"A FEW ARMED (DRONES), JUDICIOUSLY STATIONED, MIGHT AT A SMALL EXPENSE BE MADE USEFUL SENTINELS OF THE LAW": THE SUFFICIENCY OF EXISTING LAW AS APPLIED TO THE U.S. COAST GUARD'S INEVITABLE USE OF UNMANNED AIRCRAFT CAPABLE OF EMPLOYING AIRBORNE USE OF FORCE IN THE MARITIME COUNTER-DRUG MISSION.
TABLE OF CONTENTS Executive summary and issue statement 3 I. Historical and legal overview 8 A. The Coast Guard's history 8 B. Key Coast Guard legal authorities 8 1. Coast Guard domestic authority to use force 9 2. 14 U.S.C. [section] 637 in light of the international law of the law of the sea 12 C. Enter airborne use of force 16 II. 21st century drone use 18 A. Here come the drones 18 B. A brief discussion on autonomy 20 C. The Coast Guard's burgeoning use of UAS 22 III. Legal issues with the Coast Guard's foreseeable use of armed and autonomous UAS given existing authority 25 A. The U.S. Constitutional and international legal analysis 25 1. U.S. Constitutional standards 26 2. International legal standards on the use of force in law enforcement operations 27 B. The applicability of domestic authorizing statutes 27 1. Who is in the loop, i.e., to whom does 14 U.S.C. [section] 89 pertain? 27 2. A step-by-step walk thru of the process with analysis 29 C. How much authorization and protection does 14 U.S.C. [section] 637 provide and to whom does it apply? 32 1. It is not necessary to analyze whether an armed Coast Guard UAS may order a vessel liable to seizure or examination to stop because the statute provides for an alternative course of action 33 2. An armed Coast Guard UAS can be an "authorized" vessel or aircraft as contemplated by 14 U.S.C. [section] 637, if it is owned and operated by the Coast Guard 33 3. A "person" remains in command of a Coast Guard UAS provided the Coast Guard continues its existing practice of requesting and providing a Statement of No Objection (SNO) before employing warning shots and disabling fire 37 4. Who determines that the firing or a warning signal would unreasonably endanger persons or property in the vicinity of the vessel to be stopped depends on the type of armed UAS 37 5. Likewise, who is indemnified also depends on the type of armed UAS 41 D. The importance and applicability of existing claims statutes 43 1. The Military Claims Act and Foreign Claims Act 44 2. The Public Vessels Act 45 IV. Conclusion 46
EXECUTIVE SUMMARY AND ISSUE STATEMENT
The U.S. Coast Guard is unique in the American Federal government in that it is at all times, both an armed force and a federal law enforcement agency. (2) Maritime law enforcement and drug interdiction are two of the Coast Guard's eleven statutory missions.' (5) Beginning in the late-1990s, (4) the Coast Guard enjoyed significant success employing helicopter airborne use of force (AUF) to execute its counter-narcotics mission. (5) The service will likely continue to leverage this capability well into the future as it continues to combat the persistent threat (6) to national security, "institutions, governance, U.S. economic competiveness, and strategic markets" posed by Transnational Organized Crime ("TOC"). (7) Indeed, "[i]t is... clear that proceeds from the sale of illicit narcotics are a core enabler of the most dangerous [transnational organized crime] networks that threaten U.S. security interests. As such... denying/disrupting the flow of illicit narcotics and combating TOCs has never been more complementary." (8)
More recently, the Coast Guard has also begun developing unmanned aircraft systems (UAS) in earnest. (9) While the Coast
Guard's UAS use is still nascent--currently limited to the very early stages of intelligence, surveillance, and reconnaissance (ISR) (10) it is completely foreseeable and increasingly likely that sometime in the near future, the Coast Guard will follow in the footsteps of its Department of Defense (DoD) counterparts and look to employ armed, as well as perhaps UAS with varying degrees of significant autonomy, as a means to expand current AUF capacity and capabilities. (11)
The Coast Guard's use of AUF in the execution of its maritime counter-narcotics mission is well grounded in international (12) and U.S. law. (18) Indeed, current international and U.S. law provides no obstacle for the Coast Guard, should it decide to employ armed UAS, even UAS with great degrees of autonomy, in the execution of AUF operations, provided the Coast Guard continues to employ its existing policy, which requires a Flag officer-level Statement of No Objection ("SNO") before employing warning shots and disabling fire on the high seas, in the counter-drug mission space. (14) Furthermore, existing law, specifically 14 U.S.C. [section] 637 provides the Coast Guard sufficient personal and criminal indemnification protections for its foreseeable use of armed UAS for counter-drug AUF missions on the high seas. (15) Finally, existing claims statutes and their corresponding regulations, would remain applicable in instances where armed Coast Guard UAS misapplied force to the same extent they are currently applicable in the context of manned AUF operations. (16)
Part I of this paper will provide a brief historical overview of the Coast Guard, its relevant legal authorities, including the authority under domestic and international law to employ warning shots and disabling fire, and the evolution of AUF as a means to execute the Coast Guard's counter-drug mission. Part II will briefly discuss DoD's history with unmanned systems, specifically airborne systems, and the role increasing developments in artificial intelligence may play in the future of these DoD systems. Part II closes with a discussion on the Coast Guard's currently increasing efforts to field UAS capabilities and will distinguish between the DoD's use of UAS and the Coast Guard's likely use of the same. Part III will analyze how the Coast Guard's existing AUF legal authority would apply in the context of the Coast Guard's use of armed, and perhaps largely autonomous UAS in executing its counter-drug maritime law enforcement mission. Finally, to the extent they will become necessary in the event of a misapplication of force, Part III will also provide an analysis on the application of existing U.S. claims statutes to potential Coast Guard UAS AUF operations.
I. HISTORICAL AND LEGAL OVERVIEW
A. The Coast Guard's history
The modern U.S. Coast Guard traces its roots to 1790 and Alexander Hamilton's push to establish the Revenue Cutter Service as a means to generate income for the newly founded United States of America. (1)' Congress legislated the modern "Coast Guard" into existence in 1915 by combining several existing agencies under one aegis--The U.S. Revenue Cutter Service, The U.S. Lighthouse Service, The U.S. Lifesaving Service, and the Bureau of Marine Inspection and Navigation after the merger of The Steamboat Inspection Service, and The Bureau of Navigation. (18) Throughout its history, the Coast Guard's mission has been to "ensure the safety, security, and stewardship of the Nation's waters." (19) In short, "[it] protect[s] those on the sea, protect[s] the Nation against threats delivered by the sea, and protect[s] the sea itself." (20)
B. Key Coast Guard legal authorities
Congress has given the Coast Guard extraordinary and far reaching statutory authority to execute its many missions. This broad authority can primarily be found in Titles 14 and 46 of the U.S. Code, as well as the compiled statutes at large located in 33 U.S.C.A. (21) For instance, the Coast Guard is unique among Federal agencies in that it is, at all times, both an armed force and a law enforcement agency. (22) Further, the Coast Guard can field deployable specialized law enforcement and security forces the world over, (23) has wide ranging authority to coordinate and cooperate with other Federal and State agencies (24) and foreign governments, (20) and quintessentially can "perform any and all acts necessary to rescue and aid persons and protect and save property . on and under the high seas and on and under water over which the United States has jurisdiction." (26)
1. Coast Guard domestic authority to use force
Arguably, the Coast Guard's furthest reaching authority is its law enforcement authority under 14 U.S.C. [section] 89. It reads, in relevant part:
The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized (emphasis added). (27)
Courts have consistently upheld the Coast Guard's exercise of its authority under 14 U.S.C.[section] 89 and it has been extended to allow for warrantless arrests, warrantless searches, and the authority to conduct at-sea boarding without any suspicion of wrong doing, of U.S. flagged vessels anywhere in the world except the territorial seas of another nation without that nation's consent. (28)
Section 89 of Title 14, U.S. Code authorizes the Coast Guard to use all necessary force to compel compliance. (29) American Constitutional requirements provided in the Fourth Amendment, as interpreted by the U.S. Supreme Court, require that law enforcement use of force also be reasonable. (30)
Section 637 of Title 14 and U.S. Code supplements 14 U.S.C. [section] 89 both authorize the use of warning shots and disabling fire and indemnifies Coast Guard members from civil penalties and offer criminal prosecution protection for their use. Section 637 of Title 14 U.S. Code reads:
(a)(1) Whenever any vessel liable to seizure or examination does not stop on being ordered to do so or on being pursued by an authorized vessel or authorized aircraft which has displayed the ensign, pennant, or other identifying insignia prescribed for an authorized vessel or authorized aircraft, the person in command or in charge of the authorized vessel or authorized aircraft may, subject to paragraph (2), fire at or into the vessel which does not stop.
(2) Before firing at or into a vessel as authorized in paragraph (1), the person in command or in charge of the authorized vessel or authorized aircraft shall fire a gun as a warning signal, except that the prior firing of a gun as a warning signal is not required if that person determines that the firing of a warning signal would unreasonably endanger persons or property in the vicinity of the vessel to be stopped.
(b) The person in command of an authorized vessel or authorized aircraft and all persons acting under that person's direction shall be indemnified from any penalties or actions for damages for firing at or into a vessel pursuant to subsection (a). If any person is killed or wounded by the firing, and the person in command of the authorized vessel or authorized aircraft or any person acting pursuant to their orders is prosecuted or arrested therefor, they shall be forthwith admitted to bail.
(c) A vessel or aircraft is an authorized vessel or authorized aircraft for purposes of this section if--
(1) it is a Coast Guard vessel or aircraft;
(2) it is a surface naval vessel or military aircraft on which one or more members of the Coast Guard are assigned pursuant to section 379 of title 10; or
(3) it is any other vessel or aircraft on government noncommercial service when--
(A) the vessel or aircraft is under the tactical control of the Coast Guard; and
(B) at least one member of the Coast Guard is assigned and conducting a Coast Guard mission on the vessel or aircraft. (31)
2. 14 U.S.C. [section] 637 in light of the international law of the law of the sea
The law of the sea is codified in the United Nations Convention on the Law of the Sea (UNCLOS) that provides a legal framework based largely on vessel nationality. (32) Section 637 of Title 14, U.S. Code comports with the international law of the sea pertaining to flag states and their "right of visit." (33) While the United States has yet to ratify and implement UNCLOS, it does consider the treaty as reflective of the current state of the customary international law on the law of the sea. (34) Article 110 of UNCLOS reads:
Article 110 Right of visit
1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
3. If the suspicions prove to be unfounded and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
4. These provisions apply mutatis mutandis to military aircraft.
5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service. (30)
Additionally, "[i]n the M/V Saiga (No. 2), the International Tribunal on the Law of the Sea ("ITLOS") determined that, in the absence of instructive provisions on the use of force in UNCLOS, general international law requires that "the use of force must be avoided as far as possible, and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances." (36) The ITLOS continued by describing "the [long historic] practice concerning visual and auditory signals to stop, [including] firing shots across the bows, and a variety of other measures, normally followed before resorting to force" when arresting a vessel, to support its holding, and as such, would seem to thus indicate that it would be generally unreasonable to employ force with the intention of stopping a vessel to exercise the right of visit, without first resorting to a series of signals to stop, including warning shots. (37)
So, as the logic goes, the Coast Guard has authority to use all reasonably necessary force in the execution of its law enforcement mission, pursuant to 14 U.S.C. [section] 89 and consistent with Constitutional law and International law. International law recognizes a right of visit on a ship without nationality, by warships (38) of flag states, as codified in Article 110 of UNCLOS and recognized by the United States as an accurate representation of customary international law. Paragraph four of Article 110 of UNCLOS treats Coast Guard vessels, which are warships, (39) and aircraft equally, although this factor is less important where a Coast Guard cutter launches a UAS. (40) Section 637 of Title 14, U.S. Code then goes on to provide specific domestic statutory authorization for the Coast Guard to employ warning shots and disabling fire so that the Coast Guard can exercise the right of visit on vessels subject to seizure or examination.
