probable cause that the target is a foreign power or an agent of foreign power.65 This lower standard of warrant requirement was possible just because FISA was not intended to regulate criminal prosecution, but only the collection of foreign intelligence information. Therefore, under FISA, an official applying for electronic surveillance only had to certify that the primary purpose of the intended surveillance was to obtain foreign intelligence information. In order to avoid violation of this lower Fourth Amendment warrant requirement, there was a legal barrier, “a wall,” which prevented law enforcement from exploitation of this intelligence advantage, because circumvention of the warrant requirement in criminal investigation would be a gross violation of the Constitution. A wall was referred to the procedural barriers limiting information sharing between the intelligence division of the FBI and the Criminal Division.66 62 Section 218, USA Patriot Act. 63 “Fourth Amendment,” in Bill of Rights of the United States (1791). Bill of Rights Institute, available at: http://billofrightsinstitute.org/founding-documents/bill-of-rights/. 64 “Fourth Amendment,” in Bill of Rights of the United States. 65 Scott J. Glick, “FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security,” Harvard National Security Journal, vol. 1 (May 30, 2010), p. 101. 66 “The 9/11 Commission Report,” National Commission on Terrorist Attacks upon the United States, July 22, 2004, pp. 78–79, available at: http://www.9-11commission.gov/report/911 Report.pdf (last access November 25, 2014).

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After the terrorist attacks, the wall between intelligence agencies and law enforcement started to be considered undesirable.67 The 9/11 Commission – designed after the attacks to examine the circumstances and provide recommendations against repeating similar events in future – noted in its final report that the removal of the pre-9/11 wall between intelligence and law enforcement would open up new opportunities for cooperative action within the sections of FBI.68 Consequently, the Commission recommended removal of this barrier and strengthening cooperation and information sharing among the government agencies. The Patriot Act enacted these recommendations into law. Section 218 now requires government only to certify that acquisition of foreign intelligence information is a significant purpose of the proposed surveillance. However much this looks like a simple stylistic change, the shift in the language brings very important consequences. The fact that collection of foreign intelligence information can be instead of “the purpose” – which was the original FISA formulation – only “a significant purpose” of the electronic surveillance, means that amended FISA can now be used also for cases of criminal prosecution, which is a violation of the Fourth Amendment privacy right. In fact, law enforcement is required to obtain a warrant to acquire information for criminal investigation.69 FISA was passed solely for the purpose of national security surveillance which differs in certain extent from ordinary domestic criminal surveillance – both have different goals and, therefore, also require slightly different procedures and policy.70 In cases of national security surveillance, different standards may be compatible with the Fourth Amendment if they are proved to be reasonable, both in relation to the legitimate government need of intelligence information, and the protected privacy rights of citizens. However, reality is not always that easy and the division between intelligence and law enforcement is not crystal clear. This is what the 9/11 Commission referred to when they recommended the removal of the procedural wall: allowing relevant intelligence information needs link to criminal investigators.71 Proponents of privacy rights and restrictive interpretation of the Fourth Amendment warrant .

67 Ibidem, 78–80. 68 Ibidem. 69 Glick, “FISA’s Significant Purpose Requirement,” p. 109. 70 Elisabeth B. Bazan, “The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions.” Congressional Research Service Report for Congress, Library of Congress, September 22, 2004, p. 5, available at: http://www.fas.org/irp/crs /RL30465.pdf (last access January 2, 2015). 71 “The 9/11 Commission Report,” 79.

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requirement suggested limiting the warrantless intelligence activities under FISA with changing the provision to “sole purpose,” so that the sole purpose of surveillance must be to obtain foreign intelligence. The U.S. Supreme Court evaluated this suggestion in the Truong Dinh Hung v. United States case, but rejected it, stating that all intelligence investigations are at least in part also criminal investigations and therefore these two processes cannot be effectively completely separated from each other.72 When speaking of FISA purposes, it is essential to mention that the text of the act has never included the word “primary” – officials had only to confirm, that “the purpose” of the surveillance is acquiring foreign intelligence information. However, it became a legal habit to use the term “primary purpose” in describing the actions of the government.73 Nevertheless, the special sensitive circumstances of warrantless surveillance anchored in the act have become applicable to a wider scope of targets since the Patriot Act. Even though the Foreign Intelligence Surveillance Court of Review later limited the government – declaring that if the government’s primary purpose was criminal prosecution, then it could only use FISA if it intended to prosecute the alleged terrorist or spy for a foreign intelligence crime – such legal changes raise concerns.74

PRISM and upstream acquisition of Internet communications In the last two years, discussion about the acts of government authorities in respect to privacy rights of individuals has escalated. The legal development of antiterrorism and surveillance legislation did not stop with the Patriot Act. Edward Snowden brought to light two National Security Agency surveillance programs whose statutory and constitutional challenges are elaborated in this chapter. PRISM and upstream acquisition of Internet communications is legally anchored in Section 702 of the FISA Amendments Act of 2008. In contrast to the bulk collection of telephony metadata, this program collects content of the communications and is focused on a narrower group of persons.75 In general, Section 702 program faces lower levels 72 Jessica M. Bungard, “The Fine Line between Security and Liberty: The ‘Secret’ Court Struggle to Determine the Path of Foreign Intelligence Surveillance in the Wake of September 11th.” University of Pittsburgh School of Law Journal of Technology Law and Policy, vol. IV, no. 6 (Spring 2004), p. 15. 73 Scott, “FISA’s Significant Purpose Requirement,” p. 111. 74 Scott, “FISA’s Significant Purpose Requirement,” p. 111–112. 75 John W. Rollins, Edward C. Liu, “NSA Surveillance Leaks: Background and Issues for Congress,” Congressional Research Service Report for Congress, Library of Congress, September 4,

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of criticism because it is a valuable and important national security tool and is not primarily focused on U.S. citizens.76 The collected information must fit the definition of foreign intelligence information according to FISA.77 This program cannot run when a target – any person whose communications are being collected – is a U.S. citizen or a foreigner currently located on U.S. soil. The reason for this is Fourth Amendment protection, which relates to U.S. citizens and everybody located in the United States. The program also cannot be applied in cases, when targeting of two non-U.S. persons78 located abroad should indirectly lead to collection of information about somebody protected by the Fourth Amendment. The program consists of two means of collecting communications of foreign targets through American networks, both under Section 702 – PRISM and the so-called upstream collection of communications. The difference between them is in what phase of sending is the communication, for example an email, collected. Under the PRISM system, the communication is taken directly from the Internet service providers. On the other hand, during the upstream collection, the communications are collected while messages are in transit. Targeted persons can be senders, receivers or even the subjects of the communication; an example is a targeted person mentioned in an email conversation of two untargeted persons.79 The upstream acquisition can also be focused on phone calls, which is not possible under PRISM. PRISM serves as a mean of access to the Internet service providers and covers approximately 91% of all communications targeted under Section 702.80 The NSA is required to have FISC approval plus a written directive from both the Attorney General and the Director of National Intelligence for collection of contents of the communications.81 The FISC evaluates whether there is a probable cause that the targeted person is a foreign

76 77

78 79 80

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2013, p. 3, available at: http://www.fas.org/sgp/crs/intel/R43134.pdf (last access January 1, 2015). Ibidem, p. 3. “Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act,” July 2, 2014. Privacy and Civil Liberties Oversight Board, p. 6, available at: http://www.pclob.gov/Library/702-Report-2.pdf (last access November 26, 2014). Non-U.S. person means in this context neither citizen, nor permanent resident. Rollins, Liu, “NSA Surveillance Leaks,” p. 4. Edward C. Liu, “Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments.” Congressional Research Service Report for Congress, Library of Congress, April 1, 2014, p. 10, available at: https://www.fas.org/sgp/crs/intel/R43459.pdf (last access January 1, 2015). Rollins, Liu, “NSA Surveillance Leaks,” p. 11.

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power or its agent, and that the communications are owned, possessed or will be used by the target. The approval is valid as long as one year. 82 Subject of criticism in this context is the fact that in a number of cases it is impossible to determine with certainty, whether the targeted person is located in the United States or not and, therefore, should be protected by the Fourth Amendment warrant requirement. Similarly, due to technical imperfections some data is collected of unrelated communications of U.S. citizens.83 This happens either incidentally, for example, when two targeted foreigners share an email conversation about a U.S. citizen, or when a U.S. citizen emails to a targeted foreigner, or inadvertently, due to technical errors.84 This information cannot be used and must be destroyed.85 Even though civil rights organization criticize Section 702 collection programs as the imperfections lead to accidental collection of communication of U.S. citizens, experts mostly agree on the necessity of having such national security tools and consider the oversight mechanism to be sufficient. There is also an interesting debate about protection of privacy of non-U.S. persons and is mentioned in the Chapter 3.

Bulk collection of telephony metadata program In June 2013, the British Guardian published a story about the collection of phone records of millions Verizon customers on a daily basis. Glenn Greenwald, author of the article, revealed the content of the FISC order granting the FBI unlimited authority to obtain data on all phone calls made within the United States and between the U.S. and other countries for a three months period starting in April 2013. According to the author, the court order also expressly prohibited Verizon from disclosing this information to the public.86 It revealed for the first time that President Obama continued the large-scale collection of call records data, which was known to be happening during the Bush Administration.87

82 83 84 85 86

Ibidem, p. 7. Ibidem, p. 13. Report on the Surveillance Program Pursuant to Section 702, p. 86. Ibidem, p. 91. Glen Greenwald, “NSA collecting phone record of millions of Verizon customers daily,” The Guardian, June 6, 2013, available at: http://www.theguardian.com/world/2013/jun/06/nsa -phone-records-verizon-court-order (last access November 23, 2014). 87 Ibidem.

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What the Guardian publicly disclosed was in reality a three-month extension of a program that had been ongoing for seven years.88 This program, the bulk collection of telephony metadata, was legally anchored in Section 215 of the USA Patriot Act, titled Access to records and other items under the Foreign Intelligence Surveillance Act, which was an amendment also changing the original version of FISA. Even though Edward Snowden made this Section publicly known, the bulk collection call information was not the only mean of implementing this Section. It also permited access of governmental agencies, such as the FBI, to personal records of people held by physicians, bookstores, universities, Internet service providers, and libraries. Legal authority of Section 215 enlarged the scope of materials that may be sought by the government and lowered the legal standard required to be met.89 Even though information about this program is still classified, many facts have been released by the Administration itself in order to assure the public of the program’s compliance with the Constitution. It is known that not only Verizon, but also other major American telecommunications providers were required to provide information. The description of this program, collecting metadata “in bulk,” aims to distinguish it from the narrower collection of metadata of an identified individual or group of individuals. As a result, the National Security Agency had an access to all phone calls made in the United States or to calls made by individuals since 2006, when one person was located in the U.S. and the other in a foreign country.90 What does the term metadata actually mean? It refers to data about a phone call, but not the content of the conversation. Intelligence had thus access to the number that was dialed from, the number that was dialed to, and the date and duration of the call. Information about the location of those calling was not included, except the area code identified in the phone number.91 Here arises the first objection from the perspective of privacy advocates: can we consider such collection of data anonymous in a situation, when phone numbers are another identifier of people? From this perspective, pointing to distinction between a telephone number and subscriber identity seems to be insignificant.92

88 Rollins, Liu, “NSA Surveillance Leaks,” 1. 89 Ibidem, p. 4. 90 Liu, “Overview of Constitutional Challenges,” p. 2. 91 Rollins, Liu, “NSA Surveillance Leaks,” p. 2. 92 Ibidem.

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The bulk collection metadata program was raising concerns of privacy advocates on two basic levels where the legality of the program could be challenged. The first level is whether the program was in compliance with the statutory law in the first place, which means whether it could be really subsumed under the Section 215 of the Patriot Act. The second level, more publicly known, was the constitutionality of the program. Privacy advocates challenged the telephony metadata program regarding potential Fourth Amendment as well as First Amendment violations. There were two crucial lawsuits filed in federal district courts that are relevant to these constitutionality concerns: American Civil Liberties Union v. Clapper and Klayman v. Obama. In both decisions, the courts drew different conclusions that are interesting to consider, but before the constitutional level there is the statutory issue. The independent bipartisan Privacy and Civil Liberties Oversight Board that works within the executive branch, published in August 2012 a report on the bulk metadata collection program, in which it paid significant attention to the questions of legality. According to the Report, Section 215 did not constitute a sufficient legal basis for the bulk collection program for several reasons.93 First, the data obtained through the bulk collection program were not at the moment of their collection connected with a specific FBI investigation, but were stored simply just in case they would be needed in the future. Similarly, a collection in bulk could not be regarded relevant to any FBI investigation, because relevant are only particular pieces of information, not all of them. Third, the program made the telephony companies collect complex sets of data on a daily basis even though there was no legal foundation which would require them to do so. In addition, according to Section 215, it was the FBI that was entitled to collect items and information needed for investigation, not the National Security Agency. 94 In reality, however, the FBI only applied for the collection order, but the NSA, an organization not statutory entitled to carry out the collection, collected and stored all the data. The NSA was also prohibited by the FISC to share the data with FBI except in situations explicitly mentioned in the FISC orders.95 93 “Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court,” January 23, 2014. Privacy and Civil Liberties Oversight Board, p. 10, available at: http://www.pclob.gov /Library/215-Report_on_the_Telephone_Records_Program-2.pdf (last access November 22, 2014). 94 “Report on the Telephone Records Program,” p. 10. 95 “Report on the Telephone Records Program,” p. 88–89.

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On the other hand, some experts deny any discrepancy between the wording of Section 215 and the bulk collection program. For example Rachel Brand or Elisabeth Collins Cook, prominent lawyers, are persuaded that the reading of Section 215 stating the bulk collection was unstatutory is only one of possible interpretations.96 It is crucial to take into account that two Administrations and a number of experts and officials considered the program in good faith to be in compliance with Section 215. Similarly, the program itself also worked in good faith.97 There was an extensive system of safeguards and oversight, therefore the bulk collection program needs to be considered statutory, even though supporters admit that this question is difficult.98 From the perspective of the U.S. Constitution, the principal legal question in the lawsuits American Civil Liberties Union v. Clapper and Klayman v. Obama was whether the government had engaged in searches, which occurs when a subjective expectation of privacy recognized by the society as reasonable is violated by the government.99 The Foreign Intelligence Surveillance Court issuing the order for metadata collection, similarly as the two courts deciding the lawsuits, took into consideration an older Supreme Court decision Smith v. Maryland (1979). In Smith, a telephone company installed upon police requests a pen register – a device recording the dialed outgoing numbers – in order to find out whether Mr. Smith had called a victim of a robbery. There were concerns that installation of the pen register violates the Fourth Amendment. However, the Supreme Court concluded that the Constitution was not violated, because Mr. Smith had no legitimate expectation of privacy in the telephone numbers he dialed.100 The decision was built on a third party doctrine – a theory about the loss of privacy protection when somebody voluntarily shares information with a third party, even if the third party is a private company or government.101 If Mr. Smith, according to the ruling, could not expect privacy in dialing the numbers, the police

96 Ms. Brand and Ms. Collins are lawyers, members of the Privacy and Civil Liberties Oversight Board who also served in various top governmental positions. 97 Good faith is a legal term referring to a situation in which a person is persuaded about rightfulness of his or her actions. Good faith brings a certain legal protection and mitigates negative consequences. 98 “Report on the Telephone Records Program,” pp. 210, 215. 99 Liu, “Overview of Constitutional Challenges,” p. 6. 100 Liu, “Overview of Constitutional Challenges,” p. 6. 101 U.S. Supreme Court, United States v. Jones 565 U.S. (2012), available at: https://supreme.justia .com/cases/federal/us/565/10-1259/ (last access November 23, 2014).

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did not need to conduct a search and therefore the Fourth Amendment was not violated. FISC built its argumentation analogically on the logic introduced by the Supreme Court in Smith: “Where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”102 FISC argued that issuing the order for collection of telephony metadata under Section 215 was constitutional, as the Fourth Amendment “imposed any impediment to the government’s proposed collection. Having found none in accord with U.S. Supreme Court precedent”103 – here the FISC was referring to the Smith decision – the FISC issued the requested orders. Accordingly, in ACLU v. Clapper, the District Court for the Southern District of New York concluded that lower courts are bound to apply Smith unless the Supreme Court itself has explicitly overruled it.104 Despite these decisions, in Klayman v. Obama, the District Court for the District of Columbia presented a totally different perspective on the same issue. The Court took into consideration the scope of the information collection, which differed greatly from the simple pen register in Smith that this decision was for the purpose of evaluating NSA metadata collection of little value. The aggregation of telephone records could therefore result in Fourth Amendment search.105 The D.C. District Court introduced a more suitable “mosaic theory” arguing, that even though short term collection of information does not necessarily violate expectation of privacy of individuals, in a long term perspective such search creates a wealth of detail – a mosaic about person’s familial, political, professional, religious, and sexual associations.106 Validity of the mosaic theory was examined in a short-term experiment at Stanford University, where computer science students evaluated how sensitive metadata are. They used phone metadata of 546 volunteers and revealed detailed information, for example a person having an abortion or an owner of a specific brand of firearm, as the structured nature 102 Liu, “Overview of Constitutional Challenges,” p. 7. 103 Ibidem. 104 United States District Court Southern District of New York. American Civil Liberties Union v. Clapper No. 13 Civ. 3994 (WHP) (S.D.N.Y. Dec 27, 2013) I, available at: https://casetext.com /case/aclu-v-clapper (last access November 23, 2014). 105 United States District Court for the District of Columbia, Klayman v. Obama, December 16, 2013, available at: http://online.wsj.com/public/resources/documents/JudgeLeonNSAopinion 12162013.pdf (last access November 23, 2014). 106 Klayman v. Obama.

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of the data reveals a lot, for example calling to a suicide hotline for three hours during night.107 Concluding that the collection of metadata was a search, the D.C. District Court also focused on the question whether the search was reasonable under the Fourth Amendment. The core of the issue lies actually in the fact that warrants allowing searches have to be based upon probable cause. There exists, however, a “special needs” exception applicable in extraordinary cases making the normal warrant procedure impracticable, such as drug testing of high school students, automobile checkpoints for illegal immigrants, drunk drivers or searching planes, the subway or passengers’ carry-on bags.108 D.C. District Court evaluated the NSA program as neither stopping an imminent attack nor otherwise aiding the Government in achieving any objective that was time sensitive in nature. For this reason and for the serious violations of privacy of people, the metadata collection program was considered to be unreasonable under the Fourth Amendment.109 The bulk collection program is constitutionally controversial also from the perspective of the First Amendment, particularly the freedom to peacefully assemble. The program collected huge amount of data where certain patterns of connections and frequency of associations among individuals and organizations can be easily found. People who are engaged in legal, but controversial activity may feel vulnerable and therefore limit those activities, even though the Constitution guarantees them this right. Among the potentially threatened groups belong investigative journalists and political activists as well as whistleblowers.110 In many ways, the circumstances of the year 1979 when the Smith was decided do not correspond with the level of surveillance under Section 215. According the records, Mr. Smith’s phone calls were examined for three days. Technology that was used collected only information about phone numbers dialed, not about the length and time of the calls. Mr. Smith was also a suspect in a criminal investigation. The differences from recent issues are obvious. Not phone calls of one person were collected, but all phone calls made by all U.S. citizens, adding the links between the length and time when the call occurred. Moreover, there is 107 Clifton B. Parker. “Stanford students show that phone record surveillance can yield vast amounts of information.” Stanford News, March 12, 2014, available at: http://news.stanford .edu/news/2014/march/nsa-phone-surveillance-031214.html (last access November 24, 2013). 108 Liu, “Overview of Constitutional Challenges,” p. 8. 109 Klayman v. Obama. 110 “Report on the Telephone Records Program,” pp. 132–135.

