We have recently heard of sightings of swarms of drones first appearing on the East Coast and then appearing in states throughout the United States. Yet, they are allowed to hover over us without government intervention or explanation? The Coast Guard can board a foreign vessel when it is within territorial waters; yet, no one in any defense agency has collected enough information to identify these analogous “vessels” in our airspace.
There are regulations for flying drones, depending on the weight (over 55 pounds) and flight level (at or below 400 ft). All drones are prohibited from flying in certain zones.1 There are very specific rules for licensing unmanned aircraft systems (UAS) and drones over 55 pounds must be controlled by a licensed UAS pilot.2
Yet the U.S. Department of Defense argued there is nothing to see here —- no evidence the drones are foreign or from an adversary.3
Congressional House and Senate members have voiced their concerns for their constituencies. Meanwhile House lawmakers have introduced legislation to extend authorities to the federal government to counter illicit drone use in the U.S..
Oddly we are seeing swarms of drones occurring a few weeks before the current drone-countering authorities, authorized as part of the FAA Reauthorization Act of 2018 – are set to expire next week on December 20, 2024?4 The new legislation, the Counter-UAS Authority Security, Safety, and Reauthorization Act of 2024 (H.R.8610) would give these extended authorities:
§ 44810. Counter-UAS activities
“(a) Authority.—
“(1) IN GENERAL.—The Administrator of the Federal Aviation Administration may take such actions as described in paragraph (2) that are necessary to—
“(A) detect or mitigate a credible threat (as defined by the Secretary of Homeland Security and Attorney General, in consultation with the Administrator) that an operation of an unmanned aircraft or an unmanned aircraft system poses to the safe and efficient operation of the national airspace system; or . . .
“(2) AUTHORIZED ACTIONS.—In carrying out paragraph (1), the Administrator may take the following actions:
“(A) Detect, identify, monitor, and track an unmanned aircraft system or unmanned aircraft, without prior consent from the operator of such system or aircraft, including by means of intercept or other access of a wire, oral, or electronic communication used to control the unmanned aircraft system or unmanned aircraft.
“(B) Contact or warn the operator of an unmanned aircraft system of a potential counter-UAS action authorized under this subsection.
“(C) Seize, exercise control of, or otherwise confiscate an unmanned aircraft system or unmanned aircraft.
“(D) Disrupt control of, disable, damage, or destroy an unmanned aircraft or unmanned aircraft system, including by means of intercept or other access of a wire, oral, or electronic communication used to control the unmanned aircraft or unmanned aircraft system.
Under the law, counter-drone authorities were given to the Department of Homeland Security (DHS) and the Department of Justice (DoJ). These agencies have the power to use advanced detection technologies to identify, track, and mitigate these unmanned aircraft systems (UAS). Local and state governments cannot take down drones in their space, as it is not their geographical or subject matter jurisdiction. Which has led to the frustration from state officials who cannot get the federal government to respond to the unauthorized drone activity in their airspace. Native American reservations may control their own airspace for drones if they have agreed to share authority with the federal government, or the federal government has delegated federal authority to the sovereign tribal government. In the case of the Navajo Nation, they are licensing and permitting drones and also designating no fly zones.5
Rep. Gottheimer (NJ) on Dec. 13, 2024 released a demand that the federal government allow states to respond to the threat.6 But that would require a declaration of an emergency by the President to suspend the restriction on states to respond to airspace invasions.
I could not help but think of the radio show in 1938, the dramatization of H.G. Wells book, “The War of the Worlds”, where a fictional story of an invasion of space craft from Mars was being told as entertainment on the radio. The story however, was heard as a real report of real time events and mass panic ensued.7 Today, the internet and social media news reporting provide multi-point confirmation of any story that we may hear. So it is much harder to convince the public there is nothing to see when they see it.
Drones are technologically capable of targeting civilians, using lasers, carrying payloads and even “sniffing” for smells of gas or detecting radiation.
What if these were military drones over America?
