george wythe review, spring 2015

A PUBLICATION OF THE AMERICAN POLITICS & POLICY STUDENTS

OF PATRICK HENRY COLLEGE________________

Volume 6 • No. 2 • Spring 2015

Editor-in-Chief: Timothy WierAssociate Editor: Joshua Arnold

Publication Editor: Megan ElliottResearch Editor: Jeremy Tjia

Assistant Editor: Ashlyn Olson

PATRICK HENRY COLLEGEPurcellville, Virginia

www.phc.edu

Copyright © 2015ISSN 2153-8085

(print)

The George Wythe Review is an undergraduate journal dedicated to the in-tegration of faith and reason in American domestic public policy. The editors of this journal recognize that contemporary domestic public policy is navigating the uncharted waters of rapidly advancing technology, an increasingly globalized po-litical environment, and a bureaucratic federal government.

The journal is a response to this climate, providing undergraduate students at Patrick Henry College with a venue to engage this climate through quality ac-ademic papers. In the vein of the journal’s namesake, the editors are committed to fostering an environment for discussion that enhances both the Government: American Politics and Policy major and the mission of Patrick Henry College.

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Letter from the Editor

Good Samaritans or Meddling Neighbors?: An Investigation into the United States’ Foreign Aid and Terrorism

Rebecca Cambron

This study examines the relationship between U.S. foreign aid and transnational terrorism stemming from recipient countries, comparing the correlation between foreign aid and ter-rorism to data gleaned using both qualitative and quantitative methods.

Knowledge is Power?:Examining the Crossroads of Nuclear Support

Ryan McDonald

This paper seeks to highlight the nature of the public’s opinions on nuclear energy through time, and determine if there is a correlation between a person’s opinion about nuclear energy production, and their exposure to information about nuclear energy facts and risks. It examines a number of variables emphasizing the psychoanalytic nature of people’s perspectives on the issue. It concludes that while information and opinion may be related, there is not a clear, causal relationship between them, nor is the relationship necessarily strong.

Unilateral Bypass:Examination of a Relationship between ExecutiveOrder Issuance and Congressional Concurrence

Sarah Cavicchi

Dozens of executive orders are issued each year. Conventional wisdom holds that pres-idents use executive orders to bypass a Congress in opposition in order to achieve their political agenda. The current study examines data from Vital Statistics on the Presidency to evaluate this relationship, analyzing the possible explanations of the results seen from the data, and implications and suggestions for future research.

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Domestic Unmanned Aerial Systems:Privacy vs. Security

Mark Teubl

This paper addresses the issue of unmanned aerial surveillance (UAS) from a constitution-al and legal perspective, attempting to determine the proper balance between domestic security and constitutional rights to privacy. Using a variety of Supreme Court decisions, the paper determines that the risks to one’s privacy posed by UAS do not violate current precedent on the subject, nor do they outweigh the benefits presented by these additional security methods. However, the Supreme Court decisions on the matter are narrowly de-cided, meaning that there is a possibility for change in the future.

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G E O R G E W Y T H E R E V I E W

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Letter From the Editor

On behalf of our editorial board, it is my pleasure to welcome you to the Spring 2015 edition of the George Wythe Review! As Patrick Henry College’s premier under-graduate journal, it is our hope that the papers included will be both enjoyable for you to read and helpful to you in your research.

The previous edition of this journal focused on balanced approaches to public policy and the dangers of taking extreme positions on issues. This semester, we take the next step and examine the unintended consequences of our policy decisions, looking at how our government’s decisions sometimes result in situations that are far from what was originally intended.

In her paper Good Samaritans or Meddling Neighbors?, Rebecca Cambron ad-dresses unintended consequences of foreign aid head-on, examining the causal rela-tionship between U.S. foreign aid programs and transnational terrorism. She concludes that there is a relationship between the two, meaning that our foreign policy is having consequences we never intended.

Writing about the importance of public perception in policymaking, Ryan Mc-Donald asks the question of whether or not Knowledge is Power? Specifically, the ques-tion arises as to whether or not there is a relationship between the amount of informa-tion an individual receives on nuclear energy and that individual’s fear of nuclear energy production, and the implications for the policymakers that arise from that relationship.

Addressing the internal relationships between the president and Congress, Sar-ah Cavicchi, in her paper Unilateral Bypass, examines the unintended consequences of Congressional opposition to the executive. She examines a compelling trend that pres-idents with opposition in the Congress tend to issue more executive orders than those whose Congress agrees with their political ideology.

Finally, Mark Teubl addresses our national security policy, looking at how un-manned aerial systems impact our right to privacy. In his paper Domestic Unmanned Aerial Systems: Privacy vs. Security, he examines current Supreme Court precedent to see where we stand on the right to privacy for each citizen.

As is always the case with a project like this, the George Wythe Review is not pos-sible without the work of our diligent and outstanding editorial staff. Jeremy Tjia has taken our scholarly source-checking to the next level, ensuring that this journal is of


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the highest academic quality. Megan Elliott has not only designed our amazing cover, but has also made sure that the aesthetics of the journal are of the same caliber as the research itself.

I also would like to acknowledge the work that Joshua Arnold has done for the journal in his tenure as Associate Editor. His skills and work ethic have made my job as Editor-in-Chief easier, and the journal as a whole is better because of his presence on our team. Our entire team wishes him well in all of his future endeavors.

I am also pleased to announce that Ashlyn Olson, currently our Assistant Editor, will be assuming the role of Associate Editor for the 2015-2016 cycle of the journal. Her impeccable work thus far makes her not only qualified but also a prime choice for the position, and she will add greatly to the dynamics of our team. We welcome her to the team and look forward to seeing what contributions she will bring in the coming year.

And now, we are proud to present to you the Spring 2015 edition of the George Wythe Review!

Timothy W. WierEditor-in-Chief


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GOOD SAMARITANS OR MEDDLING NEIGHBORS?:

AN INVESTIGATION INTO THE UNITED STATES’ FOREIGN AID AND

TERRORISM

Rebecca Cambron

Abstract

With the rise of terrorism in the 21st century, every state, especially super-powers like the United States, must understand the full consequences of foreign policy decisions, including foreign aid investments. This study examines the re-lationship between U.S. foreign aid and transnational terrorism stemming from recipient countries, comparing the correlation between foreign aid and terrorism to data gleaned using both qualitative and quantitative methods.

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Introduction

In an article titled “No Regrets for a Love of Explosives,” former Weather Un-derground activist Bill Ayers endorsed that group’s bombing of the Capitol Build-ing and the Pentagon (Smith, 2001). While the implication of an attack on these monumental structures was strange to New York Times readers at the time, within hours those words would become unconscionable, as the interview was published on September 11, 2001.

Since the 9/11 terrorist attacks, the world’s discussion of foreign policy and terrorist actions has changed drastically. U.S. foreign policy under the Clinton Ad-ministration focused on humanitarian concerns around the world, directing our efforts toward Somalia and the Balkans (American President, 2014). After the at-tacks, and under a new administration, the U.S. was forced to adopt a more defen-sive policy. Less than an hour after the first plane hit the north tower of the World Trade Center, President Bush famously said, “Terrorism against our nation will not stand” (Bush, 2001, September 11). Since those attacks, the U.S. has fought a “War on Terror.” As Secretary of State Colin Powell stated, this war did not allow neutral nations “the luxury of remaining on the sidelines because there are no sidelines” (Bush, 2001, September 20; Powell, 2002).

Yet the United States has not abandoned its previous humanitarian goals. The U.S. Department of State maintains its mission to “shape and sustain a peace-ful, prosperous, just and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere” (Bureau of Budget and Planning, 2014). In fact, the U.S. gave approximately $25.5 billion to foreign countries in 2012 through various programs (U.S. Agency for Interna-tional Development [USAID], 2012). Aid programs, however, are agreed upon throughout the political spectrum to be broken and inefficient. The Helping to En-hance the Livelihood of People around the Globe (HELP) Commission created by Congress started its report by acknowledging this very fact (Helping to Enhance the Livelihood of People around the Globe [HELP] Commission, 2007).

Faced with a myriad of possible paths to combine humanitarian and defensive foreign policy goals, the U.S. tasks itself with finding the one path that will please the majority of the globe. The difficulty is in predicting how foreign citizens will react to U.S. aid. America sends substantial aid to other countries that influences their economies, governments, and national priorities, but the question is wheth-er the citizens of recipient countries desire such assistance. One good indicator that a country does not want our aid appears to be when its citizens participate in increasing numbers of international terrorist attacks. Much like the discussion on U.S. domestic aid programs, the debate over foreign aid is filled with the good and the bad, particularly focused on how aid influences the recipients (Adelman


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& Eberstadt, 2008). Thus, the question arises as to whether any correlation exists between the United States’ foreign aid and the possibility of resulting transnational terrorist attacks from the recipient countries. This paper hypothesizes that U.S. foreign aid increases the likelihood of terrorist attacks from a recipient country.

Literature Review

In the discussion about U.S. foreign aid, there are two overarching theories about transnational terrorist motivations. Bruce Hoffman (2006), director of the Security Studies Program at Georgetown University, argues that foreign aid helps to alleviate economic inequality within the region or nation and therefore reduces the risk of terrorism. On the other hand, Robert Calderisi (2006), a former World Bank Country Division Chief for Indonesia and the South Pacific, articulates con-cerns about the efficiency and effectiveness of foreign aid.

Several studies argue that foreign aid alleviates income inequality and the resulting violence, including terrorism. Jean-Paul Azam & Véronique Thelen (2010) compare U.S. aid to foreign countries versus military intervention, con-cluding that aid is far more effective in decreasing the risk of a terrorist attack from the recipient country than military involvement. Similarly, Brian Burgoon’s study (2006) on the interrelation of social welfare and terrorism concluded that “strengthening social policies at home and abroad may not only serve redistrib-utive or development goals but also help combat terrorist violence.” Finally, Seu-gn-Whan Choi’s research on the rule of law (2010) concluded that those countries that observed the rule of law were significantly less likely to face the threat posed by any form of terrorism, domestic or otherwise, than countries that did not.

Conversely, some argue that foreign aid actually promotes terrorism by building resentment in a country. The foundation for this perspective stems from the work of researchers like Alberto Abadie (2006) in Poverty, Political Freedom, and the Roots of Terrorism. Abadie investigates the relationship between pover-ty and terrorism, concluding that once countries are similar except in economic well being, economic prosperity or lack thereof does not play a significant role in promoting terrorist activity. The work of P.H. Liotta & James F. Miskel (2006) and Walter Laqueur’s No End to War (2003) further affirms this view, arguing that if a link between poverty and terrorism does exist, far more terrorists would come from sub-Saharan Africa. Instead, they assert that national-ethnic tensions are a much more likely cause.

In their study entitled, “Democracy, Foreign Policy, and Terrorism,” Burcu Savun & Brian J. Phillips (2009) reach the apex of this argument. They focused their study on two questions, 1) whether democracy was a key factor for incit-ing terrorist activity in or against a country and 2) whether a more active foreign


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policy should lead to “more transnational terrorism for a state, regardless of the state’s regime type.” They concluded that foreign policy, not regime type, was a better indicator. Tessler & Robbins (2007) investigated further. Taking Jordan and Algeria as case studies, they compared respondents’ opinions on various topics to respondents’ approval of terrorist attacks on the U.S.

The current study will rely upon the previous literature for its scope and fo-cus. The findings will fill the gap in research evident from the conflicting views about what aspects of foreign policy may incite terrorism directed at the donor country.

Data and Methods

Because of the complex and unclear relationship U.S. foreign policy has with terrorism, this study’s research design relies on a mix of qualitative and quanti-tative methods. Qualitatively, the study researches the motivations behind ter-rorism, as well as the effectiveness of foreign aid at easing tensions in countries. Quantitatively, the study tests the hypothesis with data gathered from U.S. Agency for International Development (USAID) reports from 2005 to 2012. This data in-cludes what countries received aid and what type of aid they received. Further data the number of transnational terrorist attacks was gathered from the Global Terrorism Database (GTD). Comparing the number of terrorist attacks from re-cipient countries versus non-recipient countries—especially those countries that still produce terrorist attacks on the U.S.—should provide numerical support for or against the hypothesis.

It is important to define clearly what constitutes “transnational terrorism.” This study will rely on the U.S. Department of Defense’s definition, “the calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological objective” (U.S. Joint Chiefs of Staff, 2010). This study will focus on terrorist acts directed against the U.S. by actors not based in the U.S. This will eliminate intervening variables such as preexisting tension within the state or the relative freedom of the state, as each transnational incident has evidence directly supporting its goal of harming the U.S.

This study will only consider terrorist actions in association with the country in which they occurred. In this way, the results will best parallel the definition, and also account for non-state actors such as Al-Qaida. Furthermore, to ensure the validity of the GTD data, only attacks directed specifically against the U.S. from a foreign country or incidents occurring within the U.S. in which a foreign entity or state claimed credit will be considered. Additionally, to promote consistency, the study will consider only those countries which received aid through the entire


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sample period, while accounting for any potential change in that country’s view of the U.S. caused by a reduction of aid. The sources of data were compared to the U.S. State Department’s list of officially recognized countries to add context (U.S. State Department, 2014).