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the fact that almost everybody has a private phone number today, compared to 1979 when phones were shared by groups of people – families or companies.111 The third party doctrine is another aspect, whose suitability for the purposes of bulk metadata collection seems questionable. The argument, that people when dialing a phone number are submitting this information to a third party and cannot expect privacy is problematic, because this is how making a phone call works and it has nothing in common with a conscious and voluntary choice.112 The suitability of the Smith v. Maryland decision for the present issues is clearly questionable. For this reason, the American Civil Liberties Union filed a notice of appeal to the United States Court of Appeals for the Second Circuit. This court focused on legality of the bulk collection and knowingly left consideration of the constitutional issue and the program’s violation of the First and Fourt Amendments aside.113 On May 7, 2015 the bulk telephone metadata program was ruled not authorized by Section 2015 and the case was remanded to the district court for further proceedings consistent with appeals court’s opinion.114 Similarly, in Klayman v. Obama, the government was not satisfied with the Court’s ruling and appealed. In August 2015, the appeals court remanded the case to the district court. It is evident that the courts’ decision making on this issues is rather unpredictable as the situation is new and the applicability of older precedents disputed. Final rulings have not been published yet, therefore the question of constitutionality of the bulk metadata collection remains in open.

Challenges of Pandora’s Box Pendulum effect: back to land of freedom Thirteen years have passed since the 9/11 terrorist attacks and the subsequent legal provisions reshaped the balance between national security and personal liberties, especially the right to privacy. The previous chap111 Nadia Kayyali, “In Klayman v. Obama, EFF Explains Why Metadata Matters and the Third-Party Doctrine Doesn’t.” Electronic Frontier Foundation, November 3, 2013, available at: https://www.eff.org/deeplinks/2014/11/klayman-v-obama-eff-explains-why-metadata-matters -and-third-party-doctrine-doesnt (last access November 26, 2014). 112 Ibidem. 113 Ibidem, pp. 5, 83. 114 United States Court of Appeals for the Second Circuit, ACLU v. Clapper, May 7, 2015, p. 97, http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf (last access October 26, 2015).

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ter introduced the current legal mechanisms behind the major privacy debates in the United States. However, society and its priorities change. Over the years, a certain shift has occurred in the perception of the optimal line between the two legitimate interests. It is not sufficient to examine the development only on statements of Democratic and Republican politicians as their opinions on this issue naturally depend to a great extent on when they were the governing or opposing party. For illustration, in 2005 during George W. Bush’s presidency, Democrats criticized the NSA warrantless domestic eavesdropping controversy that was at that time revealed by the New York Times, while Republicans defended the NSA’s authority emphasizing security interests. Today, Republicans condemn every new eavesdropping disclosure and Democrats advocate for the Obama administration’s policies.115 It is far more informative to examine the perception of security measures and civil rights evolution in the eyes of U.S. citizens. The Pew Research Center, a non-partisan think tank based in Washington D.C., conducted a survey documenting this public development. In 2004, 29% of respondents stated that government’s anti-terrorism policies had gone too far in restricting civil liberties, whereas 49% of respondents replied that these policies have not gone far enough to protect the country. Nine years later, in 2013, this ratio reversed and 47% of respondents were persuaded that the policies have gone too far and 35% spoke in favor of them. Generally speaking, government surveillance powers today pose a bigger threat than terrorism for a higher number of U.S. citizens than post 9/11.116 This development appears to support the validity of the so-called pendulum argument. The pendulum theory argues that in times of national crisis – in a war, after an attack or generally when people feel their safety is threatened – personal liberties are naturally curtailed and civil rights protection weakened. As soon as the danger passes, the scope of freedoms and liberties naturally recovers. Restriction of freedom under immediate threat is a natural human reaction; according to the former Supreme Court Justice William Rehnquist, it is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position

115 Gleen Greenwald, No Place to Hide. Edward Snowden, the NSA, and the U.S. Surveillance State (New York: Metropolitan Books. Henry Holt and Company, LLC, 2014), pp. 197–198. 116 Pew Research Center, “But More Approve than Disapprove. Few See Adequate Limits on NSA Surveillance Program.” July 26, 2013, page 5, available at: http://www.people-press.org/files /legacy-pdf/7-26-2013%20NSA%20release.pdf (last access December 12, 2014).

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in wartime as in peacetime.117 Laws in such situation are not silent, but “speak with somewhat different voice.”118 This opinion shared another Supreme Court Justice, Robert H. Jackson, who expressed this in 1949: “The Constitution is not a suicidal pact.”119 The belief that protection of civil liberties and Constitutional rights cannot at the same time threaten the safety of the state and its people denies Daniel Solove: “The protection of liberty is most important in times of crisis, when it is under the greatest threat. During times of peace, because we are less likely to make unnecessary sacrifices of liberty, the need to protect it is not as dire.”120 Since 9/11 as no other comparable attacks occurred, people started to approach the security issue more soberly. David Cole argues, that the swing of the pendulum back to civil rights does not however happen automatically by some kind of gravity, but relies on various external forces, which must come into play. Among those belong the Supreme Court overruling older decisions, reports of investigative journalists, whistleblowers revealing secrets, Congressmen paying higher attention to what they oversee, and, especially, strong civil rights groups. According to Cole, civil rights survived in the United States, despite the measures adopted after 9/11, in which he includes extensive surveillance threatening right to privacy, torture, and indefinite detention.121 In times of crisis, the system of checks and balances can fail as the judicial branch does not reliably reverse excesses made by the executive. After 9/11, a number of new civil liberties groups emerged to play the role of living Constitution, pointing out problems and thereby balancing the political system.122 For example, the American Civil Liberties Union, in the ACLU v. Clapper case, focused on the issue of the bulk collection program violating the Fourth Amendment. Civil liberties groups and privacy advocates, the Obama administration, and representatives of the telecommunications providers drafted the USA Freedom Act in 2013. This bill aimed to address the major privacy concerns, to end the bulk collection of telephony metadata by the NSA, as was recommended in the final report of the Privacy and Civil Liberties Oversight Board, and also modify Section 702 of FISA – while still 117 Solove, Nothing to Hide, p. 55. 118 Ibidem. 119 Ibidem. 120 Ibidem, p. 61. 121 David Cole, “Where Liberty Lies: Civil Society and Individual Rights After 9/11.” Georgetown Public Law and Legal Theory Research Paper no. 12–164, 2012, p. 1254, available at: http:// scholarship.law.georgetown.edu/facpub/1119/ (last access November 26, 2014). 122 Ibidem, pp. 1205–1206, p. 1250.

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preserving Intelligence Community capabilities.123 In contrast, thirteen years earlier the Attorney General openly labeled critics of the Patriot Act and government policies unpatriotic.124 The fact that Jim Sensenbrenner, author of the Patriot Act, and a later strong opponent of the NSA bulk data collection, introduced the USA Freedom Act in the House of Representatives, testifies to the opinion shift even among legislators who originally proposed the antiterrorist surveillance measures.125 Negotiations on the bill ended unsuccessfully in Senate in November 2014 for various reasons. For some privacy advocates, the negotiations shifted the bill too far from the original intent. Senator Patrick Leahy, a lead sponsor of the bill, said that opponents of the bill contributed to the failure by using scare tactics about terrorist threats. His words were in reaction to Mitch McConnell’s statement about hampering of the USA Freedom Act to protect Americans against the Islamic State.126 The Obama Administration, advocated for months to address the issue of privacy violations, strongly supported the bill as a “reasonable compromise that enhances privacy and civil liberties and increases transparency.”127 The director of the ACLU’s Washington legislative office expressed her disappointment after the failure of negotiations: “This was the last best chance to get something down before Snowden fades from public consciousness.”128 Now the Congress will control this issue until the 2016 elections. Civil rights organizations will probably push for another satisfying proposal –

123 Letter from Attorney General Eric Holder and Director of National Intelligence James Clapper to Chairman Patrick Leahy, concerning the USA Freedom Act. September 2, 2014, available at: https://d1ovv0c9tw0h0c.cloudfront.net/files/2014/09/2014-9-2-FISA-letter-from-AG-and -Clapper-to-Leahy-on-S.-2685-USA-Freedom.pdf (last access November 30, 2014). 124 Jeffrey Tobin, “Ashcroft’s Ascent. How far will the Attorney General go?” The New Yorker, April 15, 2002, available at: http://www.newyorker.com/magazine/2002/04/15/ashcrofts-ascent (last access December 3, 2014). 125 Cyrus Farivar, “Patriot Act author says NSA’s bulk data collection is unbounded in its scope,” Ars technica, September 5, 2013, available at: http://arstechnica.com/tech-policy/2013/09/patriot -act-author-says-nsas-bulk-data-collection-is-unbounded-in-its-scope/ (last access December 3, 2014). 126 Erin Kelly, “NSA spying bill stalls in Senate vote,” USA Today, November 18, 2014, available at: http://www.usatoday.com/story/news/politics/2014/11/18/leahy-usa-freedom-act-nsa-spying /19222895/ (last access December 3, 2014). 127 Letter from Holder to Clapper concerning the USA Freedom Act, available at: https:// d1ovv0c9tw0h0c.cloudfront.net/files/2014/09/2014-9-2-FISA-letter-from-AG-and-Clapper-to -Leahy-on-S.-2685-USA-Freedom.pdf. 128 Kelly, “NSA spying stalls in Senate vote.”

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the Electronic Frontier Foundation considered the Freedom Act to be a floor for further negotiations, not its ceiling.129

Exploitation of the collected data People under the influence of threats and willing to surrender part of their rights, for example privacy, probably expect that the new security measures will not affect them. It is true that surveillance and extensive security measures do not affect the whole society equally as minorities or politically controversial people are more likely to be targeted in the first place.130 Snowden’s revelations, showing that NSA programs collecting massive amounts of personal data can affect everyone’s lives, raise questions of how the data is stored, examined and overseen.131 The vast majority of the material has no relevance to national security but it reveals private lives of people. Moreover, experts argue that the information leads to a certain level of distortion, as data show a lot but fail to reflect the whole personality. When the government possesses the material, it can harm individuals, intentionally, or, more likely, inadvertently. Daniel Solove provides an example of a person who writes a crime book and for the storyline needs to know different ways how to produce methamphetamine. He buys for this purpose two specialized books. If the government reveals the purchase, the author might be groundlessly considered dangerous.132 Both the NSA telephone data collection and the acquisition of Internet communication under Section 702 rely on orders of the Foreign Intelligence Surveillance Court, which is crucial for proper implementation of the programs and for prevention of misuse of acquired information. Unfortunately for civil rights, transparency and impartiality of the FISC decision-making can be problematized. The Foreign Intelligence Surveillance Court (FISC) is a special body established for purposes of controlling the surveillance activities of FISA. The Patriot Act expanded the number of FISC judges from the original number of seven to eleven in total. The judges are appointed 129 Kurt Opsahl and Rainey Reitman, “A Floor, Not a Ceiling: Supporting he USA freedom Act as a Step Towards Less Surveillance,” Electronic Frontier Foundation, November 14, 2013, available at: https://www.eff.org/deeplinks/2013/11/floor-not-ceiling-supporting-usa-freedom -act-step-towards-less-surveillance (last access December 4, 2014). 130 Greenwald, No Place to Hide, p. 200. 131 Solove, Nothing to Hide, p. 28. 132 Ibidem, p. 31.

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solely by the Chief Justice of the United States for seven years, work in FISC only part-time and do not even receive an extra salary for this work.133 The fact that the judges do not work full-time is one subject of criticism: they cannot entirely focus on their work which makes of FISC more or less a “rubber stamp”134 court as applications are not adequately examined and are just approved in most cases. According to Reuters, between 2001 and 2012, the FISC judges approved 20,909 surveillance and property search warrants and during that period denied or withdrew only 36 applications.135 Whether the Reuters’ sources are reliable or not, it is important to take into consideration, that the court is secret, there are only the judges and the applicant present and therefore an adversarial argument is not possible. Moreover, most of the cases are still classified.136 Even supporters of both surveillance programs have admitted that significant reform of FISC would be needed in order to enhance quality of its work – if also opposing views could be heard when ruling on surveillance requests.137 The failed USA Freedom Act addressed the transparency issue and proposed creating an Office of a Special Advocate tasked with promoting privacy interests before the FISC closed proceedings. The bill also aimed to improve the reporting requirements, because the Congress is the body entitled to oversee both programs.138 Intentional misconduct or bad faith of any government officials or agents involved in the bulk collection program under Section 215 has not been proven.139 However, benefits of this program for national security and anti-terrorism operations have been, according to many experts and even the Obama administration itself, questionable, if indeed there have been any. President Obama announced in March 2014 the intent to shut down the NSA phone program, which recommended also the Privacy 133 David Gewirtz, “For spy court judges, overseeing America’s surveillance efforts is a part-time job,” ZD Net, February 10, 2014, available at: http://www.zdnet.com/article/for-spy-court-judges -overseeing-americas-surveillance-efforts-is-a-part-time-job/ (last access December 5, 2014). 134 Russel Tice, a former NSA agent, said that the FISC is a “kangaroo court with a rubber stamp“. Spencer Ackerman, “FISA chief judge defends integrity of court over Verizon records collection,” The Guardian, June 6, 2013, available at: http://www.theguardian.com/world/2013 /jun/06/fisa-court-judge-verizon-records-surveillance (last access December 4, 2014). 135 John Shiffman and Kristina Cooke, “The judges who preside over America’s secret court,” Reuters, June 21, 2013, available at: http://www.reuters.com/article/2013/06/21/us-usa-security -fisa-judges-idUSBRE95K06H20130621 (last access December 4, 2014). 136 Ackerman, “FISA chief judge defends integrity of court over Verizon records collection.” 137 “Report on the Telephone Records Program,” p. 13. 138 Congressman Jim Sensenbrenner, The USA Freedom Act, available at: http://sensenbrenner .house.gov/legislation/theusafreedomact.htm (last access December 5, 2014). 139 “Report on the Telephone Records Program,” p. 9.

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and Civil Liberties Oversight Board.140 The Congress, however, sought another order to reauthorize the program for 90 days that expired on February 27, 2015.141 Couple of months later, the U.S. Congress finally adopted a revised version of the USA Freedom Act. The bill passed the Senate on June 2, 2015 and was immediately signed into law by President Obama.142 The Act is a result of long negotiations and therefore it is more compromising than the original bill rejected in 2014. Nevertheless, both civil rights advocates and government representatives describe it as the most important reform revising surveillance since FISA adoption in 1978, as it introduced also the desired public advocate for the FICS. Under the Act, government authorities have to make a specific request to the telecommunication companies that will possess all the records instead of the NSA.143 The USA Freedom Act anchored a six months transition period to wind down the program; the new legislative will came fully into effect in November 2015.144 The government had already in February 2014 enacted certain changes of the rules for examination of metadata. All the collected metadata was placed in a huge database where it remained five years when it had to be deleted. The metadata could be searched by a narrow group of trained expert analysts only when there was a reasonable articulable suspicion that the telephone number was associated with one the foreign intelligence targets approved in a FISC order.145 A reasonable, articulable 140 Ibidem, p. 168. 141 “Joint Statement from the Office of the Director of National Intelligence and the Office of the Attorney General on the Declassification of Renewal of Collection Under Section 501 of the Foreign Intelligence Surveillance Act,” Office of the Director of National Intelligence. IC on record, December 4, 2014, available at: http://icontherecord.tumblr.com (last access December 4, 2014). 142 Frank Thorp, “Barack Obama Signs ‘USA Freedom Act’ to Reform NSA Surveillance,” NBC News, June 2, 2015, available at: http://www.nbcnews.com/storyline/nsa-snooping/senate-vote-measure-reform-nsa-surveillance-n368341 (last access October 27, 2015). 143 Dan Froomklin, “USA Freedom Act: Small Step for Post-Snowden Reform, Giant Leap for Congress,” The Intercept, June 3, 2015, available at: https://theintercept.com/2015/06/02/onesmall-step-toward-post-snowden-surveillance-reform-one-giant-step-congress/ (last access on October 27, 2015). 144 Stephanie Condon, “NSA Surveillance Reform Bill Now Law,” CBS News, June 2, 2015, available at: http://www.cbsnews.com/news/senate-passes-nsa-reform-bill-the-usa-freedom-act/ (last access October 27, 2015). 145 “Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act,” Administration White Paper, August 9, 2013, p. 3, available at: http://www.documentcloud. org/documents/750210-administration-white-paper-section-215.html (last access December 4, 2014).

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suspicion was required to protect against the indiscriminate querying of the collected data.146 In such an authorized query, telephone numbers that had been in contact with this terrorist-associated identifier could also be examined and then further associated with contacts in a chain.147 President Obama limited the contact chaining in February 2014.148 According to the wording of Section 215, the acquired data needed to be relevant to an authorized investigation. Section 215 did not redefine the term “relevant” therefore it needed to be interpreted in its ordinary meaning. Since the metadata were collected in bulk, and at the time of their gathering were not connected with a particular FBI investigation, many experts consider the bulk collection inconsistent with the relevance requirement.149 The PRISM and upstream acquisition of Internet communications under Section 702 targets people protected by the Fourth Amendment – either U.S. persons or foreigners located on U.S. soil, as explained above in chapter 2. The question of national security exceptions for warrantless foreign intelligence surveillance, elaborated in chapter 1, is interesting also from the perspective of pendulum effect. In 2008, the Foreign Intelligence Surveillance Court of Review considered the purposes of foreign intelligence investigations sufficiently important and different from traditional law enforcement to justify an exception to the warrant requirement. In other words, the procedures used were assumed to be reasonable when balanced against the government interest in protecting national security, which was of the “highest order of magnitude.”150 Three years later, in 2011, the same court considered the same question again but this time came to an opposite conclusion. According to the new opinion, some elements of the collection program were statutory deficient and, therefore, inconsistent with the Fourth Amendment. Government’s interests were not of the highest magnitude anymore.151 The FISCR ruled, that the minimization procedures – mechanisms to exclude information about U.S. persons under the Fourth Amendment – were insufficient especially in cases when a U.S. person is mentioned in a communication of two legitimate targets.152 146 Ibidem. 147 Ibidem. 148 Joint Statement on the Declassification of Renewal of Collection Under Section 501. 149 “Report on the Telephone Records Program,” p. 58. 150 Rollins and Liu, “NSA Surveillance Leaks,” p. 9. 151 Ibidem. 152 Ibidem, p. 13.

