'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.

AuthorSinclair, Michael R.

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.

  1. HISTORICAL AND LEGAL OVERVIEW

    1. 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)

    2. 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...

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