A vessel flying no flag or otherwise providing no indicia of nationality accepted in international law, would be subject to examination by warships from any and all flag states under paragraph 2 of Article 110 of UNCLOS. (41)
Further, such vessels would also be subject to seizure under U.S. law, specifically, the Maritime Drug Law Enforcement Act ("MDLEA"). (42) The MDLEA gives domestic effect to several international drug control treaties. (43) At its core, it criminalizes the knowing or intentional manufacture or distribution or possession with an intent to manufacture or distribute controlled substances aboard a United States vessel (44) or a vessel subject to the jurisdiction (45) of the United States. (46)
Therefore, when the U.S. Coast Guard encounters a stateless vessel, it is subject to examination, and the United States may exert jurisdiction over it in international waters to undertake the right of visit. If the facts indicate that the vessel is violating the MDLEA it would also be subject to seizure. Further, if the vessel fails to stop after being given an order to do so, the Coast Guard may use reasonable force to compel it to stop, but doing so without first signaling its intention to employ that force would likely be unreasonable, as a matter of international law, which may go so far as to require warning shots before the use of disabling fire. (4)'
C. Enter airborne use of force
In the late 1990s, international drug traffickers operating out of South and Central America changed tactics from smuggling large loads of narcotics to the United States hidden aboard large, slow moving coastal freighters to smaller loads aboard small, fast "go fast" speed boats. (48) This change in tactics represented a significant challenge for the Coast Guard, as "go fast" presented much harder to detect targets and even when found, were often able to outpace even the fastest cutters chasing them. (49) Cutter crews and Coast Guard command were increasingly frustrated by their relative ineffectiveness at chasing down go fasts and even in the relatively rare instances of being able to launch an intercept helicopter, there was little the helicopter could do to stop the smuggling vessel short of hovering over them in hopes that the rotor wash would slow their transit. (50) By 1999, the Coast Guard estimated that it was successfully intercepting less than 10% of the narcotics bound for the United States by sea. (51) "In August 1999, after much discussion and debate within the Coast Guard, the Commandant of the Coast Guard, Admiral James Loy, authorized the development of the capability for airborne use of force from helicopters. Admiral Loy explained his rationale for this decision stating,
[f]or too long, we simply watched the narcotraffickers in 60-knot boats literally run away from us after excellent work had already been done to find them . For those narco-traffickers who continue to use international waters to deliver their deadly cargoes: we will continue to use every tool in our arsenal to stop you. (02)
After a significant period of test and evaluation, where it developed standard tactics, weapons, and eventually airframes, the Coast Guard established its Helicopter Interdiction Tactical Squadron (HITRON). (53) HITRON has been wildly successful in countering the go-fast threat and recently celebrated its 500th successful intercept. (54) Yet, these successes are not without risks to both the Coast Guard aircrew and the operators of the smuggling vessels. (55)
Despite HITRON's success, maritime drug smuggling by TCOs into the United States persists as a significant national as well as regional security challenge. (56) Coast Guard HITRON operations show no sign of slowing down. In fact, operations have greatly expanded from the Caribbean basin to the Eastern Pacific, to such an extent, that in the last few years, the Coast Guard has taken to transiting East Coast-based helicopter-capable cutters through the Panama Canal into the Eastern Pacific operating area in an attempt to keep up with the operational demand. (57)
II. 21ST CENTURY DRONE USE
A. Here come the drones
Al Qaeda's terror attacks against America of September 11, 2001 (58) ushered in an era of deployed expeditionary U.S. military forces that continues on through today and will likely continue into the foreseeable future with the American armed forces conducting operations and fighting in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen, (59) and apparently throughout Africa. (60) There have been many military developments during this extended fight, but none is as emblematic as America's use of what I will label as automated warfighting systems (AWS) and specifically armed, unmanned aviation systems (UAS), more commonly referred to as "drones." (61)
There are many reasons why America became "wired" in its war against terror and looking back, it is relatively easy to see how this occurred. (62) AWS and specifically UAS are the rare true force multiplier in that they help battlefield commanders stake out and maintain the literal high ground. (63) Specifically, they provide both increased capacity and capabilities in areas critical to warfighting, such as battlefield awareness, surveillance, and reconnaissance. (64) They are also inexpensive as compared to both their manned counterparts and a human soldier, in that they do not need to be trained, fed, housed, or paid. (65) Further, in many ways, they are also just better, primarily because they are not limited by physical, psychological, and other human constraints. (66) "They don't get hungry... [t]hey're not afraid. They don't forget their orders. They don't care if they guy next to them has just been shot" (67) and the commander of an AWS need not write a letter home to a loved one if it is damaged or falls on the field. (68)
And of course, you can mount weapons on them, (69) in the hopes that they or their operators are able to employ those weapons with machine-like precision. (70) The U.S. military has fielded or is currently fielding a wide variety of stationary, mobile, and flight-capable remotely operated, semi-autonomous, and fully autonomous armed and unarmed devices. (71) As I have previously noted, much has been written about the United States military's use of AWS, and specifically drones, in fighting the war on terror. (72) Further analysis on this issue exceeds the scope of this paper, beyond saying that it has become increasingly apparent that the ability to employ devices of varying autonomy on the battlefields of the world has likely changed warfare forever. (73)
B. A brief discussion on autonomy
Before progressing further, and again assuming a level of technological advancement that is not yet here, but likely on the horizon, it makes sense to break down robots into three categories: (1) remotely operated, (2) semi-autonomous, and (3) fully autonomous. The first two categories have a human being, well established "in the loop." (74)
A remotely operated robot has a hviman operator that controls the device. Its sensors feed information to the operator, the operator takes the information from the sensors, maneuvers the device, and uses whatever tools the device is equipped with to interact with the operating environment. To large extent, a remotely operated robot has a human not just "in the loop," but that human is deciding how fast to draw the loop, how big the loop is, if the loop should have a color, and what that color should be.
A semi-autonomous robot would still have a human controller, but the responsibilities for operating the device would be shared between the human and the robot's onboard computer. (70) For the purposes of this paper the real decision point between who should act, the robot, or the human, turns at the point where armed force would be employed. By way of example, consider a Coast Guard UAS that is "smart enough" to launch, fly, maneuver, and land, all on its own, but that a human is responsible for operating any onboard weapons and sensor systems and may have the capability to over-ride the otherwise automated operation of the UAS. (76)
As for the third, there are varying degrees of "fully autonomous" which essentially turn on whether the computer processor can "learn" from interacting with its environment (77) or merely just react to sensor stimulus. (78) This is overlaid by to what extent a human being may be able to prevent the robot from taking some sort of action after its deployment and again by programming decisions which could be biased to inaction in the absence of expressly satisfying specific criteria. (79) Thus, there are gradients of "full autonomy." (80) For the purposes of this paper, the term autonomous will describe a fully autonomous device that will not only be able to react to sensor stimuli, but will be able to adjust its reactions based on that changing stimuli and then act in a timeframe in which it is meaningful for it to do so. (81)
C. The Coast Guard's burgeoning use of UAS
"The Coast Guard is preparing to employ UAS to augment its aircraft fleets and to expand the surveillance range of surface assets like the national security cutter. '[It] is interested in UAS that can remain on station for extended periods, expand maritime domain awareness and disseminate actionable intelligence on maritime hazards and threats.'" (82) While application of drone technology is "limitless" in increasing capacity and capabilities through a host of Coast Guard missions including search and rescue, fisheries enforcement, drug interdiction, national defense role, and port security, the service "is still working to identify how many and what type of unmanned aerial systems its wants." (83) The success of HITRON, though, results in the conclusion that among all of the Coast Guard missions, maritime drug interdiction is a clear likely starting point. In fact, such efforts are already underway. (84)
Currently, the Coast Guard's newest cutter class, the 418 foot National Security Cutter (NSC) is fielding "ScanEagle, a Boeing-manufactured, 10-ft-long drone similar to a model that was used by the US marine corps [sic] in Iraq" to help patrol "about 6 million square miles of sea spanning the Caribbean and the Gulf of Mexico to the eastern Pacific Ocean, through which most of the cocaine bound for the US [sic] passes." (85) In May 2014, a ScanEagle UAS launched from an NSC contributed key sensor data to a Coast Guard maritime drug bust that netted 570 kilograms of cocaine, marking the Coast Guard's first successful use of UAS in executing its counter-drug responsibilities. (86)
Given the "tyranny of the distances" (87) involved, the vastness of the Coast Guard's operating area, age (88) and size the Coast Guard fleet, it is apparent that the increased capabilities and capacity that a UAS like ScanEagle provides is a critical component to the future success of Coast Guard operations in general and counter drug operations in particular. (89)
The economics involved in the maritime drug trade, (90) however, serve as a key catalyst for TCOs to develop innovative and often technology-driven means to stay one step in front of the Coast Guard and other law enforcement agencies. (91) It is essentially an arms race and thus, ScanEagle, while a nice start, will likely merely provide the Coast Guard an incremental increase in its ability to counter the threat posed by maritime drug smugglers and the international TCOs they serve. (92) It is therefore likely that the Coast Guard will soon calculate, as its DoD brethren calculated, that to maximize the utility of UAS as a true force multiplier, they need to be packed with advanced sensor technology, and provide long loiter capabilities. (93) And once they are, their true value is only fully realized if given the maximum amount of authorized autonomy. (94)
III. LEGAL ISSUES WITH THE COAST GUARD'S FORESEEABLE USE OF ARMED AND AUTONOMOUS UAS GIVEN EXISTING AUTHORITY
The likely future use of armed Coast Guard UAS and armed Coast Guard UAS with significant autonomy present similar, but sometimes intertwined legal issues, both domestically and internationally.
A. The U.S. Constitutional and international legal analysis
International law is a law of custom (95) and one of the primary overarching norms is that that which is not prohibited, is allowed, nullum crimen sine lege. (96) Despite calls from some, there is no applicable international legal prohibition on the use of force from remotely piloted or autonomous UAS, provided their use comports with the otherwise existing laws of armed conflict (LOAC). (97) There have been recent calls to ban autonomous weapons systems, but those seem to mostly center on the use of autonomous weapons in warfare, (98) and how drones and autonomous weapons comport (or do not comport) with the key LOAC principles of Military Necessity, Discrimination/Distinction, no Unnecessary Suffering, and Proportionality. (99)
As I will discuss below, U.S. Coast Guard use of armed UAS in the counter-drug context is not warfighting, and as such, these
LOAC principles are not applicable. Instead, the international legal analysis looks a lot like, but not fully identical to the U.S. Constitutional analysis on the application of force during law enforcement operations.
1. U.S. Constitutional standards
Use of force, including deadly force, by United States law enforcement is governed by the Fourth Amendment to the U.S. Constitution because police use of force is a "seizure." (100) "Generally, police officers have the authority to use deadly force, to cause the death of another human being, when their life or the life of another person is jeopardized." (101) This includes circumstances where police have probable cause to believe a fleeing felon poses a risk to the safety of police officers or the community, (102) but that such a resort to force must be reasonable under the totality of the circumstances. (103) The "reasonableness" requirement applied to use of force extends to all police use of force. (104) Further, courts assess reasonableness through the lens of what a reasonable officer on the scene would do, as opposed to applying a post-hoc standard of reasonableness, and their analysis does not account for the officer's underlying intent or motivation, but is instead focused on the totality of circumstances that the officer is responding to. (105) In examining the totality of the circumstances, courts "must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." (106)
2. International legal standards on the use of force in law enforcement operations
Internationally, "[t]he use of force in law enforcement operations is mainly governed by international human rights law ... [and] [t]he most relevant rights as regards the use of force in law enforcement is the right to life." (107) When comparing international standards to the U.S. standards, the Supreme Court's reasonableness standard is objectively a bit more permissive than the applicable international legal standard, which authorizes law enforcement use of force only as a last resort. (108) Unsurprisingly, the ITLOS seemingly applied the international legal standard when it ruled on the Saiga case, noting that the application of force in the maritime context must be both necessary, meaning nothing short of force would suffice, and objectively reasonable. (109)
B. The applicability of domestic authorizing statutes 1. Who is in the loop, i.e., to whom, does 14 U.S.C. [section] 89 pertain?
The Coast Guard's broad authority to employ force under 14 U.S.C. [section] 89 would apply to armed UAS, provided it continues with its existing practice of requiring a statement of no objection (SNO) from the appropriate level in the chain of command before employing warning shots and disabling fire. (110)
Section 89 of Title 14, U.S. Code states that:
The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance, (emphasis added). (111)
A plain reading of the first sentence refers to the "Coast Guard" at large, and can fairly be categorized as an agency authorization provision. The next provision though, is a bit more precise. It specifically empowers commissioned, warrant, and petty officers to both "board" vessels and "use all necessary force to compel compliance." First, it is not necessary to further analyze the applicability of the authority to "board" as applied to armed UAS, because current manned AUF operations apparently do not trigger this provision. (112) Coast Guard counter-drug AUF operations, manned or otherwise, are in most, if not all cases, essentially a means to achieve the ends of a right of visit boarding. (113) They are not a boarding in and of itself. Thus, the only issue that remains is an analysis on the use of force to facilitate an eventual boarding.
In the traditional manned AUF context, the authority to use "all necessary force" would legally extend to the admiral or her delegate providing the statement of no objection, the operational commander for whom the cutter is serving, the cutter's commanding officer, and the HITRON pilots, all of whom would be commissioned officers. (114) It would also flow to the aviation gunner, provided that she was at least a petty officer and not merely a nonrated member of the Coast Guard. (115) Therefore, as a matter of domestic law, Constitutional law, and international law, 14 U.S.C. [section] 89 is expansive enough that the authorization to use all (reasonably) necessary force to compel compliance is not changed by merely subbing an armed UAS for a manned helicopter with a gunner, provided the Coast Guard continues to follow its current practice of requiring a SNO before employing warning shots and disabling fire.