Transnational terrorist incidents from 2005 to 2012 were enumerated according to the GTD, an open-source database of terrorist events from 1970 to 2013, maintained by the University of Maryland and made available by the National Consortium for the Study of Terrorism and Responses to Terrorism. Updated annually, the database provides information on all transnational and international terrorist incidents, such as date, location, weapons used, nature of target, and the group or individual responsible, when possible. Data about nations receiving U.S. foreign aid, the amounts they receive, and the type of aid they receive was gathered from USAID.

This study conducts a quantitative comparison from these two sets of data. From the GTD database, data describing transnational or international terrorist attacks against the U.S. is compared to the data available in the US-AID records from 2005 to 2012. Theoretically, the comparison should reveal whether and to what degree a correlation exists between attacks on the U.S. and the monetary aid from the U.S. Countries receiving more aid are compared to countries which receive no U.S. aid or receive significantly less foreign aid than other countries.

Research

Present scholarship agrees that current U.S. aid does not work. In the HELP Commission on Foreign Assistance Reform authorized by Congress, twenty com-missioners came together to review the policy decisions, delivery obstacles, meth-odology, and results of the U.S. development assistance (Consolidated Appropri-ations Act 2004, 2003). Nineteen of the twenty commissioners approved of the report and its findings, which ultimately concluded that the U.S. needed drastic change in its utilization and appropriation of foreign assistance (HELP, 2007).

The implications of this consensus contradict the idea that terrorism is eco-nomically motivated. For example, Brian Burgoon (2006) argues that nations with large welfare provisions will be less likely to face transnational terrorism. Burgoon sees welfare as social policy and ignores its economic aspects, but his limited focus eliminates the broader expanse of social policies available to measure the influ-ence of the welfare variable. Additionally, having a limited view of welfare sup-presses the real effect that welfare has on a person from an economic standpoint. Although economics could play a large role in an individual’s motivation for join-ing a terrorist organization, the findings of the HELP commission lend more cre-


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dence to the understanding of political tensions, with economic inequality as a subset of it, as a better indicator of likely transnational terrorist actions, rather than an individual’s poverty alone.

Rather than economic inequality, several studies find the politics of the nation itself to be indicators for an increased risk for terrorism. Alberto Abadie (2006) found that once country-specific characteristics were accounted for, eco-nomics had little effect on whether or not the country posed more of a terrorist risk. Rather, he found political freedom to be a clearer indicator of the likelihood of terrorist attacks. Similarly, Paul R. Ehrlich and Jianguo Liu’s research entitled Socioeconomic and Demographic Roots of Terrorism (2006) highlights the lack of quantitative data to support a strong correlation between poverty and terrorism. Instead, they find that foreign policy is a determinate factor based on the lack of consistent correlation between demographic and socioeconomic factors with terrorism.

Building on this foundation, Savun & Phillips (2009) narrow the possible political variables that could influence terrorism, focusing on a nation’s regime type and foreign policy behavior. Their research found that democracies did not suffer from more domestic terrorism, concluding that a country’s interaction on an international level with other foreign powers has a stronger relationship with possible terrorist attacks than other characteristics of a country. They stated that countries “should be wary of the consequences of their actions with other states and assess how their actions can cause frustration and discontent in other parts of the world.”

Furthermore, Tessler & Robbins (2007) detail the relationship between popular support for terrorist attacks in foreign countries and those citizens’ view of the United States. Analyzing data gathered from a survey conducted in Jordan and Algeria, they investigated responses, not only about economics, but also about the respondent’s opinion of the West—specifically the U.S. Their data set enabled them to compare the motivations for approval of terrorist attacks against the U.S. based upon three factors. This analysis eliminated economic motivations and a disapproval of Western culture as major factors in increased terrorist activity. Instead, their research supports the hypothesis that individuals who hold to a negative view of the foreign policy of the U.S. or of their own gov-ernment are more likely to approve of terrorist attacks against the U.S.

These two studies establish the foundation of the relationship between U.S. foreign aid and an increased risk for terrorist attacks from recipient countries. While neither study focuses exclusively on foreign aid, their narrowly tailored handling of foreign policy incorporates a nation’s foreign assistance programs. Savun & Phillips, in particular, support the correlation as it addresses a nation’s foreign policy and its ability to utilize both economic and military assistance in


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its interactions with other sovereign nations. They support the idea that foreign aid, as a component of foreign policy, is significantly related to the likelihood of recipient countries of responding to the aid through transnational terrorist attacks. Tessler & Robbins further narrow this understanding of foreign pol-icy, suggesting a correlation between a citizen’s opinion of U.S. foreign policy or their own government and their support for terrorist attacks on the United States.

To further evaluate the hypothesis, this study numerically compared recip-ient and non-recipient countries. Figure 1.1 illustrates the total number of trans-national terrorist attacks, and breaks that number down between attacks based in or from countries which receive aid and those countries which do not (see Appendix A). Figure 1.1’s numbers contradict the idea that foreign aid reduced terrorism, as those countries that receive aid comprise over 21 times the attacks as those countries which do not receive aid.

Figure 1.1

While Figure 1.1 shows the breakdown of transnational terrorist attacks from countries with and without aid, Figure 1.2 illustrates the correlation from the perspective of countries receiving aid (Appendix B). Figure 1.2 compares the total number of countries receiving aid to the number of those countries which


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committed transnational terrorist attacks against the United States, and those which did not. From 2005 to 2012, 30 of the 154 countries that were recipients of U.S. foreign aid committed attacks targeting the United States. This graph shows that while Figure 1.1 demonstrates that the vast majority of terrorist attacks come from countries receiving aid, the portion of countries receiving aid which commit transnational terrorist attacks against the United States is less significant, compris-ing less than 20% of the total number of countries receiving aid.

Figure 1.2

Conclusions and Suggestions for Further Research

Analysis of the research evidences three major aspects of the relationship between foreign aid and transnational terrorism. First, scholars generally agree that the U.S.’s foreign assistance programs are ineffective and do not aid recipient countries as originally intended. Therefore, poverty or economic inequality can-not be the major motivation for terrorist attacks, but rather should be viewed as a subset of the political resentment which motivates terrorists. Second, the GTD data and USAID records reveal that 95% of transnational terrorist attacks against the United States come from recipient nations. Finally, despite the fact that the majority of terrorist attacks come from aid recipients, those countries represent only a small minority of all aid-receiving countries.


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The qualitative and quantitative data reveal a correlation between U.S. grants of foreign assistance and an increase in transnational terrorism against the U.S. from that state. Scholars agree that the aid system is broken and needs major re-forms before the aid could ever have the intended effect, let alone cause economic tensions. The comparison of countries receiving aid against the countries which have committed acts of aggression against the United States provides further support for the hypothesis, as the vast majority of attacks on the United States come from aid-receiving countries. However, this shocking correlation is in ten-sion with the data represented in Figure 1.2, which shows the small percentage of aid-receiving countries which attack the United States. Such data relates back to the balance the U.S. has struck most recently on September 11, 2001, as it was faced with the desire for humanitarian policies and the real possibility for the U.S. to adopt a defensive foreign policy.

To further explore this balance, more research should be conducted into the extent of the relationship between foreign aid and transnational terrorism. Like foreign policy, foreign aid has many subtle distinctions within the parameters of the concept, such as economic assistance versus military assistance, and each of those subsets of the category should be researched to fully understand the motiva-tions behind the tensions defining the 21st century. Similarly, interesting research should be conducted into what effect the amount of assistance given to a country has upon the amount of terrorism coming from that country. Lastly, expanding this research beyond the United States could reveal either an anomaly of foreign policy, as the United States has one of the most expansive foreign policies in the world, or indicate a larger correlation insightful to the world’s understanding of terrorism as a global movement.

It is important to remember that the correlation between terrorism and for-eign aid should not dampen the United States’ desire to aid in humanitarian efforts around the world. The United States plays an important role on the world’s stage, and a fear of attacks should not dictate the legitimate help the U.S. should give de-veloping or struggling countries. However, the U.S. should be careful in the way in which it goes about providing aid, as nearly one-fifth of its recipients have attacked the U.S. As the HELP Commission noted, U.S. foreign assistance programs are broken and ineffective. True reform is necessary for the U.S. to both address the correlation between transnational terrorist acts and aid-receiving countries and still aid countries in need. To properly address these concerns, the U.S. must start recognizing foreign aid as part of its overall defense strategy, a means of creating allies and enemies.


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References

Abadie, A. (2006). Poverty, Political Freedom, and the Roots of Terrorism. The American Economic Review, 96(2), 50-56. Retrieved October 23, 2014, from JSTOR.

Adelman, C., & Eberstadt, N. (2008). Foreign Aid: What Works and What Doesn’t. (3). Retrieved December 3, 2014, from http://www.aei.org/wp-content/uploads/2011/10/20081027_23618DPONo3g.pdf

American President: A Reference Resource. (2014, January 1). Retrieved December 3, 2014, from http://millercenter.org/president/clinton/essays/biography/5

Azam, J., & Thelen, V. (2010). Foreign Aid Versus Military Intervention in the War on Terror. The Journal of Conflict Resolution, 54(2), 237-261. Retrieved October 23, 2014, from JSTOR.

Bureau of Budget and Planning. (2014, November 1). Retrieved December 3, 2014, from http://www.state.gov/s/d/rm/

Bush, G. (2001, September 11). Remarks by the President George W. Bush after Two Planes Crash into World Trade Center. Retrieved December 3, 2014, from http://www.911memorial.org/sites/all/files/Remarks by President Bush after Two Planes Crash into World Trade Center.pdf

Bush, G. (2001, September 20). President George W. Bush’s Address to Congress and the Nation on Terrorism. Retrieved December 3, 2014, from http://www.911memorial.org/sites/all/files/President Bush Address to Congress and the nation on terrorism.pdf

Burgoon, B. (2006). On Welfare and Terror: Social Welfare Policies and Political-Economic Roots of Terrorism. The Journal of Conflict Resolution, 50(2), 176-203. Retrieved October 23, 2014, from JSTOR.

Calderisi, R. (2006). The Trouble with Africa. New York: Palgrave Macmillan.

Choi, S. (2010). Fighting Terrorism through the Rule of Law? The Journal of Conflict Resolution, 54(6), 940-966. Retrieved October 23, 2014, from JSTOR.

Consolidated Appropriations Act 2004, Pub. L. 108-199, Pg. 118 Stat. 89.


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Ehrlich, Paul R., & Liu, Jianguo. (2006). Socioeconomic and Demographic Roots of Terrorism. In James J.F. Forest (Eds.), The Making of a Terrorist Recruitment, Training, and Root Causes Volume III: Root Causes. Westport, Connecticut: Praeger Security International.

Hoffman, B. (2006). Inside Terrorism. New York: Columbia University Press.

Helping to Enhance the Livelihood of People around the Globe (HELP) Commission. (2007). The HELP Commission Report on Foreign Assistance Reform. Washington, DC: Retrieved from http://helpcommission.info/

Laqueur, W. (2003). No End to War. New York: The Continuum International Publishing Group.

Li, Q., & Schaub, D. (2004). Economic Globalization and Transnational Terrorism: A Pooled Time-Series Analysis. The Journal of Conflict Resolution, 48(2), 230-258. Retrieved October 23, 2014, from JSTOR.

Loitta, P.H., & Miskel, James F. (2006). Digging Deep: Environment and Geography as Root Influences for Terrorism. In James J.F. Forest (Eds.), The Making of a Terrorist Recruitment, Training, and Root Causes Volume III: Root Causes. Westport, Connecticut: Praeger Security International.

National Consortium for the Study of Terrorism and Responses to Terrorism (START). (2013a). Global Terrorism Database gtd_06to13_0814dist. Retrieved from http://www.start.umd.edu/gtd

National Consortium for the Study of Terrorism and Responses to Terrorism (START). (2013b). Global Terrorism Database gtd_90to05_0814dist. Retrieved from http://www.start.umd.edu/gtd

Powell, C. (2002). Colin Powell Discusses Report on Global Terrorism. Retrieved October 23, 2014, from CNN.com

Savun, B., & Phillips, B. (2009). Democracy, Foreign Policy, and Terrorism. The Journal of Conflict Resolution, 53(6), 878-904. Retrieved October 23, 2014, from JSTOR.

September 11: Chronology of terror. (2001, September 12). CNN.com. Retrieved December 3, 2014, from http://edition.cnn.com/2001/US/09/11/chronology.attack/


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Smith, D. (2001, September 11). No Regrets for a Love of Explosives; In a Memoir of Sorts, a War Protester Talks of Life with the Weathermen. The New York Times. Retrieved December 3, 2014, from http://www.nytimes.com/2001/09/11/books/no-regrets-for-love-explosives-memoir-sorts-war-protester-talks-life-with.html?pagewanted=1

Tessler, M., & Robbins, M. (2007). What Leads Some Ordinary Arab Men and Women to Approve of Terrorist Acts against the United States? The Journal of Conflict Resolution, 51(2), 305-328. Retrieved October 10, 2014, from JSTOR.

U.S. Agency for International Development. U.S. Official Development Assistance. U.S. Total Official Flows. Washington, 2005 – 2012.