The use of drones in military conflict are regulated by two areas of law —the Law of War and International Humanitarian Law. The Law of War requires the consideration of proportionality in the use of force. International Humanitarian Law requires considerations to protect civilians, for example. These questions were considered as early as 2013 in this interview with Peter Maurer, the President of the International Committee of the Red Cross.
October 5, 2013 Interview with Peter Maurer, President of the International Committee of the Red Cross
Are armed drones lawful?
Under international humanitarian law – the rules of war, i.e. the set of laws governing armed conflicts – drones are not expressly prohibited, nor are they considered to be inherently indiscriminate or perfidious. In this respect, they are no different from weapons launched from manned aircraft such as helicopters or other combat aircraft. It is important to emphasize, however, that while drones are not unlawful in themselves, their use is subject to international law.
It is worth pointing out that not all drones are actually armed and used to fight. . . .most military drones are unarmed and used for surveillance, in particular for transmission of information on the location and identification of enemy targets.
. . . Advocates of the use of drones argue that they have made attacks more precise and that this has resulted in fewer casualties and less destruction. But it has also been asserted that drone attacks have erroneously killed or injured civilians on too many occasions.
Drones do not only kill. What about the alleged psychological impact they inflict by hovering above a place for hours or days on end?
The potential psychological impact of drones is a concern that the ICRC shares with other humanitarian organizations. What is the level of stress induced by drones? What are the consequences of their constant presence in the skies on the mental health of the people living in areas below? Unfortunately, first-hand information is not always available, especially when drones are used in areas where security constraints make it difficult to conduct an independent and thorough evaluation of their impact. Despite this, we strive to assess the effects and to determine whether the use of drones may have violated international humanitarian law – just as we would if any other weapon were used. In places where we are able to collect information, we strive to raise the issue along with other humanitarian concerns bilaterally with the authorities concerned with a view to reducing human suffering. . .
The operators of drones may be physically absent from the battlefield. Who, then, is accountable? Are drone operators targetable under international humanitarian law?
Although the operators of remote-controlled weapons systems such as drones may be far from the battlefield, they still run the weapon system, identify the target and fire the missiles. They generally operate under responsible command; therefore, under international humanitarian law, drone operators and their chain of command are accountable for what happens. The fact of their being thousands of kilometres 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.
Final thoughts
The Counter-UAS Authority Security, Safety, and Reauthorization Act of 2024 (H.R.8610)8 would renew and reform current counter-UAS legal authorities and extend them through Oct. 1, 2028. Although these authorities may not be available, there is certainly the doctrine of anticipatory self-defense that is.
The doctrine of anticipatory self-defense9 was formulated in 1837 and revived during the Pres. George W. Bush Administration that allowed for a defensive strike against a threat that was likely to attack the United States, before the enemy could make the first strike. It was meant for exactly the kind of situation with a looming threat that has the opportunity (with unknown capacity) to strike. Determining whether that threshold has been met, is made difficult by the lack of information about either the origin or the capability of these drones. But leaders have to make tough choices, and erring on the side of safety for America on American soil would weigh heavily in favor of anticipatory self-defense.
https://www.faa.gov/uas
I teach a course called Emerging Technologies Law and one of the assignments is to determine what laws apply to a commercial drone task. I write in a number of obstacles that have to be spotted as legal issues and addressed with the right analysis, permits and exceptions. We also examine the international space where drones are used in war and targeted attacks. International law and domestic law government this space.
https://www.defense.gov/News/Transcripts/Transcript/Article/3998124/deputy-pentagon-press-secretary-sabrina-singh-holds-a-press-briefing/
https://www.meritalk.com/articles/house-lawmakers-want-to-extend-expiring-counter-drone-authorities/
https://navajodot.org/drone
https://gottheimer.house.gov/posts/release-gottheimer-calls-on-fbi-dhs-to-deploy-assets-to-safely-take-down-drones-that-shouldnt-be-in-our-skies
https://en.wikipedia.org/wiki/The_War_of_the_Worlds_(1938_radio_drama)
https://www.congress.gov/bill/118th-congress/house-bill/8610
https://www.jagreporter.af.mil/Post/Article-View-Post/Article/2549128/anticipatory-self-defense/