In short, under my analysis the 14 U.S.C. [section] 89 authority hooks to the SNO, and not the actual application of force at the time the force is applied, and as such, once the SNO occurs, the person issuing it is the commissioned officer who is using (reasonably) necessary force to compel compliance. The aircraft, manned or otherwise, merely becomes the means with which to do so.
The question then becomes what is reasonable given the totality of the circumstances and the answer is, as it often is, "it depends," but the key point is at the trigger pull. Yet again though, this is no different that it would be if we were analyzing employing warning shots and disabling fire from a manned aircraft, because the process is the same whether it is a manned or unmanned aircraft firing the warning shots and disabling fire.
2. A step-by-step walk thru of the process with analysis
Reviewing the SNO process will help illuminate what is "reasonable." The process starts when the Coast Guard detects a target of interest and either has enough information to request a SNO or launches the helicopter to get that information. (116) Once it becomes clear that a SNO is required, the aircraft mission commander requests it through the launching cutter. (117) In doing so, she (or in some cases whomever first detected the target vessel) provides to the SNO issuing authority information including the vessel's physical description, indicia of nationality, the vessel's course, speed, position relevant to the cutter and territorial boundaries, crew complement, and observed cargo. (118) She also would likely provide on scene weather including visibility, sea state, air temperature, and water temperature. This is all data that a properly equipped UAS can gather and provide and it makes no difference at this point in the analysis if the UAS is remotely piloted or is a more autonomous flier.
The SNO authority takes this information, assesses it with her advisors, and either grants or denies the SNO. If granted, the SNO authority communicates this back through the cutter to the aircraft commander, who then has the mission pilot position the aircraft while giving the aviation gunner authorization to employ warning shots once the aircraft is properly positioned. (119) The aviation gunner then assesses the tactical situation, and is free to employ warning shots in accordance with the tactical parameters of how to do so and ceases upon mission completion or when anyone in the aircraft calls for a "check" (120) or a "cease" (121) fire.
Here, and again, assuming a fully autonomous device that can gather sensor input, fuse it, and then act in response to that input at least as accurately and as quickly as a human could, given its programming, the only distinction between a more fully autonomous UAS and a remotely piloted one or manned aircraft, is that a more fully autonomous UAS would not have the ability to have multiple parties available to "check" or "cease" firing. As discussed below, there may be technical ways to account for this "shortfall" through programming with perhaps a bias to not shoot (122) or, assuming a real-time capability to video data link between the UAS and the operating cutter, by having a human with the ability to observe the situation and direct the UAS to "check" or "cease" fire, as appropriate. The latter though trades efficiency for perceived risk management and negatively impacts the inherent force-multiplying value normally provided by UAS. (123) It also arguably limits the remotely located human's ability to fully assess the situation, which may in fact, cut against reasonableness. (124)
While never tested in this context, the ability to have multiple parties observe the situation and stop the application of force may be a factor a court assesses in trying to determine if the application of AUF was indeed reasonable, pursuant to U.S. Constitutional and international standards. (125) This issue would likely turn on the capabilities of the computer program to assess the risks to human life associated with the application of force given the totality of the circumstances in which the UAS is operating. (126) Alternatively, because drones are not human, having to account for the "tenseness" (127) of a situation or its potential to be emotionally charged (128) would likely not be relevant factors when determining the reasonableness of a use of force.
The disabling fire analysis does not differ from the warning shot analysis in any meaningful way. If the target vessel fails to heave to after receiving warning shots, (129) the aircraft mission commander authorizes the shift from warning shots to disabling fire, the pilot maneuvers the helicopter and the gunner, assesses the situation, targets and shoots until mission completion or she receives a "check" or "cease" fire. (130) Again, all things a remotely piloted or properly equipped more fully autonomous UAS could theoretically do, either currently or in the near future.
Warning shots and disabling fire, however, are both distinguishable from other uses of force in both the law enforcement and law of armed conflict context. This is because under international law, warning shots are not a use of force, but signals to stop. (131) Disabling fire differs, because the person or unit directing the disabling fire is not trying to neutralize a threat or kill a combatant, but instead trying to get the vessel to stop. (132) When employing disabling fire, the shooter targets the engines or engine room of a vessel and only targets the bridge where attempts to employ disabling fire to the engineering spaces or engines fail. (133) Thus, in order for disabling fire to be reasonable under the circumstances it must be intended to minimize the threat to life. (134)
C. How much authorization and protection does 14 U.S.C. [section] 637 provide and to whom does it apply?
Section 637 of Title 14 U.S.C. as currently written covers existing and foreseeably future Coast Guard armed UAS use. First, recall that paragraph (a)(1) of 14 U.S.C. [section] 637 provides:
Whenever any vessel liable to seizure or examination does not stop on being ordered to do so or on being pursued by an authorized vessel or authorized aircraft which has displayed the ensign pennant, or other identifying insignia prescribed for an authorized vessel or authorized aircraft, the person in command or in charge of the authorized vessel or authorized aircraft may, subject to paragraph (2), fire at or into the vessel which does not stop. (135)
1. It is not necessary to analyze whether an armed Coast Guard UAS may order a vessel liable to seizure or examination to stop because the statute provides for an alternative course of action
The statute requires the subject vessel be ordered to stop or be pursued "by an authorized vessel or authorized aircraft." (136) Of course, one theoretically could issue such an order using a voice recording or live audio/data feed and there is no reason to believe that a recorded order would not suffice. (137) An order issued via live feed from a Coast Guard member who would have authority to issue the order, (138) if the person issuing the order was adequately appraised of the factual circumstances via data or video link would also likely certainly suffice. But again, it is not necessary to reach this question because of the statute's use of "or" that allows for warning shots and disabling fire where the subject vessel is being pursued by an "authorized vessel or aircraft."
2. An armed Coast Guard UAS can be an "authorized" vessel or aircraft as contemplated by 14 U.S.C. [section] 637, if it is owned and operated by the Coast Guard
Here, the statute provides some helpful guidance in subparagraph (c)(1)(a). It states "[a] vessel or aircraft is an authorized vessel or authorized aircraft for purposes of this section if . it is a Coast Guard vessel or aircraft." (139) A Coast Guard UAS owned and operated by the Coast Guard would clearly be a Coast Guard vessel or aircraft, provided it was appropriately marked and displaying an ensign, pennant, or other identifying insignia prescribed for an authorized vessel or authorized aircraft. (140) In other words, it must be marked as if it were a manned Coast
Guard aircraft. (141) Should the Coast Guard wish to clarify this position though, it could simply seek to amend the statute by adding, "including unmanned aircraft," after the first place "aircraft" appears and before "which has displayed the ensign[,]" as such:
Whenever any vessel liable to seizure or examination does not stop on being ordered to do so or on being pursued by an authorized vessel or authorized aircraft, including an unmanned aircraft, which has displayed the ensign, pennant, or other identifying insignia prescribed for an authorized vessel or authorized aircraft, the person in command or in charge of the authorized vessel or authorized aircraft may, subject to paragraph (2), fire at or into the vessel which does not stop.
Doing so is not strictly necessary, and there may be political reasons why the Coast Guard would choose to not draw attention to an armed UAS program. (142)
Interestingly though, this section seems to exclude privately owned and operated UAS working on behalf of the Coast Guard under contract, as these UAS would not strictly be a Coast Guard vessel or aircraft. (143) A leased UAS, appropriately marked but piloted by a Coast Guard operator would, however, likely satisfy the requirement of being a "Coast Guard" vessel or aircraft in much the same way the leased HITRON helicopters satisfied that requirement in the early phases of that program. (144)
Further, 14 U.S.C. [section] 637 as written would seemingly apply to a Coast Guard owned and operated armed UAS, exclusively. Subsection (c) also refers to:
(2) a surface naval vessel or military aircraft on which one or more members of the Coast Guard are assigned pursuant to section 379 of title 10; or (3) any other vessel or aircraft on government noncommercial service when--(A) the vessel or aircraft is under the tactical control of the Coast Guard; and (B) at least one member of the Coast Guard is assigned and conducting a Coast Guard mission on the vessel or aircraft (emphasis added). (140)
The requirement that a Coast Guard member, presumably a commissioned, warrant, or petty officer, (146) actually serve on the otherwise authorized vessel or aircraft would on its face appear to prevent the Coast Guard from using armed UAS belonging to its sister services in the Department of Defense (147) or fellow DHS components (148) or other partner law enforcement agencies for this mission. (149)
While one may certainly argue that a member of the Coast Guard exercising sufficient control over the device may satisfy the "on" criteria, I believe that the fact that the UAS' ability to launch and return, like a manned aircraft, distinguishes it from missiles and rockets of which this potential line of analysis would flow. (100) Regardless, and leaving aside for now the aforementioned political concerns, it may be worth the Coast Guard pursuing a legislative change to clarify this provision. I would thus propose amending 14 U.S.C. [section] 637 (c)(2) and (3) by adding the below bolded language:
(2) a surface naval vessel or military aircraft on which one or more members of the Coast Guard are assigned pursuant to section 379 of title 10 or in the case of an unmanned aircraft, which is under the actual, tactical, or operational control (151) of such a Coast Guard officer; or (3) any other vessel or aircraft on government noncommercial service when--(A) the vessel or aircraft is under the tactical, and in the case of an unmanned aircraft, actual, tactical, or operational (152) control of the Coast Guard; and (B) at least one member of the Coast Guard is assigned and conducting a Coast Guard mission on the vessel or the aircraft, or in the case of an unmanned aircraft, a Coast Guard officer, warrant officer, or petty officer is in command of or in charge of it.
3. A "person" remains in command of a Coast Guard UAS provided the Coast Guard continues its existing practice of requesting and providing a Statement of No Objection (SNO) before employing warning shots and disabling fire
As I discussed above, the person in command of the armed UAS could be the person exercising the SNO authority and/or whomever is tasking the UAS as the means to exercise that authority. (153) In addition, the commanding officer of the Coast Guard cutter or unit that the UAS is operating from could also be in command and in charge of the armed UAS. (154) Both have mission execution command responsibilities, but at differing levels of the chain of command. (155) Further, in the instance of a remotely piloted and operated or semi-autonomous UAS, the Coast Guard operator could also reasonably be considered as "in command" or "in charge" of the device. (156)
4. Who determines that the firing or a warning signal would unreasonably endanger persons or property in the vicinity of the vessel to be stopped depends on the type of armed UAS
Paragraph (a)(2) of 14 U.S.C. [section] 637 continues:
(2) Before firing at or into a vessel as authorized in paragraph (1), the person in command or in charge of the authorized vessel or authorized aircraft shall fire a gun as a warning signal, except that the prior firing of a gun as a warning signal is not required if that person determines that the firing of a warning signal would unreasonably endanger persons or property in the vicinity of the vessel to be stopped. (107)
In answering this question, it is important to first ascertain what exactly it is that the statute is authorizing. Here, the statute seems to state that the person in command or in charge of the authorized UAS can dispense with the international legal norm of employing warning shots, before disabling fire, if firing warning shots would unreasonably endanger persons or property in the vicinity of the vessel to be stopped. The answer to this question largely turns on what type of UAS--remotely piloted, semi-autonomous, or fully autonomous--the Coast Guard is employing. In the case of a remotely piloted or semi-autonomous UAS, the human being responsible for employing the armed force would make that determination ostensibly, after or as they are reviewing the sensor feed from the UAS. (158)
With regard to more autonomous devices, Alan Schuller recommends five principles to avoid unlawful autonomy when fielding lethal robots during armed conflict. (159) These principles will help with the analysis here, but are also useful in framing the legality of the Coast Guard employing armed and autonomous UAS in the counter-drug AUF mission space, more generally.
First, Schuller states that "[t]he decision to kill may never be functionally delegated to a robot." (160) Here, as I discussed above, neither warning shots nor disabling fire represent a decision to kill and as such, Schuller's first principle is met.
Second, Schuller notes that "[lethal robots] may be lawfully controlled through programming alone... [despite not being] able to perceive, process, and act upon all the factors humans consider before employing lethal force." (161) But, Schuller continues by articulating that through cataloging expected variables, establishing which variables we can expect the robot to observe, defining which variables are important to a shoot/don't shoot decision, and then finally determining how a learning robot may attempt to address those variables, it becomes relatively manageable to program the computer "to evaluate the probability of certain outcomes as compared to the expected utility of particular actions." (162) In the case of the fully autonomous Coast
Guard, counter-drug UAS, it is reasonable to conclude the UAS' operating system could relatively easily be programmed with "shoot/don't shoot" parameters that would be driven from its sensor feed and could account for factors like nearest land, presence of third party vessels or people, weather conditions, location of the subject vessel's crew, and location/estimated time of arrival of the Coast Guard surface unit it is working with, that would eventually arrive on scene to execute the actual boarding. (163)
Schuller's third principle is linked to the second, and is that International Humanitarian Law (IHL) or the Law of Armed Conflict (LOAC) "does not require temporally proximate human interaction with [a robot] prior to lethal kinetic action." (164) He argues that programming provides a sufficient check and then buttresses his argument with the practical concerns of having to keep a "human in the loop" on use of force decisions--the inability to keep pace with rivals operating at "machine speed," the inefficient use of personnel, and the fact that given human emotions and frailties, (165) mere human oversight does not correlate to compliance. (166) Of all of Schuller's principles this is the most context specific, but again, we are not talking about purposeful "lethal kinetic action" while warfighting, as Schuller is discussing. Instead, the focus of this principle when discussing armed Coast Guard UAS AUF to execute the counter-drug mission on the high seas, should be on the lack of a legal requirement that the human use of force decision be temporally proximate. Here, the SNO authority makes the use of force decision and the UAS executes it, but as is in the case of Schuller's warfighting context, this decision need not happen immediately prior to the force being employed. Further, given some additional checks that I will discuss when analyzing the fifth principle below, the direct applicability of the second principle, and the same general prudential concerns pertaining to the efficient use of personnel resources and human infallibility in the application of force, it is reasonable to apply and find that Schuller's third principle is met here.
