Nov. 21, 2016

Panel discusses the impact of drones on war, policing, privacy

The Cornell Law School welcomed four panelists on Nov. 17 to discuss how drones may influence privacy law in the United States and how wars are conducted.

Moderated by Joe Margulies, professor of law and government, the panelists discussed current use of drones by military and police forces as well as future possibilities. Lt. Col. Juan Torres, commander of the Air Force ROTC Detachment 520, based at Cornell, said that drones originated as a reconnaissance tool. Now, as they are used increasingly for warfare, the military is faced with the challenge of how to adapt their use for contested environments in which the enemy may return fire, he said.

Cornell law professor Jens Ohlin said he wished to separate the general fear and anxiety surrounding drones from their actual potential legal impact.

“In one sense a drone isn’t even a weapon, it’s a platform to put a weapon on,” Ohlin said. “[That weapon] is usually a missile but it could be anything. It’s really more how you use the weapon rather than the weapon itself.”

Ohlin said that there are few laws regulating weapons in warfare but a number of laws regulating how those weapons are used. The potential for drones to violate international law exists in the law of proportionality, which dictates that the number of civilian deaths must be proportional to (if not less than) the number of deaths of enemy soldiers. However, Ohlin said that while drones might not able to distinguish civilians from soldiers, their ability to survey an area before an attack could reduce the amount of collateral damage.

Ohlin also said that while some worry drones will make it easier to engage in gratuitous war, drones may also make it easier to engage in necessary wars.

Army Lt. Col. Mark Visger, an assistant professor at West Point, discussed how drone usage might conflict with different interpretations of presidential authority, particularly when that drone usage might compromise the privacy of American citizens.

“The Obama administration has been very proactive about notifying Congress and keeping them on board, whereas [with] ... an individual who takes a stronger view of presidential authority, we might start to see some conflict between Congress and the executive in that realm,” he said.

Syracuse University professor Keli Perrin, who is assistant director of the Institute for National Security and Counterterrorism, said many experts believe that, in the future, drones will be used primarily for commercial purposes. Drones have also been used to decrease risk in police situations and will likely continue to be used in this manner. Perrin said Americans currently have no Fourth Amendment protection when it comes to flyovers by the police, regardless of whether the flyover involves drones.

Perrin added that if Americans wish to seek legal protection from flyover use of drones, they should “look to [the] federal government to pass statutes … or look to the state governments.”

The audience was composed of about 40 law students, who asked the panelists a variety of questions about the potential impact of drones. Margulies asked about what he called “the implications of a participant-less war.”

Ohlin argued that Obama had already used the concept of a “participant-less war” to flout the War Powers Act, as there were no soldiers on the ground when the Libyan conflict passed 60 days, which Obama used to justify not asking Congress for permission to continue the American presence in Libya.

The discussion was supported by the American Constitution Society, the Federalist Society, the Veterans’ Association, and the National Security Law and Policy Society.

Teagan Todd ’20 is a writer intern for the Cornell Chronicle.