U.S. Joint Chiefs of Staff. Department of Defense Dictionary of Military and Associated Terms. Joint Publication 1-02. Washington, DC: U.S. Joint Chiefs of Staff, November 08, 2010.

U.S. Department of State. (2014). Independent states in the World. Retrieved from http://www.state.gov/s/inr/rls/4250.htm


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Appendix A

Table 2.1: Countries with Aid and Terrorist Attacks

*Combined with Montenegro in 2005


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Appendix A continued

Table 2.2: Non-Recipient Countries with Terrorist Attacks


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Appendix B

Table 2.3: List of Countries with Aid but no Terrorist Attacks


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KNOWLEDGE IS POWER?:EXAMINING THE CROSSROADS OF

NUCLEAR SUPPORT

Ryan McDonald

Abstract

The risks and roles of nuclear energy in America have often sparked heated debates through the decades. This paper seeks to highlight the nature of the public’s opinions through time, and determine if there is a correlation between a person’s opinion about nuclear energy production, and their exposure to information about nuclear energy facts and risks. It examines a number of variables inevitably con-nected to these opinions, emphasizing the psychoanalytic nature of people’s per-spectives on the issue. It concludes that while information and opinion may be re-lated, there is not a clear, causal relationship between them, nor is the relationship necessarily strong. Alternatively, emotions seem to be the primary driver behind public opinion. The paper then proffers to submit plausible policy approaches in response to the public’s perceptions.

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Introduction

In 1982, a criminal laced isolated packs of the Tylenol with cyanide, causing the deaths of seven unsuspecting Chicago residents. As a result, Tylenol’s producer Johnson and Johnson suffered more than a billion dollars in loss from hyperbolic public dread (Slovic & Weber, 2002). These seven deaths generated more than 125,000 stories in print media alone, and sparked a nationwide fear of Tylenol’s contents. Many people have a similar extreme fear of nuclear energy, informed by confused and unscientific discussions of radiation and cancer and isolated in-cidents of meltdowns and radiation leaks (Friedman, 2011). Additionally, many members of the American public dissent to nuclear energy because they equivo-cate nuclear weapons with nuclear energy .

People tend to exaggerate groundlessly the risks of things we fear. There was certainly a risk of consuming a cyanide-laced Tylenol capsule, just as there is a risk that something will go wrong with a nuclear reactor. However, the respective risks did not necessarily justify the frenzied responses. This paper examines the relationship between information about and approval of nuclear power, asking the following question: Is there a relationship between the information about nuclear energy to which people are exposed and their support or rejection of nuclear en-ergy production? The hypothesis is that people are more likely to support nuclear energy as they are exposed to more information about the process and its risks, examining numerous intervening variables. The ultimate goal is to identify and sort the variables involved, analyze the policy implications of these variables, and guide future researchers toward this subject.

Literature Review

Researchers have looked a great deal into people’s perception of nuclear en-ergy, concluding a wide variety of opinions on the subject. The nuclear commu-nity adopts the assumption that people who know more about the nuclear energy process tend to favor it more (Kasperson, Berk, Pijawka, Sharaf & Wood, 1980). The nuclear community responds to public opposition by disseminating more pamphlets or fact sheets in hopes of dispelling fears and anxieties held over from the Cold War era. This perspective assumes that nuclear support or opposition is primarily cognitive in nature, and that making information accessible will sway the public to favor the production of nuclear energy.

Gender is also a potential variable in the nuclear opinion paradigm. Kasper-son et al (1980) noted that women consistently opposed nuclear energy more than men, and coincidentally, were also less informed with regard to nuclear power. Matt McGrath (2011) also cited a study of 2,050 adults polled by the British Sci-


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ence Association corroborating this gender trend, finding that British men were “more than twice as likely” to be in favor of nuclear energy than women. Based on these studies, men seem to be more enthusiastic about scientific progress, whereas women tend to be more cautious.

This nuclear caution, while widespread among female respondents, is not gender-unique. In fact, all humans operate with a “complex interplay between emotion and reason” (Slovic & Weber, 2002). Human dread and unrequited doubt also drive opinions. This seems to contradict the nuclear community’s assump-tion that opinions about nuclear energy are purely rational or cognitive. Ultimate-ly, risk is subjective to how each individual weighs the costs and benefits, which makes it susceptible to the sway of emotions.

Despite the emotional opposition to nuclear energy, people invariably still see nuclear as an energy source of the future. Evidence from polling data demon-strates that while the public is opposed to the imminent construction of new pow-er plants, they want to leave the nuclear energy option open for future applications (Rosa & Dunlap, 1994). This leaves the energy community in a paradox as they attempt to unravel nuclear energy opinions. In fact, nuclear safety is so important to Americans that their opposition or support for nuclear energy swings by about forty percentage points when the phrase “assurance of safety” is included in the polling questions. Such variance in data seems to render opinion polling less cred-ible than analysts might prefer.

Such varied opinions demand that researchers draw more qualitative con-clusions about possible psychological factors that relate to people’s opinions about nuclear energy. As previously stated, the typical response of the nuclear industry is to publish fact sheets to dispel opposition to their energy production (Raman, 2011). Predictably, these fact sheets have been massively ineffective, as they use rational defenses to address emotional fears and skepticism.

The media also has an influence on the fear of nuclear energy. Sharon Fried-man (2011) analyzed the media’s influence in the reactions to Three Mile Island, Chernobyl, and the Fukushima incident, respectively. Her analysis reveals that the transition from traditional media to social media has played a substantial role in people’s opinions. Friedman (2011) notes that people may now be selective in the ways that they are exposed to information thanks to online media. This means that exposure to information today—contrary to that seen in the wake of Three Mile Island—simply reinforces people’s opinions instead of informing them of alterna-tive opinions.


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Data and Methods

This project will seek to address the aforementioned variables and clear the way for future researchers to draw further conclusions. However, as demonstrated previously, the excessive prevalence of intervening variables forces a much more complex analysis that combines of quantitative and qualitative methods.

Ignoring the intervening variables for a moment, this paper must define and operationalize the primary dependent and independent variables. The indepen-dent variable—exposure to information—measures respondents’ access and ex-posure to data and opinions on the subject of nuclear energy production. While it is impossible to measure exactly how many articles or words a person has read on the subject of nuclear energy throughout their lives, it is possible to measure the number of articles or stories published on the subject. For the purposes of this study, the more articles are published on the subject, the more accessible they are to respondents. This paper understands support for nuclear as support for contin-ued and/or increased production of nuclear energy in the United States. Respon-dents need not agree to have a nuclear facility in close proximity to their personal residences, although such information may provide insight on fears that affect the variable itself. The research collected qualitatively will help account for the inter-vening variables.

Research

Public support of nuclear energy production has remained steadily positive in recent years. According to Gallup in 2012, 57% Americans still support the production of nuclear energy. These numbers have certainly fluctuated over the past eight years of Gallup’s survey data, but considering that the 2012 margin of support is identical to the numbers obtained in 1994, there has clearly been a sta-ble support of nuclear energy spanning nearly a decade now.

However, this current trend of support has not always been so consistent. A 1988 publication unequivocally identified a decline in the long-term trajectory of public opinion of nuclear energy (Boer & Catsburg, 1988). This decline was generally associated with catastrophic nuclear events; notably the Three Mile in-cident and the Chernobyl meltdown. Most recently, the Japanese catastrophe at their Fukushima plant has offered new data on public support and public reaction to nuclear mishaps. However, unlike the predicted decline in public opinion that Boer & Catsburg observed surrounding Chernobyl and Three Mile Island, Gallup notes that nuclear support has remained steady in the wake of the Fukushima event (Gallup, 2012).


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In order to tie these public opinion trends to the hypothesis at hand, one need only look to publication data surrounding major nuclear events and fluctua-tions in public opinion data. The Fukushima incident prompted Sharon Friedman to research the promulgation of information around such incidents. She found that Google returned 73,700,000 results for searches for “Fukushima” and an additional 24,400,000 search queries for “Fukushima and radiation” (Friedman, 2011). That means that nearly one billion people were searching for information on Fukushima following the incident. This level of access to information is stag-gering when compared with coverage of Three Mile Island and Chernobyl, which were only followed by print media publications and limited television attention.

The coverage surrounding the Three Mile Island incident was nowhere as extensive or fast-paced as the reaction to Fukushima, but it and Chernobyl both had significant media followings. Just after Three Mile Island, there were approxi-mately 200 minutes of news devoted to the incident on each major news network, dispersed across their morning and evening programs. Friedman also notes that the number of articles published was more scattered, falling between 45 and 85 for four major news agencies, and even as high as 148 articles in a local newspaper. It is important to note that many of the articles contradicted one another, or were presenting misleading information due to incomplete reports coming from the scene. Thus, while plenty of information was distributed, that information con-tributed to confusion and an increase in uncertainty. Since journalists did not have an understanding of the technology about which they were reporting, they often disseminated misleading information.

Chernobyl presented its own unique challenges with regard to incident re-porting. Rather than experiencing free reporting and promulgation of informa-tion, Chernobyl occurred inside of a country that gagged its press, so we must turn again to U.S. media coverage. There were 394 printed articles dispersed amid U.S. newspapers and 43 newscasts on the airwaves in the aftermath of Chernobyl. However, 46% of those articles and 60% of the newscasts mentioned radiation, usually in unspecific and unhelpful terms. Despite some ambiguity, it is generally accepted that the U.S. reporting on the event was fair based on the knowledge of the day, and based on what little information emerged from the blocked Soviet press.

These numbers may seem insignificant when compared with Fukushima’s media swirl; however, the major development in the spread of nuclear informa-tion post-Fukushima was not necessarily the hoard of numbers themselves, but rather the method. With the advent of 24-hour news cycles, it is very tempting to speak in hyperbole. Such bombastic phrases about Fukushima being a “ticking time bomb” mixed with quasi-legitimate talk of radiation and meltdowns stood as fillers in the news cycle, perpetuating stigmas and misinformation, despite the


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average person’s exposure to a higher volume of news. As early as 1980, however, some commentators were aware that fear and sus-

picions would ultimately drive public opinion, despite the amount of information being published (Kasperson, Berk, Pijawka, Sharaf & Wood, 1980). According to M. V. Ramana (2011), one factor that has a major role in determining a person’s position on nuclear energy is trust. Ramana cites a case study performed by two psychologists at the California Polytechnic State University who found that re-spondents who expressed more support of nuclear energy were simply those that had more trust in the credibility of the information emanating from the ruling government agencies. He argues that any semblance of distrust among the popu-lace would likely diminish the effectiveness of efforts by U.S. nuclear proponents to release blueprints demonstrating the safety of modern nuclear facilities.

It seems, then, that emotion is the primary variable intervening between in-formation and opinion. The quantification of emotion is next to impossible, so this paper will use qualitative methods. In 1990, the State of Nevada Agency for Nucle-ar Projects released a dense empirical study on what they termed “Social Ampli-fication of Risk” (Burns, W., & Slovic, 1990). In this study, the researchers created a taxonomy of all 128 catastrophic events that occurred between the years of 1976 and 1987 in order to isolate the source of trepidation surrounding nuclear energy. The study concluded that when the risk of a particular procedure or process is perceived to be uncontrollable, then people will fear it more and see it as having high societal cost. This would explain why the public is more frenzied with few ca-sualties caused by something they do not fully understand (like nuclear incidents), than with the many casualties caused by something with which the public is famil-iar (like a train wreck). These researchers also revealed that the public’s perception relies heavily on media exposure, as coverage contributes to a person’s perception of the response to particular situations. Thus, people’s reactions to nuclear energy can depend on two major platforms: the direct consequences of nuclear energy and the behavior of the media.

This paper finds that a pure causal relationship between information and opinion seems impossible to determine, as the causal path to an opinion on nucle-ar energy is not linear, but quite complex. People’s value orientations, personal and emotional risk assessments, and trust of particular regulatory agencies will nec-essarily bleed into their decision making and blur the causal connection between what they know about the process of nuclear energy production and how they feel about it (Whitfield, Rosa, Dan, Dietz, 2009). Figure 1 is taken from Whitfield, et al., and clearly demonstrates the connections:


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Figure 1One’s opinion on nuclear energy is far more complex than a fact sheet could

ever illustrate. However, in understanding the reasoning behind one’s support for or opposition to nuclear energy, it may be possible to glean greater insight into why humans act and think the way they do in other circumstances. Thus, there is an in-centive for researchers to continue analyzing this relationship.

This paper also finds that the evolution of media has enhanced people’s abil-ity to access relevant information; however, it does not follow that people will consistently seek legitimate or unbiased information. In fact, the emergence of social media and Google as a source for information may have actually hindered access to well-rounded perspectives. Rather than being fed information by print media, citizens now have the ability to be exclusive in the news to which they ex-pose themselves. On their newsfeed, in their inboxes, and straight to their mobile devices, they have complete control over what forms of media reach our ears and eyes. This increases the capacity for citizens to become entirely one-sided about an issue, and isolate themselves in the marketplace of ideas. Such information would not push an opinion one way or another. Conversely, it would enforce what one already believes because one could be selective in their methods of receiving it (Freidman, 2011).