Schuller's fourth principle stands for the idea that our expectations of an autonomous armed UAS' predictability of action be governed by the familiar reasonableness standard. In short, this principle "means that the [learning artificial intelligence] system [of an armed UAS] may in fact be lawfully unpredictable in certain ways. So long as the ways in which the system is unpredictable are reasonably unlikely [so as] to render an action unlawful, the system [itself] may [still] be lawful." (167) In short, the existing reasonableness standard already employed by courts to determine the lawfulness of the use of force here, is flexible enough to not require an AI be perfect, provided, that an unpredictable response is reasonably unlikely to result in an unlawful action. (168)
Finally, Schuller argues "[^imitations imposed on an [autonomous robot] may compensate for performance shortfalls" as his fifth principle. (169) This principle is linked to principles 2-4 and stands for the idea that restricting actions that an autonomous armed robot otherwise may be capable of can tilt the proverbial scale towards reasonableness. For example, here, programming a bias favoring not shooting unless all criteria are strictly met, allowing a Coast Guard human observing the armed UAS' operations to interrupt the robot's use of force or limiting the types of weapons it carries (170) can help account for the potential of unpredictable responses and may help drive a potentially unreasonable use of force towards reasonableness.
Determining whether programming can adequately account for and assess the reasonableness of the use of warning shots given a certain fact pattern and set of operating conditions is difficult to ascertain ad hoc, but given the current state and development trend of artificial intelligence, (171) it is reasonable to believe that if this capability does not yet exist at least to the level in which a human could make that assessment, that it soon will. (172)
5. Likewise, who is indemnified also depends on the type of armed UAS
Finally, this brings us to subsection (b) of 14 U.S.C. [section] 637 which states:
(b) The person in command of an authorized vessel or authorized aircraft and all persons acting under that person's direction shall be indemnified from any penalties or actions for damages for firing at or into a vessel pursuant to subsection (a). If any person is killed or wounded by the firing, and the person in command of the authorized vessel or authorized aircraft or any person acting pursuant to their orders is prosecuted or arrested therefor, they shall be forthwith admitted to bail. (173)
This is a bit of an odd provision, in that it appears to be a mixed civil liability indemnification, while also providing some criminal liability protections. One of the reasons it is odd is that as a practical matter there generally is no personal civil liability where a service member is acting within the scope of their duties on behalf of the United States, under the common law doctrine of respondeat superior. (114)
Further, it is difficult to come up with a factual scenario in which a member of the Coast Guard would be "arrested" for firing warning shots/disabling fire. This part of the statute begs the question, "by whom?" While any uniformed member of the Armed Forces, including the Coast Guard, could be arrested for violating a state's or federal criminal code, in most instances where a member of the armed services commits a criminal offense, the military exerts personal jurisdiction under the Uniform Code of Military Justice (UCMJ), which does not contemplate "bail." (170) Even if
Federal charges were applicable, the idea of a U.S. Attorney pursuing criminal charges against a U.S. Coast Guard member for executing a mission which he or she had statutory authority to execute, under the orders of a superior commander, and in furtherance of important national objectives strains credulity.
Additionally, and leaving aside the potential for concerns regarding Federalism, while 14 U.S.C. [section] 637 applies in a broader set of circumstances than what I am focused on here, (176) namely the interdiction of vessels without nationality on the high seas, it is difficult to conceive of an applicable state criminal violation that would apply in most circumstances, as state territorial jurisdiction only extends out three nautical miles seaward from its shore baseline. (177)
Regardless, of how odd this statutory provision is, given my analysis above, it is reasonable to conclude that should such indemnification (and for that matter access to bail "forthwith") be necessary, it would extend again to the commanding officer of the vessel or unit from which the UAS launched or the officer exercising the SNO authority, as appropriate. Furthermore, in the case of a remotely-piloted or semi-autonomous UAS, the indemnity protection would also extend to the actual UAS operator who made the decision to employ force, in exactly the same way it would to a manned helicopter crew. Thus, all that remains is a brief analysis of the potentially applicable claims statutes to ensure that those who would otherwise be able to pursue a claim against the United States, would still be able to do so, should the Coast Guard elect to field armed UAS in the counter-drug mission.
D. The importance and applicability of existing claims statutes
The existing claims statutes that would apply where the Coast Guard employs AUF from a manned aircraft would likewise apply should the Coast Guard field an armed UAS in the counter-drug mission. This aspect of the analysis is important, because employing AUF is inherently risky and despite significant checks and safeguards, sometimes results in injury or death to the crew operating the target vessel. (1,8) Similar risks to uninvolved third parties exist, but because these operations occur well out at sea, further analysis, beyond noting there is another class of possible (but not probable) claimants, is not necessary. Regardless, the claims statutes I discuss below would apply to them as well. Analyzing the applicable claims statutes ensures that a potential claimant or litigant is not foreclosed from pursuing legal action merely by what type of platform--UAS or manned--the Coast Guard chooses to employ when executing AUF.
As an entering argument, for much of history, sovereigns have been immune from liability for acts attributable to the sovereign. (1,9) The United States though, through the passage of certain legislation, waived its sovereign immunity in several circumstances. (180) In this context, there are three potential waivers of sovereign immunity that could apply should an armed Coast Guard UAS injure a person or cause damage--the Public Vessels Act, which incorporates by reference the Suits in Admiralty Act and the Admiralty Extension Act and applies it to public vessels, the Military Claims Act ("MCA"), and the Foreign Claims Act ("FCA"). (181) Of the three, only the Public Vessels Act provides a cause of action sufficient to pursue a claim under Admiralty law, through litigation in U.S. Federal District Court. Both the MCA (182) and the FCA (183) are gratuitous claims statutes, in that they do not authorize a claimant to file suit under their provisions.
The Coast Guard has also generated external (184) and internal regulations (180) governing claims submission and adjudication. While I will analyze all three sources of potential claims, under Coast Guard policy, claims that sound in both Admiralty and Foreign Claims, are only cognizable in Foreign Claims with permission of the Judge Advocate General (TJAG). (186)
Further, claims that sound under both the FCA and MCA are not payable under the MCA if it is cognizable under the FCA (187) and it must first be analyzed under the FCA. (188) As a practical matter, this means that foreign nationals cannot pursue a claim under both the FCA and MCA, which puts them on even footing with U.S. persons.
1. The Military Claims Act and Foreign Claims Act
Both the MCA and FCA would cover Coast Guard armed UAS operations in the counter- drug context. These statutes use the same threshold standard for when a claimant may pursue a claim and require that damages be "caused by a member of the Coast Guard" or "incident to a non-combat activity of the Coast Guard." (189) The FCA's implementing regulations also lists the preservation of international comity as the underlying basis for paying claims, which may serve to limit payments where there is no articulable comity concern. (190)
Regardless, if the claim arises from the activities of a remotely-piloted or semi- autonomous UAS, then both prongs the MCA and FCA would apply. Further, there is no need to analyze whether an autonomous UAS is a member of the Coast Guard, because both claims statutes allow claims adjudicators to consider claims caused by the non-combat operations of the Coast Guard. (191) Despite the "war on drugs" rhetoric, employing warning shots and disabling fire in the maritime law enforcement/counter-drug context is a "non-combat" activity, and as such a claimant could pursue a claim under either the FCA or MCA, as appropriate, and consistent with Coast Guard policy as to which claims statute the action would primarily sound. (192)
2. The Public Vessels Act
To what extent the Public Vessels Act would apply is a bit more difficult question, largely because of how the U.S. law as to when Admiralty jurisdiction in tort cases applies evolved. "Prior to 1972 it was fairly well established that the only test of maritime jurisdiction for torts was locality" in that the action needed to occur on navigable waters. (193) Thus, the default rule was that "[e]very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance." (194) This changed with the Supreme Court's ruling in Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249 (1972), where the Court also read in a requirement that the "wrong [must] bear a significant relationship to a traditional maritime activity." (195) The Supreme Court later held in Offshore Logistics, Inc., v. Tallentire, 477 U.S. 207, 218-19 (1986) that the Death on the High Seas Act (DOHSA), (196) provided a source of relief to claimants in maritime tort cases, where a helicopter crashed "beyond a marine league from shore," in part because "that helicopter was engaged in a function traditionally performed by waterborne vessels: the ferrying of passengers from an "island," albeit an artificial one, to the shore." (197)
Thus, admiralty jurisdiction seems to require a situs and relationship test. Operating in international waters on the high seas, where the Coast Guard conducts its AUF mission clearly meets the situs requirement, because they are navigable. (198) The question though is whether using an armed UAS to employ warning shots and disabling fire as a means for a state's warship to exercise its right of visit on a vessel without nationality "bears a significant relationship to a traditional maritime activity." (199) I believe that the answer is likely yes, given the analysis in Offshore Logistics, Inc., where the Supreme Court extended admiralty jurisdiction in a case that involved an aircraft that had engaged in an activity traditional performed by waterborne vessels. (200) Here, the activity would be the application of warning shots/disabling fire, prior to a warship exercising its right of visit, which the ITLOS has already noted is a traditional maritime activity in its Saiga case. (201)
Therefore, someone who suffered damages or injuries by an armed Coast Guard UAS may generally pursue a claim under an Admiralty theory (202) or, upon permission of the Coast Guard's TJAG under the Foreign Claims Act, if they were a foreign national, or the Military Claims Act if they were a U.S. person, regardless of the level of autonomy of the UAS. (203)
As they did with DoD, the drones are coming to the Coast Guard. Indeed, they're here already, and thus it follows that it will not be long before the Coast Guard follows its DoD brethren by weaponizing them. The Coast Guard has had great success with its helicopter-based AUF program in combatting the illegal maritime drug trade. Armed UAS would no doubt increase the Coast Guard's capacity and capabilities in executing this vital mission. Fortunately, the existing legal and policy frameworks that govern UAS would apply right now to armed Coast Guard UAS conducting AUF operations, even UAS with great degrees of autonomy, up to and including the use of warning shots and disabling fire. Small legislative modifications, while not strictly necessary, could provide greater authorization clarification. Further, should it be necessary for a subject to pursue a claim against the United States for a misapplication of force, the existing claims statutes applicable to manned Coast Guard AUF would also apply, should the Coast Guard choose to field armed UAS.
Michael R. Sinclair (*)
(*) CDR Michael R. Sinclair is an active duty Coast Guard Judge Advocate who completed a LL.M in National Security Law from Georgetown University in May 2018. The views presented here are his own and not necessarily reflective of those of the U.S. Coast Guard or the Department of Homeland Security.
(1) See Alexander Hamilton, The Utility of the Union in Respect to Revenue From the New York Packet, FEDERALIST PAPERS NO. 12 (Nov. 27, 1787) (writing that "a few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of our laws..."), http://avalon.law.yale.edu/18th_century/fedl2.asp.
(2) Compare 14 U.S.C. [section] 1 (2017) (authorizing the Coast Guard to be "a military service and a branch of the armed forces of the United States at all times") with 14 U.S.C. [section] 2 (2017) (noting the Coast Guard shall "enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States) and 14 U.S.C. [section] 89 (2017) (granting the Coast Guard broad law enforcement authority to search, examine, arrest, seize property, inquire, and inspect). The President signed into law the Frank Lobiondo Coast Guard Authorization Act of 2018, Pub. L. No. 115-282 ("The Act") on December 4, 2018, during the final editing process of this article. The Act completely reorganized Title 14. U.S. Code and while this reorganization is positive law, neither the U.S. Code Service nor U.S. Code Annotated had released the newly reorganized Title 14 at the time of this publication. Thus, the citations to Title 14 in this article are to the legacy provisions of that Title of code. For a crosswalk between the old Title 14 and the new, see https://www.uscg.mil/Resources/Legal/Office-of-Legislation/.
(3) See 6 U.S.C. [section] 468 (2017), Homeland Security Act, Pub. L. No. 107-296, [section] 888, 116 Stat. 2135, 2249-50 (2002).
