By Judge Andrew Napolitano
Earlier this week the federal government announced that the Air Force might be dispatching drones to a backyard near you. The stated purpose of these spies in the sky is to assist local police to find missing persons or kidnap victims or to chase bad guys.
If the drone operator sees you doing anything of interest (Is your fertilizer for the roses or to fuel a bomb? Is that Sudafed for your cold or your meth habit? Are you smoking in front of your kids?) the feds say they may take a picture of you
and keep it. The feds predict that they will dispatch or authorize about 30000 of these unmanned aerial vehicles across America in the next 10 years. Meanwhile more than 300 local and state police departments are awaiting federal permission to use the drones they already have purchased -- usually with federal stimulus funds.
The government is out of control.
If the police use a drone without a warrant to see who or what is in your backyard or your bedroom or if while looking for a missing child the drone takes a picture of you in your backyard or bedroom and the government keeps the picture its use is unnatural and unconstitutional.
I say unnatural because we all have a natural right to privacy; it is a fundamental right that is inherent in our humanity. All of us have times of the day and moments in our behavior when we expect that no one -- least of all the government -- will be watching. When the government watches us during those times it violates our natural right to privacy. It also violates our constitutional right to privacy. The Supreme Court has held consistently that numerous clauses in the Bill of Rights keep the government at bay without a warrant.
Even when we dont have an expectation of privacy we do have a right to be left alone. But merely watching us in public isnt enough for the police as many street corner cameras are equipped with listening devices and tiny megaphones. We can expect that these devices will soon bark commands: Put down that BlackBerry. Look to your right before crossing. Dont kiss her; a car is coming. Actually Big Brother is coming and hes not smiling.
Big Brother is watching from the skies as well as the streets. This started when the Department of Defense decided to offer help to police -- and they are prepared to accept. Never mind that the military may not lawfully operate within our borders except in the case of rebellion and then only when publicly authorized by the president. Never mind that the military may not lawfully be used for law enforcement except in the case of disaster and then only when publicly authorized by the president. And never mind that this use of drones by the Air Force was not the result of legislation debated and enacted by Congress but was done under the authority of the president alone.
Add to all this the use of drones to kill people. President Obama has argued that he can use drones to kill Americans overseas whose deaths he believes will keep us all safer without any constitutional due process whatsoever. His attorney general has argued that the presidents careful consideration of each target and the narrow use of deadly drones are an adequate substitute for due process. Of course no court has ever ruled that way. The presidents national security adviser has argued that the use of drones is humane since they are surgical and only kill their targets. Of course thats not true but it misses the point. Without a declaration of war the president cant lawfully kill anyone no matter how humane his killing.
How long will it be before the Air Force and the police adopt the unconstitutional arguments of the presidents wrongheaded advisers and use the drones not only to spy but also to kill Americans in America?
The whole reason we have a Bill of Rights is to assure that tyranny does not happen here to guarantee that the government to which we have supposedly consented will leave us alone. Do you think the government accepts that? Would you feel safe with a drone in your backyard? Would you feel like you were in America?
Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995 during which time he presided over 150 jury trials and thousands of motions sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years and he returned to private practice in 1995. Judge Napolitano began television work in the same year.