The wide dissemination of information also increases indifference for hon-esty. This implies that people will share information with one another without re-gard for its truthfulness. Such a trend only diminishes the veracity and influence of information, which diminishes public trust in nuclear regulatory agencies when they attempt to reassure the public. As the previous chart demonstrated, there is an undeniable connection between opinion and knowledge and trust. If honesty is disregarded, then information about nuclear energy programs becomes irrelevant


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because it would lose any semblance of legitimacy.From a policy perspective, this research has potentially dramatic implications

for the way in which the government advances its interests in new areas of tech-nology. If technology is widely misunderstood or perceived to be uncontrollable, then public reactions will be overwhelmingly negative. This is incredibly relevant to upcoming projects dealing with mass transit, security and law enforcement, military weaponry, and energy production. As the government seeks to expand the use of new technologies, they should be reminded the people will generally oppose that which they do not sufficiently understand.

If nuclear energy is to retain its position as a cornerstone of American energy, or increase in prominence at all, the government and nuclear regulatory agencies must take one of two routes. They must either market nuclear energy as the energy of the future and actualize its futuristic potential, or make it appear so easily within the reach of modern technology that the average American will shirk their doubts.

It is already established that Americans perceive nuclear to be the energy source of the future (Rosa and Dunlap, 1994). Thus, the first step to successful nu-clear marketing may be to capitalize on its futuristic aura and try to get the gener-al public to rally behind the advance of technology. Ronald Reagan used a similar tactic when marketing his missile defense program aptly dubbed “Star Wars” (The Cold War Museum, 2015). In his 1983 address to the nation, President Reagan ap-pealed to the sophisticated advances in science that empowered American engineers to manufacture such an advanced missile defense system as “Star Wars” proposed (Reagan, 1983). Similarly, people are skeptical of the ability to secure safe nuclear en-ergy amidst fears of meltdowns and technical difficulties. If American leaders once again appealed to the futuristic aspects of modern nuclear energy production, and called the people to rally around the program toward the goal of sustainable energy, the strategy may well work the same.

A second strategy would be to focus on the feasibility of nuclear energy. The American Navy currently powers its aircraft carriers using the very nuclear energy that people avoid on land (Navy.mil, 2014). The Navy’s Nimitz-Class, Enterprise-Class, and Ford-Class aircraft carriers are all powered by on-board nuclear reactors. If a nuclear advertisement campaign were to center on the feasibility of nuclear energy, and the fact that a major icon of the American Navy relies upon the technology, the technology may not seem as dreadful. Both in 2012 and in 2014, the Nuclear Energy Institute released advertisement campaigns that hinged on marketing nuclear as a clean source of sustainable energy (Nuclear Energy Institute). While this is certainly significant progress from the days of raw fact sheets, solar and wind power currently own the market on the idea of clean energy. If nuclear energy wants an opportunity to shine, it cannot advertise on platforms already championed by more cliché tech-nologies like solar and wind, nor can it continue to appeal to the purely academic or


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scientific community that already support it (Rothman and Lichter, 1987).Nuclear energy happens to be a salient political issue at the moment, and its

saliency opens a major energy policy window. But popular anxiety stands in the gap (Bolsen & Cook, 2008). The perceived risk of nuclear energy—the driving force behind support or opposition—is ultimately an intricate balance between the technological hazards, and the emotional overtones that shade the discussion. The population has generally amplified the risk beyond any reasonable hazard rating, due to their concern over major, but infrequent, incidents (Rothman and Lichter, 1987). Thus, the nuclear community will have to take a new approach if it aims to capitalize on the open policy window.

Conclusions

Information is powerful, but not almighty, in the realm of decision-making. Consequently, it seems that this project’s initial hypothesis must be partly dis-carded. By now, it should be clear that more accessible or abundant information does not necessarily bridge a causal link to support for nuclear energy. Rather, a complex myriad of variables plays into a person’s decision, and information is merely a fraction of that equation. If the United States seeks to make strides in the energy realm— nuclear or otherwise— it would be wise to account for this intricate web of opinion that is supported by trust, degraded by fear, and swung


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by perceived risk.References

Boer, C., & Catsburg, I. (Summer, 1988). The Polls – A Report; The Impact of Nuclear Accidents on Attitudes Toward Nuclear Energy. The Public Opinion Quarterly, 52(2), 254-261. Retrived from http://www.jstor.org/stable/2749279

Bolsen, T., Cook, F. L. (2008, Summer). Trends: Public Opinion on Energy Policy: 1974-2006. The Public Opinion Quarterly, 72(2), 364-388. Retrieved from http://www.jstor.org/stable/25167630

Burns, W., & Slovic, P., (September, 1990). Social Amplification of Risk, An Empirical Study. State of Nevada Agency for Nuclear Projects/Nuclear Waste Project Office. Retrieved from http://www.state.nv.us/nucwaste/library/se-027-90.pdf

Crowley, K. (2015). THE STRATEGIC DEFENSE INITIATIVE (SDI): STAR WARS. The Cold War Museum. Retrieved from http://www.coldwar.org/articles/80s/SDI-StarWars.asp

Friedman, S. M., (2011). Three Mile Island, Chernobyl, and Fukushima: And analysis of traditional and new media coverage of nuclear accidents and radiation. Bulletin of the Atomic Journalists 67(5) 55-65. N Retrieved from: http://gabe.palomares.com.au/uni/66905310%20-%20Copy.pdf

Helm, C. J., Rothman, S., Lichter, S. R. (1988, September). Is Opposition to Nuclear Energy an Ideological Critique? The American Political Science Review, 82(3), 943-952. Retrieved from http://www.jstor.org/stable/1962500

Jones, J. (2010, March 22). U.S. Support for Nuclear Power Climbs to New high of 62%. Gallup. Retrieved from http://www.gallup.com/poll/126827/Support-Nuclear-Power-Climbs-New-High.aspx

Kasperson, R. E., Berk, G., Pijawka, D., Sharaf, A. B., & Wood J. (Spring, 1980). Public Opposition to Nuclear Energy: Retrospect and Prospect. Science, Technology, & Human Values, 5(31), 11-23. Retrieved from http://www.jstor.org/stable/689009

McGrath, M. (2011, September 9). UK Nuclear Support Rises after Fukushima. BBC News. Retrieved from http://www.bbc.co.uk/news/science-environment-14847875


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Newport, F. (2012, March 26). Americans Still Favor Nuclear Power a Year After Fukushima. Gallup. Retrieved from http://www.gallup.com/poll/153452/Americans-Favor-Nuclear-Power-Year-Fukushima.aspx

Nuclear Energy Institute (2012, March 19). Multimedia Ad Campaign Highlights Benefits of Clean Air Nuclear Energy. Retrieved from http://www.nei.org/News-Media/Media-Room/News-Releases/Multimedia-Ad-Campaign-Highlights-Benefits-of-Clea

Nuclear Energy Institute (2014, February 24). NEI Unveils 2014 Advertising Campaign, Messaging Priorities. Retrieved from http://www.nei.org/News-Media/Media-Room/News-Releases/NEI-Unveils-2014-Advertising-Campaign,-Messaging-P

Reagan, R. (1983, March 23). Address to the Nation on Defense and National Security. The University of Texas at Austin. Retrieved from http://www.reagan.utexas.edu/archives/speeches/1983/32383d.htm

Rothman, S., Lichter, S. R. (1987, June). Elite Ideology and Risk Perception in Nuclear Energy Policy. The American Political Science Review, 81(2). Retrieved from http://www.jstor.org/stable/1961958

Rosa, E. A., & Dunlap, R. E. (Summer, 1994). The Polls – Poll Trends; Nuclear Power: three Decades of Public Opinion. The Public Opinion Quarterly, 58(2), 295-324. Retrieved from http://www.jstor.org/stable/2749543

Slovic, P., & Weber, E. U., (2002). Perception of Risk Posed by Extreme Events. Center for Decision Sciences (CDS) at Columbia University. Retrieved from http://www.rff.org/Documents/Events/Workshops%20and%20Conferences/Climate%20Change%20and%20Extreme%20Events/slovic%20extreme%20events%20final%20geneva.pdf

Spiegelhalter, D. (2011, March 21). Japan Nuclear Threat: The Tsunami is the Bigger Tragedy. BBC News. Retrieved from http://www.bbc.co.uk/news/world-asia-pacific-12785274

Ramana, M. V. (2011). Nuclear Power and the Public, Bulletin of the Atomic Scientists, 67(4), 43-51. Retrieved from http://www.academia.edu/1556068/Nuclear_power_and_the_public


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United States Navy (2014, October 16). Aircraft Carriers – CVN. Retrieved from http://www.navy.mil/navydata/fact_display.asp?cid=4200&tid=200&ct=4

Whitfield, S. C., Rosa, E. A., Dan, A., Dietz, T., (2009). The Future of Nuclear Power: Value Orientations and Risk Perception. Risk Analysis 29(3), 425-437. Retrieved from: http://cybercemetery.unt.edu/archive/brc/20120621002428/http:/brc.gov/sites/default/files/meetings/presentations/whitfield_et_alpublished.pdf


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UNILATERAL BYPASS:EXAMINATION OF A RELATIONSHIP

BETWEEN EXECUTIVE ORDER ISSUANCE AND CONGRESSIONAL

CONCURRENCE

Sarah Cavicchi

Abstract

Each year, the executive issues dozens of orders. Conventional wisdom holds that presidents use executive orders to bypass an opposing Congress in order to achieve their political agenda. The current study examines data from Vital Statistics on the Presidency to evaluate this relationship, analyzing the possible explanations of the results seen from the data, and implications and suggestions for future research.

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Introduction

“I’ve got a pen and I’ve got a phone” (CBS, 2014). In January of 2014, President Obama epitomized the modern conception of executive power by saying he would not wait for Congress to pass legislation because he could pass it himself. His notion of executive power raises several questions regarding how modern presidents relate to Congress with the power of executive order. Do presidents use their executive powers more extensively when Congress opposes them in their agenda? This paper will investigate that question and show that presidents do tend to issue more executive orders in the face of congressional opposition.

If the hypothesis is correct, it would help academics, politicians, and the public understand the nature of executive power, its interaction with the legisla-tive branch, and the party system in the United States. Initially, it seems that that presidents issue more executive orders when the opposite party controls Con-gress; however, historical data could yield different results. During the early 20th century, ideology trumped partisanship in Congress’s interactions with the Presi-dent, as seen in the alliance between Southern Democrats and Southern Republi-cans. This could have changed the way the President used his executive authority. Additionally, this research will shed light on whether the governing styles of par-ticular presidents or their uses of unilateral action were affected by the partisan composition in Congress during that president’s tenure in the White House.

Literature Review

Academics have written on Congress and the executive for decades, but few have studied the relationship between executive orders and Congress. However, a number of books give a foundational understanding of Congress and the pres-idency, and other authors specifically discuss the relationship between the two institutions in terms of power, exchange, and authority. This will allow us to make several inferences from the existing research.

In his theory of presidential character, James Barber (1972) says the best way to predict the success or failure of the president is to study the person, espe-cially his formative years. Barber says that psychological make-up strongly influ-ences presidential behavior, which is patterned and understood best in psycho-logical terms. Conversely, presidential personality interrelates with the climate of the nation at the time he is serving. From these assumptions, he constructs two baselines to measure the president: activity-passivity (how much energy the man invests in his presidency), and positive-negative (how he views himself and his status as president).


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The first four presidents in America’s history give an example of each. Wash-ington was a passive-negative—aloof, reserved and did not want to be president. Adams was active-negative—emitted intense effort with low emotional reward. Jef-ferson was active-positive—little effort and always seeking to be loved. Madison was passive-positive—he put little into the system and enjoyed the process even less.

For the purposes of this paper, this means that different presidential attitudes affect their perceived need to act unilaterally. For example, Barber looks at Nixon—an active-negative president. “He has the reins. It is not yet clear where he will drive with them.” Because of his personality, he knew that if something would not get through Congress, he was better off doing it through executive order. For example, the creation of the Environmental Protection Agency in 1970 came by executive order.

In his book, America’s Congress: Actions in the Public Sphere, James Madison through Newt Gingrich, David Mayhew analyzes the House, Senate, and presidency and how they interact. He claims that in recent years, the three institutions have be-come increasingly more democratized, distinct, and equal. Mayhew’s belief suggests that there would be no direct link between the number of executive orders issued and the political makeup of Congress, because they act independently.

Gary Jacobson (2009) writes in The Politics of Congressional Elections about a phenomenon called Presidential Coattails. “The term reflects the notion that suc-cessful candidates at the top of the ticket—in national elections, the winning presi-dential candidate—pulls some of their party’s candidates into office along with them, riding, as it were, on their coattails.” If a president pulls a majority into Congress with him, that majority is expected to vote with him as a “thank you” for helping get them elected. This paper does not discuss elections, but Congress-think in terms of elec-tions; congressmen calculate their decisions around the fact that they face reelection every two years.

The success or failure of the coattails effect often determines how much Con-gress votes with the President. This legitimizes this paper’s posited connection be-tween the two variables under study: the control of the White House, the control of Congress, and how the voting coincidence between them is a relevant and important academic study. Congress realizes that the president has an ability to affect elections, and they therefore care what the President thinks and care what the electorate thinks about the President.