(4) See Craig Neubecker, LT, USCG, Coast Guard Helicopter Interdiction Tactical Squadron (HITRON-Jacksonville) (2004), https://www.uscg.mil/history/aviation/HLTRON/USCG HITRON_History_Neubecker.pdf.
(5) See Also Dan Lamonthe, As Trump Presses for a Border Wall, There's a New Coast Guard Record For Drug Seizures at Sea, THE WASHINGTON POST (Sep. 20, 2017), https://www.washingtonpost.com/news/checkpoint/wp/2017/09/20/as-trump-presses-for-a-border-wall-theres-a-new-coast-guard-record-for-drug-seizures-at-sea/ (detailing the Coast Guard's record breaking year in FY-17 where it interdicted 455,000 pounds of cocaine and detained 681 drug smugglers. This article also includes an official Coast Guard video of a AUF drug interdiction that took place on Sep. 6, 2017); U.S. Coast Guard News Meet the Coast Guard's Sharpshooters, MARITIME-EXECUTIVE.COM (Mar. 16, 2017), http://www.maritime-executive.com/article/meet-the-coast-guards-sharpshooters (describing the success of the Coast Guard's airborne use of force program by noting since it was commissioned in 2000, the Coast Guard's Helicopter Interdiction Tactical Squadron ("HITRON") "has successfully interdicted 500 vessels transporting approximately 422,000 kilograms of cocaine and 27,000 kg of marijuana with a wholesale value of more than $16.7 billion); Tyler Rogoway, This Secret USCG Program Saw Exotic Armed Choppers Take on Fast Boats, FOXTROTALPHA (Mar. 14, 2015), https://foxtrotalpha.jalopnik.com/this-secret-uscg-program-saw-exotic-armed-choppers-take-1690581460 (describing the early history of Coast Guard AUF).
(6) Written Testimony of USCG Deputy Commandant for Operations Vice Admiral Charles Ray for a House Committee on Homeland Security, Subcommittee on Border and Maritime Security Hearing Titled "A Dangerous and Sophisticated Adversary: The Threat to the Homeland Posed by Cartel Operations", Feb. 16, 2017, https://www.dhs.gov/news/2017/02/16/written-testimony-uscg-house-homeland-security-subcommittee-border-and-maritime.
(7) U.S. COAST GUARD WESTERN HEMISPHERE STRATEGY 31, 35 (2014), https://www.uscg.mil/seniorleadership/docs/uscg_whem_2014.pdf (noting that it is a Coast Guard strategic priority to also "[e]valuate and explore opportunities for deployment of land-based Aerial Use of Force (AUF) assets in the U.S. and transit zone countries." Current Coast Guard practice is to only field ship-borne AUF platforms) (emphasis added).
(8) Id. at 34.
(9) Unmanned Aircraft System. Acquisition Directorate, March 2017, http://www.dcms.uscg.mil/Portals/10/CG-9/Acquisition%20PDFs/Factsheets/UAS.pdf?ver=2017-05-ll-095649-380 (last visited Oct. 26, 2017) (providing an overview of the Coast Guard UAS program); Coast Guardsman Pioneers Unmanned Aerial Surveillance, THE COAST GUARD COMPASS, https://www.gocoastguard.com/about-the-coast-guard/experience- the-coast-guard/coast-guardsman-pioneers-unmanned-aerial (last visited Oct. 26, 2017) (detailing the Coast Guard's efforts in coordination with Customs and Border Protection to gain experience operating UAS for surveillance); Land Based, Long Range/ultra endurance UAS Request for Information (RFI), Solicitation Number: HSCG32-17-I- R00030, FEDBIZOPS.G0V (Aug. 30, 2017 8:25 AM), https://www.fbo.gov/index?s=opportunity&mode=form&id=bl5celf0e399546893a091131055fe37&tab=core&cview=0 (noting that this "RFI is part of congressionally directed market research to examine the feasibility, costs and benefits of using land-based LR/U-LE UAS to conduct intelligence, surveillance, and reconnaissance missions across contraband transit zones such as the Caribbean Sea, Gulf of Mexico and eastern Pacific Ocean"); Sam Lagrone, Coast Guard Issues Draft RFP for Unmanned Aerial Vehicles for National Security Cutters, NEWS.USNI.ORG (March 31, 2017 12:16 PM), https://news.usni.org/2017/03/31/coast-guard-issues-draft-rfp-unmanned-aerial-vehicles-national-security-cutters (describing the Coast Guard's request for information from industry with the goal of providing "an effective, low cost solution to address the NSC's existing aerial surveillance coverage gap and to provide the NSC with a persistent, tactical airborne intelligence, surveillance, and reconnaissance (ISR) capability); Brendan McGarry, Coast Guard Eyes Getting Its Own Drone Fleet, DEFENSETECH.ORG (Mar. 31, 2017), https://www.defensetech.org/2017/03/31/coast-guard-eyes-drone- fleet/?mobile=l (noting that despite budget constraints the Coast Guard is increasingly interested in fielding drones to better execute its missions); Meghan Myers New Funds to Aid Coast Guard in Adopting a UAV, NAVY TIMES, Apr. 25. 2015, https://www.navytimes.com/news/your-navy/2015/04/25/new-funds-to-aid-coast-guard-in-adopting-a-uav/ (describing the Coast Guard's efforts to receive funding to explore UAV use); Unmanned Aircraft System, ACQUISITION DIRECTORATE, http://www.dcms.uscg.mil/Our-Organization/Assistant-Commandant-for-Acquisitions-CG-9/Programs/Air-Programs/UAS/ (last visited Oct. 26, 2017) (providing Coast Guard program-level overview and current status updates on the Coast Guard's UAS program).
(11) See Craig Allen Jr., Armed Drones: The Coast Guard's Next New Frontier?, 143 U.S. NAVAL INST. PROCEEDINGS (2017), https://www.usni.org/magazines/proceedings/2017-12/armed-drones-coast-guards-next-new-frontier; compare Avery Flaw; Matthew S. Fricker; Carlos R. Colon, THE DRONE DEBATE 17-25 (Rowman & Littlefield, London, 2016) (tracing the evolution of the ubiquitous Predator drone from an ISR platform to a strike platform, culminating in the eventual replacement of the Predator by the more capable, more deadly Reaper) with Neha Thirani Bagri, The US Coast Guard is Deploying Drones to Catch Increasingly Tech-Savvy Drug Traffickers, QUARTZ, May 11, 2017, https://qz.com/980665/the-us-coast-guard-is-deploying-drones-to-catch-increasingly- tech-sawy-drug-traffickers (reporting on the Coast Guard's use of the ScanEagle drone to improve ISR capabilities during maritime drug interdiction operations); and Dario Lopez & Joshua Goodman, Coast Guard Brings in Drone to Fight Drug Smuggling at Sea, C4ISRNET, May 10, 2017, https://www.c4isrnet.com/unmanncd/uas/2017/05/10/coast-guard-brings-in-drone-to-fight-drug-smuggling-at-sea/, and Small Unmanned Aircraft Systems Assists Stratton Drug Interdictions, ACQUISITION DIRECTORATE, Sept. 20, 2017, http://www.dcms.uscg.mil/Our-Organization/Assistant-Commandant-for-Acquisitions-CG-9/Newsroom/sUAS_092017/ (describing the use of an embarked UAS on the successful interdiction of five separate drug smuggling events during one cutter's patrol).
(12) See The United Nations Convention on the Law of the Sea, U.N. Doc. A/Conf. 62/122. arts. 91, 92, and 110, Oct. 7. 1982 [hereinafter UNCLOS]; M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgment of July 1, 1999, 3 ITLOS Rep. 10. 61-62 [hereinafter M/V Saiga], https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/press_release_2 3_en.pdf [hereinafter M/ VSaiga\ (analyzing the international legal standards on employing force in the maritime context), (analyzing the international legal standards on employing force in the maritime context).
(13) See 14 U.S.C. [section] 89 (2017) and 14 U.S.C. [section] 637 (2017).
(14) See S. M. Lacey, Major Incident Investigation (Mil) Into the Airborne Use of Force Incident on 20 Aug 2016 Approximately 195 Nautical Miles North of Galapagos Islands Involving One Fatality Aboard a Go-Fast Vessel, n.l, Nov. 14, 2016, https://media.defense.gov/2017/Oct/05/2001823150/-l/-1/0/FINAL_ACTION_MII_AUF_INC1DENT_30_AUG_2016.PDF, [hereinafter A UF Final Action Memo].
(15) See 14 U.S.C. [section]637(2017).
(16) See 10 U.S.C. [section] 2733 (2017) [hereinafter Military Claims Act] (noting that "[u]nder such regulations as the Secretary concerned may prescribe... may settle, and pay in an amount not more than $100,000, a claim against the United States for... damage to or loss of personal property... [and/or] or personal injury or death either caused by a civilian officer or employee of... the Coast Guard... acting within the scope of his employment, or otherwise incident to noncombat activities of... the Coast Guard"); 10 U.S.C. [section] 2734 (2017) (same but for property damage and/or personal injury or death occurring in foreign countries); 10 U.S.C. [section] 2734a (2017) (same but for damages or death payment associated with non-combat activities pursuant to international agreements); 10 U.S.C. [section] 2734b (2017) (same but for property loss and/or personal injury or death incident to activities) [10 U.S.C. [section][section] 2734-2734b hereinafter Foreign Claims Act]; 14 U.S.C. [section] 646 (2017) (noting that the Secretary may settle admiralty claims against the United States for damage "caused by a vessel in the Coast Guard service or by other property under the jurisdiction of the Department in which the Coast Guard is operating" and damages "caused by a maritime tort committed by an agent or employee of the Department in which the Coast Guard is operating or by property under the jurisdiction of that Department"); 46 U.S.C. [section][section] 30901-30918 (2017) (Suits in Admiralty Act); 46 U.S.C. [section] 30101 (2017) (Admiralty Extension Act); 46 U.S.C. [section][section] 31101-31113 (2017) (Public Vessels Act, which incorporates by reference most provisions of the Suits in Admiralty Act and applies these provisions to public vessels); 33 C.F.R. [section][section] 25.201-25.207 (2017) (Federal regulations pertaining to Public Vessels Act/Admiralty claims); 33 C.F.R. [section][section] 25.401-.409 (2017) (Federal regulations pertaining to Military Claims Act claims); 33 C.F.R. [section] 25.501-515 (2017) (Federal regulations pertaining to Foreign Claims Act claims): CLAIMS AND LITIGATION MANUAL, COMDTINST M5890.9, 1992 (providing internal Coast Guard policy on adjudicating claims against the Coast Guard acting on behalf of the United States).
(17) See Doctrine for the U.S. Coast Guard, COAST GUARD PUBLICATION 1 (Feb. 2014), https://www.hsdl.org/?abstract&did=802770 [hereinafter PUB. 1] (click on "open pdf"); Irving H. King, The Coast Guard Expands, 1865-1915: New Roles, New Frontiers (Naval Inst. Press 1996); George E. Krietemeyer, The Coast Guardsman's Manual, 5-6 (8th ed. 1991).
(18) Guardians of the Sea: History of the United States Coast Guard, 1915 to Present, 32 (1987).
(19) See PUB. 1, supra note 17. at iv.
(20) Id. at 5.
(21) See Positive Law Codification, Office of the Law Revision Counsel, http://uscode.house.gov/codification/legislation.shtml (last visited Oct. 26, 2017) (noting that the U.S. Code "is divided into titles according to subject matter. Some are [...J positive law titles and the rest are [...J non-positive law titles. A positive law title of the Code is itself a Federal statute [...J By contrast [non-positive law titles] [...] have been editorially compiled and organized into the title, but the title itself has not been enacted").
(22) Compare 14 U.S.C. [section] 1 (2012) (authorizing the Coast Guard to be "a military service and a branch of the armed forces of the United States at all times") with 14 U.S.C. [section] 2 (2012) (noting the Coast Guard shall "enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States) and 14 U.S.C. [section] 89 (2017) (granting the Coast Guard broad law enforcement authority to search, examine, arrest, seize, inquire, and inspect).
(23) See 46 U.S.C. [section] 70106 (2010).
(24) See 14 U.S.C. [section] 141 (2017).
(25) See Id. [section] 149.
(26) See Id. [section] 88.
(27) Id. [section] 89.
(28) See U.S. v. Stuart-Caballero, 686 F.2d 890, 892 (11th Cir. 1982) (per curiam), cert, denied 459 U.S. 1209 (holding that the Coast Guard needs neither reasonable suspicion nor probable cause to board U.S. vessels on the high seas); U.S. v. Hicks, 624 F.2d 32, 33 (5th Cir. 1980) (per curiam) (same); U.S. v. Williams, 617 F.2d 1063, 1081 (5th Cir. 1980) (same); U.S. v. Harper, 617 F.2d 35, 38 (4th Cir. 1980), cert, denied 449 U.S. 887, rehearing denied 449 U.S. 1026, 66 (same).