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It is interesting how the FISCR’s prioritization of national security and civil rights changed. In addition, Obama Administration declassified records about these two Court analyses in 2013. This can be also understood as a swing of a pendulum back to civil rights due to public pressure after Snowden’s revelations. Another reason can also be the decreasing willingness of other nations and foreign companies to participate in data sharing with U.S. firms or loss of credibility of the U.S. commitment to an open and secure global Internet.153 The classified character of the NSA files makes it difficult to determine with certainty what happens to the U.S. data collected inadvertently. Generally, when a collected communication is wholly domestic – involves only U.S. persons – it must be destroyed upon recognition.154 However, if the communication is not wholly domestic – involves also non-U.S. persons – it does not need to be destroyed if the information contained is encrypted, believed to be relevant to cyber security or usable for intelligence purposes or suggests criminal activity or threat of harm to people or property. In those cases, the NSA in fact gains information whose acquisition otherwise requires a warrant.155 Recently, the U.S. government has also considered the question whether and to what extent the United States should guarantee the same level of privacy protection of non-U.S. persons with respect to foreign surveillance.156 President Obama issued a directive stating that: “All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in handling of their personal information.”157 However, the Section 702 program remains in force because it is a valuable national security tool and there is not an adequate program to replace it yet. Snowden’s whistleblowing opened the issues between privacy rights and justifiable authorities of government and its agencies. He approached his revelations differently from the previous whistleblowers, Daniel Ellsberg and Bradley Manning, who published the documents in bulk. Snowden, on the other hand, decided to hand the files over to a carefully 153 “Presidential Policy Directive PPD-28. Signals Intelligence Activities,” The White House, January 17, 2014, available at: http://www.whitehouse.gov/the-press-office/2014/01/17/presidential -policy-directive-signals-intelligence-activities (last access December 8, 2014). 154 “Report on the Surveillance Program Pursuant to Section 702,” p. 54. 155 Glen Greenwald, “The top secret rules that allow NSA to use U.S. data without a warrant,” The Guardian, June 20, 2013, available at: http://www.theguardian.com/world/2013/jun/20 /fisa-court-nsa-without-warrant (last access December 8, 2014). 156 “Report on the Surveillance Program Pursuant to Section 702,” p. 100. 157 “Presidential Policy Directive PPD-28.”

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chosen journalist who was able to present the information in context. Regardless of how the statutory and Constitutional concerns will be resolved, the American people took an important step towards more transparent and considered balance between national security interests and right to privacy in the recent past.

III. Unmanned Aerial Vehicles in U.S. National Security Policy: New Face of War on Terror

Unmanned aerial vehicles Definitions The U.S. Department of Defense defines two terms related to an unmanned aerial vehicle: “Unmanned aircraft is an aircraft or balloon that does not carry a human operator and is capable of flight under remote control or autonomous programming, while an unmanned aircraft system is the system whose components include the necessary equipment, network, and personnel to control an unmanned aircraft.”158 For the purpose of this work, it is vital to stress that most of the analysis will focus on armed UAVs currently deployed in military operations. The three most prominent armed unmanned systems are MQ1 Predator, MQ9 Reaper and MQ-1C Sky Warrior armed with Hellfire missiles. The following scheme is attached to illustrate the measurements and designs of the unmanned platforms under scrutiny. When referring to Unmanned Aerial Vehicles, this work will either use abbreviation UAVs or the term unmanned aircraft. The term drones as these systems are referred to in some of the cited research papers as well as in media will be used in reference to unmanned systems and platforms on a more general level. For instance, cruise missiles are not considered UAVs in this research. The purpose of this is to clarify the distinction between aerial unmanned systems and unmanned aircraft and other forms of unmanned systems. Although this work will primarily analyze the revolutionary capabilities of unmanned aerial systems, the 158 U.S. Department of Defense, Joint Publication 1-02, DOD Dictionary of Military and Associated Terms, 8 November 2010, As Amended Through 15 January 2014, p. 278, available at: http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf (last accessed February 26, 2014).

David Cenciotti, “Drone Survival Guide,” The Aviationist, December 19, 2013, http://theaviationist.com/2013/12/19/drone-survival-guide/ (last access April 12, 2014)

Figure 1 Drone Survival Guide

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analysis will occasionally touch upon issues related to armed unmanned systems in general.

History The Israeli mission in Lebanon in 1982 accelerated the research, development, and eventually the deployment of unmanned systems in the U.S. military. The Israeli air attack began with UAVs called Pioneer flying over the Syrian air defenses followed by a wave of manned aircraft, which destroyed these defenses without any casualties. Such a remarkably successful integration of UAVs in military operation amazed the military in the United States and resulted in support for those seeking to develop them. Unmanned aircraft was used by militaries as reconnaissance and communication tools for centuries. Chinese armies used kites to estimate the distance needed for a tunnel dug to get under enemy fortifications. In the battle of Hastings, 1066 armies used kites to communicate on the battlefield. Balloons were used during the American Civil War to drop bombs behind enemy lines. Although there were some attempts to develop unmanned aerial vehicles in the 19th century, the flight of the Wright brothers postponed it for a long time. Instead piloted aircraft experienced extraordinary growth. During both world wars, there were some attempts to introduce remotely piloted aircraft but without significant success. During the Korean War, the U.S. deployed UAVs for reconnaissance missions that were considered too dangerous for piloted aircraft. After losing two U2 spy planes, the United States renewed its interest in UAVs. During the Vietnam War, the USA fielded an UAV called the Lightning Bug. This aircraft was used for either reconnaissance or leaflet dropping. Later UAVs faced competition from cruise missiles and for some time were even deactivated and placed in long- term storage.159 The frequency of using UAVs grew gradually during the last two administrations in the United States. In general every armed conflict in the past was usually accompanied by the surge of development of weaponry. One of the most significant advancements of the Global War on Terror is the precision capability, endurance of an aircraft both contributing to efficiency in conducting lethal strikes. Military is now capable of striking designated targets with unprecedented precision and with lower risk of civilian casualties. 159 Hector Cruz L., “Role of DOD Unmanned Aerial Vehicles for Homeland Security,” Strategy Research Project, U.S. Army War College, March 2010, p. 3, available at: http://www.hsdl .org/?view&did=685141, (last access January 4, 2013).

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Since the terrorist attacks of 2001, the United States is involved in a new kind of war. The challenges posed by asymmetrical warfare against a non-state actor in remote areas on territory of multiple states led the Obama administration to embrace the capabilities of unmanned systems employed already by the previous one. Conduct of warfare has been changing very rapidly in the last few years. Sending in ground troops, having boots on the ground in a remote country became more and more expensive, politically sensitive, and some would claim, less effective. The technology behind the UAVs provides the policy makers in the White House or Pentagon with an option to eliminate suspected terrorists plotting to attack the U.S. while taking no such risks. These combined factors played a role when USA decided it was time to test robots on a real battlefield. Risks UAVs connected to deployment of UAVs will be closely scrutinized in late parts of the research. The first deployment of unmanned systems in antiterrorist activities now known as the U.S. drone program has its roots in the late 1990s. Back then various unmanned and unarmed aircraft tracked and spied on Al-Qaeda in Afghanistan. After terrorist attacks of 9/11, the U.S. President George W. Bush ordered U.S. armed UAVs, to kill leaders of Al-Qaeda. This campaign started first in Afghanistan and later expanded to Yemen and Pakistan. From June 2004, when the strikes in Pakistan began, to January 2009, the U.S. administration authorized 44 strikes in the northwestern region of Pakistan. Since assuming office, President Obama has greatly accelerated the program. As Peter Bergen writes, this was a result of better on-the-ground intelligence in Pakistan. In two years, the Obama administration authorized nearly four times as many UAV strikes as did the Bush administration throughout its entire time in office. An average of one strike every four days under Obama, compared with one every forty days under Bush.160 It is worth noting that during the last election campaign, the Obama administration ordered kind of a “formal rule book” to govern the use of drones in years to come. The administration was trying to create some formal rules and resolve internal uncertainties about justification of “remote control” killing. What still remains a very important question is whether UAVs should be used as a last resort or should they become a 160 Peter Bergen, Katherine Tiedemann, “Washington’s Phantom War, The Effects of the U.S. Drone Program in Pakistan,” available at: http://www.foreignaffairs.com/articles/67939/peter -bergen-and-katherine-tiedemann/washingtons-phantom-war (last access January 4, 2013).

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more flexible tool in fighting the threat of global terrorism.161 Moreover, the administration considered using UAVs not only against designated terrorists but in some cases even against militias threatening allied governments. That in essence makes UAVs a tool of counterinsurgency. There were several reports that the U.S. unmanned systems were used for strikes on tribal leaders who opposed the Yemeni government. Over the next 10 years, the Department of Defense plans to purchase about 730 new medium-sized and large unmanned aircraft systems based on designs currently in operation, while also improving those in service. The Congressional Budget Office estimated that these investments will require about 36.9 billion U.S. dollars through 2020.162 The plans of armed services would increase the inventory of unmanned aircraft by 35% over the next ten years. According to plans of various U.S. federal and state agencies and non-governmental institutions, it appears that their use will continue play a role in the future and that role will most probably be gaining prominence.

Unmanned aircraft in the military The concept of an armed UAV was introduced in 1996 in the study UAV Technologies and Combat Operations163, recommending testing and developing armed versions of a high-flying UAV. The UAVs were specifically designed for Suppression of Enemy Air Defense operations. UAVs played an important role during allied operations in Kosovo, where they supported strike packages to locate time-critical targets. These supporting UAVs were RQ-1 Predator model built by General Atomics.164

161 Scott Shane, “Election Spurred a Move to Codify U.S. Drone Policy,” New York Times, November 26, 2012, available at: http://www.nytimes.com/2012/11/25/world/white-house-presses -for-drone-rule-book.html?pagewanted=all&_r=0ktools/15569/ (last access December 20, 2012). 162 Bernard Kempinski at al., “Policy Options Unmanned Aircraft Systems,” A  CBO Study, Congress of United States, Congressional Budget Office, June 2011, p. vii, available at: https://cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12163/06-08-uas.pdf (last ac­ cess January 9, 2013). 163 United States Air Force, “UAV Technologies and Combat Operations,” Air Force Scientific Advisory Board, SAF/PA 96-1204 – 1996, available at: http://www.fas.org/man/dod-101/sys /ac/docs/ucav96/(last access May 9, 2014). 164 “Smart Weapons for UAVs,” Defense Update, available at: http://defense-update.com/features /du-1-07/feature_armedUAVs.htm (last access March 12, 2014).

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The U.S. Department of Defense published the document Unmanned Systems Integrated Roadmap 2013–2038, a rich source of hard data for a research on the U.S. Air Force and of visions and plans of the DOD regarding unmanned systems. It seems that funding for development and research of UAVs within the department will grow until 2016. Outside the DOD though the Unmanned Aircraft Systems sector growth is predicted to rise and it is described as the most dynamic growth sector of the world aerospace industry this decade.165 The Roadmap states that: “(…) the DOD will not be the bulk user within the market. However, DOD does intend to be the most innovative user. From strategic planning perspective, UAS have grown to a sizeable fleet providing a variety of capabilities that DOD will need to maintain over the near term.”166

Fiscal constraints placed on military spending after the 2008 crisis appear to have put pressure on the military establishment to focus on innovation rather than just on quantitative factors. The president’s 2014 Budget released to the U.S. Congress shows a 33.4% reduction in research and development, test and evaluation and procurement funding from the previous year.167 As the following figure demonstrates, in order for the Department to maintain superiority of its UAS fleet, it needs to focus on modernization of currently employed platforms and the development of new systems able to fulfill multiple roles. Some of these new systems should be able to operate in highly contested environments. Another area of possible improvement is interoperability. That is a very complex goal to achieve and there are multiple initiatives within the Department of Defense trying to tackle it. The Joint Concept of Operations for UAS builds on all applicable joint guidance for manned aircraft operations.

165 U.S. Department of Defense, Unmanned Systems Integrated Roadmap, FY2013-2038, p. 4, available at: www.defense.gov/pubs/ DOD-USRM-2013.pdf, (last access April 27, 2014). 166 Ibidem, p. 4. 167 Ibidem, p. vi.

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Key 1000

Multi-Service Army

800

Air Force

700

SOCOM

600

Navy / USMC

499

500 400 300

237

200

Group 2

Group 3

Group 4

9765

206

537

309

* Not in production

Global Hawk – RQ-4

T-Hawk – RQ*

Group 1

35 Reaper – MQ-9

Puma

28 Fire Scout – MQ-8

WASP

206

44 Hunter – MQ-5*

306

20 Predator* / Grey Eagle

1137

Shadow –RQ-7*

990

Scan Eagle

7332 Raven – RQ-11

0

18

Small Tactical UAS

112

100

Expeditionary UAS

Total DoD Unmanned Aircraft

900

Group 5 147 As of July 1, 2013

Figure 2 Inventory of DOD UAS168

Significant manufacturers For the purpose of this research it is vital to present the major UAV manufacturers providing the U.S. National Security apparatus with unmanned aerial systems. Sophistication of design and the cost of the research and development coupled with the lengthy process of privatization of military equipment manufacturing in the United States led to creation of quite a competitive market. There are thus multiple major companies contracted to supply the U.S. Armed Forces with a wide variety of unmanned aerial systems. The most prominent UAV manufacturers are the Boeing Company, General Atomics, Lockheed Martin Corporation and the Northrop Grumman. There is a growing market of manufacturing UAVs for militaries worldwide but none are producing the numbers matching these four companies. Then there is also already huge and very dynamic market of civilian UAVs with prediction of significant growth in the future.169 168 U.S. Department of Defense, Unmanned Systems Integrated Roadmap, FY2013-2038, p. 141, available at: www.defense.gov/pubs/ DOD-USRM-2013.pdf, (last access April 27, 2014). 169 Teal Group predicts that UAV market will continue to be the most dynamic market and U.S. will

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The Boeing Company managed to maintain the leading position in the American UAV market, mostly developing for the U.S. military. They have recently been testing the hydrogen-powered Phantom Eye UAV, able to stay at 65,000 feet for up to four days without refueling. General Atomics, based in San Diego, is credited with building the renowned armed UAV, the Predator. It became infamous after its deployment to Afghanistan, Pakistan, Iraq, Yemen, Libya, Somalia, Iran and the Philippines. Another important player is the Lockheed Martin Corporation developing a wide variety of unmanned aerial systems including Stalker. Northrop Grumman was founded in 1994 and has quickly risen to become one of the top suppliers of military hardware. AeroVironment, Inc. is the company responsible, among other technologies, for the “Hummingbird drone” ordered by the Pentagon. General Dynamics Corporation is one of the major donors to the Congressional Unmanned Systems Caucus, known as the drone caucus.170 As for the size of the military UAVs market, according to recent reports the market is expected to double by 2024 to about $10 billion.171

Cost-efficiency A CRS Report for Congress172 raised the question of the rising cost of UAVs in 2005. Although these data are not the most current, they are still relevant as this study, together with many others, predicted a continued rise in the future that is currently being proven correct. The issue of UAV management is not only the cost of UAVs but also the process of acquiring one. The report states that UAVs have been used by all four military services and the U.S. Special Operations Command. account for 65% of the worldwide RDT&E spending on UAV technology over the next decade, and 51% of the procurement, Teal Group, June 17, 2013, available at: http://tealgroup.com /index.php/about-teal-group-corporation/press-releases/94-2013-uav-press-release (last access April 2, 2014). 170 Christopher Harress, “12 Companies That Will Conquer The Drone Market in 2014 and 2015,” International Business Times, January 10, 2014, Share this article available at: http://www .ibtimes.com/12-companies-will-conquer-drone-market-2014-2015-1534360 (last access March 20, 2014). 171 Experts: Drone Market to Hit $10 Billion by 2024, October 3 2015, Defense News, available at: http://www.defensenews.com/story/defense/air-space/2015/10/03/experts-drone-market-hit -10-billion-2024/73282590/ (last access October 11, 2015). 172 Harlan Geer, Christopher Bolkcom, “Congress, Unmanned Aerial Vehicles: Background and Issues for Congress.” Congressional Research Service Report for Congress, Library of Congress, November 2005, p. 53, available at: http://digital.library.unt.edu/ark:/67531 /metacrs8638/m1/1/high_res_d/RL31872_2005Nov21.pdf (last access January 2, 2013).

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These UAVs appear to have been acquired at an accelerated rate. That is why there are many who call for centralization of acquisition authority. According to report, some of the UAVs rival manned aircraft in terms of cost. The Global Hawk program led to the Nunn-McCurdy breach due to an average unit cost growth of 18% per airframe. The Nunn-McCurdy provision requires the DOD to notify Congress when cost growth on any major acquisition program reaches 15%.173 There are various reasons for the increase of cost of various UAV programs. One reason is inconsistent management practices. Due to frequent budget cuts for various agencies and departments, the management of developing UAVs changes quite often. Different approaches to its management in effect cause an increase in their cost. For example, the Global Hawk was originally meant to carry one sort of sensor but, under various administrations, there were more sensors added that led to the need for bigger engines and wings, hence the rising cost.174 The high cost of various UAV programs is a given while their cost-efficiency is a different matter that should be addressed. According to a cost-benefit analysis made by the American Security Project, UAVs are still only slightly more cost effective to acquire and operate than manned aircraft.175 Such analysis not only considers the cost of the development and operating of the UAV but also the number of people operating the system and the current rate of their errors. There is also a security issue in case such a mishap happens in the field, for example, in the airspace of the enemy. This should also be considered in any such analysis. The study of Oleg Nekrassovski argues that as of today, UAVs are only able to perform surveillance and air-to-ground strike missions. Therefore, it makes sense to compare UAVs to manned aircraft designed for intelligence gathering and ground target strikes. The author concludes “UAVs appear to be superior to manned aircraft in intelligence gathering and air-to-ground strike missions.”176 The method of comparison as explained by the author basically quantifies the costs and benefits of each type of aircraft. All costs are treated as negative qualities and, to this end, are assigned a negative sign; while 173 Geer, Bolkom, “Unmanned Aerial Vehicles,” p. 9. 174 Ibidem, pp. 9–10. 175 Ashley Boyle, “The U.S. and Its UAVs: A Cost-Benefit Analysis,” The American Security Project, July 24, 2012, available at: http://americansecurityproject.org/blog/2012/the-us-and-its-uavs -a-cost-benefit-analysis/, (last access January 2, 2013). 176 Oleg Nekrassovski, Political Economy of UAVs, and Cost-Benefit Analysis and Optimization of UAV Usage in Military Operations, p. 8.

