What are some of the broader issues involving drones, liberty, and security?
The National Constitution Center’s President and CEO Jeffrey Rosen, Georgetown University Law Professor Carrie F. Cordero, and Penn Law Professor Claire Finkelstein talked about the challenges at a recent public event on Constitution Day.
The debate was framed around two broad issues: the constitutionality of drone surveillance in the United States, and the targeted use of drones for killings abroad.
Cordero, who served in national security related policy and operational positions with the Department of Justice from 2000 to 2010, said that it is the underlying activity conducted by drones that present the legal questions, not entirely the technology involved in their use domestically.
The technology “represents a broader conversation our nation is having regarding about our expectations of privacy,” she said. But there are also two arguments about technology and privacy: one argument is about a tradeoff between technology and privacy to take advantage of the benefit of new technologies; the counterargument is that privacy expectations haven’t changed, and we need to add more protections.
Finkelstein said that we have extreme needs in national security, and we have policies that deal with Americans and non-Americans that differ in a constitutional sense when it comes to privacy.
“The big challenge is how to understand the constitutional principles that would protect our privacy and balance the need for national security and privacy on the one hand, and what that implies about our treatment of non-Americans as we move forward with our needs for national security abroad,” she said.
Another debate is over the need for a warrant for domestic drone surveillance, and what happens when the government gathers information about a person who isn’t a criminal suspect.
Finkelstein said another new dimension in the privacy debate is how courts consider issues about the gathering of information, since the traditional notion of privacy dealt more with physical invasions of privacy.
On the topic of targeted killings and drones abroad, Finkelstein agreed with Cordero that the underlying activity of the drones (in this case, the use of fatal force) was the key issue, not the actual type of technology.
A key point, she argued, was the process of who places names on the list of people to be targeted and killed. She also said another question was how al-Qaeda members, who were also American citizens, were classified as enemy combatants.
Cordero said there were strong arguments that courts shouldn’t be near what falls under the role traditionally assumed by the commander in chief and that the Fourth Amendment wasn’t a due process consideration for al-Qaeda members in a wartime situation.
There was also skepticism about the effectiveness of a proposed “drone court” to decide such decisions.
Cordero said that the FISA court, which is held in secret, gets into great details about the technology about national security decisions. That need would pose problems in a more open court to settle drone issues.
Finkelstein said special courts tended to diminish broader constitutional issues.
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