(29) This authority refers to force to execute the Coast Guard's missions, which is in addition to the right to employ force in self-defense or in accordance with the standing rules of engagement when the Coast Guard is operating with its DoD counterparts overseas, see CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION, CJCS1 3121.01B (5 Jul. 2007), Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces, http://www.jag.navy.mil/distrib/instructions/CJCSI%203121.01B13Jun05.pdf.
(30) See U.S. CONST, amend. IV; Scott v. Harris, 550 U.S. 372, 373 (2007); Graham v. Connor, 490 U.S. 386, 396-97 (1989); Tennessee v. Garner. 471 U.S. 1, 11 (1985).
(31) 14 U.S.C. [section]637(2017).
(32) See UNCLOS, supra note 12, at arts. 91 92, and 110 (describing the international legal framework to determine a vessel's nationality).
(33) Compare 14 U.S.C. [section] 637 (2017) with UNCLOS, supra note 12, at art. 110.
(34) See Emily C. Hally, Bryan J. O'Neill, Pollution on the High Seas: From Jurisdiction to Enforcement and All of the Moving Parts In Between, 15 LOY. MAR. L.J. 375, n.59 (2016).
(35) UNCLOS, supra note 12.
(36) Laurie R. Blank, Rules of Engagement and Legal Frameworks for Multinational Counter-Piracy Operations, [hereinafter Blank, Piracy] 46 CASE W. RES. J. INT'L L. 397, 399 (2013) (citing M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgment of July 1, 1999, 3 ITLOS Rep. 10, 61-62, https://www.itlos.org/en/cases/list-of- cases/case-no-2/); M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgment of July 1, 1999, 3 ITLOS Rep. 10, 61-62 [hereinafter M/V Saiga], https://www.itlos.org/en/cases/list-of-cases/case-no-2/(analyzing the international legal standards on employing force in the maritime context).
(37) See Tullio Treves, Piracy, Law of the Sea, and the Use of Force: Developments off the Coast of Somalia, 20 EUR. J. INT'L L. 399, 413-414 (2009).
(37) See UNCLOS, supra note 12 at art. 29; see also CAPT Andrew Norris, Legal Issues Relating to Unmanned Maritime Systems Monograph, U.S. NAVAL WAR C. REV. 27 (2013) (noting that "[u]nder U.S. doctrine, Navy ships designated "USS" and all U.S. Coast Guard vessels designated "USCGC" under the command of a commissioned officer are "warships" under international law").
(39) See UNCLOS, supra note 12 at art. 29; Wolff Heinteschel von Heinegg, Warships, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e443 (defining warship "as a ship belonging to the armed forces of a nation bearing the external markings distinguishing the character and nationality of such ships, under the command of an officer duly commissioned by the government of that nation, whose name appears in the appropriate service list of officers, and is manned by a crew that is under regular armed forces discipline. In spite of the fact that the flag State principle (Flag of Ships) determines the principal legal status of ships and vessels there is a need for a specific definition").
(40) See Michael N. Schmitt and David S. Goddard, International law the military use of unmanned maritime systems, 98 INT'L. REV. OF THE RED CROSS 567, 581 (2016) (noting that a UAS "may be launched from a ship to facilitate the functions that [the ship] is entitled to perform. An example is the use of a [UAS] to inspect the hull of a ship subject to the right of visit. Such usage is legally no different than the launch of rigid inflatable boats to transfer a boarding team to the intercepted vessel. It is the ship which is exercising the right, not the [UAS]").
(41) See Aaron J. Casavant, In Defense of the U.S. Maritime Drug Law Enforcement Act: A Justification for the Law's Extraterritorial Reach, 8 HARV. NAT'L SEC. J. 191, 208 (2017) (noting that "stateless vessels . are those vessels that are not registered in any state and are therefore subject to board and search by all states"): James Kraska, Broken Taillight at Sea: The Peacetime International Law of Visit, Board, Search and Seizure, 16 OCEAN & COASTAL L. J. 1, 26 (2010) (noting that "[a]ll states may... board and inspect vessels that carry the same flag as the investigating warship, or that are "stateless," meaning they are not legitimately registered to any state"); Debra Oakes, What Constitutes "Vessel Without Nationality," so as to Be Subject to Jurisdiction of United States Under Maritime Drug Law Enforcement Act, 46 U.S.C.A. [section] 70502 (d)(1), and Predecessor Statutes, 63 A.L.R. FED. 2D 411 (2012) (providing an overview of the U.S. legal jurisprudence on stateless vessels vis-a-vis the Maritime Drug Law Enforcement Act ("MDLEA")).
(42) See 46 U.S.C. [section][section] 70501 - 70508 (2017).
(43) See UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, L326/24/11/1990/57 (1990) thereinafter UN Drug Convention]; see also UNCLOS, supra note 12, at art.108 (noting that "[a]ll states shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions").
(44) See Aaron J. Casavant, supra note 41, at 207 (2017) (noting "from a definition perspective, "vessels of the United States" are those with some type of connection to the United States. Under the statute, this includes being registered in the United States, being owned in any part by an U.S. citizen or company, or operating in U.S. territorial seas") (internal citations removed).
(45) See id. (noting "[v]essels subject to the jurisdiction of the United States," ... come in four primary varieties: (1) stateless vessels; (2) vessels treated as stateless; (3) foreign vessels registered in a state which has consented to U.S. jurisdiction (i.e., flag state consent); and (4) vessels located in a state's territorial seas that has consented to U.S. jurisdiction (i.e., coastal state consent)).
(46) See 46 U.S.C. [section] 70503 (2017); CAPT James Carlson, LT Timothy Cronin, Commentary: Transnational Organized Crime in the Maritime Domain, and Broader Considerations for the United States' Interagency, 4 U. MIAMI NAT'L SEC. & ARMED CONFLICT L. REV. 43, 47-51 (2013-14).
(47) See U.S. v. Van Bommel-Duyzings, 2009 WL 5947259 (D. Puerto Rico Nov. 10, 2009) (holding the use of warning shots employed from a Coast Guard AUF equipped helicopter were reasonable).
(48) See Casavant. supra note 41, at 199 (noting that "[i]n the early days of drug smuggling, trafficking methods were relatively simple and consisted of little more than acquiring a freighter, fishing boat, or yacht to carry contraband north into Florida"); Rachel Canty, Developing Use of Force Doctrine: A Legal Case Study of the Coast Guard's Airborne Use of Force, 31 U. MIAMI INTER-AM. L. REV. 357, 362 (2000).
(49) See, e.g., Casavant, supra note 41, at 200; Canty, supra note 48. at 360. 50 See Canty, supra note 48, at 364.
(51) See Neubecker, supra note 4, at 3.
(52) Canty, supra note 48, at 364-65.
(53) See generally, Neubecker, supra note 4.
(54) See William H. Thiesen, The Long Blue Line: HITRON - 20 years of hitting new highs, COAST GUARD COMPASS (Sep. 14, 2017), http://coastguard.dodlive.mil/2017/09/the-long-blue-line-hitron-20-years-of-hitting-new-highs/.
(55) E.g., AUF Final Action Memo, supra note 14, at 8.
(56) See U.S. COAST GUARD WESTERN HEMISPHERE STRATEGY, supra note 7, at 7.
(57) See Casavant, supra note 41, at 117; Casey Conley, NTSB: No "proper" lookouts when barge hit cutter in Panama Canal, PROFESSIONALMARINER.COM (Sep. 29, 2017 11:11 AM), http://www.professionalmariner.com/October-November-2017/NTSB-No-proper-lookouts-when-barge-hit-cutter-in-Panama-Canal/.
(58) See THE 9/11 COMMISSION REPORT V, XV (2017), https://govinfo.library.unt.edu/911/report/911Report.pdf (last visited Nov. 3, 2017).
(59) See REPORT ON THE LEGAL AND POLICY FRAMEWORKS GUIDING THE UNITED STATES' USE OF MILITARY FORCE AND RELATED NATIONAL SECURITY OPERATIONS, PART ONE: KEY FRAMEWORKS RELATED TO THE USE OF U.S. MILITARY FORCE OVERSEAS 6-8 (2016) (providing the domestic and international legal support for continued U.S. military operations in certain locations overseas).
(60) See Dionne Searcey and Eric Schmitt, In Niger, Where U.S. Troops Died, a Lawless and Shifting Landscape, N.Y. TIMES (Oct. 29. 2017), https://www.nytimes.com/2017/10/29/world/africa/niger-ambush-isis.html (reporting on a battle involving U.S. special forces that resulted in the deaths of four U.S. Army members and noting that there were 800 U.S. service members in Niger and approximately 6,000 spread throughout the African continent).
(61) See generally e.g., William M. Arkin, UNMANNED 147-75 (Little Brown and Co., 1st ed. 2015) [hereinafter Arkin, UNMANNED] (providing an overview of U.S. drone use in the "war" against terror); Laurie R. Blank, After "Top Gun": How Drone Strikes Impact the Law of War, 33 U. PA. J. INT'L L. 675-718 (2012); Heeyong Daniel Jang, The Lawfulness of and Case for Combat Drones in the Fight against Terrorism, 2-1 NAT'L SEC L. J. 1. 12 (2013); Henry H. Perritt, Jr. and Elliot O. Sprague, Drones, 17 VAND. J. ENT. & TECH. L. 673, 678 (2015); Plaw, et al., supra note 11, at 13-63 (same); P. W. Singer, WIRED FOR WAR 19-41 (Penguin Books, 1st ed. 2009) (same).
(62) See Plaw, et al., supra note 11, at 18; Singer, supra note 60, at 215-24.
(63) See Drones: What are they and how do they work?, BBC.COM (Jan. 31, 2012), http://www.bbc.com/news/world-south-asia-10713898 (noting that "[drones] provide troops with a 24-hour "eye in the sky," seven days a week. Each aircraft can stay aloft for up to 17 hours at a time, loitering over an area and sending back real-time imagery of activities on the ground").
(64) See Plaw, et al., supra note 11, at 14-20.
(65) See Amitai Etzioni, Oren Etzioni, Pros and Cons of Autonomous Weapons Systems, MILITARY REV. (May/June 2017), http://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/May-June-2017/Pros-and-Cons-of-Autonomous-Weapons-Systems/(last visited Nov. 12, 2017); Luis Martinez, Pentagon: Fewer Soldiers, More Drones Will Save Money, ABCNEWS.G0.COM (Jan. 26, 2012), http://abcnews.go.com/Blotter/pentagon-fewer-soldiers-drones-save-money/story?id=15448631; Wayne McLean, Drones are cheap, soldiers are not: a cost-benefit analysis of war, THEC0NVERSAT10N.COM (June 25, 2014 11:26 PM), https://theconversation.com/drones-are-cheap-soldiers-are-not-a-cost-benefit-analysis-of-war-27924.
(66) See Singer, supra note 60, at 63-64.
(67) Id. at 63.
(68) See Peter Singer, MILITARY ROBOTS AND THE FUTURE OF WAR, https://www.ted.com/talks/pw_singer_on_robots_of_war/details (last visited Nov. 22, 2017) [hereinafter Singer, Ted Talk).
(69) See Singer, supra note 60. at 34 (describing that "[t]he idea then arose to arm the drone by mounting laser-guided Hellfire missiles on the wings") and (noting that "[w]ith Predator, it was almost, 'Hey we got this thing, let's arm it'") (quoting technology journalist Noah Shactman); Plaw, et al., supra note 11, at 20 (arming the Predator), 23-25 (describing "[t]he Coming of the Reaper"); Arkin, UNMANNED, supra note 61, at 78-79 (describing the rush to determine the practical and legal feasibility of arming Predator drones, in the specific context of the hunt for Osama bin Laden).
(70) Blank, supra note 61, at 687, 693; Singer, supra note 60, at 31 (noting that when describing the arming configuration of a land-based robot, "[t]he weapon... isn't cradled in the soldier's arms, moving slightly with each breath or heartbeat. Instead it is locked into a stable platform... [thereby] eliminating the majority of shooting errors" one can expect with a human shooter) (internal quotation omitted); Plaw, et al., supra note 11, at 47-48 (providing a table that captures data from multiple sources describing the ratio of militants to civilian drone strike casualties and noting a clearly diminishing trend of civilian casualties as U.S. drone use continued).
(71) E.g., Ronald C. Arkin, GOVERNING LETHAL BEHAVIOR IN AUTONOMOUS ROBOTS 10-25 (Taylor & Francis Group 2009) [hereinafter Arkin, GOVERNING LETHAL BEHAVIOR] (providing an order of robotic battle).
(72) See supra note 61; see also Ales Zavrsnik (ed.), DRONES AND UNMANNED AERIAL SYSTEMS (Springer Int'l Pub. 2016); Michael N. Schmitt, Extraterritorial Lethal Targeting: Deconstructing the Logic of International Law, 52 COLUM. J. TRANSNAT'L L, 77-112 (2013).
