Rand Paul’s endorsement of Mitt Romney sure created a schism in the libertarian camp. One side believes Rand Paul to be nothing more than a game playing neocon who tries to appease the libertarians when it’s convenient while the other side believes Rand Paul is really a super secret libertarian who is merely maneuvering to gain the presidency in 2016 where he’ll then bring a wave of liberty to this country. The latter camp has used Rand Paul’s introduction of legislation to protect American against unwarranted drone surveillance. It would be great if that’s what Rand Paul actually did but the Devil, as always, is in the details. The legislation in question is S 3287, the Preserving Freedom from Unwarranted Surveillance Act of 2012. The bill claims “To protect individual privacy against unwarranted governmental intrusion through the use of the unmanned aerial vehicles commonly called drones, and for other purposes.” It then goes on to state:
SEC. 3. PROHIBITED USE OF DRONES.
Except as provided in section 4, a person or entity acting under the authority, or funded in whole or in part by, the Government of the United States shall not use a drone to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation except to the extent authorized in a warrant that satisfies the requirements of the Fourth Amendment to the Constitution of the United States.
Sounds good so far, right? Let’s have a look at the exceptions mentioned in the above paragraph:
(1) PATROL OF BORDERS- The use of a drone to patrol national borders to prevent or deter illegal entry of any persons or illegal substances.
So drones will continue to be used to monitor the 100 miles “Constitution free zone” that 2/3 of the United States population lives within? It appears as though Rand Paul’s bill only protects 1/3 of the population from these unwarranted drone uses. That appearance is deceiving though as there are more exceptions:
(2) EXIGENT CIRCUMSTANCES- The use of a drone by a law enforcement party when exigent circumstances exist. For the purposes of this paragraph, exigent circumstances exist when the law enforcement party possesses reasonable suspicion that under particular circumstances, swift action to prevent imminent danger to life is necessary.
There it is, the one exception that makes this entire bill meaningless. Law enforcement don’t need a warrant to use a drone if they have “reasonable suspicion” that circumstances are such that imminent danger to life exists. “Reasonable suspicion” is another way of saying “because law enforcement wants to.” It’s a catchall phrase that has been used by law enforcement agents to avoid that pesky Forth Amendment. Worth noting is that probably cause and reasonable suspicion are legally different as laid out in the Supreme Court case Terry v. Ohio:
On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a “stop” and an “arrest” (or a “seizure” of a person), and between a “frisk” and a “search.” Thus, it is argued, the police should be allowed to “stop” a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident “search” of the person. This scheme is justified in part upon the notion that a “stop” and a “frisk” amount to a mere “minor inconvenience and petty indignity,” which can properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer’s suspicion.
In other words, reasonable suspicion grants an officer the power to stop and frisk an individual but does not grant them the ability to make an arrest. What is reasonable suspicion is really up to the police officer as no judiciary input is required. Nice little cop out for this bill that’s supposed to protect use from unwarranted drone use, isn’t it? Finally, just to make extra sure that this bill means nothing, a third exception exists:
(3) HIGH RISK- The use of a drone to counter a high risk of a terrorist attack by a specific individual or organization, when the Secretary of Homeland Security determines credible intelligence indicates there is such a risk.
The risk of terrorism has become the de facto standard for ignoring constitutional protections. In fact the state claimed a connection between terrorism and copyright infringement to get around a great deal of legal red tape between law enforcement and those suspected of infringing copyrights. Counterfeit goods have also been linked to terrorism. It’s not very difficult to use those cases to fabricate a scenario where a high risk of terrorist attack exists.
Pretend that you’re an employee of the Homeland Security and your boss says, “Hey, we need an excuse to use a drone to spy on some guy infringing Disney’s copyright.” Within a minute or so you would likely respond by saying, “We have evidence that the many you mentioned has been siphoning funds obtained through selling bootleg Disney cartoons to Al Qaeda. Evidence suggests that this money is being used to buy equipment for an immediate strike against the United States.” Your boss gets his excuse and you get a promotion.
Rand Paul’s bill is entirely meaningless. The exceptions are so large as to offer zero legal protection against warrantless drone surveillance. Just as Obama wrapped a bank bailout in a pleasantly titled bill, Rand Paul has just wrapped an entirely worthless bill in a title that will appeal to libertarians. Many people claim that Rand Paul is a libertarian that knows how to manipulate neocons but he’s actually a neocon that knows how to manipulate libertarians.