Richard Neustadt (1990) presents the Presidential Weakness theory in Pres-idential Power and the Modern Presidents. Neustadt theorizes that the president is operating from a position of weakness, and his only power is the power to persuade, bargain, and influence. His book investigates how presidents persuade the elector-ate, foreign governments, and Congress. Neustadt argues that executive orders are useful because they accomplish things. They are not a means in an end; they are tools in and of themselves.


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In an article titled Presidential Success on the Substance of Legislation, authors Barret and Eshbaugh-Soha (2007) argue that presidents grant significant conces-sions in order to pass legislation important to them. They claim that no one has ever shown how the presidential power to persuade influences final legislation. The authors agree that Congress undoubtedly “needs” presidential leadership on certain issues; however, the president must also compromise with Congress. They claim that the only viable alternative to compromise is a veto. They do recognize the possible potency of executive orders, but conclude, “It is therefore unlikely that the threat of direct presidential action had much of an impact on the legislative ne-gotiations we examine in this article, and we thus do not account for the possibility of such action in our model” (Barrett, 2007). Their outright dismissal is another reason such research is so necessary in the academic community, as it contradicts the hypothesis of this paper.

The Oxford Handbook of The American Presidency (2009) discusses the Pres-idents and the Political Agenda. Edwards and Howell write that it is common knowledge that executive orders are one way to control the bureaucratic process and agenda setting in general. They note that the number of executive orders that are issued depends on the political climate of each presidency, and more executive orders are issued near the end of a president’s term when his window to oversee legislative action grows short.

They also discuss how executive orders interact with legislation and Con-gress. “Legislation is more permanent, but has higher political transaction costs. Unilateral action is easier to achieve, but can be overturned by the next President” (Ibid.). This relationship is exactly what this paper seeks to analyze. “This ability to take unilateral action puts the president in the position of making the first move in the policy-making game, providing the president with an important institutional advantage.”

In another section of the Handbook, Edwards and Howell offer an alterna-tive to Neustadt’s bargaining model. They argue that his model is dated and that much has changed since the sixties. The relationship between presidents and “such external political actors as Congress, the media, and interest groups is far more confrontational than it once was” (Ibid.). Presidents, therefore, have less room to negotiate, build coalitions, compromise and persuade people over to their side. Therefore, they are issuing more “significant” executive orders and making greater use of signing statements and National Security Directives just to get their job done.

These techniques are rarely challenged by Congress or the courts, and they do not get the same level of media scrutiny as legislation, so they are an attractive alternative to presidents. They argue that this new theory bridges the gap between Neustadt’s dated model and the current political climate:


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First it should account for the president’s first mover advantage… Sec-ond, whenever presidents contemplate a unilateral action, they an-ticipate how Congress and the judiciary will respond. The limits to unilateral powers are critically defined by the capacity, and willing-ness, of Congress and the judiciary to overturn the president. Rarely will presidents issue a unilateral directive when they know that other branches of government will subsequently reverse it (Edwards, 2009).

This means that the president will not act unilaterally if there is a high prob-ability that he will be shot down by the courts or Congress. However, presumption has shifted. In the traditional Neustadt model, Congress acts first. In the modern presidency, the President acts first.

If Howell is right, then the hypothesis of this paper is true, and further re-search can proceed to discover when and how the president decides when to issue an executive order and how he balances the decision with the partisan makeup in Congress.

John Kingdon’s opinion on the relationship between administration, or the executive branch, and Congress is that none exists. He says that the executive branch is “not particularly important in congressmen’s voting decisions” (King-don, 1989). Congressmen who are already in the president’s party will pay greater attention to him than others, but even then, it is often only those in lower ranks that care what the executive thinks. Differences between the senior level congress-men are more muted. “Even among Republicans, however, the correlations be-tween administration position and congressman’s vote are not very high, which indicates that congressmen of the president’ party may think of the administration more, but that this advantage is not always translated into votes.” This conclusion opens the door to the idea that the president may resort to unilateral actions, such as executive orders, to get things through Congress, if even his own party will not pay attention to him.

Deering and Malzman (1999) argue in The Politics of Executive Orders: Leg-islative Constraints on Presidential Power that executive orders are used both to achieve and maintain changes to the policy status quo:

Strategic Presidents will only use orders when the political, parti-san, and ideological context suggests that a two-thirds majority is un-likely to override a presidential veto. Using executive orders to avoid Congress is a viable strategy only if a President’s negative power is sufficient to protect his policy gains, a power shaped by the align-ment of preferences between the House, the Senate and the President.


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This is similar to Howell’s theory that the president will not use executive or-ders to circumvent Congress in order to achieve his agenda if it will be overturned in the end. This article does not deny the hypothesis of this paper; rather, it gives another dimension to be analyzed.

Data and Methods

Relevant concepts to the study of this hypothesis are the number of executive orders that presidents issue annually, the presidents’ agendas (partisanship), the Congress’ partisan or ideological composition, and the Congress’ potential oppo-sition to the President. The null hypothesis states no relationship exists between the number of executive orders and the amount of support presidents have in Congress.

Quantitative methods help operationalize the concepts of the hypothesis. The annual numbers of executive orders come from the Vital Statistics on the Presi-dency and categorized as variable ‘exec_order.’ They cover the terms of Dwight Eisenhower through Bill Clinton. Vital Statistics does not have the Congressional data before Eisenhower, so this paper will only examine presidential data for the corresponding period.

The binary variable, ‘presagenda,’ represents the President’s agenda, the number ‘1’ coding as Republican and ‘2’ as Democratic.

Vital Statistics also provided the Congressional variables. The House and Senate’s voting records have been categorized by concurrence with presidents as ‘house_conc’ and ‘sen_conc,’ and the political parties of each house of Congress were inputted as ‘housemaj’ and ‘senmaj.’ Lastly a binary variable, ‘preshouseconc,’ was created for each house to represent the following: 0=president/house are the same party, 1=president/house are different parties. The same was done for the Senate under the variable ‘pressenconc.’ “Opposition to Congress” is defined as opposition in one house. If either the House or the Senate is opposed to the Pres-ident, it will be included in the hypothesis.

Before analysis, these statistics were compiled and prepared through re-gression, correlation and means. A moderate to high percentage of correlation between the dependent and independent variables would prove the hypothesis through correlation and regression; this would be proven if exec_order is predict-ed by sen_conc and house_conc, or pressenconc and preshouseconc. If there is no prediction, the null hypothesis would be proven. This research will also look at how the president’s agenda relates to the support he receives in Congress, and how it affects his usage of executive orders.


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Research

The average number of executive orders issued per year is 55.26. When di-vided into executive orders issued by Democrat presidents and Republican presi-dents, the data shows that both issue almost identical numbers of executive orders. Democrats issue an average of 58.33 executive orders per year, while Republicans issue an average of 53.034 executive orders per year.

Table 1: exec_order means

This is different than the general assumption often made that Democrats is-sue more executive orders per year, while Republicans issue less. However, means examination shows that there is little difference between the political party of the presidents in issuing executive orders. Figure 1.1 shows the line graph of executive orders issued over time.

Figure 1.1


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Regression analysis discovers other interesting things. The hypothesis as-sumes that there is a relationship between the president’s agenda and congres-sional support for the president. If they do not match, the president will issue more executive orders to implement his agenda. When the dependent variable presagenda is regressed against the independent variables sen_conc and house_conc (which are how often Congress votes with the president), there is no relation-ship to be found. Only 1.5% of the variation in the dependent variable is explained by sen_conc and 7.5% of the variation in the dependent variable is explained by house_conc. This finding concludes that there is some intervening variable ex-plaining the relationship between the president’s party and how often Congress votes with the president.

However, looking at the same issue from a different angle, if the Congress and the president are of the same party, there is a much stronger relationship than how often the Congress votes with the president. The regression showed that 44% of the variation of presagenda is explained by preshouseconc, and 17% of the vari-ation is explained by pressenconc. Although there is a much stronger relationship here than how often Congress votes with the president based on the president’s party, the House explains much more of the variation than the Senate does.

Further, if the White House and the House are in political agreement with one another, it is more likely for the House to vote with the president; likewise in the Senate. The regression analysis showed that 50% of the variation of the depen-dent variable (preshouseconc and pressenconc) could be explained by the inde-pendent variables of how frequently each house votes with the president’s agenda.

How does this all relate to the number of executive orders that are issued? Regression was done to determine how strongly congressional support predicts the number of executive orders that are issued. Of the variation in executive or-ders, 20% is predicted by the support that the White House receives in Congress’ voting record (Fig. 2.1 and 2.2).

Table 2

a. Predictors: (Constant), sen_conc, house_conc


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Figure 2.1

Figure 2.2


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When the regression model is broken out and the independent variables sen_conc and house_conc are run on different models, the House predicts 22% and the Senate predicts 6%. It is apparent in looking at the model that runs them both together (noting that the House percentage is almost equal) that the House does the lion’s share of predicting the change in executive orders each year. How-ever, 20% is not a huge predictor percent. Figure 3.1 and 3.2 show a scatter dia-gram of Congress’ concurrence with the White House fitted with a trend line.

Figure 3.1

Figure 3.2


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In looking at how political parties predict executive orders, similar results were determined. Regression showed that 23% of the variation is predicted by the House, and 13% is predicted by the Senate.

Table 3: Regression Analysis: exec_order and preshouseconc

a. Predictors: (Constant), preshouseconcur

Table 4: Regression analysis: exec_order and pressenconc

a. Predictors: (Constant), pressenconcur

The last regression model attempted to show a relationship between the number of executive orders and the president’s agenda or political party. How-ever, the model showed that the president’s party predicts 0% of the variation in executive orders. This is consistent with the averages that were discussed earli-er in the paper, which showed that Republican and Democrat presidents issue nearly the same number of executive orders each year.

Given that the 20% of the variation in executive orders are explained by the percentage of support that the President receives in Congress, the research has proven the hypothesis, but in a limited way. In addition, the number of ex-ecutive orders issued has 23% more variance when the opposition party controls Congress. The president’s own party does not play into the variation at all. The hypothesis indicated that presidents tend to issue more executive orders when they are opposed by Congress. The data shows that the hypothesis is correct at least a quarter of the time.

Conclusion and Recommendations for Further Research

The data in this study confirms the hypothesis. However, the regression models showed that the House plays a larger part in determining the variation in executive orders than the Senate does. This could be that the House feels like they are backed by the voice of the people more because they have more frequent elections than the Senate. The House may also be more willing to disagree with


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the President than the Senate because it is a larger body. Further research on this topic should examine the effects of the institutional characteristics of the House that differ from the Senate, which may create an increased willingness to diverge from the President’s policies. Further research may also shed light on whether the President perceives opposition differently between the two houses.

The current study suggests that Republicans and Democrats are equally prone to issuing executive orders, only in part because they are opposed in Con-gress. The president’s own party does not account for any variance in the number of executive orders. This suggests that the modern usage of the office requires the frequent practice of presidential power in this form, and that it is affected directly by Congress, not by the president’s own desire to push agendas through without legislative action.

Beyond the President’s political party to his use of executive orders, the data shows that both the congressional concurrence and control of Congress affect the issuance of executive orders, while the president’s own political affiliation does not. As the regression model showed, about 20% of the variation is predicted by a Congress opposed to the White House. That leaves 80% to some other intervening variable, and due to the similarities between Republican and Democrat issuance of executive orders, it would appear that the other 80% are issued by pure necessi-ty, and are not affected by any congressional legislative action.

These conclusions are consistent with the literature review of The Oxford Handbook of The American Presidency by Edwards and Howell. Executive orders are one way to control the bureaucratic process and agenda setting in general, and the data certainly proved this to be true. Although executive orders depend on the political climate, there is a moderate relationship between Congress’ support of the President and the number of executive orders issued.

Most of the 20% predictor was during Ronald Reagan’s tenure as President. Because he was a very conservative Republican president governing with an in-creasingly liberal Democratic Congress, specifically in the House, the bar charts show executive orders being issued over the House’s voting concurrence with the President. This is an example of the President using unilateral authority to bypass the legislative process. Similar explanations could be detailed in future research.

Even though only 20% of the variation is explained in this way, it is an important and necessary link to be made. Further academic study of this topic should continue to be as interesting and informative as the data and findings from this study.


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References

Barber, J. D. (1972). The presidential character; predicting performance in the White House. Englewood Cliffs, N.J.: Prentice-Hall.

Barrett, A. W., & Eshbaugh-Soha, M. (2007). Presidential Success On The Substance Of Legislation. Political Research Quarterly, 60(1), 100-112.

Deering, Christopher J. & Maltzman, Forrest (1999). The Politics of Executive Orders: Legislative Constraints on Presidential Power. Political Research Quarterly, 52(04), 767-783.

Edwards, G. C. (2009). The Oxford handbook of the American presidency. Oxford: Oxford University Press.

Jacobson, G. C. (2009). The politics of congressional elections (7th ed.). New York: Pearson/Longman.