(73) E.g., Singer, supra note 61, at 37 (noting that "by 2008, there were 5331 drones in the U.S. military's inventory, almost double the amount of manned planes... [and that] given the growth trends, it is not unreasonable to postulate future conflicts involving tens of thousands"); Plaw, et al., supra note 11, at 287-98 (writing "[virtually all analysts believe that the global spread of both unarmed and armed UAVs will only expand exponentially in the years to come") (quoting D. M. Gormley a senior lecturer in military affairs at the University of Pittsburgh's Graduate School of Public and International Affairs); Anthony Dworkin. Drones and Targeted Killing Defining A European Position, 84
EUROPEAN COUNCIL ON FOREIGN RELATIONS 2-10 (2013) (noting "[a]rmed drones or unmanned aerial vehicles (UAVs) are now the United States' weapons platform of choice in its military campaign against the dispersed terrorist networks of al-Qaeda... [because] [t]hey offer an unprecedented ability to track and kill individuals with great precision, without any risk to the lives of the forces that use them, and a much lower cost than traditional manned aircraft").
(74) See Singer, supra note 61, at 123-124 (describing the go-to phrase to capture the idea that humans maintain control over certain robotic operations, but most specifically, the employment of force. It refers to the "observe, orient, decide, act (OODA)" loop that is used as model to analyze action).
(75) See Kenneth Anderson and Matthew Waxman, Debating Autonomous Weapon Systems, Their Ethics, and Their Regulation Under International Law (Draft), OXFORD HANDBOOK ON LAW, REGULATION AND TECHNOLOGY 1100-1102 SSRN.COM (Apr. 25, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2978359; Norris, supra note 38, at 13-14 (2013) (discussing Firescout, a rotary wing UAS that takes off and lands on its own).
(76) See Anderson and Waxman, supra note 75; Norris, supra note 38.
(77) See Cade Metz, Building A.I. That Can Build A.I., N.Y. TIMES (Nov. 5, 2017), https://www.nytimes.com/2017/ll/05/technology/machine-learning-artificial-intelligence-ai.html (reporting that "[njeural networks are rapidly accelerating the development of A.I. Rather than building an image-recognition service or a language translation app by hand, one line of code at a time, engineers can much more quickly build an algorithm that learns tasks on its own"); Cade Metz, Finally, Neural Networks That Actually Work, WlRED.COM (Apr. 21, 2015 5:45 AM), https://www.wired.com/2015/04/jeff-dean/ [hereinafter Metz, Neural Networks].
(78) See CAPT Brent D. Sadler, USN, AI Goes to War.', 142 U.S. NAVAL INST. PROC 45 (2016); Alan Schuller, At the Crossroads of Control: The Intersection of Artificial Intelligence in Autonomous Weapon Systems with International Law, 8 HARV. NAT'L. SECURITY REV. 390-409 (2017).
(79) See Schuller, supra note 78, at 417-420.
(80) See Anderson and Waxman, supra note 75, at 1100-02.
(81) See Schuller. supra note 78, at 417-420.
(82) Unmanned Aircraft System Program Description, U.S. Coast Guard Acquisition Directorate (CG-9), DCMS.USCG.MIL, http://www.dcms.uscg.mil/Portals/10/CG-9/Acquisition%20PDFs/Factsheets/UAS.pdf?ver=2017-05-ll-095649-380 (last visited Nov. 12, 2017).
(83) Compare Brendan McGarry, Coast Guard Eyes Getting Its Own Drone Fleet, defensetech.org (Mar. 31, 2017), https://www.defensetech.org/2017/03/31/coast-guard-eyes-drone-fleet/(quoting the Vice Commandant of the Coast Guard, ADM C. Michel), with Eric Tegler, Can This Tiltrotor Replace the Black Hawk Helicopter, POPULAR MECHANICS (May 4, 2016). http://www.popularmechanics.com/military/a20711/bell-valor-tiltrotor/(discussing the fdvantages of tiltrotor aircraft as compared to traditional helicopters and airplanes), and Richard Whittle, Exclusive: Meet Bell's V-247, Armed Tiltrotor Drone for Marines, BRKAKINGDEFENSE.COM (Aug. 29, 2016 4:01 AM), http://breakingdefense.com/2016/08/meet-bells-x-247-armed-tiltoror-drone-for-marines/(describing a prototype, armed, tiltrotor unmanned aviation system ("UAS") optimized for U.S. Marine Corps operations).
(84) Acquisition Update: Stratton Completes First Deployment With Small UAS, DCMS.USCG.MIL (Apr. 4, 2017), http://www.dcms.uscg.mil/Our-Organization/Assistant-Commandant-for-Acquisitions-CG-9/Newsroom/uas040517/.
(85) Bagri, supra note 11.
(86) See Myers, supra note 9 (noting that during the operation, "[a] A Navy P-3 Orion spotted a panga about 400 miles off the coast of Panama... [and] [w]hen the piloted aircraft needed to turn around to refuel, the cutter moved into the area and launched the ScanEagle, which was able to stay on station to keep the surveillance going").
(87) Lamonthe, supra note 5 (quoting Coast Guard CAPT Craig Wieschhorster, commanding officer of USCGC STRATTON, on the challenges of conducting maritime drug interdiction, especially in the Pacific Ocean).
(88) Coast Guard Recapitalization Matching Needs and Resources Continue to Strain Acquisition Efforts, 115th Cong. 6 (2017) (testimony of Marie A. Mak, Director, Acquisition and Sourcing Management), https://www.gao.gov/assets/690/685082.pdf (outlining on Table 1, the age of existing Coast Guard cutter classes in the context of examining current Coast Guard recapitalization efforts); see U.S. COASTGUARD, OUTLOOK 2016-2017 (ED. 145 2016) [hereinafter OUTLOOK 16-17] at 51 (noting "[t]he majority of the [Coast Guard's] cutter fleet is nearing obsolescence... [and that the] average age of [the Coast Guard's] major cutters is 41 years").
(89) Lopez and Goodman, supra note 11 (noting "[w]ith [but] three to five Coast Guard cutters covering 6 million square miles--from the Caribbean and the Gulf of Mexico to the eastern Pacific Ocean--it's like having a few police cars watch over the entire lower 48 states").
(90) E.g., Brian Wilson, Submersibles and Transnational Criminal Organizations, 17 OCEAN & COASTAL L.J. 35, 38-40 (2011) (describing the economic incentives driving TCO technological innovation with specific regard to their development and use of Self Propelled Semi-Submersibles ("SPSS"). CAPT Wilson writes that "[n]early 8,000 people a day use drugs illegally for the first time in the United States alone. And a United Nations' study pegs the global number of illicit drug users at more than 200 million and rising. Supplying this market depends on smuggling illicit drug across oceans and national borders and generates an estimated $230 billion annually. Among illicit drugs, cocaine distribution is particularly lucrative. For example, while the whole sale value of a kilogram of cocaine in Peru and Columbia is approximately $1,300 and $2,300, respectively, the same kilogram yields approximately $27,000 in the United States, $60,000 in Europe, $150,000 in Russia, and more than $170,000 in Saudi Arabia") (emphasis added).
(91) Written testimony of USCG Deputy Commandant for Operations Vice Admiral Charles Ray for a H. Comm. on Homeland Security, Subcomm. on Border and Maritime Security hearing titled "A Dangerous and Sophisticated Adversary: The Threat to the Homeland Posed by Cartel Operations," 115th Cong., Feb. 16, 2017 available at https://www.dhs.gov/news/2017/02/16/written-testimony-uscg-house-homeland-security-subcommittee-border-and-maritime (testifying that "[t]oday we face a sophisticated and well funded adversary that leverages hightech conveyances such as low profile vessels and semi-submersibles, employs multiple go-fast vessels to outnumber interdicting forces, and deploys GPS beacons if forced to jettison bales of contraband to allow later relocation; all are advanced and coordinated means to avoid detection and evade apprehension").
(92) See Bagri, supra note 11; Lopez and Goodman, supra note 11.
(93) See Myers, supra note 9 (noting "the ScanEagle's fixed-wing model is what [the Coast Guard] is leaning toward now," but that the Service would prefer a rotary wing model with up to 48 hours of loiter time); Allen, supra note 11 (describing the Firescout drone, some variants of which will more than triple existing Coast Guard helicopter effective ranges).
(94) See Singer, supra note 61, at 75 (describing the relationship between autonomy and efficiency--"[t]he more autonomy a robot has, the less human operators have to support it. As one Pentagon report put it '[hjaving a dedicated operator for each robot will not pass the common sense test'").
(95) See John P. Carlin, Detect, Disrupt, Deter: A Whole-Of-Government Approach to National Security Cyber Threats, 7 HARV. NAT'L SEC. REV. 391, 421 (2016).
(96) See Legal Information Institute, https://www.law.cornell.edu/wex/nullum_crimen_sine_lege (last visited Nov. 13, 2017).
(97) See Norris, supra note 38, at 66 (noting "[n]either international treaty nor customary law specifically prohibits the development and use of unmanned systems in military operations. In fact, there is no international law particular to unmanned systems at all").
(98) E.g., Ian Sample, Ban on Killer robots urgently needed, say scientists, THEGAURDIAN.COM (Nov. 12, 2017 7:01 PM), https://www.theguardian.com/science/2017/nov/13/ban-on-killer-robots-urgently-needed-say-scientists (reporting on current initiatives to ban autonomous lethal weapons"); Frank Sauer, Stopping 'Killer Robots': Why Now is the Time to Ban Autonomous Weapons Systems, 46 ARMS CONTROL TODAY 8 (2016); Gary Solis, THE LAW OF ARMED CONFLICT 552-554 (2d. ed. Cambridge Univ. Press 2016).
(99) See Arkin, GOVERNING LETHAL BEHAVIOR, supra note 71, at 71-80; Blank, supra note 61, at 681-702; Solis, supra note 98, at 550-551.
(100) See Tennessee v. Garner, 471 U.S. 1, 7 (1985); U.S. v. Mendenhall, 446 U.S. 544, 553 (1980), rehearing denied, 448 U.S. 908 (1980); see generally U.S. v Van Bommel-Duyzings, 2009 WL 5947259 (Nov. 10, 2009) (describing Coast Guard airborne use of force).
(101) MICHAEL J. PALMIOTTO, POLICE USE OK FORCE 35 (Taylor & Francis Group 2017).
(102) See id. at 39.
(103) See Garner, 471 U.S. 1 (1985).
(104) See Scott v. Harris, 550 U.S. 372 (2007).
(105) See Graham v. Connor, 490 U.S. 386, 396-97 (1989).
(106) Id. at 397.
(107) The use of force in law enforcement operations, ICRC.ORG (Sep. 3, 2015), https://www.icrc.org/en/document/use- force-law-enforcement-operations.
(109) See M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgment of July 1, 1999, 3 ITLOS Rep. 10, 61-62.
(110) See AUF Final Action Memo, supra note 14, at n. 1 (stating the "SNO process begins with a request from the on-scene commander, in this case the Commanding Officer of [USCGC] MOHAWK, to the cognizant District Command Center. The SNO request must contain, at a minimum, the information that assets have detected, and are monitoring a [non-compliant vessel] target. Additional information that can expedite the SNO authorization process are the vessel's position, course, speed, number of suspects observed on deck, jettisoning activity, suspicious activity, vessel length, boat configuration, number of engines, any markings on the hull, and any indicia of nationality or registry").
(111) 14 U.S.C. [section]89(2017).
(112) See JAMES KKASKA & PAUL PEDROZO. INTERNATIONAL MARITIME SECURITY LAW 605-606 (Martinus Nijhoff Pub. 2013).
(114) Id.; see also AUF Final Action Memo, supra note 14, at 7-10.
(115) JAMES KRASKA & PAUL PEDROZO, INTERNATIONAL MARITIME SECURITY LAW 605-606 (Martinus Nijhoff Pub. 2013).
(116) See generally KRASKA AND PEDKOZZO, supra note 112, at 605-7 (providing a similar, stop-by-step overview of the Coast Guard AUF process); AUF Final Action Memo, supra note 14, at 7-10.
(117) AUF Final Action Memo, supra note 14, at 7-10.
(118) AUF Final Action Memo, supra note 14, at 7-10.
(119) AUF Final Action Memo, supra note 1.4, at 7-10.
(120) See Check fire, https://www.militarydictionary.org/term/check-fire (last visited Dec. 1, 2017).
(121) See Cease-fire, https://www.merriam-webster.com/dictionary/cease-fire (last visited Dec. 1, 2017).
(122) See Ronald Arkin, The Case for Ethical Autonomy in Unmanned Systems, https://smartech.gatech.edu/bitstream/handle/1853/36516/
Arkin_ethical_autonomous_systems_final.pdf?sequence=l (last visited Nov. 13, 2017); Blank, supra note 61, at 692-93; Solis, supra note 98, at 541.
(123) See Singer, supra note 61, at 126-29.