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all benefits are considered positive, and are assigned a positive sign. The summation of all numbers assigned to each presented quality, separately for each type of aircraft, is used to determine the superior type of aircraft in each case with the best choice being the aircraft with the larger sum.177 The tables 1 and 2 compare the costs and benefits of UAVs and manned aircraft for intelligence gathering and air-to-ground strike missions using this method. As Nekrassovski concludes: “UAVs appear to be superior to manned aircraft in intelligence gathering and air-to-ground strike missions.”178 Obviously many analysts including the Department of Defense try to assess the cost-efficiency of unmanned platforms over manned aircraft and struggle to find the best method and often are forced to simplify the amount of data in order to reach some conclusions and draw some possible scenarios for further research. The one thing that many observers would agree on is that, no matter what method is used, the advantages of unmanned aircraft and their system is a valuable asset to U.S. military and national security. One important question left open is to what extent unmanned systems will replace the manned platforms or how will these two platforms integrate and cooperate in the future. Table 1 Intelligence gathering179 Quality

Extent (0[nonexistent]/1[low]/2[medium]/3[high]) UAVs

Manned Aircraft

0

–3

Risk to human operators Aeronautical capabilities

+3

+2

Cost of the aircraft

–2

–3

Susceptibility to crashing

–3

–2

Discreetness of usage

+3

+2

Cost of training an operator

–1

–3

Vulnerability to datalink failure

–3

0

0

–2

Latency

–1

0

Total

–4

–9

Need to be rotated in and out of a war zone

177 Nekrassovski, “Political Economy of UAVs,” p. 6. 178 Nekrassovski, “Political Economy of UAVs,” p. 7. 179 Ibidem, p. 4 .

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Table 2 Strikes of Ground Targets180 Quality Operator’s/pilot’s situational awareness Risk to human operators

Extent (0[nonexistent]/1[low]/2[medium]/3[high]) UAVs

Manned Aircraft

+3

+2

0

–3

Level of emotional hazards linked to increased civilian casualties

–1

–3

Aeronautical capabilities

+3

+2

Reaction time

+3

+2

Cost of the aircraft

-2

–3

Susceptibility to crashing

-3

–2

Accuracy of strikes

+3

+2

0

–2

Need to be rotated in and out of a war zone Discreetness of usage

+3

+2

Cost of training an operator

–1

–3

Vulnerability to datalink failure

–3

0

Latency

–1

0

Total

+4

–6

While cost efficiency may change over time, there are some strategic advantages of UAVs that will most probably persist. The possibility to operate within hostile airspace without risking the lives of any U.S. personnel is the most visible one. Then, there is also a possibility of conducting operations unconstrained by shift schedules or human endurance allowing UAVs to collect more intelligence and conduct more surveillance. The question whether or not such an amount of data could be analyzed properly remains open. As operations are based on these mostly automatic data analyses, this is a very serious concern. The efficiency of UAVs is getting better over time. For example, progress has been made since the bombing of Serbia in 1990. There are basically two methods used by unmanned aircraft guiding its munition, laser designation or Global Positioning System, known as GPS. The 180 Ibidem, p. 6.

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first option involves a man on the ground marking a target. The second is guided towards a pre-programmed set of coordinates. The following example should demonstrate how ineffective this is: In 1999 when NATO forces were bombarding Belgrade, the officer making the decision used a map without numbers of the buildings using numbering on the parallel street. While the intended target was the Yugoslav arms agency building, the Chinese embassy was hit.181 Even though there have been advances made in technology, there are still situations where innocent civilians die because of wrong assessment of collected data or misinterpretation. If such an incident is caused by a UAV operated by the CIA, the problem of responsibility and accountability arises. According to some research papers,182 no discussion of such policies is yet underway. One might hold the pilot or operator of the UAV responsible. This is a very simplistic and inadequate view. Pilots, even on manned planes have often very little possibility to check whether their action is correct and justifiable. The attack is triggered by a man in both cases, but there has to be a thorough examination to find any model fitting both manned and unmanned attacks.183 An examination of moral culpability is thus in order for all weapon systems and those responsible for them. That is no easy task considering the current secrecy surrounding the UAV program. A real danger lies in the possibility of having no one responsible when it comes to lethal force. That is probably one of the most dangerous aspects of such technologies.

Limitations to the use of UAVs in the war on terror Using UAVs as a tool of national security policy is quite new and, to some extent, a revolutionary idea. Technological advances have been quite rapid in the last two decades, but the society has to adjust and the technology will have to be adjusted too. There are some limitations that restrict the overreliance of the government on one type of technology and its restrictions and limitations. There are several issues to consider. First there are serious legal issues involved. These include the U.S. Constitution 181 Jeffrey Sullivan, “Evolution or Revolution? Rise of UAVs,” IEEE Technology and Society Magazine, vol. 25, no. 3, Fall 2006, available at: http://ieeessit.org/technology_and_society /free_sample_article.asp?ArticleID=11, (last access January 2, 2013). 182 Sullivan, “Evolution or Revolution?” 183 Ibidem.

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and other laws as well as international law. Legally intriguing is a special case of Mr. Anwar al-Awlaqi. He was a high profile member of Al-Qaeda serving as a recruiter of Western jihadists for the organization. In 2011 he was killed in a UAV strike in Yemen. What makes this specific case special is that he was an American citizen. Prior to his death, the issue of killing terrorists with UAVs, even with some collateral damage to the civilian population was not such a big issue for the U.S. public. After his death, there were suddenly concerns raised about the ethics of such killings in broader public discourse. The question of UAVs thus became more publicized and, as a result, further analysis and research have emerged. Then there is the question of collateral damage caused by strategies using targeted killing. Collateral damage in traditional warfare is dealt with in the laws of war, but the capabilities of UAVs pose a new challenge to these traditional rules. This is closely connected to yet another ethical problem of such warfare. The question whom do we fight matters just as much as how we fight them. So called remote control killing based on intelligence that is secret is a tough issue for many experts of various fields challenging every aspect of rules of international conflict. Media coverage of the use of unmanned systems in warfare is vital if public opinion is to be based on information and consequently polls will show how the American people or those in other countries react to such acts. This aspect is important as public pressure may eventually push the lawmakers and subsequently the military to reforms and more transparency. Finally, there is no point in analyzing UAVs and their value for the U.S. national security policy without dealing with technical, tactical, strategic and operational challenges of this new technology. Understanding how UAVs work and in what ways the American armed forces are able to implement them is vital when assessing the possible future development of American security and war plans.

Legal issues The U.S. Government is currently openly discussing whether to target an American citizen living in Pakistan who is allegedly plotting against the U.S.184 In September, 2011 the CIA carried out a strike against an 184 Mark Mazzetti, Eric Schnmitt, “U.S. Debates Drone Strike on American Terrorism Suspect in Pakistan,” New York Times, February 11, 2014, available at: http://www.nytimes.com/2014/02/11/

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American citizen, a radical preacher Anwar al-Awlaki in Yemen. Authorities confirmed that four other Americans were killed by a drone strike. In the case of al-Awlaki the President issued an executive order saying that Awlaki was involved in two terrorist cases – the Fort Hood Massacre and the Christmas day bomb plot in 2009. The decision to strike and eliminate an American citizen without due process was challenged by the American Civil Liberties Union and the Center for Constitutional Rights. Families of Anwar al Awlaki, Abdulrahman al Awlaki and Samir Khan sued several U.S. officials. The plaintiffs claimed that these officials violated the Fifth Amendment rights of the deceased by authorizing the drone strikes.185 On April 4, 2014, Judge Rosemary M. Collyer of the United States District Court for the District of Columbia granted the defendants’ motion to dismiss the case. This is a very interesting legal issue as it includes the possibility to sue a federal official for violating constitutional rights. There is a precedent in 1971 Supreme Court case Bivens v. Six Unknown Federal Narcotics Agents when a set of rare circumstances allowed a lawsuit against a U.S. federal official. In case of Anwar al-Awlaki Collyers wrote: “In this delicate area of war making, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants’ actions in dealing with AQAP generally or Anwar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.”186

The judge cited the Authorization for the Use of Military Force, passed by Congress on September 14th, 2001. AUMF granted the Executive the right to use necessary and appropriate military force against Al-Qaeda and affiliated forces. Al-Qaeda in the Arabian Peninsula (AQAP) was identified as such. The conclusion is that “the fact that Anwar Al-Aulaqi was targeted in Yemen does not undermine the AUMF as the source of authority for the use of force against him.”187

world/asia/us-debates-drone-strike-on-american-terror-suspect-in-pakistan.html (last access March 12, 2014). 185 United States District Court for the District of Columbia, Civil Action No. 12-1192 (RMC), available at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv1192-36 (last access March 3, 2014). 186 Civil Action No. 12-1192 (RMC), p. 34. 187 Ibidem, p. 35.

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A Department of Justice White Paper that was published by MSNBC is one of only a few official documents known to public shedding some light on the conduct of the government in targeted killing. This White Paper: “(…) sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader actively engaged in planning operations to kill Americans.”

The White Paper also specifically covers the issue of targeting U.S. citizens: “(…) were the target of lethal operation a U.S. citizen who may have rights the Due Process Clause and the Fourth Amendment, that individual’s citizenship could not immunizing him from a lethal operation. Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person’s interest in his life. But that interest must be balanced against the United States’ interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al-Q’aida or an associated force of alQ’aida and who is engaged in plotting against the United States.”188

Here the White House lawyers argue that the duty of the President to protect lives of Americans is more important than respect for the Due Process Clause and Fourth Amendment. They argue that balance between national security and individual rights in this specific case is found in elimination of an individual who represents an imminent threat to the nation. One of the few legal authorities on the global scale challenging the use of armed unmanned aircraft systems is Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson. In his annual report to the Human Rights Council, his primary analysis is the American practice of targeted killing. In January 2013 Emmerson began an inquiry into the use of UAVs in order to evaluate the allegations of disproportionate 188 Department of Justice White Paper, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al Qaida or an Associated Force,” NBC News, April 2, 2013, available at: http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_ DOJ_White_Paper.pdf (last access April 22, 2014).

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civilian casualties, engage the international community to conduct impartial inquiry and investigations, and to identify the legal challenges and propose some recommendations. He notes that the current state of affairs is a great challenge to human rights law and international humanitarian law. He states that, while civilian casualties may not themselves present a violation of the international humanitarian law, it raises issues of accountability and transparency.189 The report concludes that: “(…) The proliferation of armed remotely piloted aircraft technology, taken together with the increasingly asymmetrical nature of modern conflicts, poses challenges for the framework of international law. This has led some to argue that the existing rules require ‘translation’ to take account of changing circumstances.”190

Collateral damage Table 3 Endangering Civilians concerns191 Top concern over drones: endangering civilians How concerned are you whether drones…

Very %

Somewhat %

Not too %

Not at all %

DK %

endanger civilian lives?

53

28

8

7

4 = 100

lead to retaliation from extremists?

32

33

17

14

4 = 100

are conducted legally?

31

35

13

15

7 = 100

damage America’s reputation?

26

31

18

20

5 = 100

Surgical precision of UAVs strikes is often cited in the literature and public discourse of targeted killing. The actual state is rather difficult to assess as the program as well as any assessment of strikes are all covert.

189 Ben Emmerson, “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism,” Just Security, available at: http://justsecurity.org/wpcontent/uploads/2013/10/2013EmmersonSpecialRapporteurReportDrones.pdf (last access April 3, 2014). 190 Ibidem. 191 Bruce Drake, “Obama and Drone Strikes: Support but Questions at Home, Opposition Abroad,” Pew Research Center, May 24, 2013, available at: http://www.pewresearch.org/fact -tank/2013/05/24/obama-and-drone-strikes-support-but-questions-at-home-oppositionabroad/ (last access April 12, 2014).

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There are also psychological issues for the operators. Operators of the unmanned systems and even pilots of manned platforms don’t see the suffering of their victims, their blood and so they don’t have to face the immediate consequences of their actions.192 The impact of the hellfire missile as seen on the screen is so powerful that the operator can only see the explosion. As Shane Riza further writes …“when operators see the impact of their attack on the screen it all seems clear and morally fine. Collateral damage is seen as only an unpleasant part of completing a mission and thus the technologically superior power may feel on morally higher ground than the enemy.” There are signs of this emotional disconnect in the terminology used. Targets, collateral damage, are emotionally neutral terms avoiding thinking of their victims as of human beings. In the case of the American War on Terror, the issue of collateral damage became the main reason for media attention, not only the targets selected and eliminated without any oversight, but the civilian casualties that result. Civilian casualties according to Ben Emmerson increased in Afghanistan in 2013. Until the end of 2012, the report claims lower rates of civilian casualties than those of manned platforms.193 The International Committee of the Red Cross deals with the armed UAVs deployed in the war on terror and one of the issues is that of accountability. Here Peter Maurer, the president of the ICRC claims that: “The fact of their (UAV operators) being thousands of kilometers away from the battlefield does not absolve drone operators and their chain of command of their responsibilities, which include upholding the principles of distinction and proportionality, and taking all necessary precautions in attack. Drone operators are thus no different than the pilots of manned aircraft such as helicopters or other combat aircraft as far as their obligation to comply with international humanitarian law is concerned, and they are no different as far as being targetable under the rules of international humanitarian law.”194

The issue becomes more controversial when it comes to UAVs operated by the CIA. It is virtually impossible to address the question of accountability for these sorts of operations. After the withdrawal of 192 Riza, Killing without Heart. 193 Emmerson, “Report of the Special Rapporteur.” 194 “The Use of Armed Drones Must Comply with Laws,” Interview with Peter Mauer, the president of ICRC, available at: http://www.icrc.org/eng/resources/documents/interview/2013 /05-10-drone-weapons-ihl.htm (last access April 12, 2014).

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American armed forces from Afghanistan and an overall limited military presence in the region the role of CIA operated UAVs will most probably increase.195

Principles of foreign policy As Colonel Shane Riza, a U.S. Air Force veteran writes …“we seek ‘immaculate war’ – war without casualties on our side. Warfare with impunity is perhaps as close as we get to national military ethic, and because it is so we continue along the technology trend vector without adequately considering the consequences of our actions.”196 There exists, to some extent at least, a tension in the foreign policy of the United States between national interest and liberal democratic values that are claimed to be universal. The national security is the major national interest since the terrorist attacks of 2001. Even before that, during the Cold War era the United States pursued a policy of securing the homeland from possible attack by the Soviet Union. All the cold war conflicts were fought with the intention to avoid a threat to the U.S. mainland. As terrorists of 9/11 managed to conduct an attack on the U.S. on its very soil, the national security became the top priority. Professor Jentelson in a book on American foreign policy identified so called 4 Ps: Power, Peace, Prosperity and Principle.197 Those are according to him four major goals of U.S. foreign policy. The United States projects power, building and promoting peace and prosperity, and also promotes democratic principles. The use of UAVs in military and in secret wars on terrorism is a projection of power over a technologically inferior enemy. Deployment of these systems rather than all-out invasions in regions far away from U.S. mainland is motivated by maintaining the peace, power and prosperity of the USA. Achieving peace by precision and efficiency and helping prosperity by avoiding the investment of billions of dollars into the deployment of armies. This is also connected to the ongoing academic dispute about the shift from the traditional concept of state-centered security to human security. This concept is broadly defined as a system of processes

195 Following the outbreak of Syrian war and emergence of ISIL, the use of unmanned platforms expanded exponentially anyway. 196 Riza, Killing without Heart. 197 Bruce W. Jentleson, American Foreign Policy: The Dynamics of Choice in the 21st century, (New York: W. W. Norton & Company, 2010), p. 56.

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protecting people from critical and pervasive threats and situations.198 There are numerous conceptualizations of human security. While some address more complex insecurities related to economy, politics, culture and social issues, others focus on elemental insecurity of violence. In this regards, the strategy of targeted strikes using UAVs falls within the latter. Relying on power projection and capacities of UAVs in the conflict with terrorism seem to be pivotal in the counterterrorism policy of the USA. Thomas Ricks in the article on future warfare addresses that very issue: “Victory isn’t about killing the enemy. It’s about fixing the problem that led to the war. War can be about all sorts of things. While many cold warriors think that winning is about killing the other guy the reality is that warfare is political and the only way to resolve the conflict – to win the war – is to address the underlying condition that led to the war. Drones, nukes, k-bars, limpets, Molotov cocktails, IEDs don’t address the underlying condition of the conflict. People address the underlying condition.”199

When it comes to principles, the American use of UAVs seems contradictory. The U.S. is killing, without any legal procedures people they assess to be imminent threats to U.S. National Security. The foreign policy of the U.S. is still driven by national security imperatives in the Greater Middle East and that is one of key reasons why the White House and State Department do not have good relations with Pakistan or Afghanistan. Diplomacy is not very effective in light of drone strikes, even though it is claimed that they are approved by local governments. The War on Terror thus seems to be a conflict with no end. The U.S. does not seem to seek peace, but rather the death of all terrorists. Terrorism is a far more complex issue and cannot be solved simply by targeting every single terrorist. Targeted killing looks like a very efficient way to exterminate criminals plotting against Americans. But it in no way contributes to solving the underlying reasons for Islamic radicalization.

198 Markus Kienscherf, U.S. Domestic and International Regimes of Security, London Routledge 2013, p. 130. 199 Thomas Ricks, Future of War (14): “It is gonna be pretty much like it was for the last 4,000 years,” Foreign Policy, online edition, available at: http://ricks.foreignpolicy.com/ posts/2014/03/05/future_of_war_14_it_is_gonna_be_pretty_much_like_it_was_for_the _last_4000_years (last access March 23, 2014).