Kingdon, J. W. (1989). Congressmen’s voting decisions (3. ed.). Ann Arbor: Univ. of Michigan Press.

Mayhew, D. R. (2000). America’s Congress actions in the public sphere, James Madison through Newt Gingrich. New Haven: Yale University Press.

Neustadt, R. E. (1990). Presidential power and the modern presidents: the politics of leadership from Roosevelt to Reagan. New York: Free Press.

Obama On Executive Actions: ‘I’ve Got A Pen And I’ve Got A Phone’. (n.d.). CBS DC. Retrieved March 23, 2014, from http://washington.cbslocal.com/2014/01/14/obama-on-executive-actions-ive-got-a-pen-and-ive-got-a-phone/

Ragsdale, L. (2009). Vital statistics on the presidency: George Washington to George W. Bush (3rd ed.). Washington, D.C.: CQ Press.


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DOMESTIC UNMANNED AERIAL SYSTEMS:

PRIVACY VS. SECURITY

Mark Teubl

Abstract

This paper addresses the issue of unmanned aerial surveillance (UAS) from a con-stitutional and legal perspective, attempting to determine the proper balance between domestic security and constitutional rights to privacy. Using a variety of Supreme Court decisions, the paper determines that the risks to one’s privacy posed by UAS do not vi-olate current precedent on the subject, nor do they outweigh the benefits presented by these additional security methods. However, the Supreme Court decisions on the matter are narrowly decided, meaning that there is a possibility for change in the future.

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Introduction

Privacy advocates have voiced a plethora of concerns over the current and projected growth of domestic unmanned aerial systems (UAS) deployed by law enforcement agencies (“Fact Sheet – Unmanned Aircraft Systems (UAS),” 2014). While the number of domestic UASs will certainly increase, this growth is unlikely to cause any significant violations of privacy. The important but remote possibility of privacy issues pales in comparison to the unwieldy administrative and regu-latory morass that will be needed to address the massive increase in air traffic. This paper will address the concerns of privacy advocates by showing how these issues will not be problematic due to the reasonable protections offered by Su-preme Court precedent. Additionally, the paper will examine safety records and regulations the Federal Aviation Administration (FAA) is developing and how these are the greatest issue that must be addressed (“FAA told to make room for drones in U.S. skies – USATODAY.com,” n.d.). Finally, this paper will address the heightened concerns of privacy in the counterterrorism mission when national security is paramount and how this mission will be unlikely to affect domestic law enforcement.

Domestic Law Enforcement Limits

The purpose of law enforcement is to “enforce the standards of conduct nec-essary to protect individuals and the community” (The Challenge of Crime in a Free Society, 1967). To do this effectively, the government must be given the au-thority and the tools to detect, prevent, and prosecute crime. UASs are capable of providing law enforcement with unique abilities like aerial surveillance. Currently, local law enforcement uses UASs in seven different locations across the US, not including the United States Border Patrol (Burkoff, 2014).

Because of the high potential for abuse, citizen’s concerns about law enforce-ment’s aerial surveillance capabilities are reasonable. UASs should be used con-sistently with citizen’s expectations. While UAS technology is new and advanced, legal concerns regarding domestic law enforcement’s ability to infringe on the pri-vacy of the citizens is not recent. Public outcry has prompted federal investigations into the potential for abuse. Preliminary regulations have been put in place and lobbyists and politicians are making statements for and against the usage of do-mestic UASs (“Video,” n.d.).


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Constitutional Precedent

Supreme Court precedent provides a number of cases that deal with law en-forcement’s use of airborne vehicles for reconnaissance. The questions pertaining to domestic usage of UASs primarily regard the regulatory nature of where UAS are allowed to fly and whether a man reasonably would expect to be tracked in this method (Black, 2013, p. 1834). Due to the fact that UAS technology is relatively new and the use of it domestically has not been explored heavily, there is no direct case law; however, court cases addressing Fourth Amendment issues have already dealt with these concepts in broader terms and given some basic direction for the problems and issues of aerial surveillance. The reasonable expectation to privacy has also been addressed in the recent cases concerning the government collection of U.S. citizen metadata. (Newell & Tennis, 2014) All of the Supreme Court cases were decided in split decisions and therefore, while the case law stands, it will likely change or be reevaluated.

Airspace is Public Domain

The legitimacy of UAS usage depends heavily on the definition of public air-space. According to the FAA, aircraft are permitted to fly in such a way that would allow for a safe emergency landing if any engine failure were to render the aircraft inoperable. In congested areas, this is 1,000 feet higher than the highest obstacle located within a radius of 2,000 feet of the aircraft. In the case of non-populat-ed areas, aircraft can fly at 500 feet except over water and when around vehicles, persons, or structures (“14 CFR 91.119 - Minimum safe altitudes: General. | LII / Legal Information Institute,” n.d.). Any space above these heights within reason is sovereignly controlled by the United States federal government and is considered a “public highway” (“Pilot Counsel - AOPA,” n.d.). Numerous caveats and other aspects of the regulations allow certain aircraft to fly below these altitudes, but public airspace is largely defined by safety regulations.

Common law states that an individual owning land owns the land from the center of the earth to the heights of heaven (ad coelom) (Archibald Brown, 2005, p. 154). This concept was challenged in United States v. Causby where a farm-er lodged a suit against the federal government for violating his private property when military aircraft flew over his property on a regular basis, sometimes leading to the death of his livestock (United States v. Causby). The Supreme Court ruled that the modern age of aircraft no longer afforded Causby the right over the air-space above his land, as long as the aircraft were not causing undue damage. How-ever, due to the fact that the aircraft were flying at 83 feet over his property and therefore violating reasonable safety measures of 500 feet, the government was


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required to offer compensation to Causby. The ruling of the case ultimately meant that if aircraft maintains a reasonably safe distance above the private property, the area is considered public domain and therefore should be treated in the same manner as a public road.

The difficulty with regulating UASs within the current framework is that the vast majority of systems are light and unlikely to cause any safety hazard if a malfunction were to occur. FAA regulation currently requires all UAS systems to weigh below 25 pounds (Fact Sheet – Unmanned Aircraft Systems). This is a sig-nificant difference from an aircraft that will weigh several thousand pounds and would cause substantial damage in a crash on private property. Under the current standards, there would be effectively no restriction on where the drones could op-erate. This poses challenges for privacy that would have to be addressed through avenues other than simple safety regulations.

Aerial Surveillance is Constitutional

Dow Chemical Co. v. United States (1986) is one of the hallmark Supreme Court cases regarding airborne collected imagery (Villasenor, 2013, p. 476). In 1978, the Dow Chemical Company had resisted inspections from the Environ-mental Protection Agency. In response to the perpetual denial of investigative requests, law enforcement officers flew over Dow Chemical private property and photographed evidence of a marijuana patch. Despite the fact that the photogra-phy was done with a very expensive camera, the Court ruled that any individual could have taken the same action as the law enforcement officers, and therefore it was constitutional. Furthermore, it was constitutional for the law enforcement officers to observe from the air because flying through public airspace is a right (“Aerial Searches of Fenced Areas Upheld by Court,” 1986).

If something can be seen by the naked eye at one thousand feet, the public can view it without violating the constitution. In this case, the Supreme Court decided that law enforcement should be allowed to use aircraft to conduct sur-veillance. This has enormous implications for law enforcement use of UASs. If any civilian can fly on a commercial aircraft over any piece of property, then law enforcement will be allowed perform the same action without restriction.

Expectation of Privacy

Due to the fact that regulation by the FAA relies on safety measures only, it is necessary that the privacy protection will have to be determined by the Supreme Court. When considering the issue of privacy, a vital Supreme Court case regard-ing aerial reconnaissance is California v. Ciraolo (1986). In this case, the Supreme


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Court ruled that police who flew over a private residence to obtain evidence for a search warrant regarding illegal drugs was constitutional, despite the fact that a fence surrounded the property. It was argued that the expectation to privacy was reasonable under the two-pronged test established in Katz v. United States (1967). The two stages of privacy are subjective expectation of privacy and an expectation recognized by society (Villasenor, 2013, p. 478). Ultimately, the fact that a truck or two-story bus could have seen over the fence meant there was no room left for a subjective expectation to privacy. The Court ruled that society had never required law enforcement officers to refrain from looking at private residences from public locations.

The implications of both Ciraolo and Katz are that UASs in the hands of law enforcement could have the potential to fly anywhere considered public. As long as no intimate details of the home were observed, the legitimacy of the law en-forcement use of aerial reconnaissance is constitutional (Villasenor, 2013, p. 480). While it may appear that law enforcement has far too much latitude to intrude on the privacy of American citizens, within the current FAA regulations, this use would be largely limited to public flight patterns and safety regulations (Olivito, 2013, p. 678). This does not seem to be overly intrusive and is not a change in the judicial system, but rather allows the law enforcement the same opportunity as every American citizen.

Long-Term Aerial Reconnaissance

Following the decision in Ciraolo, the Supreme Court again upheld the right of the law enforcement to use aerial reconnaissance to confirm the existence of drugs on personal property in Florida v. Riley (1989). In this case, however, the individual had a greenhouse with an opening in the roof. Law enforcement used a helicopter to fly over the property at 400 feet and look at what the greenhouse was growing. The Court ruled that the law enforcement officer was doing what any other citizen could do and therefore was legitimate. Because nothing particularly private about the home was determined through the aerial view, it was deemed legitimate.

UAS technology is primarily used to provide aerial imagery and analysis (Burkoff, 2014, p. 17). As such, it is absolutely vital to understand current con-stitutional jurisprudence concerning law enforcement’s use of aerial vehicles in order to ascertain whether UASs ought to be limited under the Fourth Amend-ment. The Supreme Court’s interpretation of the Fourth Amendment has been lenient on the use of aerial imagery, allowing law enforcement to take images of structures that are hidden and intended for illegal purposes. While the Court will mostly likely need to make a ruling specific to UASs, it is probable that the


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Court stay consistent with its ruling in Dow Chemical, Ciraolo, Katz, and Riley: as long as the UASs are being used in a way that the public could also use, it will be upheld (Olivito, 2013, p. 686).

Unwarranted Surveillance

The Supreme Court has largely sided with law enforcement’s use of aerial reconnaissance; however, there are cases where the Court has ruled that law en-forcement overstepped its surveillance boundaries. In the highly contended case of United States v. Jones (2012), a 5-4 decision found that it was unconstitutional to track a citizen using a GPS tracker on both the grounds of common-law trespass and the right to privacy. While this case did not directly deal with aerial recon-naissance, the reasoning has direct implications.

In the case, Antoine Jones was suspected of drug trafficking and was subse-quently tracked by law enforcement through a GPS tracking device issued through a warrant. The device was placed on Mr. Jones’ car and was used for the duration of four weeks. The Supreme Court ruled that law enforcement had violated Mr. Jones’ private property by placing the GPS tracking device on his vehicle. The concurring opinion of Sotomayor noted that tracking an individual over a period of time would lead law enforcement to discover patterns and habits of lifestyle outside the scope of regular surveillance.

In Jones, it was unanimously affirmed that the GPS tracking qualified as a search under the Fourth Amendment. Given the highly controversial nature of the case, the fact that all the justices agreed that GPS tracking was a search under the Fourth Amendment is significant. Because law enforcement usage of UASs will mainly entail surveillance, it would seem that the Court would rule that these are searches and therefore require a warrant (Lynch, 2013).

Enhanced Technology

Despite the fact that the Supreme Court ruled against the law enforcement, the Court stated that the case against surveillance was not wholly due to the en-hanced technological capability. Law enforcement surveillance should not be re-stricted from using new and innovative technology to conduct surveillance (Ol-ivito, 2013, p. 687). The Court effectively ruled that simply because the resource is more efficient and not readily available to the public does not make it inherently unconstitutional.

The Supreme Court ruled against the use of law enforcement technology in the milestone case Kyllo v. United States (2012). In this case, law enforcement used a thermal imaging device to view the heat of the home of Danny Kyllo. Law


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enforcement officers were looking for abnormal heat signatures in order to see if Mr. Kyllo was growing illegal drugs. The operation took place over a period of time and determined that Mr. Kyllo was using something in his home that was not normal.

The rational conclusion was that he was using artificial heat to grow mari-juana plants. Thus, warrant was issued to have the house searched, and he was ar-rested. The Court ruled that the way in which the law enforcement conducted the investigation was unconstitutional because the thermal imaging device was not in use by the general public (Reid, 2014, p. 39). Kyllo dealt with the very specific issue of thermal-imaging devices; however, the case has been used on many different issues with regards to developing or advanced technology.

Personal and Private Data

What data is considered to be private about the lives of an individual? In recent debates over metadata, the difference between private and public data has been a highly controversial issue. Metadata is information that describes the in-formation but does not reveal the contents (Understanding Metadata, 2004, p. 1). For example, this would include the date and time a text message was sent and received, but not include any of the contents of the message. The Supreme Court ruled in Jones that the data collected was subject to scrutiny because it violated the physical boundary of Jones’ personal property (United States v. Jones, 2012). Electronic data that is collected does not violate property physically, but it can still constitute an invasion of privacy.

