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McClatchy Newspapers and Forum Communications Co., Published December 11 2011

Predator spy drones used in civilian arrests in North Dakota

WASHINGTON – The use of a Border Patrol high-flying drone in the arrest last summer of members of the Rodney Brossart family at their Nelson County, N.D., farm is a first such use of a well-known military un­manned aerial vehicle to apprehend a civilian, according to a news report.

Looking for three missing cows with their calves June 23 at Brossart’s farm southeast of Lakota, Nelson County Sheriff Kelly Janke and his deputies were chased off by Brossart’s three sons who brandished long guns.

Fearful of an armed standoff, Janke called in reinforcements from the state Highway Patrol, the Grand Forks regional SWAT team, a bomb squad, ambulances and deputy sheriffs from three counties.

He also called in a Predator B drone.

As the unmanned aircraft circled two miles overhead, its sensors helped pinpoint the suspects, showing they were unarmed.

Janke said he and other officers rushed in and made the first known arrests of U.S. citizens with help from a Predator, the spy drone that has helped revolutionize modern warfare.

That was just the start. Police say they have used two unarmed Predators based at Grand Forks Air Force Base to fly at least two dozen surveillance flights since then. The FBI and Drug Enforcement Administration have used Predators for other

domestic investigations, officials said.

“We don’t use [drones] on every call out,” said Bill Macki, head of the police SWAT team in Grand Forks. “If we have something in town like an apartment complex, we don’t call them.”

Nelson County Sheriff Kelly Janke confirmed Sunday the Los Angeles Times report that he had asked the U.S. Border Patrol to use a Predator drone to monitor the Brossarts.

“It’s part of the changing technology we have in law enforcement,” Janke said Sunday.

The drones belong to U.S. Customs and Border Protection, which operates eight Predators on the country’s borders to search for illegal immigrants and smugglers. The previously unreported use of its drones to assist local, state and federal law enforcement has occurred without any public acknowledgment or debate.

The Brossarts have been representing themselves in court since the June arrests and indicated last month they intend to continue doing so.

Bruce Quick, a prominent criminal defense attorney in Fargo who has represented Rodney Brossart in previous court cases, said Sunday he has concerns about using a Predator to arrest Brossart’s sons.

“It’s bizarre to me they would be using military drones for that purpose,” Quick said. “I don’t think those things are intended to be used for that.”

Congress first authorized Customs and Border Protection to buy unarmed Predators in 2005. Officials in charge of the fleet cite broad authority to work with police from budget requests to Congress that cite “interior law enforcement support” as part of their mission.

Michael Kostelnik, a retired Air Force general who heads the office that supervises the drones, said Predators are flown “in many areas around the country, not only for federal operators, but also for state and local law enforcement and emergency responders in times of crisis.”

Grand Forks Air Force Base also is beginning a new mission: housing and flying UAVs, instead of KC-135 air-refueling tankers.

But former Rep. Jane Harman, D-Calif., who sat on the House homeland security intelligence subcommittee at the time, said no one ever discussed using Predators to help local police serve warrants or do other basic work. Using Predators for routine law enforcement without public debate or clear legal authority is a mistake, Harman said.

“There is no question that this could become something that people will regret,” she said.

In 2008 and 2010, Harman helped beat back efforts by Homeland Security officials to use imagery from military satellites to help domestic terrorism investigations. Congress blocked the proposal on grounds it would violate the Posse Comitatus Act, which bars the military from taking a police role on U.S. soil.

For decades, courts have allowed law enforcement to conduct aerial surveillance without a warrant, ruling that what a person does in the open, even behind a backyard fence, can be seen from a passing plane and is not protected. Advocates say Predators are simply more effective than other planes.

Privacy advocates say drones help police snoop on citizens in ways that push the law to the breaking point. “Any time you have a tool like that in the hands of law enforcement that makes it easier to do surveillance, they will do more of it,” said Ryan Calo, a director at the Stanford Law School’s Center for Internet and Society. “It could make us question the doctrine that you do not have privacy in public.”

Since shortly after their June arrests, the Brossarts had been fugitives, ignoring court orders to appear, until their arrest Dec. 6 by Janke and his deputies. He did not use a Border Patrol drone in that arrest, Janke said.

Rodney Brossart, his sons, Jacob, Thomas and Alex, and his daughter, Abby Brossart, paid a total of $255,000 to bail out last month.

They are scheduled to appear Dec. 30 in state district court in Lakota to be arraigned on felony charges including jumping bail, terrorizing and theft.