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Media coverage Thanks to science fiction literature, movies and TV series, unmanned warfare is a very popular phenomenon lately. Challenges posed by lethal autonomous systems to law and to the society create controversies that are then vigorously covered by the media in the U.S. and around the world. Since the Watergate case, the media pursue the goal of revealing government secrets as these sorts of stories attract readers, listeners, and viewers. At least, this is what their sales increases indicate. The fact that the deployment of unmanned lethal systems is also a covert action attracts the media even more. The secrecy itself, not the deaths, is the motive for most of the media coverage of unmanned systems. Added to this attraction, were cases of so-called whistleblowing or leaking of government secrets. Julian Assange, Bradley Manning, Edward Snowden and some others became celebrities of sorts, by providing the media with information on these controversies. Their leaks cover diplomatic exchanges, specific information about the conduct of war in Iraq, Afghanistan, secret missions of spying agencies and even as their reports call it, the “secret government drone program.” There are several problems connected to their acts. Firstly, there is no assurance as to what their motives are. Nobody can undeniably claim that their aim is to provide the public with the truth and help promote democratic values. Governments see them as traitors, at least as threats to lives of deployed spies, diplomats or soldiers. In the case of Edward Snowden and his revelations about NSA capabilities, there are claims that he reached the level of posing a severe threat to national security of his own country. The other side of the argument is the question of government through its agencies violating laws, whether it is the U.S. Constitution or international law. There are very serious questions of legality of certain actions now being publicly debated in the media. The problem here is a conflict of two principles. On one side is the right of the people to question their government and be informed about such important issues, such as UAV deployment in the War on Terror. On the other is the duty of the government to protect its people, and to that end, its right to keep intelligence capabilities and know-how a secret. Further some analysts, as well as journalists, conclude that there are selective, limited and favorable leaks to journalists from the government

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itself.200 So, when it comes to media coverage and subsequent public opinion based on this coverage, it is difficult to assess its trustworthiness.

Public opinion Public opinion in the U.S. or in the affected countries is highly influenced if not created by the above described media coverage. Most of this coverage is based on little information provided by the aforementioned whistleblowers. As the government, understandably, wishes to keep covert operations and programs secret, the leaks provided to media, are the only information the public works with. Again, the problem is that these leaks are selective and mostly lack the required context. In countries where unmanned systems operate, public opinion is certainly formed by these operations and their effects on population. Understandably so, the public discourse in these countries are much more substantial than anywhere else. The question of using unmanned systems to kill militants and terrorists far from the U.S. homeland and against foreign individuals seems to have public approval.201 Also, interestingly, this support is bipartisan. A possible interpretation or reasoning behind such support may well be effective marketing of the targeted killing by the authorities. If renowned experts say and a statistic prove that drone strikes are the most effective way to fight Al-Qaeda, the public has little reason to object. When the fact that there are virtually no lives of Americans at risk, this level of approval comes as no surprise. Quite a different issue though, is the possibility of targeting American citizens. Even if such an individual is a known Al-Qaeda operative, the possibility of extrajudicial execution is problematic. According to the U.S. Constitution, every American citizen has a right to be judged by due process.

200 Alston Philip, “Study on Targeted Killings, Human Rights Council,” UN Doc. A/HRC/14/24 /Add.6, May 28, 2010, p. 4, available at: http://www2.ohchr.org/english/bodies/hrcouncil /docs/14session/A.HRC.14.24.Add6.pdf (last access March 12, 2014). 201 Alyssa Brown, Frank Newport, “In U.S., 65% Support Drone Attacks on Terrorists Abroad,” Gallup Politics, March 25, 2013, available at: http://www.gallup.com/poll/161474/support -drone-attacks-terrorists-abroad.aspx (last access April 12, 2014).

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Public polls Mutual perceptions of one another by nations are very important in building relations and intercultural understanding. Therefore, it is interesting to look at public opinion polls on U.S. drone policy in other nations. It is no surprise that national surveys found that Pakistanis are overwhelmingly opposed to CIA drone strikes against suspected militants in the tribal badlands close to the Afghan border.202 According to Gallup polls on the other hand, over 65% of Americans support the use UAVs against terrorists abroad.203 Table 4 Gallup poll on approval of U.S. drone policy204 Do you think the U.S. government should or should not use drones to…

Yes, should %

No, should not %

No opinion %

launch airstrikes in other countries against suspected terrorists?*

65

28

8

launch airstrikes in other countries against U.S. citizens living abroad who are suspected terrorists?*

41

52

7

launch airstrikes in the U.S. against suspected terrorists living here?**

25

66

9

launch airstrikes in the U.S. against U.S. citizens living here who are suspected terrorists?**

13

79

7

*Based on Sample A of 502 national adults; **Based on Sample B of 518 national adults.

As it seems, President Obama has bipartisan support for the use of UAVs against suspected terrorists abroad. According to Pew Research Center both Republicans and Democrats support the policy put in place.

202 “Drones over Pakistan, Drop the Pilot,” The Economist, October 19, 2013, available at: http:// www.economist.com/news/asia/21588142-surprising-number-pakistanis-are-favour-drone -strikes-drop-pilot (last access March 12, 2014). 203 Alyssa Brown, Frank Newport, “In U.S., 65% Support Drone Attacks on Terrorists Abroad,” Gallup Politics, March 25, 2013, available at: http://www.gallup.com/poll/161474/support -drone-attacks-terrorists-abroad.aspx (last access April 12, 2014). 204 Ibidem.

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Table 5 Bipartisan Support for U.S. Drone Attacks205 Bipartisan support for U.S. drone attacks U.S. conducting drone strikes…

Approve %

Disapprove %

DK %

Total February 2013

56

26

18 = 100

Total July 2012

55

34

11 = 100

Republican

68

17

15 = 100

Democrat

58

26

16 = 100

Independent

50

31

19 = 100

What the Americans do not agree with that much, is the use of armed UAVs against American citizens. They are most outraged about the mere possibility of the use of even unarmed UAVs in U.S. airspace. There are many problems associated with that, mainly worries about privacy protection. On the other hand, there is quite a powerful lobby of UAV manufacturers in Congress. Even most law enforcement agencies see the capabilities of UAVs as being very useful for their purposes. The tension between public opinion and the efforts of trade and lobby groups, coupled with the demand of law enforcement may play some role, especially in politics. Apart from public opinion in the U.S., the reactions of people in other countries around the world should also be mentioned when assessing the efficiency of UAVs in National Security Policy. More broadly speaking the disagreement of the public in foreign countries may influence their leaders and, in effect, change their relations with the USA. The global opinion polls made by Pew Research Global Attitudes Projects conclude that the in 17 out of 20 countries, more than half the population oppose the targeted killing of extremists in Yemen, Somalia or Pakistan.

Technical, tactical, and operational challenges The Defense Technical Information Center Strategic Plan 2011–2016 sets a goal for itself to fulfill the needs of Department of Defense by “exploiting current and leveraging new technologies.”206 205 Drake, “Obama and Drone Strikes.” 206 Defense Technical Information Center, Strategic Plan 2011 to 2016, Information for the Defense Community, available at: http://www.dtic.mil/dtic/aboutus/strategicPlan.html (last accessed February 23, 2014).

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U.S. Britain

Italy Czech Rep. China Lebanon Mexico

38

51

France India

38

59

Poland

Approve

44

47

Germany

Disapprove

62

28

37

63 32

21

31

55

30

62 25

55

24

69

24

73

Spain

76

21

Japan

75

21

Brazil

76

19

Russia Tunisia Turkey Egypt Jordan Greece

17

68

12

72

9

81

6

89 85 90

6 5

Figure 3 Global Opinion Poll on Obama’s drone policy 207

What made Unmanned Aerial Vehicles the weapon of choice and a headliner in the Global War on Terror was the need for broad intelligence gathering in Iraq and Afghanistan, defined as the first two theaters of that war. 207 Global Opinion of Obama Slips, International Policies Faulted, Pew Research Center, June 13, 2012, available at: http://www.pewglobal.org/2012/06/13/global-opinion-of-obama-slips -international-policies-faulted/ (last access April 13, 2014).

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Another compelling issue is the question of whether using these “robots in the skies” is more a question of evolution or revolution. That means, if there is actually something new, something original or revolutionary in using UAVs and not only doing the same thing, the same way, while using new enhanced technologies. Jeffrey M. Sullivan has raised that precise question. The author concludes that the development of UAVs has been evolutionary. Drones did not appear abruptly as a technological revolution.208 Using drones in current armed conflicts is a natural continuation of the development of warfare. UAVs may only represent an enhanced tool used to perform the same task, but in a better or more effective manner. However, these autonomous flying robots, some as small as an insect, others as big as a commercial airliner, are becoming more and more important in many areas, most notably, aside from an armed conflict. Manjeet Singh Pardesi, a scholar from Singapore analyzing the strategic implications of UAVs, in his research concludes that this technology plays a crucial role in transforming the U.S. military as we know it. UAVs are a platform that exploits the advances in ICT (information and communications technologies).209 Many authors arguing for the change of perspective on the military, fit for the 21st century argue that unmanned technology will play a crucial role in shaping this new form of armed force. Intent during manufacturing and the primary role of UAVs when deployed overseas was intelligence gathering and occasionally, guiding other weapon systems to their target. The crucial moment in Afghanistan occurred when UAVs armed with an antitank missile fired on the target, it has been surveilling on. That very moment sparked a change, results of which remain to be seen in the future. Nevertheless, the change is in motion already, and it is a disruptive one for sure. Military experts and practitioners have expressed their doubts about the usefulness of unmanned aircraft in air-to-air combat though. They also often claim that currently used MALE210 UAVs are ineffective against sophisticated air defense systems.211 U.S. Air Force general Mike Hostage 208 Sullivan, “Evolution or Revolution?” 209 Pardesi, Manjeet Singh, “Unmanned Aerial Vehicles/ Unmanned Combat Aerial Vehicles: Likely Missions and Challenges for the Policy-Relevant Future,” Air Space Power Journal, Fall 2005. 210 Medium-altitude, long-endurance. 211 Zach Rosenberg, “Now You See It, Now You Don’t: Britain Unveils Stealthy Super-Drone,” Foreign Policy, online edition, February 12, 2014.

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cited by Russian media claimed that “Predators and Reapers are useless in a contested environment.”212 Although the reliability of the source, such as Russia Today is questionable, the claim itself is also supported by other sources. The ability of UAVs in contested environments is indeed one of the great obstacles to UAVs becoming a weapon of choice for the U.S. Air Force in actual combat operations when facing more sophisticated air defense systems and hostile air force. Joint Concept of Operations recognizes major acquisition and operational issues when referring to UAS implementation in national security. On the one hand, rapid acquisition is a priority. On the other hand, the document balances these requirements with challenges. The findings of the Defense Science Board Report213 concluded that rapid acquisition will be under-supported in traditional organizations. Shane Riza, jet fighter pilot himself, even referred to himself by citing the DOD’s Unmanned Systems Roadmap as part of “pockets of resistance” that must be “eliminated.”214 One of the reasons why this resistance will be overcome is the fact that UAVs represent an ideal platform for various forms of intelligence. The cross-cuing of various forms of intelligence is essential for precision strikes. These intelligence forms include signals intelligence (SIGINT) – the gathering of information about an actual or potential opponent by intercepting and analyzing his radar signals (ELINT) and communications traffic (COMINT) high-resolution imagery intelligence (IMINT).215 No manned aerial platform so far could produce all of these results. Challenges as listed above though remain. Technology will still require some years to develop new capabilities allowing their deployment in contested environments while fully integrated with other systems and platforms. The report by Ben Emmerson cites these capabilities on the example of MQ-9 Reaper that has a range of 5,900 km, a maximum airspeed of 250 knots and a maximum unloaded flying altitude of 50,000 feet. An armed one would fly at about 11,000 to 25,000 feet. It can fly for an average of 18 hours and even hand over surveillance to another UAV. It has a 212 “Predator Drones ‘Useless’ in Combat Scenarios – Air Force General,” Russia Today, September 20, 2012, available at: http://rt.com/usa/predator-drones-useless-air-force-103/(last access April 23, 2014). 213 Dyke Weatherington, Unmanned Aircraft Systems, April 20, 2010, available at: http://www .dtic.mil/ndia/2010psannualreview/TuesdayWeatherington.pdf (last access April 23, 2014). 214 Riza, Killing without Heart. 215 Hewish Mark, “Airborne SIGINT Constitutes One Piece of a Larger Puzzle,” Jane’s International Defense Review, (1998), 31, Issue 10, available at: http://catalogue.sipri.org/cgi-bin/koha /opac-detail.pl?biblionumber=54234 (last access May 5, 2014).

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full-motion video sensor ball that includes three cameras, a synthetic aperture radar and laser technology for the purpose of target designation. A detailed video and computerized record of all sorties is maintained and archived, providing a solid audit trail of operations. There are three networks for communication: a secure Internet-based chat function, a secure radio routed via satellite and a secure telephone system.216 Another important development occurred when the U.S. Navy recently started testing new prototypes of UAVs that should be able to take off from the deck of carriers. This prototype should also be able to fly as far as 1500 nautical miles without the need to refuel. Moreover, as with all unmanned systems, no constraints of pilot psychology are involved.217 This may significantly boost the carrier combat capabilities. As some of the new technologies are being developed or maybe even tested under classified programs of the American armed forces, we may only speculate about the extent to which these new capabilities will be used. In the age of Al-Qaeda changing from centralized organization into international decentralized network of loosely connected cells throughout the world, questions of targeting even U.S. citizens involved, pose a serious issue. The Boston marathon bombing represents a new sort of challenge for counter-terrorism. At the present time, it seems that UAV strike on U.S. citizen represents a limit for the so-called drone policy. Some drone trade groups claimed that their UAVs may be helpful in such emergencies, such as the Marathon bombing.218 In this case they would be used as a tool for first responders rather than a lethal platform. These technologies would provide first responders with a new perspective as the unmanned aircraft can monitor the area for longer periods of time and can access areas that are dangerous for manned platforms. Newly arising issue with many different challenges and opportunities to deal with is the notion of using unmanned systems in the U.S. airspace. Their airworthiness is currently under the scrutiny of the FAA and many other governmental and non-governmental bodies. Recreational use of 216 Emmerson, “Report of the Special Rapporteur.” 217 “X-47B Completes Historic At-Sea Period Aboard Truman,” Navair News, available at: http:// www.navair.navy.mil/index.cfm?fuseaction=home.NAVAIRNewsStory&id=5223 (last access January 9, 2013). Also see: “X-47B UCAS, Northrop Grumman,” available at: http://www .as.northropgrumman.com/products/nucasx47b/index.html (last access January 9, 2013). 218 Jason Koebler, “Industry: Drones Could Have Helped Boston Marathon Bombing Responders,” US News, available at: http://www.usnews.com/news/articles/2013/04/16/industry -drones-could-have-helped-boston-marathon-bombing-responders (last access April 21, 2014).

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small UAVs has already been widely reported on and the regulations are being reevaluated over and over again. One of main problems is their mishap rate and the question of their ability to avoid other air traffic. Although the question has not yet been answered satisfactorily, the implementation of UAVs in the U.S. has many supporters pushing lawmakers to approve it. Significant part of Congress members are apparently in favor of the idea.219 It is noteworthy that lawmakers in various U.S. states receive large funds for UAV programs from PACs or corporations and firms. Most of these are members of Association for Unmanned Vehicle Systems International (AUVSI).220 Another serious problem is the possibility of invasion of privacy. Using UAVs in USA is a grave challenge to privacy rights, perceived very sensitively. Skeptics worry the most over government eavesdropping, surveillance photography and other potential legal violations. One known case of using national security surveillance information from Customs and Border Protection, gathered from a high-flying Predator drone was in 2011. The SWAT team was able to arrest a farmer in North Dakota thanks to information received from the Predator.221 The farmer engaged in armed standoff with police officers over the disappearance of his neighbor’s cows. According to Richard Whittle in Predator: The Secret Origins of the Drone Revolution, in 1995 a Predator drone was briefly used in a counter-drug exercise on the southern border.222 A paper entitled Role of DOD Unmanned Aerial Vehicles for Homeland Security223 aims to identify roles in which the U.S. may leverage the assets of UAVs in the defense of the homeland. There are plenty of potential roles. To name but a few: drug interdiction, port security, disaster relief, search and rescue and border patrol. Obviously, there are many positive roles for various models of unmanned aircraft. Before their deployment, however, there needs to be a thorough analysis of legal matters. The fears of privacy will need to be addressed as a key challenge. 219 Martin, Viveca Novak, “Drones: Despite Problems, A Push to Expand Domestic Use,” available at: http://www.opensecrets.org/news/2012/11/drones-despite-problems-a-push-to-e.html (last access January 3, 1013). 220 Ibidem. 221 Ibidem. 222 Arthur Holland Michel, “Customs and Border Protection Drones, Center for the Study of the Drone,” Bard College, January 7, 2015, available at: http://dronecenter.bard.edu/customsArthur Holland Michel re for re for re for and-border-protection-drones/ (last access November 15, 2015). 223 Hector L. Cruz, “Role of DOD Unmanned Aerial Vehicles for Homeland Security,” US Army War College, March 2010, available at: http://www.dtic.mil/dtic/ (last access April 15, 2014).

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Customs and Border Protection (CBP) is the federal law enforcement agency in charge of border patrol. This agency already uses a fleet of nine General Atomics Predator B and Guardian UAVs224 for surveillance and other activities involving border patrol. In November, 2012, the CBP proposed the acquisition of 14 additional drones at a cost of $443 million.225 Outside CBP, UAVs are also being used by other agencies in domestic settings. The NASA-sponsored Environmental Research Aircraft and Sensor Technology (ERAST) program has produced civilian UAVs to monitor pollution and measure ozone levels. The Massachusetts Institute of Technology has been involved in developing Global Positioning Systems (GPS) and video camera guidance for using UAVs to locate and identify toxic substances, the Department of Energy announced in 2003, they would test UAVs outfitted with radiation sensors to detect potential nuclear reactor accidents.226 Using unmanned technology in areas dangerous for humans is the first and foremost advantage. Many federal and state organizations charged with maintaining security and defense of the homeland are operating under strained budgets since the financial crisis started, i.e., the Northern Command (NORTHCOM), Immigration and Customs Enforcement (ICE), Customs and Border Patrol (CBP), Drug Enforcement Agency (DEA), Federal Bureau of Investigations (FBI), Border Patrol, Coast Guard, state and local police departments. In order to improve their capabilities they need to use all the know-how available and get rid of redundant capabilities in an effort to save money. 227 The DOD’s UAVs offer capabilities but the costs are yet to be discovered. The intent of this chapter was to point out the most important challenges, opportunities as well as to list all the activities that are affected by the introduction of UAVs in U.S. national security. The main themes discussed in the United States are legal, ethical questions and their strategic value in the War on Terror. In terms of introduction of the technology in the domestic U.S. airspace, the recent developments prove theories of its growing presence and importance, to be true. 224 Michel, “Customs and Border Protection Drones.” 225 Andrew Becker, “Border Agency Looks to Expand Drone Fleet,” California Watch, November 19, 2012, available at: http://californiawatch.org/dailyreport/border-agency-looks-expand -drone-fleet-18678 (last access November 15, 2015). 226 Chad C. Haddal, Jeremiah Gertler, “Homeland Security: Unmanned Aerial Vehicles and Border Surveillance.” Congressional Research Service Report for Congress, Library of Congress, July 8, 2010, p. 2, available at: http://www.fas.org/sgp/crs/homesec/RS21698.pdf, (last access January 2, 2013). 227 Cruz, “Role of DOD Unmanned Aerial Vehicles for Homeland Security Cruz,” p. 2.