Bryce Newell and Joseph Tennis in their paper, “Me, My Metadata, and the NSA,” challenge the Supreme Court precedent on the issue of metadata, claiming that the Fourth Amendment’s privacy test created under Katz is an unreasonable expectation to privacy because it no longer applies to the modernized world (New-ell & Tennis, 2014, p. 347). They argue that context rather than the current binary language attempts to define and regulate the third-party doctrine. The third-party doctrine was established in the case Smith v. Maryland (1979), where the Court ruled that any data voluntarily given to a third party is no longer controlled by the original party and is therefore susceptible to be shared with other parties as well. According to Newell and Tennis, this is not a sufficient interpretation because it does not take into account any of the electronic age. For example, an individual cannot sue law enforcement officers for intruding on a private residence if they gain access to an individual’s email or social media. By logging into Facebook and looking through a profile, the officers will never intrude on personal property in the traditional sense. The current legal framework for privacy attempts to pro-vide a clear and simple evaluation that would give law enforcement a line that is


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carefully and completely defined. But because electronic communication occurs through cables or over airwaves, the collection of metadata requires a new frame-work that operates outside of physical intrusion.

Where does this leave the data collected by UASs? This issue has been dis-cussed recently in the controversy regarding metadata data collection. Metadata is controversial because it appears to be the indiscriminate collection of data; how-ever, it is currently collectable with the right warrants and protection. Ultimately, UASs can collect significantly more information about a person, simply by the nature that airborne vehicles can capture a bird’s-eye view and maybe track the location of an individual. Warrantless tracking and data collection on an unsus-pecting individual is not consistent with the Fourth Amendment. As such, it is unlikely that the Court will uphold a public domain exception.

While the Katz test does not fully apply to UASs, the framework of the test relies upon society’s expectation to privacy, which will undoubtedly evolve in the modern world. This subjective test can be difficult to quantify, but Newell and Tennis argue that the fact that it cannot be defined does not mean it cannot be used as a standard (Newell & Tennis, 2014). As judges grant warrants for the use of surveillance by UASs, one of the main considerations will be how the data is used and protected. Average citizens do not seem ready to have their personal lives invaded by any law enforcement agency. However, with the proper procurement of a warrant, this invasion would be significantly controlled. It seems highly likely that, once again, the issue of UASs will return to whether a judge will grant the usage of aerial surveillance and data collection through warrant. National security is an issue of concern to the average citizen and in exigent circumstances at the court’s discretion, it seems reasonable to assume that citizens would grant the law enforcement deference to stop a terrorist attack even if it invading privacy.

Challenges of Aerial Surveillance

UASs offer the ability for the government to leverage significantly more ca-pability than previously afforded. The Fourth Amendment challenges regarding aerial vehicles fall partially in favor and partially against the use of UASs for law enforcement purposes.

The Judicial Problem

The Kyllo court struck down the ability of law enforcement to use a thermal imaging device, whereas the Ciraolo court gave full authority to the use of aerial vehicles for surveillance and reconnaissance. The subjective test for privacy put forward in Katz will not be sufficient protection for the Fourth Amendment, so


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the ultimate question will become whether the public perception of law enforce-ment’s use of UAS technology is a violation of the Fourth Amendment (Katz v. United States, 1967). The Court has clearly stated that flying over the house of a citizen is legal. However, if any advanced imaging devices are used on the UAS, they would likely violate privacy standards. Law enforcement should be permitted to use new and evolving technology. However, at the point where the technology becomes intrusive and abnormal, it is no longer a legitimate form of law enforce-ment. All of the privacy concerns are important, but with regards to UASs, they seem disproportionately emphasized. Aerial surveillance is necessary, but not for the reasons that are so concerning to privacy advocates.

The Regulation Problem

The current issues for UASs will be regulation and enforcement. The FAA has estimated that the commercial industry of UAS technology will grow significantly with corporations and individuals purchasing and operating UASs which is why it has begun a comprehensive review of the policies and procedures (“Busting Myths about the FAA and Unmanned Aircraft,” n.d.). With companies such as Amazon poised to deploy UASs for package delivery, regulation will be difficult (McNeal, 2014). Over the next five years, it is projected that as many as 7,500 UASs will be operating within the United States (“FAA told to make room for drones in U.S. skies – USATODAY.com,” n.d.). The FAA has no easy way to enforce or police the growth in the flight sector. Unless there is an independent arm of the FAA created to enforce the regulations that will result from the growth in the commercial and private industry, then law enforcement will have to do the work.

The Volume Problem

According to the Bureau of Transportation Statistics (BTS), over 250 mil-lion privately owned motorized vehicles are in the United States (“Number of U.S. Aircraft, Vehicles, Vessels, and Other Conveyances,” 2011). By contrast, rough-ly 230,000 privately owned aircraft are in use (“General Aviation and Part 135 Activity Surveys - CY 2012,” 2011). The regulations required for both of these types of vehicles are immense. The Department of Transportation (DOT) spends $70 billion annually and payrolls over 55,000 employees (“Our Administrations,” 2012). From speed limits and vehicle inspections to airspace classifications and flight patterns, the DOT oversees thousands of pages of regulation and numerous enforcement agencies. If UASs grew at the rate projected, then the regulatory arm of the DOT would also need to grow dramatically. UAS regulation would look different, but would require enforcement nonetheless.


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Law Enforcement Challenges

Currently the only way to operate a UAS is with a permit granted by the FAA. To date, only a handful of domestic law enforcement agencies have put UASs to use. However, it is not difficult to imagine the plethora of purposes that the UAS technology could serve including speed monitoring, interdiction, investiga-tion, and, ultimately, weaponry. The greatest challenge faced by law enforcement is public perception. If the public perception of the UASs is positive, then it will likely succeed. But, if it is negative, then it will be shut down.

Positive Public Perception

One of the few law enforcement agencies that has begun the use of UASs is the Mesa County Colorado Sheriff ’s Office (“Will Drones Be the Next Police Cars?,” n.d.). However, rather than speed monitoring or investigating as many privacy advocates have feared, Mesa County’s UAS is used for completely benign purposes. The three UASs owned by the police department have helped in search and rescue operations, covering significantly more territory then any of the offi-cers could cover on foot. Additionally, the office lent use of the UAS to the U.S. Geological Survey in its surveillance of a landslide over a major highway. Despite the fact that the UASs deployed by Mesa County are used for completely legiti-mate purposes, this situation has attracted a significant amount of criticism.

Public opinion of the Mesa County’s UASs is highly skeptical and condemn-ing. However, the law enforcement officers have slowly and carefully met with the community and transparently showed the community how the new technology can be beneficial without compromising liberties (“Will Drones Be the Next Po-lice Cars?,” n.d.). The department holds hearings and allows citizens to see and engage in public discourse over the issue of law enforcement’s use of UASs. The public hearings show the difference between military weaponized systems and the smaller and less intimidating UASs employed by the Sherriff ’s office. Mesa County provides a clear example of well-conceived and executed use of UASs in a way that serves the public safety without any violation of privacy and without causing unnecessary alarm.

Negative Public Perception

Other examples of UASs in the hands of the government have been less con-vincing. The Customs and Border Protection agency (CBP) has made use of UASs since 2005 (Stanley & Crump, 2011, p. 6). With seven active UASs on the southern border, the CBP has plans to expand its fleet to include up to twenty-four new


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aircraft. The main issue of concern is that the CBP makes the use of the UASs available to local and federal law enforcement agencies. On June 23, 2011, the Nelson County Sherriff called in a request for backup when three armed men threatened his investigation of stolen livestock (Bennett, 2011). Among the sup-port he received was a Predator B drone housed at Grand Folks Air Force Base, North Dakota. Utilizing the UASs cameras and sensors, the law enforcement was able to find the three men on a 3,000 acre piece of property, determine they were unarmed, and arrest them. This was possible only because the CBP had the two drones available.

In Houston, Texas, the local law enforcement attempted to test UASs in 2007 secretly, but when local reporters broke the story on the testing, the program came under close scrutiny. (Farber, 2014) When one of the officers mentioned that there could be the potential for the UAS to be used for speed monitoring, the public outcry was so strong that the program was forced to close.

Public opinion of government use of UASs is skeptical if not often hostile. In the case of Mesa County Sherriff ’s office, the use of UASs is completely legitimate. However, the ultimate purpose of these systems must be transparent. Mesa Coun-ty has run a campaign to win the hearts and the minds of the citizens by carefully demonstrating that UASs are not intrusive. Law enforcement officers in Houston, however, were deceptive and subversive in their attempts to test the new technol-ogy, and ultimately this led to public dissatisfaction and anger.

Recommended Rules of Engagement

In order to address the constitutional intrusions that are possible through law enforcement use of UASs, the ACLU proposed the following five excellent measures of restriction: usage restrictions, image retention restrictions, pub-lic notice, democratic control, and auditing and effectiveness tracking (Stanley & Crump, 2011). Within reason, these five controls have been the pillars of the Fourth Amendment protection throughout all Supreme Court precedent, and as such they provide a good framework for law enforcement. Ultimately, the ACLU recommends restricting law enforcement use of UASs from everything except ae-rial surveillance.

Usage restrictions recommended by the ACLU include the prohibition of mass and indiscriminate surveillance (Stanley & Crump, 2011). In the case of a specific warrant obtained to investigate a criminal matter or in exigent circum-stances, such as a terrorist plot, the government should be allowed the use of UAS technology. Additionally, in the case of geographically challenging circumstances where an emergency situation requires the quick reaction of law enforcement, UAS technology should be permitted. Finally, when there is a non-law enforce-


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ment use such as geological surveying or environmental inspection, the govern-ment should have free reign over the use of UAS, provided it does not collect information outside of the scope of the surveillance.

Law enforcement must also eliminate the retention of any imagery except in the cases that could be used for criminal prosecution (Stanley & Crump, 2011). It should not be shared or distributed to any agency, but rather eliminated as soon as it is discovered unusable. ACLU also recommends government publically an-nounce that it will be using aerial surveillance technology so that the public can voice concerns and be aware of the technology’s usage. This should open a healthy dialogue between the law enforcement and the citizens. In this way, elected offices such as the Sherriff would be more accountable to the people.

The ACLU further recommends that procurement and deployment of UASs ought to be decided on a democratic basis (Stanley & Crump, 2011). This allows the people to see the purpose and decide how taxpayer money should be spent on law enforcement missions and would restrict the use of federal grants for the purpose of purchasing UASs. While this may impede the growth of the system, it will also allow the citizens to decide whether they would prefer to have the systems deployed to their local areas. It will also allow the local law enforcement the ability to present and defend the uses of the technology to the public.

Finally, there must be accountability in the use and effectiveness of the sys-tems (Stanley & Crump, 2011). If the systems cannot be properly justified, then the cost-benefit analysis should be provided to the public. Additionally, if the technology is being used for purposes other than their original purpose, then there should be an avenue for public recourse.

These restrictions are reasonable and many have already been adopted by the law enforcement that have begun to make use of UASs. For example, Mesa County, which has used UASs sparingly and regularly, held an open dialogue with the public about the use of the new technology. While the money for purchasing the technology was not discussed by the public in an open forum, it was also not provided by a federal grant. This helps to diffuse the confusion and anger encountered in Houston. Law enforcement that curries public favor will stay in existence, whereas programs that do not carefully take into account the power of public scrutiny will certainly encounter hostile resistance.

Safety Concerns

One of the greatest issues that comes with the implementation of UASs in the United States is safety. In the context of overseas military operations, safety has been one of the leading motivators for the implementation of UASs, but for different reasons than domestic UASs. It is significantly safer to remove human life


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from danger by flying a UAS over a battlefield. With domestic issues, however, the issue of safety becomes far more difficult. As UAS traffic increases, law enforce-ment may be forced to control civilian UASs the same way they are required to control civilian motor vehicles.

Types of UASs

There are a number of ways UASs can be flown. The first and most common way is for a remote pilot to manually operate the aerial system from a ground sta-tion (Beyer, Donna, Townsley, & Wu, 2014). The other method is to pre-program the aircraft to fly certain routes. This type of UAS relies more heavily on GPS and sensory systems that will allow the flight to stay on course and perform the necessary corrections. To be most efficient, it is likely that a large percentage of commercial UASs will fly preset patterns.

Safety Studies

Because the FAA currently prohibits commercial UAS flights, there is very little data to project how much the market will be affected and regulated by acci-dents (Beyer, et al., 2014). An initial study has showed that over a ten year period, U.S. Air Force UASs had consistently triple the accident rate of manned aircraft. Close to 58 percent of the accidents were due to hardware malfunction and 27 per-cent was due to pilot error (Beyer et al., 2014). A Congressional Research Service study showed that the UAS accident rate is 100 times greater than aircraft manned by human pilots (DeGarmo, n.d.). The number of accidents increased due to the growth of UASs deployed by the Air Force.

While military missions contain more risk and complexity and operate in adverse conditions, these factors were not the main contributors to accidents. The issues that are most prevalent with UASs for the military are the same that would be experienced in the private, commercial, or law enforcement. With lawsuits and liability insurance costs likely to greatly increase the overall expenditure of the process, the commercial industry will have a vested interest in advancing protec-tion systems to avoid accidents.

