‘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

Abstract

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. Maritime law enforcement and drug interdiction are two of the Coast Guard’s eleven statutory missions. Starting in the late-1990s, the Coast Guard has enjoyed significant success employing helicopter airborne use of force (AUF) to execute its counter-narcotics mission. The service will likely continue to leverage this capability well into the future as it continues to combat the persistent threat to national security, “institutions, governance, U.S. economic competiveness, and strategic markets” posed by Transnational Criminal Organizations (“TCO”). Indeed, “[i]t is . . . clear that proceeds from the sale 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 TCOs has never been more complementary.”

More recently, the Coast Guard has also begun exploring developing unmanned aircraft systems (UAS) in earnest. While the Coast Guard’s UAS use is still nascent, currently limited to the very early stages intelligence, surveillance, and reconnaissance (ISR), 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.

The Coast Guard’s use of AUF in the execution of its maritime counter-narcotics mission is well grounded in international and U.S. law. My position is that 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 before employing warning shots and disabling fire on the high seas, in the counter-drug mission space. Furthermore, existing law, specifically 14 U.S.C. § 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. 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. This article analyzes these issues.

Keywords: Coast Guard, Airborne Use of Force, Drone, Robot, A.I., Autonomous