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Regarding the use of militarized UAVs, it seems, the short-term strategic value of the UAVs outweighs all the challenges. The strategy of targeted killing is still under way and legal actions against such acts are often rejected by the courts. On the other hand, while the issue of ethics will most probably not play a significant role in changing the policy, legal pressure is still present. One of the first achievements of this pressure was a decision of Federal Appeals Court for the Second Circuit, ordering the Department of Justice to release the memorandum legally justifying the targeting of Anwar al Awlaki.228

UAVs in the war on terror Since the terrorist attack of 2001, terrorism has become the major security issue for the United States. Many would argue now, 13 years later that this obsession with terrorism received much more attention than was wise compared to other security-related issues. Moreover this overreaction brought serious changes to U.S. society and laws, especially its security apparatus. There are great numbers of volumes written about terrorism, Islamic extremism and strategies of counterterrorism. This chapter explores the role of unmanned aerial vehicles in the ongoing conflicts between the U.S. on the one hand and global terrorist organizations in foreign countries on the other. The first reaction of the administration of President George W. Bush was one of classic nation states war. It started with the invasion of Afghanistan after the Taliban leadership, then in power, refused to extradite Bin Laden. This was followed by an invasion of Iraq on the grounds that the regime of Saddam Hussein supported Al-Qaeda and that he possessed weapons of mass destruction. The war in Iraq ended in 2011 and American forces are to withdraw from Afghanistan by the end of 2014. There are other battlefields of this Global War on Terror than merely Iraq and Afghanistan. The focus of this research will be on five countries selected as those known to be targets of UAVs in efforts to eliminate terrorist suspects. Those countries are Somalia, Yemen, Iraq, Pakistan and Afghanistan. Each country has its own history regarding American actions against terrorist suspects. Four of these countries are sovereign nations and the USA is using UAVs in their airspace and killing civilians 228 Benjamin Weiser, “U.S. Ordered to Release Memo in Awlaki Killing,” New York Times, April 21, 2014, available at: http://www.nytimes.com/2014/04/22/nyregion/panel-orders-release-of -document-in-targeted-killing-of-anwar-al-awlaki.html?_r=0 (last access May 4, 2014).

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on their territory. As will be shown, these civilian deaths may be extensive or not depending on the rate of strikes and also, on the quality of intelligence. Unmanned systems used in the hunt for terrorists became the main weapon of choice and the strategy of signature strikes is now the main reality of the American presence in these countries. Every succeeding subchapter is introduced by a table of reported strikes and the number of victims, including civilians, even children. These data and tables were collected and analyzed by the Bureau of Investigative Journalism, which is today the only non-governmental, independent source of information on targeted killing and its victims. The precise data may be questionable, but they are used here to illustrate approximate numbers in order to provide a perspective on the rate of strikes and mistaken targets, as well as to clarify and explain the reactions of the respective public or political leadership in countries under scrutiny.

Somalia Table 6 U.S. drone strikes in Somalia 2001–2014229 Covert U.S. operations, Somalia 2001–2014

U.S. drone strikes

Additional U.S. attacks

Total reported strikes

5–8

8–11

Total reported killed

10–24

40–141

Civilians reported killed

0–1

7–47

Children reported killed

0

0–2

2–3

11–21

Total reported injured

American interests in Africa during the Cold War era focused on the containment of Soviet influence. One of the tools to fulfill such goals was funding regimes hostile to communism and the Soviet Union. After the collapse of the Soviet Union, the whole concept of American foreign policy had to be adapted to new challenges. One of these was humanitarian aid in troubled regions and preemptive action in the event of a breach of international order. Somalia was a specific case involving both challenges. After 1991, the fall of the regime of Siad Barre Somalia was left without any effective government. Warlords fighting for influence, a 229 “Obama 2013 Pakistan Drone Strikes,” The Bureau of Investigative Journalism, January 3, 2013, available at: http://www.thebureauinvestigates.com/2013/01/03/obama-2013-pakistan-drone -strikes/ (last access April 13, 2014).

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virtually non-existent system of delivery of vital supplies, such as water or food combined with many other problems caused unprecedented humanitarian crises in the country. The USA decided to engage in an UN-led mission to help Somalia. U.S. armed forces were deployed with the mission to protect convoys delivering vital supplies, not to overthrow any government or to install a new one. The operation of Special Forces in Mogadishu led to a catastrophe that left Americans with bitter feelings about interventionist policy. This changed dramatically in the aftermath of the terrorist attacks on the World Trade Center and the Pentagon. The ongoing conflict in Somalia today is very different. The only presence of any American soldier or unmanned system is brief as the purpose there is to fulfill one simple mission – capture or kill. The American UAV policy says that they strike when capture is not feasible. There are two groups targeted by American UAV strikes and Special Forces operations: the Union of Islamic Courts and Al Shabaab. Al Shabaab is currently well known as a result of their attack on Westgate Mall in Nairobi, Kenya. American covert operations started immediately after 2001.230 These included combined operations of CIA case officers and Special Forces known as Task Force Orange.231 Operations included “seeding” of cell phones monitoring devices all over Mogadishu. The ability to listen to Al-Qaeda phone calls later proved vital for operations including UAVs. Drone strikes started in Somalia in June 2011. The Joint Special Operations Command has its own fleet of armed Reaper drones flying from various bases in the region. These armed unmanned aircraft are part of the War on Terror while unarmed drones are usually operated in support of peacekeeping operations. The first known Predator strike occurred in Al-Shabaab training camp near the city of Kismayo. The targeted militants were allegedly planning an imminent attack on the United Kingdom.232 Overall, there have been an estimated 5–8 UAV strikes in Somalia between 2007 and 2014 with casualties involving approximately 24 indi230 Jack Serle, “U.S. and Others Have ‘License to Ignore International Law’ in Somalia,” The Bureau of Investigative Journalism, (September 24, 2012), available at: http://www.thebureauinvesti gates.com/2012/09/24/us-and-others-given-licence-to-ignore-international-law-in-somalia/ (last access March 20, 2014). 231 Sean D. Naylor, “Clandestine Somalia Missions Yield AQ targets,” Army Times, November 14, 2011, available at: http://www.armytimes.com/article/20111114/NEWS/111140317 /Clandestine-Somalia-missions-yield-AQ-targets (last access March 20, 2014). 232 “Somalia: Reported U.S. Covert Actions 2001–2014,” The Bureau of Investigative Journalism, available at: http://www.thebureauinvestigates.com/2012/02/22/get-the-data-somalias-hidden-war /(last access March 22, 2014).

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viduals. Apart from missile strikes, there are also other kinds of covert operations that left up to 169 people dead according to Bureau research.233 Compared to other countries targeted as part of U.S. counter-terrorism efforts, Somalia has a far lower rate of strikes or other military operations.

Yemen Table 7 Number of U.S. drone strikes in Yemen 2001–2011234 Covert U.S. operations, Yemen 2001–2011

Confirmed drone strikes

Possible drone strikes

Additional U.S. attacks

Total reported strikes

14–17

14–16

8–46

Total reported killed

53–109

33–36

132–235

Civilians reported killed

16–36

3–5

47–73

2

2

21–23

19–41

18–19

18–71

Children reported killed Total reported injured

If Somalia is a failed state, Yemen is an example of a failing state. Yemen is a country experiencing very serious problems of food and water shortages. Exports of oil and natural gas reserves pay for about 70 percent of the government budget. These problems combined with corruption create fertile ground for rebellion. Yemen is also divided into tribes of Sunni and Shia Muslims who fight each other, thus increasing the level of violence in recent years. The conflict escalated when the government took away autonomy from the dominant Shia tribe in the north and supported the Sunnis. Foreign support for these tribes comes from Saudi Arabia and Iran. Moreover, the leaders of these groups are often rich men, involved in unlawful activities. These include smuggling, farming of famous Khat, a drug widely used in Yemen, also smuggled into Saudi Arabia. Khat requires lot of water to grow and therefore adds to water shortages and its widespread use is causing problems with productivity. The problem arises when adult men use the drug, and are unable to work for most of the day.

233 “Militants and Civilians Killed in Multiple U.S. Somalia Strikes,” The Bureau of Investigative Journalism, available at: http://www.thebureauinvestigates.com/2012/02/22/militants-and -civilians-killed-in-up-to-20-us-somalia-strikes-new-study-shows/ (last access April 16, 2014). 234 “Yemen: Reported U.S. Covert Actions 2001–2011,” The Bureau of Investigative Journalism, March 29, 2012, available at: http://www.thebureauinvestigates.com/2012/03/29/yemen -reported-us-covert-actions-since-2001/ (last access April 14, 2014).

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The Sunni religious school in the city of Damaj has thousands of students, mostly foreigners, who are, according to Shia Muslims, radicalized during their studies. These students would often join either the Sunni extremist groups in Yemen or Al-Qaeda and affiliated organizations. Problems with providing basic necessities, such as water and food, combined with corruption, tribalism and religious division, create perfect conditions for safe havens and hotbeds of radical terrorism. Yemen became known in the U.S. discourse thanks to the USS Cole bombing in October 2000. Later again, on two occasions connected to terrorist plots – the Christmas day bomber and Al-Qaeda in the Arabian Peninsula efforts to send bombs to Chicago synagogues.235 AQAP was established in 2009 and, since then, managed even to eclipse the core Al-Qaeda as a threat to U.S. national security. Even the National Counterterrorism Center Director, Michael Leiter, referred to AQAP as the most significant risk to the U.S. homeland in Congressional testimony in 2011.236 As is the case in Somalia, the main responsibility for counter-terrorism in Yemen is within the U.S. Department of Defense. The covert CIA war using UAVs started in Yemen in 2002. In 2012, the U.S. decided to support the Yemeni government in its fight against Al-Qaeda affiliated militants. UAV strikes in Yemen are conducted by both the Pentagon and the CIA. In the case of Yemen, the U.S. Government usually confirms most of the strikes. Moreover, these operations of unmanned aerial vehicles are just a part of more complex strategy in Yemen. The USA also uses cruise missiles, conventional jet aircraft strikes and cooperates with the Yemeni government, which carries out its own attacks on the militants.237 There are also efforts to address underlying reasons for radicalization.238

235 John Brennan, “U.S. Policy toward Yemen,” Washington D.C., Carnegie Endowment for International Peace, (December 17, 2010), available at: http://carnegieendowment.org/files /Brennan-transcript.pdf (last access April 26, 2014). 236 Christopher Boucek, “Evolution of Al-Qaeda in Arabian Peninsula,” Carnegie Endowment for International Peace November 1, 2011, available at: http://carnegieendowment .org/2011/11/01/evolution-of-al-qaeda-in-arabian-peninsula/8kpa (last access April 29, 2014). 237 “Drone Strikes in Yemen,” The Bureau of Investigative Journalism, available at: http://www .thebureauinvestigates.com/category/projects/drones/drones-yemen/ (last access April 26, 2014). 238 Developments of 2015 including civil unrest and subsequent military intervention of Saudi Arabia in the country significantly altered the situation, but as the original text focused on events until 2014 and the issue would require more space than was initially allocated, the author decided not to delve into analysis of this new reality.

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Afghanistan Afghanistan was arguably the first theater for the War on Terror immediately after the 9/11 attacks. The NATO operation was intended to dismantle Al-Qaeda and destroy its safe haven by eliminating the Taliban. The military operations started in late 2001 and the withdrawal of all NATO forces is due in 2014. According to the Emmerson’s report to the UN General Assembly, the number of remotely piloted aircraft weapon releases rose from 294 in 2011 to 447 during the first 11 months of 2012. According to data released by the United States Central Command in January 2013, remotely piloted aircraft then accounted for 1 in 4 of all air weapon releases by the International Security Assistance Force (ISAF).239 Table 8 Number of AUV strikes in Afghanistan 2008–2012240 Afghanistan

Total armed drone sorties

Total missiles fired by drones

Total drone strikes

2008

3,240

195

130

2009

6,126

257

196

2010

9,182

279

206

2011

10,321

294

238

2012*

7,612

333

245

Total

36,481

1,358

1,015

*Year to October 31, 2012

Civilian casualties caused by armed UAVs were according to Emmerson first reported in February 2002. These were recorded by the United Nations Assistance Mission in Afghanistan.241 Their report covers targeted killings on both sides of the conflict. The Taliban, in particular, is behind most deliberate killings of civilians. These killings were usually carried out in order to warn those who would support the Government. Civilian deaths of UAV strikes in Afghanistan account for less than one 239 Emmerson, “Report of the Special Rapporteur.” 240 Chris Woods, Alice K Ross, “Revealed: U.S. and Britain Launched 1,200 Drone Strikes in Recent Wars,” The Bureau of Investigative Journalism, December 4, 2012, available at: http://www .thebureauinvestigates.com/2012/12/04/revealed-us-and-britain-launched-1200-drone-strikes -in-recent-wars/ (last access April 12, 2014). 241 UNAMA, “Afghanistan: mid-year report 2013: Protection of Civilians In Armed Conflict,” Kabul, July 2013, available at: http://unama.unmissions.org/LinkClick.aspx?fileticket=%20 EZoxNuqDtps%3d&tabid=12254&language=en-US (last access April 28, 2014).

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percent of all civilian casualties, according to reports. Still, there are several known cases of UAV strikes, when non-combatants were killed. The justification of the ISAF often states that the target was a mid to high-level insurgent, whose detention was not feasible.

Pakistan In the case of Pakistan, it is important to highlight how complex and complicated are the relations of the two countries. The geopolitical position of Pakistan in the region and its history are at the core of this complexity. Their relations with the United States are greatly influenced by other nations, namely India, Afghanistan, Iran, China, Russia, and Israel. All these nations have their own agenda in the region and try to influence U.S. policies. The CIA campaign, including UAV strikes in Pakistan was launched in 2004. After the assassination of Benazir Bhutto in late 2007, President Bush authorized a broad expansion of UAV strikes, not only against Al-Qaeda operatives, but also against the Taliban and other militants allegedly threatening the stability of Pakistan.242 According to the New America Foundation analysis, the strike rate peaked in 2010 at 122.243 Until 2012 the Obama administration would not acknowledge its UAV campaign in Pakistan.244 This official denial was in large part in deference to the Zardari administration in Pakistan. The acquiescence to the any U.S. counterterrorism efforts, including UAV strikes was always conditional. There was always serious suspicion on both sides, which deepened after the Osama bin Laden raid.245 Later, in 2014, the U.S. administration agreed to halt their strikes while the new Pakistani administration pursued their peace talks with the Taliban. However, signature strikes targeting Al-Qaeda operatives were not part of this agreement.

242 David Kilcullen, Andrew McDonald Exum, “Death From Above, Outrage Down Below,” The New York Times, May 17, 2009, available at: http://www.nytimes.com/2009/05/17/opinion/17 exum.html?pagewanted=all&_r=0 (last access April 26, 2014). 243 “Key Findings in the Pakistan Drone War,” New American Foundation, available at: http:// natsec.newamerica.net/drones/pakistan/analysis (last access March 22, 2014). 244 “Barack Obama Admits U.S. Drone Strikes on Pakistan,” The Telegraph, January 31, 2012, available at: http://www.telegraph.co.uk/news/worldnews/northamerica/usa/9050993/Barack -Obama-admits-US-drone-strikes-on-Pakistan.html (last access April 28, 2014). 245 Tara McKelvey, “Covering Obama’s Secret War,” Columbia Journalism Review, available at: http://www.cjr.org/feature/covering_obamas_secret_war.php?page=all#sthash.dGoSWgmd .dpuf (last access April 22, 2014).

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There is a set of options for the insurgents in affected countries to react to the efficient strategy of targeted strikes. The high altitude, combined with the fact, there is no sophisticated air defense and lack of cyber warfare capabilities basically rule out direct action. Militants then focus on reprisals against locals accused of working for the CIA.246 There are many cases reported from Iraq in particular of reprisals of militants against civilian population accused of collaboration with the enemy. This violence of Taliban or Al-Qaeda against local population is an important indicator of how successful is the U.S. counter-terrorism effort. The study of effectiveness of UAV strategy, analyzing the link between the strike and subsequent violence concludes there is a significant impact, particularly in Pakistan. This impact varies from vengeance to deterrence or incapacitation effect. The outcome of the analysis, using the autoregressive model is that the incapacitation effect of strikes is minimal, while the deterrence impact is rather strong.247 Also the public perception of UAVs is embodied in the terminology, used to describe them. Taliban fighters, speaking a Waziri dialect of Pashto, call the UAVs bhungana, “the one that produces a bee-like sound.” Their local adversaries call them ababeel, the name of a bird mentioned in the Quran, sent by God to defend the holy city of Mecca from an invading army by hurling small stones from its mouth.248 Such terms project how people on the ground perceive and cope with the attacks. This technology, in particular, advanced as it is, leads to people in rural areas associate it with something supernatural, or divine.

Iraq The history of Operation Iraqi Freedom (2003–2012) is generally widely known, given the accompanying controversies. There were questions concerning the rationale for the invasion, the legality of the invasion, the false intelligence suggesting the development of weapons of mass destruction, and some other issues related to this American venture. 246 Declan Walsh, “Drone War Spurs Militants to Deadly Reprisals,” The New York Times, December 29, 2012, available at: http://www.nytimes.com/2012/12/30/world/asia/drone-war-in-pakistan -spurs-militants-to-deadly-reprisals.html (last access March 22, 2014). 247 David A. Jaeger, Zahra Siddique, “Are Drone Strikes Effective in Afghanistan and Pakistan? On the Dynamics of Violence between the United States and the Taliban,” December 2011, Discussion Paper No. 6262. 248 Shah Zubair Pir, “My Drone War,” Foreign Policy, February 27, 2012, available at: http://www .foreignpolicy.com/articles/2012/02/27/my_drone_war (last access March 19, 2014).

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After almost a decade of fighting, the U.S. forces left the country, which was ridden with sectarian violence. President Obama made the issue of withdrawal, one of his campaign slogans in 2008 and, once elected, he called it a “responsible way to end the war.” UAVs were deployed during the war, where forces were still involved on the ground and there were 48 known strikes in 4 years.

Table 9 Number of AUV strikes in Iraq 2008–2012249 Iraq 2008

Total armed drone sorties 5,558

Total missiles fired by drones

Total drone strikes

60

43

2009

5,300

4

4

2010

3,378

0

0

2011

2,773

1

1

2012*

0

0

0

Total

17,009

65

48

*Year to October 31, 2012.