Collision Avoidance

Collision avoidance incentives promote an overall safer flying experience for both manned and unmanned systems (DeGarmo, n.d.). FAA regulations cur-rently require all aircraft to have a method by which to avoid collision with other aircraft. Current research and development is creating a collision avoidance tech-


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nology that includes sensors to detect and evade other aircraft in its pathway. In a study conducted by Lincoln Labs for NASA, it was concluded that human pilots are very ineffective at avoiding collisions or even notifying other air traffic of their presence. Ultimately, UASs could contribute to safety, but at the current state, the accident rates are still significantly higher and likely to stay high until the technology improves.

Domestic Counterterrorism

While UASs used for counterterrorism purposes typically conjure an im-age of a weaponized Predator drone used in military counterterrorism opera-tions, this form of the UAS is highly unlikely to be used for domestic law en-forcement. However, attacks on U.S. soil such as the Oklahoma City bombing, 9/11, and the Boston Marathon bombing have encouraged law enforcement and intelligence agencies to heighten security measures for quick response (Wilson & Finn, 2013). Would it be legitimate for the government to deploy armed UASs domestically for the purpose of national security? Due to the incredibly small number of UASs deployed in the United States, it is difficult to venture a guess as to whether the government will actually pursue the use of this technology in the counterterrorism mission.

Presidential Power

The power granted to the president through Article II of the Constitution and the Authorization for the Use of Military Force (AUMF) does allow for the provision of national security in exigent circumstances (Gude, 2014). The presi-dent has the authority as commander-in-chief to perform the duties as the main defender of the people. With the added authority granted by the AUMF approved by Congress, the president has the authority to use military force against al-Qae-da and affiliated groups. As such, in the extreme circumstance that the United States has an imminent security threat by al-Qaeda and the only available option is a strike conducted by UASs, the president would be within his authority to call such a strike.

Public Perception of Armed Drones

The current function for UASs in counterterrorism is aerial surveillance. Weaponized drones can be used, but are highly unlikely due to public perception. According to a Gallup Poll conducted in March 2013, approximately 65 percent of Americans believed that foreign UAS strikes against known terrorists were


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positive (Brown & Newport, 2013). However, when questioned on whether ter-rorist suspects should be targeted in the United States, over 65 percent responded that this would be wrong.

When asked whether Americans should be subject to targeting in the United States an overwhelming 79 percent responded in the negative (Brown & Newport, 2013). In a recent Pew Poll, the results were similar. The American perception of foreign strikes against terrorists has largely stayed positive (“Glob-al Opposition to U.S. Surveillance and Drones, but Limited Harm to Ameri-ca’s Image,” 2014). These statistics are not surprising and appear to reflect the American perception that while military strikes overseas may be permissible, the sovereignty provided by the American border transcends counterterrorism operations.

Current UAS Mission

Currently, the only counterterrorism mission is flown by the U.S. Customs and Border Patrol (CBP). The CBP is looking to increase the number of UASs in its fleet to 24 by 2016 (Barry, 2013). While this growth may be concerning, all of these systems are made with the intent of carrying aerial surveillance equipment made for the patrolling the border (“Unmanned Aircraft System MQ-9 Predator B Fact Sheet,” 2014). Ultimately these aerial systems can be used to patrol and even participate in other operations as seen in the North Dakota incident (Ben-nett, 2011). The current mission for UASs is to patrol and use the onboard aerial surveillance systems. Given public sentiment on the issue, it is highly unlikely that the UASs will ever carry weapons in the United States.

Conclusion

Technology has taken an enormous step forward. UASs are readily available to private, commercial, and government sectors with capabilities ranging from aerial surveillance and tracking to weaponized, military operations. Projected growth for this market concerns privacy advocates who contend that domes-tic law enforcement will employ UASs against American citizens, violating the Fourth Amendment’s right to privacy. Currently, law enforcement only uses a handful of UASs because their operation requires an FAA permit.

Although there have been no cases of abuse to date, Supreme Court rulings already raise privacy concerns. The Supreme Court ruled that aerial surveillance is legitimate provided it falls within public domain and that the surveillance falls into the general public’s reasonable expectation to privacy. Long-term surveil-lance and advanced technology that is not common knowledge require a warrant.


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All of these cases have largely ruled that, within reason, the government cannot conduct surveillance without a warrant unless it is for exigent circumstances or is a publically accepted practice.

Law enforcement has to deal with the negative public perception of UASs. The current public sentiment is against UASs in domestic law enforcement due to the highly publicized targeted killing that has taken place overseas via the mili-tary. Despite this unrealistic mindset law enforcement has made some progress in winning the hearts and minds of the citizenry by showing how UASs can provide critical emergency services to save lives. Some law enforcement agencies that hid the procurement and testing of UASs from the public were forced to end their programs through public pressure. The ACLU has addressed the necessity for the rules of engagement by proposing that government UASs be subject to usage re-strictions, image retention constraints, public notice, democratic control, and au-diting and effectiveness tracking.

Safety is also a major concern when addressing the issue of domestic law enforcement usage of UASs. According to military safety statistics, UASs are sig-nificantly more prone to accident than regular manned aircraft. Until FAA regu-lation addresses the requirements for safety regulations, there is only speculation for what will be required of UASs. However, collision avoidance will be necessary for regular and continual operation.

Finally, the counterterrorism mission is a national security matter that may bring weaponry into domestic law enforcement, but only under exigent circum-stances. UASs are far more likely to conduct aerial surveillance missions along the border and on investigative inquiries. However, in the latter case, it is likely that judge-issued warrants will be required. Within the context of privacy, it does not seem likely that law enforcement will infringe on citizens. Aerial surveillance is likely, but only within the confines of the Fourth Amendment.


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References

14 CFR 91.119 - Minimum safe altitudes: General. | LII / Legal Information Institute. (n.d.). Retrieved November 22, 2014, from http://www.law.cornell.edu/cfr/text/14/91.119

Aerial Searches of Fenced Areas Upheld by Court. (1986, May 20). The New York Times. Retrieved from http://www.nytimes.com/1986/05/20/us/aerial-searches-of-fenced-areas-upheld-by-court.html

Barry, T. (2013). Drones over the Homeland: How Politics, Money and Lack of Oversight Have Sparked Drone Proliferation, and What We Can Do (International Policy Report). Washington, DC: Center for International Policy. Retrieved from http://www.ciponline.org/research/html/drones-over-the-homeland

Bennett, B. (2011, December 10). Police employ Predator drone spy planes on home front. Los Angeles Times. Retrieved from http://articles.latimes.com/2011/dec/10/nation/la-na-drone-arrest-20111211

Beyer, D., Donna, D., Townsley, G., & Wu, S. (2014). Risk, Product Liability Trends, Triggers, and Insurance in Commercial Aerial Robots. In Legal & Policy Issues Relating to Robotics. Miami, FL: University of Miami School of Law. Retrieved from http://robots.law.miami.edu/2014/wp-content/uploads/2013/06/Beyer-Dulo-Townsley-and-Wu_Unmanned-Systems-Liability-and-Insurance-Trends_WE-ROBOT-2014-Conference.pdf

Black, J. T. (2013). Over Your Head, Under the Radar: An Examination of Changing Legislation, Aging Case Law, and Possible Solutions to the Domestic Police Drone Puzzle. Washington and Lee Law Review, 70(3), 1829–1885.

Brown, A., & Newport, F. (2013, March 25). In U.S., 65% Support Drone Attacks on Terrorists Abroad [Public Opinion]. Retrieved November 30, 2014, from http://www.gallup.com/poll/161474/support-drone-attacks-terrorists-abroad.aspx

Burkoff, J. (2014). Law Enforcement Use of Drones & Privacy Rights in the United States (Working Paper No. ID 2492192) (p. 25). Pittsburgh, Pennsylvania: University of Pittsburgh School of Law. Retrieved from http://papers.ssrn.com/abstract=2492192

Busting Myths about the FAA and Unmanned Aircraft. (n.d.). [template]. Retrieved October 22, 2014, from http://www.faa.gov/news/updates/?newsId=76240


60 • Spring 2015

California v. Ciraolo, 476 US 207 (1986).

Congressional Candidate Shoots Down Drone In Ad. (n.d.). Retrieved November 5, 2014, from http://abcnews.go.com/Politics/video/matt-rosendale-congressional-candidate-shoots-drone-ad-23365782

DeGarmo, M. T. (n.d.). Issues Concerning Integration of Unmanned Aerial Vehicles in Civil Airspace. The MITRE Corporation. Retrieved from http://www.mitre.org/publications/technical-papers/issues-concerning-integration-of-unmanned-aerial-vehicles-in-civil-airspace

Dow Chemical Co. v. United States, 476 US 227 (1986).

FAA told to make room for drones in U.S. skies – USATODAY.com. (n.d.). Retrieved November 21, 2014, from http://usatoday30.usatoday.com/news/nation/story/2012-02-06/unmanned-drones-share-faa-airspace/52994752/1

Fact Sheet – Unmanned Aircraft Systems (UAS). (2014, January 6). Retrieved November 21, 2014, from http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153

Fact Sheet – Unmanned Aircraft Systems (UAS). (n.d.). [template]. Retrieved November 21, 2014, from http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153

Farber, H. B. (2014). Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Deployment. Syracuse Law Review, 64(1), 48.

Florida v. Riley, 488 US 445 (1989).

General Aviation and Part 135 Activity Surveys - CY 2012. (2011, September 8). [Federal Aviation Administration]. Retrieved November 25, 2014, from http://www.faa.gov/data_research/aviation_data_statistics/general_aviation/CY2012/

Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image. (2014, July 14). [Public Opinion]. Retrieved November 30, 2014, from http://www.pewglobal.org/2014/07/14/global-opposition-to-u-s-surveillance-and-drones-but-limited-harm-to-americas-image/


Spring 2015 • 61

Gude, K. (2014, September 24). Understanding Authorizations for the Use of Military Force. Retrieved from https://www.americanprogress.org/issues/security/report/2014/09/24/97748/understanding-authorizations-for-the-use-of-military-force/

Katz v. United States, 389 US 347 (1967).

Kyllo v. United States, 533 US 27 (2001).

Lynch, J. (2013, May 31). ASA Model Drone Legislation. Legal. Retrieved from https://www.eff.org/files/eff_asa_model_drone_legislation_letter.pdf

McNeal, G. (2014, July 11). Six Things You Should Know About Amazon’s Drones. Retrieved November 25, 2014, from http://www.forbes.com/sites/gregorymcneal/2014/07/11/six-things-you-need-to-know-about-amazons-drones/

Newell, B. C., & Tennis, J. T. (2014). Me, My Metadata, and the NSA: Privacy and Government Metadata Surveillance Programs. (p. 10). Presented at the iConference 2014 Proceedings, iSchools. doi:10.9776/14109

Number of U.S. Aircraft, Vehicles, Vessels, and Other Conveyances. (2011, November 4). Retrieved November 25, 2014, from http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/2011/html/table_01_11.html

Olivito, J. (2013). Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to Informational Privacy. Ohio State Law Journal, 74(4), 669.

Our Administrations. (2012, March 1). [Text]. Retrieved November 29, 2014, from http://www.dot.gov/administrations

Pilot Counsel - AOPA. (n.d.). Retrieved November 22, 2014, from http://www.aopa.org/News-and-Video/All-News/2000/November/1/Pilot-Counsel-(11).aspx

Reid, M. (2014). Grounding Drones: Big Brother’s Tool Box Needs Regulation Not Elimination. Richmond Journal of Law and Technology, 20(9), 73.

Smith v. Maryland, 442 US 735 (1979).


62 • Spring 2015

Stanley, J., & Crump, C. (2011). Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft (p. 16). New York, NY: American Civil Liberties Union. Retrieved from https://www.aclu.org/technology-and-liberty/report-protecting-privacy-aerial-surveillance-recommendations-government-use

The Challenge of Crime in a Free Society: A Report. (1967). U.S. Government Printing Office.

Understanding Metadata. (2004). NISO Press. Retrieved from http://www.niso.org/publications/press/UnderstandingMetadata.pdf

United States v. Causby, 328 US 256 (1946).

United States v. Jones, 132 US 565 (2012).

Unmanned Aircraft System MQ-9 Predator B Fact Sheet. (2014, July 10). Retrieved December 1, 2014, from http://www.cbp.gov/sites/default/files/documents/FS_2014_UAS.pdf

Villasenor, J. (2013). Observations From Above: Unmanned Aircraft Systems and Privacy. Harvard Journal of Law and Public Policy, 36(2), 403–915.

Will Drones Be the Next Police Cars? (n.d.). Retrieved September 4, 2014, from http://www.airspacemag.com/flight-today/will-drones-be-next-police-cars-180950136/

Wilson, S., & Finn, P. (2013, April 15). In Boston attack, a reminder of the difficulty in foiling terrorist plots. The Washington Post. Retrieved from http://www.washingtonpost.com/national/in-boston-attack-a-reminder-of-the-difficulty-in-foiling-terrorist-plots/2013/04/15/a1d80d14-a616-11e2-a8e2-5b98cb59187f_story.html


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Notes


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Thanks

The George Wythe Review would like to gratefully recognize the Collegiate Network for their contribution to the success of our publication.