(124) See Arkin, UNMANNED, supra note 61, at 169 (describing the "soda straw effect" which occurs where "a weaponized drone zooms in to pinpoint the target" but in doing so, loses situational awareness of the wider area of operations); Singer, supra note 61, at 75 (noting that "it is incredibly difficult to operate a robot while trying to interpret and use the information it gathers").
(125) See U.S. v. Van Bommel-Duyzings, 2009 WL 5947259 (D. Puerto Rico Nov. 10, 2009).
(126) See Singer, supra note 61, at 78 (noting that "[w]e are not close to having AI on a human level. Nobody is. But if you take a particular mission, like vacuuming a floor, we are able to provide the intelligence to accomplish the mission") (quoting Ms. Helen Geriner at iRobot); Bill Boothby, Dan Saxon (ed.), How Far Will the Law Allow Unmanned Targeting to Go?, INTERNATIONAL HUMANITARIAN LAW AND THE CHANGING TECHNOLOGY OF WAR 57 n.29 (Lieden: Martinus Nijhoff, 2013) (claiming that "[t]here is, however, currently no known software capable of mechanizing qualitative decision making").
(127) Tennessee v. Garner, 471 U.S. 1, 11 (1985).
(128) E.g., Arkin, GOVERNING LETHAL BEHAVIOR, supra note 71, at 29-36 (arguing that a properly programmed robot will be better than humans in limiting the use of force on the battlefield).
(129) See 18 U.S.C. [section] 2237 (2017).
(130) See Kraska and Pedrozo, supra note 112, at 605-6; AUF Final Action Memo, supra note 14, at 7-10.
(131) See Craig Allen, Limits on the Use of Force in Maritime Operations in Support of WMD Counter-Proliferation Initiatives, 81 INT'L L. STUD. 89-95._Peter Almond, U.S. cutter attacks ship, Cuban crew, WASHINGTON TIMES, Feb. 1, 1990, at Al.
(132) See Craig Allen, Limits on the Use of Force in Maritime Operations in Support of WMD Counter-Proliferation Initiatives, 81 INT'L L. STUD. 89-95.
(134) Id.; see also Blank, Piracy, supra note 36, at 399; M/V Saiga, supra note 12.
(135) 14 U.S.C. [section] 637(a)(1) (2017).
(137) See Alec Foege, Inventor's killer sounds scatter pirates, M0NEY.CNN.COM (Mar. 17, 2009 10:06 AM), http://money.cnn.com/2009/03/06/smallbusiness/killer_sounds.fsb/(reporting that the U.S. Marine Corps used a Long Range Acoustic Device (LRAD) to issue pre-recorded orders in Arabic for checkpoint and crowd control in accordance with U.S. Standing Rules of Engagement and International Law of Armed Conflict).
(138) See 14 U.S.C. [section] 89 (2017) (likely requiring that an officer, warrant officer, or petty officer issue the order).
(139) 14 U.S.C. [section] 637 (c) (2017).
(140) See Norris, supra note 38, at 21 n.l (describing how unmanned aircraft and remotely piloted vehicles are treated as "aircraft" under domestic military standards).
(141) Id. at 28-29 (noting that "[u]nder customary international law, a "military aircraft" means any aircraft (1) operated by the armed forces of a State; (2) bearing the military markings of that State; (3) commanded by a member of the armed forces, and (4) controlled, manned, or preprogrammed by a crew subject to regular armed forces discipline." Norris later goes on to note that under customary international law, "it was immaterial whether [the commander] was actually aboard the aircraft" as long as the commander exercised control over it and that "UAVs... qualify as military aircraft, if the persons remotely controlling them are subject to regular armed forces discipline. The same hold true for autonomously operating UAVs, provided that their programming has been executed by individuals subject to regular armed forces control") (citing to the Articles 14 & 15, Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare. Drafted by a Commission of Jurists, Dec. 1922-Jan. 1923).
(142) See Eric Brumfield, Comment Armed Drones for Law Enforcement: Why It Might Be Time to Re-Examine the Current Use of Force Standard, 46 McGEORGE L. REV. 543, 553 (2014) (noting that "[o]n March 12. 2013, Rep. Michael Burgess introduced the No Armed Drones Act of 2013... prohibiting] the Secretary of Transportation from authorizing anyone to use a drone to deliver a weapon against a person or property" and defining ""weapon" to include both "lethal and nonlethal weapons."" The bill has not yet become law); No Armed Drones Act of 2013, H.R. 1083, 113th Cong. (2013).
(143) See generally Martin Edwin Andersen, The Good, The Bad and the Ugly: Private Maritime Security Companies and the Search for Lessons Learned, GCAPTAIN.COM (May 2, 2013), http://gcaptain.com/pmsc-and-the-scarch-for-lessons-learned/(discussing some of the ills inherent with contracted private maritime security companies, in the context of counter-piracy operations).
(144) See id; Neuhecker, supra note 4; Rogoway, supra note 5.
(145) But see Norris, supra note 38, at 28-29 (describing how under international law, it appears that a member subject to military discipline operating or programming a UAS would constitute being "on" the device).
(146) See 14 U.S.C. [section] 89 (2017).
(147) See 10 U.S.C. [section] 379 (2017) (assigning Coast Guard personnel to U.S. Navy vessels); 14 U.S.C. [section] 637 (c)(2) (2017); 18 U.S.C. [section] 1385 (2017); Doulas Daniels, How to Allocate Responsibilities between the Navy and Coast Guard in Maritime Counterterrorism Operations, 61 U. MIAMI L. REV. 467, 480-86 (2007) (describing the posse comitatus act, how the Department of Defense extended the statute to the Navy and Marines via policy, and how the Navy works with the Coast Guard to enforce counter-narcotics law at sea in order to comply with the purpose behind posse comitatus).
(148) See U.S. v. Smith, 535 Fed.Appx. 815, 817-819 (11th Cir. 2013) (describing a U.S. Customs and Border Protection employment of AUF); Unmanned Aircraft System MQ-9 Predator B Fact Sheet, U.S. Customs and Border Protection, https://www.cbp.gov/sites/defavdt/files/documents/FS_2015_UAS_FINAL_0.pdf (last visited Nov. 15, 2017) (describing CBP's existing efforts to operate UAS in the field).
(149) See 14 U.S.C. [section] 637 (c)(3) (2017).
(150) See Norris, supra note 38, at 28-29.
(151) I call out operational control specifically to account for the fact under my analysis the person issuing the SNO is the one actually exercising the authority and that in most cases, the person issuing the SNO. the flag-level district commander, may just be in operational control of the cutter or vessel which launches the UAS.
(155) See COMDTINST M3710.1G, Am OPERATIONS MANUAL, 1.B.3 (Feb. 2013) (describing and distinguishing between Operational Control "OPCON" and Tactical Control "TACON." In the AUF context, the Coast Guard District Commander, who issues the SNO often has OPCON of the cutter and its embarked aircraft. The cutter commanding officers would have TACON of the aircraft when it is on mission) (on file with author).
(156) See Norris, supra note 38, at 28-29.
(157) 14 U.S.C. [section]637(2017).
(158) But see Singer, supra note 61, at 75.
(159) See Schuller, supra note 78, at 415-425.
(160) Id. at 415.
(161) Id. at 417-18.
(162) Id. at 418.
(163) Id. at 409-413 (describing the importance of predictability of action when given a set of stimuli, in assessing the legality of artificial intelligence employing lethal force in the context of armed conflict).
(164) Schuller, supra note 78, at 420-21.
(165) See Michael N. Schmitt and Jeffrey Thurnher, "Out of the Loop": Autonomous Weapons Systems and the Law of Armed Conflict, 4 HARV. NAT'L SEC. J. 231, 249 (2013) (noting that "[although emotions can restrain humans, it is equally true that they can unleash the basest of instincts... history is replete with tragic examples of unchecked emptions leading to horrendous suffering").
(166) See Schuller, supra note 78, at 420-21.
(167) Id. at 421-23.
(168) See id.
(169) Id. at 423-25.
(170) See Brumfield, supra note 142, at 559-65.
(171) See Sam Harris: What Happens When Humans Develop Super Intelligent AI, NPR.ORG (Sep. 15, 2017 9:52 AM), http://www.npr.org/2017/09/15/547886482/sam-harris-what-happens-when-humans-develop-super-intelligent-ai;______Metz, Networks That Actually Work, supra note 77; Metz, Building A.I. That Can Build A.I., supra note 77.
(172) See Solis, supra note 98, at 542 (noting that "[n]either weaponized drones nor human [s] are perfect. But we cannot expect more from autonomous... systems than we can from a human").
(173) 14 U.S.C. [section] 637 (2018).
(174) Respondeat Superior, BLACK'S LAW DICTIONARY (8th ed. 2004).
(175) See Rules for Courts-Martial 305, MANUAL FOR COURTS-MARTIAL, Part II (2016 ed.) (describing the pre-trial confinement procedures for members of the armed forces subject to the UCMJ).
(176) Section 637 of Title 14 U.S. Code applies anywhere the Coast Guard employs warning shots and disabling fire and Coast Guard doctrine does contemplate the use of warning shots/disabling fire in executing in-shore missions such as port security. Yet, unlike arming UAS in the counter-drug context, the Coast Guard employing UAS near shore is a bit farther away from reality, and thus, further analysis of that exceeds the scope of this paper.
(177) See David W. Roberts, Steven F. Friedell, Michael F. Sturley, ADMIRALTY AND MAR. L. IN THE U.S. 246 (Carolina Academic Press 2008) (noting that in the United States, "Florida's and Texas's boundaries extend nine nautical miles into the Gulf of Mexico; whereas the seaward boundaries of all other states stop three nautical miles from the coast"); Submerged Lands Act of 1953, Pub. L. No. 99-272, 100 Stat. 151 (1953) (codified as amended at 43 U.S.C, [section][section] 1301 - 1315); United States, v. Louisiana, 363 U.S. 1, 29-30 (1960).
(178) E.g., AUF Final Action Memo, supra note 14.
(179) See Curtis A. Bradley & Jack L. Goldsmith, FOREIGN RELATIONS LAW 522-23 (6th ed. Wolters Kluwer 2017).
(181) See supra note 16 and accompanying text.
(182) See COMDTINST M5890.9, CLAIMS AND LITIGATION MANUAL 10.B.2 (1993) (on file with author).
(183) See generally id. at 12.
(184) See generally supra note 16.
(185) See generally COMDTINST M5890.9, CLAIMS AND LITIGATION MANUAL, supra note 182.
(186) Id. at 12.B.2.a.
(187) Id. at 10.D.5.
(188) Id. at 12.B.2.C.
(189) Compare 10 U.S.C, [section] 2733 (a) (2017) with 10 U.S.C. [section][section] 2734 et seq. (2017).
(190) See 10 U.S.C. [section] 2734 (a) (2017); COMDTINST M5890.9, supra note 182, at 12.B.1 (noting "to promote and maintain friendly relations through the prompt settlement of meritorious claims, this Chapter prescribes procedures for the administrative settlement of claims against the U.S. by a foreign country or a political subdivision or an inhabitant thereof, for death, personal injury, or damage to or loss of property occurring outside the U.S., its territories. commonwealths, or possessions caused by a military member or civilian employee of the Coast Guard, or otherwise incident to noncombat activities of the Coast Guard").
(191) Compare 10 U.S.C. [section] 2733 (a) (2017) with 10 U.S.C. [section][section] 2734 et seq. (2017).
(192) See supra note 16; COMDTINST M5890.9, supra note 182, at Ch. 10, 12.
(193) Robertson et al., supra note 177, at 37.
(194) The Plymouth, 70 U.S. 20, 36 (1865).
(195) Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 268 (1972).
(196) See 46 U.S.C. [section][section] 30301-30308 (2017).
(197) Offshore Logistics, Inc., v. Tallentire, 477 U.S. 207, 218-19 (1986).
(198) See LeBlanc v. Cleveland, 198 F.3d 353 (2d. Cir. 1999) (holding "that a waterway . is presently used, or is capable of being used, as an interstate highway for commercial trade or travel in the customary modes of travel on the water" is a navigable waterway, and thus satisfies the situs requirement); Sanchez v. Loffland Brothers Co., 626 F.2d 1228 (5th Cir. 1980) (exercising admiralty jurisdiction [by satisfying the situs requirement] where a vessel on a lake in Venezuela had an accident); Robertson et al., 23 (noting that there is no requirement that navigable waters be limited to those waters in the United States).
(199) See id.
(200) See id.
(201) See M/V Saiga, supra note 12.
(202) See 46 U.S.C. [section] 31111 (2017) (limiting actions by nationals of foreign nations in U.S. courts to nationals from nations that would allow a similarly situated U.S. person to bring suit in that jurisdiction).
(203) There is no requirement for TJAG to first authorize a MCA claim and thus, a U.S. claimant could pursue a claim under either admiralty or the MCA.
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|Author:||Sinclair, Michael R.|
|Publication:||Loyola Maritime Law Journal|
|Date:||Jan 1, 2019|
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