Iraq still faces serious security problems related to sectarian violence that started after the 2003 invasion of U.S. forces. The Islamic State in Iraq and the Levant active in both Iraq and in Syria demonstrate the capability and audacity of Al-Qaeda affiliates. In early 2014, the group, known also as ISIL took over the major city of Fallujah.250 Developments, including the joint operations of allies, and, more recently, entrance of Russian air and ground forces countering the rise of ISIL caused a major change of geopolitical reality in the region. Unmanned technology is being employed to a large extent for both intelligence gathering, for the target acquisition, as well as carrying out the strikes. U.S. unmanned aircraft, although present in significant numbers, are by no means the only ones flying in the region. After Iraqi Prime Minister Nuri Kamal Al-Maliki asked President Obama for help, the U.S. provided the Iraqi government with surveil249 Woods, Ross, “Revealed: U.S. and Britain Launched 1,200 Drone Strikes in Recent Wars.” 250 “Al-Qaeda-linked militants seize control of Fallujah,” France 24, April 1, 2014, available at: http://www.france24.com/en/20140105-iraq-promises-crush-terrorists-who-control-fallujah /#/en/20140104-al-qaeda-linked-militants-seize-control-fallujah/?&_suid=1398776946915027 86362392923375 (last access April 20, 2014).

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lance UAVs and Hellfire missiles. Some in the Iraqi administration suggested the option of American-operated armed Predators. The problem with this idea is the possibility of nationalism backfiring once again. As Mr. Maliki runs for the third term, he must balance these two interests.251 On one hand, he needs U.S. assistance to deal with the increasing violence. On the other, any direct involvement of U.S. forces would only provoke greater nationalist reactions. The American War on Terror in Somalia and Yemen faces failed or failing states, where there is virtually no authority to challenge the American UAV strategy. Both these countries are in a state of constant war with multiple players. In addition to conflicts, there are also problems of providing the basic needs of the people that fuels their radicalization. The sectarian violence in Iraq is a great challenge to the Iraqi government seeking to rebuild the country after the ousting of Saddam Hussein. The conflict in neighboring Syria is another, if not the most significant factor in rising tensions in the region. Afghanistan remains the battlefield of the War on Terror. The negotiations about the Bilateral Security Agreement have yet to be accomplished as late President Karzai refused to sign them. The case of Pakistan is a special one, different from all the others. The government is not as fragile as in Somalia, Yemen or Afghanistan. The country is not in such turmoil as is Iraq. Relations of the government, and its secret service with the Taliban are more complex than in other countries. The geopolitical situation is also different, given Pakistan’s nuclear weapons arsenal. Pakistan is one of vital partners in the region with major influence and challenging relations with neighboring countries. In each of these countries the U.S. strategy of UAV strikes the Al-Qaeda operatives or affiliated militants or, in some cases, anti-government insurgents. This strategy was so far, successful in eliminating the important leaders of Al-Qaeda. But targeted killings also caused civilian casualties either as collateral damage or by misguided intelligence. Counterterrorism and UAV strategy as its pivotal part became a major part of bilateral relations between the U.S. and each of the countries.

251 Michael R Gordon, Eric Schmitt, “U.S. Sends Arms to Aid Iraq Fight With Extremists,” The New York Times, December 26, 2013, available at: http://www.nytimes.com/2013/12/26/world /middleeast/us-sends-arms-to-aid-iraq-fight-with-extremists.html?_r=0 (last access April 20, 2014).

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Revolution in military affairs Theoretical concepts, definitions, schools Amitav Acharya, professor of International Relations and UNESCO Chair in Transnational Challenges and Governance and Chair of the ASEAN Studies Center concluded, that there are several schools trying to define the RMA. 252 He calls them system of systems school, vulnerability school, dominant battlefield knowledge school, and multidimensional school. The system of systems school predicts that future warfare will depend on the ability to tie various platforms and forces into networks.253 That would, for example, signify integration and cooperation of manned and unmanned systems, whether ground, naval or airborne forces. Also, there would be a combination of intelligence, surveillance, precision strike capability, and high tech communication between various systems and military units in order to create the whole structure of war machinery. The vulnerability interpretation worries about adversaries benefiting from the dual nature of new technologies. This school sees technological advancement as offering an advantage over adversaries whilst creating new vulnerabilities. The process of integration itself may pose a threat of inadequate preparedness for new threats. This is especially true, as those who develop the systems, are not always the ones using it in the field. Personnel actually operating them do not necessarily possess required knowledge beyond their operational needs. Moreover, the current strategy of UAVs in the American War on Terror is mostly conducted by the CIA with limited oversight. That is a dangerous precedent for the future for various reasons. First of all, the CIA is operating under the direct control of the White House, thus circumventing the Department of Defense and all traditional structure of American war planning and execution. Secondly the communication between the CIA and other agencies or the military was problematic enough before this technology was implemented. In Iraq, for example there were problems for the pilots

252 “Revolution in Military Affairs, Processes, Problems and Prospects,” Report of a Conference organized by the Institute of Defence and Strategic Studies (IDSS), Singapore February 2005, p. 3, available at: http://www.rsis.edu.sg/publications/conference_reports/RMA_PPP.pdf (last access April 12, 2014). 253 Ibidem.

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of manned aircraft, once the Iraqi airspace was filled with various UAVs resulting in several crashes.254 The dominant battlefield knowledge school works with the hypothesis of advancing sensors to eliminate the problems of the so-called fog of war. Enhanced sensors on UAVs combined with satellite footage and other forms of coverage may, in the end, create perfect awareness of any battlefield, the dream of every military in history. The multidimensional school uses the revolution in networking of several platforms with rapid deployment and Special Forces in military operations. RMA has a potential impact on several levels of strategy. The impact of transformation on organizational culture is one of the most important. The issue of warrior ethos must be considered. The consequences of integrating new technologies are various and should be analyzed thoroughly. The development and operation of these systems require the military to hire personnel very different from the traditional pool. IT specialists and operators must be recruited. This also requires new recruitment procedures and strategies. Peter W. Singer, for example, concludes that experience with video games will be useful for the military.255 Children playing video games will be more qualified to be operators than trained fighter jet pilots. Even if not more qualified, those experienced in playing video games certainly will be less expensive, while equally effective. Such developments will certainly change the organizational structure of the U.S. military. For example, there will be fewer physically trained, combat ready soldiers and more emphasis on IT skilled staff with different set of skills. Frustrations of trained fighter jet pilots transitioning to UAV operators factor in too. The new recruitment strategy should make avoiding this problem, a priority. Different kind of people recruited specifically for the age of new warfare should be trained in different way as their predecessors. The reality of transforming warfare, with all its consequences is currently sinking in on military circles, but the main challenges remain yet unaddressed. Grant Hammond of U.S. Air War College argues that the real revolution is not about technology, but, rather, about the fundamental changes in the international system already under way. He concludes 254 Sandra I Erwin, “Controlling Iraq’s Crowded Airspace No Easy Task,” National Defense, December 2005, available at: http://www.nationaldefensemagazine.org/archive/2005/December/ Pages/UF-Controlling5482.aspx (last access April 23, 2014). 255 Peter W Singer, Wired for War, The Robotics Revolution and Conflict in the 21st Century (New York: Penguin Press, 2009), Kindle edition.

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that this new era seeks to revise the international system, institutions and treaties of disarmament, non-proliferation, and arms control.256 The unprecedented position of the U.S. as a hegemon, combined with the rising significance of non-state actors in the international system and scientific and technological advancement, is changing the nature of conflict known in the past centuries. Hammond says there are four fundamental transformations of the conflict. The first is globalization, with all the aspects of interconnectedness and interdependence in every sphere of life. Second, the transformation is represented by an advancement in military technology. There are also changes in politics of conflict. The emergence of non-state actors significantly altered the character of warfare. The character of conflict represents the last of the four transformations under way, according to Hammond. National security is not merely an issue of military capabilities of nations anymore. Additional actors include drug cartels, international criminal groups, global news organizations, private military companies, separatist movements and terrorists. Thus, it seems that the technology of UAV and its capabilities are just one of the factors causing the most recent RMA. What led many observers to believe that another RMA is happening now in the U.S. military, is the introduction the long-range precision weaponry and the pervasiveness of surveillance. This specific revolution is attributed to integration of modern technologies in military operations changing military doctrines and organizations and fundamentally transforming the conduct of war.257 The changes in U.S. military operations are mostly due to advances in communication technologies. In order to use the full potential of ongoing RMA, there has to be both technological advancement and well-trained personnel to operate such systems. The advantage of the U.S. military is exactly in this combination of technological superiority and personnel to use it. American effectiveness in fighting Iraqi forces during the first Gulf war amazed observers. It became evident that a combination of precision strike capability, special training and appropriate doctrine could become the core of defense of American national interests with unprecedented efficiency.258 This revolutionary new methodology seemed like the solution to post-Cold War world issues. New technologies, if implemented properly in war, could enable the United States to respond efficiently 256 “Revolution in Military Affairs.” 257 “Revolution in Military Affairs.” 258 Metz Steven, Kievit James, Strategy and the Revolution in Military Affairs, from Theory to Policy, June 27, 1995, p. 1.

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without putting many servicemen and women in harm’s way. This ideal of cost effectiveness, later accompanied by the pursuit of impunity, became a sort of an obsession of the U.S. administrations. An interesting and crucial debate, between military historians and defense experts, as to whether the current RMA is driven solely by new technology, or if it is based on a combination of political, social, and technical factors together raises major questions. Dr. Earl H Tilford confirms the above stated obsession with the American conduct of war, what he calls pursuit of “silver bullet” that would deliver victory swiftly and with minimal losses.259 In the research paper260 on RMA, written in 1995, Tilford expressed concerns about crafting a strategy for the Revolution in Military Affairs that are lately proving to be somewhat prophetic. To lay observers of the U.S. drone program, it often seems as if the U.S. military is being led, or even dragged by the RMA. The Obama administration and several governmental, defense-related agencies are discussing the strategic questions. The United States Air Force Unmanned Aircraft Systems Flight Plan 2009–2047 is an example of such discussions. This plan outlines problems with the deployment of UAVs and at the same time proposes solutions. According to the authors of the plan, the USAF must immediately initiate positive actions at all levels to establish a long term, sustainable, normalized UAS culture. The plan addresses specific steps for management. One such step is to adjust UAS pilot development path to include pay and career incentives.261 These are very specific recommendations, and it is clear that U.S. Air Force is addressing the issue of unmanned systems with serious analysis and is able to focus on long term goals, not just day-to-day problems. “The tools and tactics of the war have evolved with military technology for at least two hundred years. The proliferation of weapons and the fact that tools of warfare are becoming a marketplace commodity is in the end determining the when, where and how the war is fought.”262 259 Earl Tilford H., “The Revolution in Military Affairs: Prospects and Cautions,” Defense Technical Information Center, June 23, 1995, p. 1. 260 Steven Metz, James Kievit, “Strategy and the Revolution in Military Affairs, from Theory to Policy,” Defense Technical Information Center, June 27, 1995, p. 1. 261 United States Air Force, United States Air Force Unmanned Aircraft Systems Flight Plan 2009-2047, Headquarters, Washington, May 18, 2009, p. 30. 262 Arthur K. Cebrowski, John Garstka, “Network-Centric Warfare – Its Origin and Future,” Proceedings Magazine, January 1998, vol. 124/1/1, available at: http://www.usni.org/magazines /proceedings/1998-01/network-centric-warfare-its-origin-and-future (last access April 20, 2014).

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These are the words of Vice Admiral Arthur K. Cebrowski in 1998. The Vice Admiral writes that the revolution in military affairs grew from the fundamental changes in American society dominated by the co-evolution of economics, IT, and business processes. Cebrowski saw the possibilities these changes brought, as an inspiration for the military. According to him, the shift to information technology has a potential to change the way we fight wars. The most important effect of IT in military is the speed of command. This speed has three parts: 1. The military achieves information superiority and thus increases its awareness of the battlefield; 2. Speed combined with precision increases the effect of actions taken; 3. The result of the rapid action is an immediate closure of course of action of the enemy. Use of information technology in the military is thus disruptive to enemy’s strategy.263 Attributes of the current military use of UAVs in the U.S. National Security Policy is the embodiment of this very model. High-tech sensors coupled with computing power at the National Security Agency, allegedly providing intelligence to UAV operators while processing data received from UAVs, armed with hellfire missiles, high-speed internet connection between operator in the U.S. and the unmanned system in the battlefield makes network-centric warfare idea a reality.

Control

Objects Sensors

Information grid

Information

Information

Sensor grid

Command & control

Control

Shooters Information

Engagement grid

Figure 4 Logical network-centric warfare model264 263 Cebrowski, Garstka. 264 Cebrowski, Garstka.

Negated objects

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The structural or logical model for network-centric warfare is composed of an information grid, a sensor grid, and an engagement grid. In case of currently deployed unmanned platforms, the information grid is the computing capacity. The sensor grid is represented by high definition cameras and a variety of highly sensitive and enhanced sensors. The engagement grid would then be a weapons system attached to the unmanned vehicle – currently the Hellfire missile in case of the MQ-1 Predator and MQ-9 Reaper. In case of reconnaissance and surveillance operations of unarmed UAVs, the engagement grid may be any other means of kinetic force, e.g. cruise missile, Special Forces commando or any manned aerial platform. The UAV would provide information and a sensor grid for other platforms, manned or unmanned, that would then proceed to act. Vice admiral Cebrowski concluded that …“for nearly 200 years, the tools and tactics of how we fight have evolved with military technologies. Now, fundamental changes are affecting the very character of war...265 His ideas and excitement falls into era of so-called “dotcom hype” of 1990s when exciting new technologies were being employed in business, changing the market of big IT companies and corporations. The author claimed that these new capabilities will contribute to disruptive change in all areas of human activity, ranging from business to military. This vision was put to the test during the ongoing War on Terror. Disruptive change, by definition, is one that fundamentally transforms the whole industry. Singer, for instance, used a useful example of how the music industry has been completely changed by online file sharing. Disruptive change is the core of any revolution in military affairs. It does not have to be just a new technology or a new weapon employed in the war. The revolution may be started also by a whole new model of organization and tactics, as well as strategies in war.266 The vital part of RMA is the ability to harness the new technology and its capabilities. Also, the pace of transition from inventing the revolutionary capability and actually using its full potential is very important. While it took centuries to understand how effective longbows could be in the Middle Ages, the significance of railroad and steam engines, or radio and airplanes was understood more rapidly. The network centric warfare model is about the ability of speedy information sharing. By definition then, the scope of this current RMA is the greatest in history. The model 265 Singer, Wired for War, The Robotics Revolution and Conflict in the 21st Century. 266 Ibidem.

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predicts that the communication between forces on the frontline and commanders would be as fast as if they were sharing the information in real-time. That would be a prerequisite for absolute battlefield awareness and increased force effectiveness.267

Warrior ethos and just war One very important aspect of the revolutionary potential of UAVs is its ability to change the experience of war itself. During Operation Iraqi Freedom, operators of UAVs had an opportunity to see the siege of a villa in Mosul where sons of Saddam Hussein barricaded themselves. Off-duty soldiers gathered in the control room in Qatar military base to watch the battle and cheered the explosions on the screen.268 The fact that the operator is operating solely through a screen in the control room distant from the battlefield represents a new set of major problems. The meaning of “going to war” has changed significantly with unmanned, remotely-piloted systems employed in warfare. There are two aspects to this issue. First of all, operators of the unmanned systems are soldiers engaged in war actively performing military operations without having to leave their homeland or their families. The second problem is that the only experience operators have with war is through the screen. Their war experience is comparable to that of playing video games. The difference is that this “game” has very real and serious consequences for those on the receiving end. Not to mention psychological effects for operators in the long term. The question of morality in warfighting has been dealt with in various academic and philosophical texts. James Der Derian addresses the issue when he explains how a technologically superior power, in this case, the USA, is able to create a virtual reality while fighting a war. 269 Der Derian found a connection between seemingly unrelated issues. Video games, war movies, media spectacles, and new technologies together create a virtual reality that gradually rising number of people basically live. Moreover, this reality creates an illusion of surgical precision, low risk and clean wars. Some authors, such as Peter Singer predict that gamers raised in this virtual reality will be the new class of warriors. 267 Ibidem. 268 Ibidem. 269 James Der Derian, Virtuous War: Mapping the Military-Industrial-Media-Entertainment Network, (New York: Routledge, 2009), Kindle edition.

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Shane M Riza writes on the same issue from a more practical point of view. The only thing that the pilot, or later the public, could see from the battlefield is the images on a screen. The strike then looks like a clear shot and it may even look merciful. What is not on that screen, is the suffering and blood of the victims. It looks like there is a possibility to fight a war without blood, mud and dirt that was always an instrumental part of warfare. The precision capability highlights the illusion of being morally on the high ground. Such a precise strike seems to be the most humane way of waging a war, killing instantaneously.270 The fact that the operator is so far from the actual battlefield, allegedly makes him less emotionally affected, and thus he should be able to make the right decision and save lives. Or to take only those he intended to. The experience of UAV operators is incomparable to anything else in history. Although they never left Nevada control centers, they gradually became combat effective and vital part of warfighting in Afghanistan and Iraq. Singer uses the term “cubicle warriors” to describe UAV operators. As he describes, the computerization of the society has significantly changed experience in modern industry and military seems to follow suit. “Going to war now means sitting in the office building, watching screen and dragging mouse.”271 Moreover, as operators can switch from one UAV to another, for the first time, they may virtually be deployed in various areas instantaneously. That is a whole new experience of war. The issue of distance, time and space do not play a role anymore. The problem with the distance between cubicle warriors and the battlefield they are engaged in, has multiple aspects. Psychologically, it is challenging to switch almost on daily basis between being at home and the military deployment. Operators, although not physically present in the environment of direct military action, are suffering from posttraumatic stress disorder and other symptoms. The capability of the UAV to fly over the target for hours and days has a negative aspect to it. While the jet fighter pilot has no possibility to see the aftermath of his strike, regular operation of UAV often includes staying on the target to confirm that the strike was successful and to strike again if needed. Emotional distance is thus overcome and the operator is fully aware of consequences of his action. This may be both beneficial and burdensome for the operator. On one hand, the operator is not becoming a player of a video game 270 Martin Kudrec, Robotizácia amerických ozbrojených síl medzi rokmi 2000–2011 a jej perspektívy do roku 2020. Prague: Fakulta sociálních věd, 2011, p. 13. 271 Singer, Wired for War, The Robotics Revolution and Conflict in the 21st Century.

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depersonalizing war, whereas, on the other hand, the acknowledging and understanding consequences of his action may cause additional stress. Another issue entails consequences for the future, and that is what class of warriors we are creating with such a strategy. Here it is vital to mention the concept of warrior ethos. Defining this term “begins with the manner in which those in profession of arms view their craft.”272 It is the question of perception of the role of warrior of both soldiers themselves and the broader public. This has historical and cultural roots and an impact that even transcends war. As Christopher Coker concludes, modern societies are post-heroic and show an unhealthy interest in war without displaying an equal interest in warriors. Few people would in present times see war as noble or even glorious.273 Both Riza and Coker agree that what makes the war an ethical activity, is the warrior ethos. In light of previous chapters, it is only fitting to ask how relevant this ethos is. When the new generation of cubical warriors steps in, what will war mean for them and will they even perceive themselves as warriors? When referring to the term warrior it is important to point to the shift of thinking in the western societies after the experience of two world wars, the first one in particular. If the society of the nineteenth century expressed their admiration and respect for warriors willing to die for their nation, the Great War and the literature of that time changed the perception about organized violence. The character of war changed when there were millions of people dying on European battlefields without achieving anything. A deep skepticism towards war is more common than any sort of admiration for those who fight them. The fact that there are now several generations who can imagine the world without war is a precedent. So, while ancient Greeks saw war as an essential part of life, modern society considers war as part of governmental hypocrisy. The Iraq war is the most recent example of how the U.S. society views war. While support for the war itself was low from the beginning and fell quite rapidly over the years, the soldiers are still perceived as heroes. So somehow we see soldiers as being separated from the war itself. The soldiers are just doing their job while the government is using them to fight its unlawful, hypocritical or unjust war. We no longer see soldiers as warriors; we see them as professionals in the hands of the government dying in a conflict, nobody even wants to fight. It is difficult to see the warrior ethos as being currently relevant 272 Riza, Killing without Heart. 273 Christopher Coker, The Warrior Ethos, Military culture and the War on Terror, (Routledge, London: 2007), Kindle edition.

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at all. Moreover, if we add technology, and the capacities of the U.S. military to pursue impunity in the war, the scenario where more autonomous robots will eventually overtake the role of a warrior, seems more plausible than ever. The idea of the just war is also gravely affected by the last decade of U.S. wars. Terrorist attacks, the fear and anger combined with the arguably hysterical emphasis on the terrorism as the main threat to the U.S. national security created the atmosphere that resulted in public support for the large scale military invasion in Afghanistan. In order to hunt down or kill terrorists U.S. society was willing to accept and support a military invasion of another country and strengthening of the U.S. internal security establishment. An essential part of these changes was the Authorization for Use of Military Power and a secret executive order giving the CIA once again the authorization to kill individuals posing a threat to the USA. In this regard, the use of UAVs by the military may be considered as following the just war tradition of proportionality, preventing large scale wars and limiting civilian casualties. But the USA is also conducting a secret war by allowing the CIA to run its UAV program. Mark Mazzetti writes: “(…) The White House was most interested in were leads about the whereabouts of specific Al-Qaeda operatives, not broader subjects like the level of support Al-Qaeda had in the Muslim world or the impact that American military and intelligence operations might have on radicalizing a new generation of militants. The CIA focused its efforts accordingly.”274

This is a real danger for both the warrior ethos concept and just war tradition. Transparency issues and the possible indiscriminate nature of strikes conducted by the CIA are reasons to believe that the effort to make the war on terror a just one is being diminished.275

274 Mark Mazzetti, The Way of the Knife: CIA, a Secret Army, and a War at the Ends of the Earth, (New York: The Penguin Press 2013), Kindle edition. 275 Daniel Brunstetter, Megan Braun, “The Implications of Drones on the Just War Tradition,” Ethics and International Affairs, vol. 25, no. 3, Fall 2011, pp. 337–358.

IV. Conclusion

Consequences of terrorist attacks in 2001 on international relations and on the American society has been analyzed in great volumes over the last fifteen years. This book’s aim is to contribute to this debate with focus on two crucial areas – understanding of the right to privacy and the conduct of a war. Authors of this study prove that the impact was transformative and with long lasting consequences. The right to privacy has experienced a dynamic development since it was defined for the first time as the “right to be alone” at the end of the 19th century. Even though the right to privacy is not explicitly defined in the Constitution, legal tradition, based to a great extent also on the Supreme Court rulings, ranks it among the constitutionally protected personal liberties, arising especially from the First and Fourth Amendments, as it relates to the value of human dignity and creates a protected space from where intrusive acts of both other individuals and the government are excluded. In the 20th century, the right to privacy developed and its boundaries in respect to the surveillance authority of the government were gradually shaping. In a number of rulings, the Supreme Court defined what is the protected private sphere of an individual and what is already a search under the Fourth Amendment warrant requirement. As the technology was evolving and new eavesdropping possibilities were emerging, the Supreme Court had to reflect these also in the interpretation of the Fourth Amendment searches and seizures. Therefore a question emerged, whether the search warrant requirement applies also to foreign intelligence surveillance. The Foreign Intelligence Surveillance Act of 1978 provided clear legal boundaries for surveillance of potentially dangerous foreign individuals and organizations suspected of acting on behalf of foreign powers. More-

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over, FISA supported the system of checks and balances through the oversight of the surveillance programs and ensured separation of tools necessary for intelligence gathering from the ones of criminal investigation by law enforcement. More than two decades later, the terrorist attacks of 9/11 and the subsequent FISA amendments and the USA Patriot Act breached the legal wall between warrantless authorities of the foreign intelligence surveillance apparatus and the domestic law enforcement. Based especially on the Patriot Act, the United States has over the years since 2001 developed a complex network of security measures limiting privacy not only of its citizens to minimum. In 2007, the United States was even ranked as an endemic surveillance society. Has the United States shifted from the land of freedom to the land of surveillance? The clash between privacy rights and the surveillance measures to protect the country from threats has been a hot topic in the U.S. society especially since the Snowden’s revelations in 2013. Revelation of the two NSA’s secret programs provoked outrage in the U.S. public and also concerns about their constitutionality. As the respective chapters show, not only constitutionality, but also compliance with the statues the programs supposedly arise from has been judicially challenged. Constitutionally, there is the question whether the government has engaged in Fourth Amendment searches. This issue has been dealt in court cases that build on different assumptions. The American Civil Liberties Union v. Clapper is based on the Smith v. Maryland Supreme Court ruling of 1979, according to which dialing a phone number does not constitute an expectation of privacy and therefore is not protected by the Constitution. On the other hand, Klayman v. Obama concluded that the Smith case could not be applied, as it does not fit today’s reality. Long-term collections create a wealth of detail, revealing one’s privacy. The court ruled, that the bulk collection of metadata was an unreasonable search under Fourth Amendment. The appeals court in the ACLU v. Clapper vacated the district court’s judgment and remanded the case to the district court. Proponents of the bulk collection program argue, that considering the program unstatutory is only one of possible interpretations of Section 215, given the fact that two Administrations and a number of experts considered it in good faith in compliance with Section 215. It is obvious, that legality and constitutionality of the NSA surveillance programs, especially the bulk collection, is controversial. Does it mean that the United States really forgot how freedom is important for it?

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In times of crisis, the balance between personal liberties of people and national security is disrupted in favor of increased number of surveillance measures. This is not a new feature, there were eras in history – for example the so-called Red Scare or later the McCarthyism – when people whose loyalty was questioned faced higher level of surveillance, intimidation and detention. In this sense, the 9/11 attacks started a new wave of fear and the security surveillance apparatus flourished. What was in the first years after the attacks considered appropriate is now being more questioned if not denied as intrusive. This social phenomenon is called pendulum effect and states that the sense of threat naturally curtails personal liberties and weakens the civil rights protection. However, as soon as the danger passes, the scope of freedoms and liberties naturally recovers. The United States has not experienced any further terrorist attack comparable with the 9/11, therefore the pendulum swung back. The study intentionally avoids the question what is the level of threat the United States has been facing since 2001 as relevant data is not available and therefore it cannot be measured. Pointing out to a threat belongs to arguments justifying the security measures that cannot be really disproved nor proven. It is evident that after fifteen years the U.S. society is ready to redefine and cut back surveillance compared to, for example, France, which after the Charlie Hebdo attack adopted a comprehensive legislative giving its authorities very intrusive spying tools. The issue of privacy and security offers many aspects whose future development will be interesting to study deeper. The U.S. authorities are able to control personal data of non-Americans and PRIMS program remains still in effect. The extent of the U.S. control over European data shocked many countries, especially Germany that started to seek how to get its data under its control. In October 2015, the Court of Justice of the European Union stopped the Safe Harbor decision of the European Commission permitting transfer of European data to the United States. The ruling is based on the fact that the U.S. cannot guarantee European level of data protection. We can conclude – even though the process has not ended – that the United States is returning to freedom again. In a reaction to the post 9/11 legislative changes a number of civil rights organizations emerged which contributed significantly to general awareness of the problems and initiated lawsuits challenging the provisions, e.g. the American Civil Liberties Union v. Clapper. Also events from the recent months seem to support the optimistic view. The Obama Administration revealed some of

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the secret information about the eavesdropping programs and prompted negotiations of a new bill that would address the security needs without intruding privacy. The bulk collection program expired and the day after the USA Freedom Act was adopted. This law brought to the negotiation table both the surveillance apparatus and the civil rights and privacy advocates who will hopefully continue in their effort to find ways how to restore the balance between security and right to privacy. Chapters devoted to the use of unmanned aerial vehicles outline definitions, history and their current position within the American warfighting toolbox. The study here compares their cost effectiveness with manned platforms and analyze the crucial question of responsibility and accountability. Case studies of five countries where the U.S. is waging its War on terror compare the rate of civilian casualties with the success of strikes in incapacitating insurgents affecting in the end the opinion of local societies. The same factors affect the opinion polls in the U.S. What is vital for this public opinion is media coverage. Given the fact that the main part of the U.S. counter-terrorism involving UAVs is being conducted covertly by the Central Intelligence Agency. On the other hand, the approach of the military is much more transparent and pragmatic as it is faced with the challenge of implementing the new weapon into its established structures. There are various acquisition and operational challenges that the U.S. military has to deal with. The support of traditional military structure is vital for this implementation to be successful. Jet fighter pilots and senior military officers are expected to adjust and accept the new concept of conducting war. Cost effectiveness is providing the executive power with persuasive arguments to pursue this change. The issue of using UAVs in domestic security is much more sensitive for American society. Most agencies in charge of security and defense of the homeland operate under constrained budgets and UAVs may offer needed capabilities. Question of the cost of their integration varies though. Case studies of UAVs in ongoing counter-terrorism efforts give some insight into how the number of strikes is connected to the importance of UAVs in the overall strategy employed in given country. In Somalia, the UAVs are part of covert operations conducted by the CIA and Special Forces. In the case of Yemen, Pakistan and Afghanistan, UAVs play a more important role as a counterinsurgency tool against antigovernment forces usually including Al-Qaeda, affiliated organizations, or the Taliban. The overall success rate of the strategy of UAV strikes varies and usu-

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ally depends on the number of civilian casualties involved. Among the advantages of UAVs over manned platforms, the one of proportionality is cited the most often. The strategy of UAV strikes in practice provides a different perspective though. The extent of the revolution in military affairs caused by the deployment of new technologies in form of UAVs is being put to the test here. Various theoretical schools analyze the RMA – system of systems school, vulnerability school, dominant battlefield knowledge school, and multidimensional school. Each of them sees different aspects of RMA and it is important to consider all of their points of view in order to fully appreciate the scope of any revolution in military affairs. The transformation of organizational structure and a different profile of military personnel required, are the two most important aspects of the current RMA. But the revolution is not happening only in military affairs. The perception of war is changing and there are serious consequences outside military matters that are often overlooked. Revolutionary changes are underway also in the international system and it is a question of interpretation whether UAVs are part of the cause of that change or rather a consequence of it. The network centric warfare model of Vice Admiral Cebrowski offers a framework to put the theory of RMA into broader perspective. Given the multitude of areas directly or indirectly affected by the deployment of the technology, author argues that the UAVs, as currently deployed, present the greatest challenge to military affairs in history, possibly comparable to the invention of nuclear weapons. The strategy of implementing UAVs in combating terrorism falls into a broader process of securitization of American society after 9/11. History of unmanned systems in military use, legal analysis of the challenges these systems pose to the international legal system and to military processes together with case studies demonstrate just how far-reaching are the consequences of introducing armed UAVs. The concept of the warrior ethos is not only about war itself. War is part of the history of humankind and was always instrumental in creating the values our societies are built upon. If the cost effectiveness analysis proves that, in the long run, the unmanned and more autonomous weapons are the weapon of choice in the future, then all of this will change. The limits that are in place when the nation decides to go to war will be overcome. The precision and other capabilities of autonomous warfare will make this eminent human activity of fighting a war for a just cause just another part of the automated process.

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The development of more autonomous systems has been encouraged by the success of UAVs. Issues of robotic warfare, still widely perceived as a topic for science fiction are already affecting lives today. Faced with these technologies, the concepts of just war or of the warrior ethos are seriously challenged. Both these concepts are embodied in legal systems and in the conduct of militaries throughout the world. If the robotics in military render these concepts obsolete and irrelevant, the international system will be greatly challenged as well. And, as past historical experience has demonstrated, such changes do not usually occur peacefully. President Obama is about to leave office in a couple of months. During his presidential campaign, candidate Trump has voiced his support to extensive surveillance apparatus and programs of the NSA. Candidate Clinton is known to be a foreign political hawk and therefore it is expectable that as a President, she would support more extensive use of the UAVs killing terrorists than President Obama does. Right now it is therefore very difficult to predict how the future development in respect to fighting terrorism in the United Sates will evolve. The new President will hopefully appropriately address the security needs of our time while preserving human and civil rights in the greatest possible extent.

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Books Cabada, Ladislav, Michal Kubách. Úvod do studia politické vědy, Prague: Vydavatelství a nakladatelství Aleš Čeněk, 2007. Coker, Christopher. The Warrior Ethos, Military Culture and the War on Terror, London: Routledge, 2007, Kindle edition. Der Derian, James. Virtuous War: Mapping the Military-Industrial-Media-Entertainment Network, New York: Routledge, 2009, Kindle edition. Greenwald, Gleen. No Place to Hide. Edward Snowden, the NSA, and the U.S. Surveillance State, New York: Metropolitan Books. Henry Holt and Company, LLC, 2014. Janda, Kenneth. Výzva demokracie. Sytém vlády v USA, Prague: Slon, 1998. Jentleson, Bruce W. American Foreign Policy: The Dynamics of Choice in the 21st Century, New York: W. W. Norton & Company, 2010, Kindle edition. Mazzetti, Mark. The Way of the Knife: CIA, a Secret Army, and a War at the Ends of the Earth, New York: The Punguin Press 2013, Kindle edition. Riza, Shane. Killing without Heart: Limits on Robotic Warfare in an Age of Persistent Conflict, Sterling: Potomac Books Inc., 2013, Kindle edition. Rule, James B. Privacy in Peril: How Are we Sacrificing a Fundamental Right in Exchange for Security and Convenience, New York: Oxford University Press, 2009. Singer, Peter W. Wired for War, The Robotics Revolution and Conflict in the 21st Century, New York: Penguin Press, 2009, Kindle edition.

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Journal Articles Atkinson, Rush. “The Fourth Amendment’s National Security Exception: Its History and Limits,” Vanderbilt Law Review, vol. 66, no. 5 (October 2013), available at: http://www.heinonline.org. Bergen, Peter, Katherine Tiedemann. “Washington’s Phantom War, the Effects of the U.S. Drone Program in Pakistan,” Foreign Affairs, (2011), available at: http://www.foreignaffairs.com/articles/67939/peter-bergen-and-katherine -tiedemann/washingtons-phantom-war (last access April 24, 2014). Brandeis, Louis D., Samuel D. Warren. “The Right to Privacy,” Harvard Law Review, vol. IV, no. 5 (December 1890): pp. 193–220, available at: http://www .english.illinois.edu/-people-/faculty/debaron/582/582%20readings/right %20to%20privacy.pdf (last access December 14, 2014). Bungard, Jessica M. “The Fine Line between Security and Liberty: The ‘Secret’ Court Struggle to Determine the Path of Foreign Intelligence Surveillance in the Wake of September 11th,” University of Pittsburgh School of Law Journal of Technology Law and Policy, vol. IV, no. 6 (Spring 2004), available at: http:// www.heinonline.org. Cebrowski, Arthur K., John Garstka. “Network-Centric Warfare – Its Origin and Future,” Proceedings Magazine, (January 1998), vol. 124/1/1, available at: http://www.usni.org/magazines/proceedings/1998-01/network-centric -warfare-its-origin-and-future (last access April 20, 2014). Cenciotti, David. “Drone Survival Guide,” The Aviationist, (December 19, 2013), available at: http://theaviationist.com/2013/12/19/drone-survival-guide/ (last access April 12, 2014). Cole, David. “Where Liberty Lies: Civil Society and Individual Rights After 9/11,” Georgetown Public Law and Legal Theory Research Paper No. 12–164, 2012, available at: http://scholarship.law.georgetown.edu/facpub/1119/ (last access November 26, 2014). Copeland, Rebecca A. “War on Terrorism or War on Constitutional Right? Blurring the Lines of Intelligence Gathering in Post-September 11 America,” Texas Tech Law Review, vol. 35, no. 1 (2004), available at: http://www.heinonline .org. Doenges, William S. “Search and Seizure: The Physical Trespass Doctrine and the Adaption of the Fourth Amendment to Modern Technology,” Tulsa Law Review, vol. 2, no. 2 (1965), available at: http://www.heinonline.org.

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Newspaper Articles and Others Ackerman, Spencer. “FISA Chief Judge Defends Integrity of Court over Verizon Records Collection,” The Guardian, June 6, 2013, available at: http://www .theguardian.com/world/2013/jun/06/fisa-court-judge-verizon-records -surveillance (last access December 4, 2014). “Al-Qaeda-Linked Militants Seize Control of Fallujah,” France 24, January 5, 2014, available at: http://www.france24.com/en/20140105-iraq-promises-crush -terrorists-who-control-fallujah/#/en/20140104-al-qaeda-linked-militants -seize-control-fallujah/?&_suid=139877694691502786362392923375 (last access April 20, 2014). American Civil Liberties Union. “Surveillance Under the USA Patriot Act,” available at: https://www.aclu.org/national-security/surveillance-under-usa-patriot -act (last access November 20, 2014). “Barack Obama Admits U.S. Drone Strikes on Pakistan,” The Telegraph, January 31, 2012, available at: http://www.telegraph.co.uk/news/worldnews/northamerica /usa/9050993/Barack-Obama-admits-US-drone-strikes-on-Pakistan.html (last access April 28, 2014). Becker, Andrew. “Border Agency Looks to Expand Drone Fleet,” California Watch, November 19, 2012, available at: http://californiawatch.org/dailyreport/border -agency-looks-expand-drone-fleet-18678 (last access November 15, 2015). Congressman Jim Sensenbrenner. “The USA Freedom Act,” available at: http:// sensenbrenner.house.gov/legislation/theusafreedomact.htm (last access December 5, 2014). Denson, Bryan. “FISA: Understanding the Foreign Intelligence Surveillance Act (FAQ),” The Oregonian, November 26, 2013, available at: http://www .oregonlive.com/news/index.ssf/2013/11/faq_what_is_fisa.html (last access November 28, 2014).

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