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Who decides when there are helicopters? Experts weigh in on National Guard monitoring protests

The National Guard conducted more surveillance during protests after George Floyd's death than experts and elected officials knew.
Image: A protester holding a sign is blocked by spy planes and spy helicopters against a sunset.
At least 20 surveillance and military reconnaissance flights flew over protesters during Black Lives Matter demonstrations in 2020.Anuj Shrestha / for NBC News

It was not lost on many Americans — including President-elect Joe Biden — that after a violent mob of President Donald Trump's supporters broke into the Capitol in Washington, D.C., the delayed use of National Guard troops was far different than it was during the Black Lives Matter protests last year.

In late May, governors called on 43,000 troops nationwide. The nation hasn’t deployed National Guard troops at a comparable scale since the civil rights movement of the 1960s. By comparison, on Wednesday, acting Secretary of Defense Christopher Miller approved the deployment of less than 6,200 National Guard troops.

“You can see the pendulum swing from inappropriate use of guard troops,” said Rachel E. VanLandingham, a retired Air Force lieutenant colonel and judge advocate, who is also a law professor at Southwestern Law School. “Then you swing to now, when there was plenty of warning this was going to happen and it was a classic example of why we have the National Guard.”

Now data about military surveillance flights over protests shows that the breadth of the National Guard deployment during the nationwide demonstrations following George Floyd’s death was far more extensive than previously known.

At least 20 surveillance and reconnaissance military helicopter flights flew over demonstrators during the first two weeks in June. These helicopters flew over protests in Philadelphia, Minneapolis, Atlanta and Washington. The number of flights varied widely by city, ranging from 11 flights in Philadelphia to just one flight in Atlanta.

Those specific flights, when reviewed by a fellow with the nonprofit bipartisan think tank the Center for a New American Security, raised even more concerns. That's because the public doesn’t know what information these military flights over the racial justice protests recorded.

“It sets an incredibly troubling precedent when we think about what it might mean if any time there’s a protest you might have military surveillance helicopters there,” said Kyleanne Hunter, the Center for a New American Security fellow who reviewed the data and who is a Marine combat veteran helicopter pilot and professor at the Air Force Academy.

While military experts agree that there are many legitimate reasons to use surveillance flights, especially when local law enforcement needs support, they fear this summer’s data gathering ventured into dangerous territory involving protesters’ civil liberties, since it’s unclear exactly what data these agencies collected and how they used it.

“There may be a very good reason for looking at surveillance video after a protest that was acquired by some better technologies that the military may have,” VanLandingham said. “So long as they’re not encroaching on people’s civil liberties.”

But the use of National Guard units in June was “fundamentally exceptional and different from the way civilians and the military have ordinarily worked together,” said William Banks, emeritus professor of law at Syracuse University and co-author of "Soldiers on the Home Front," a book about the domestic deployment of U.S. military assets. He fears that the new use of military surveillance technology for domestic protesters presents deeply troubling implications. “The civilian-military relationship, which is critical to the success of our society, has broken down.”

Looking down

Between May 28 and June 14, there were more than 43,350 National Guard troops activated across 34 states in response to the civil unrest following Floyd’s death, with the highest number of troops deployed on the ground and in the air between June 7 and June 8. That marks the largest deployment of the National Guard in U.S. history, according to Wayne Hall, a National Guard spokesman.

When National Guard aerial troops returned from their missions, they shared the footage they collected with local law enforcement agencies that requested support, according to two National Guard spokespeople. In the case of Philadelphia, footage collected with the Pennsylvania National Guard’s helicopters was shared with the Philadelphia Police Department.

The National Guard does not process, analyze or store any of the data collected from the military surveillance cameras running on the aircraft. In fact, all data collected is done so at the sole discretion of the law enforcement agency the National Guard is helping, according to Brig. Gen. David E. Wood, the director of the Pennsylvania National Guard.

The police and sheriff departments NBC News contacted did not offer additional detail on the purpose of National Guard helicopter flights over their cities during the summer protests. But Sid Heal, a retired commander with the Los Angeles County Sheriff’s Department, Marine veteran and former president of the California Association of Tactical Officers, said such flights are typically “looking at crowd size, crowd movement, splinter groups, fires, riotous acts and in some cases we’re asking for photos.” In Atlanta, Sgt. John Chafee of the Atlanta Police Department said helicopter support was utilized to “monitor activity and provide real-time information to commanders on the ground.”

The use of military surveillance was so problematic that in August the Air Force's inspector general issued a report investigating the use of select military surveillance aircraft, specifically RC-26B planes, that flew over protests in California, Minnesota, Arizona and Washington, D.C. The report found that while these planes did not capture any personally identifiable information from protesters, state National Guards made serious mistakes regarding how and why they deployed the military planes. Without proper oversight of how military intelligence-gathering technology is provided to police, the inspector general expressed concern that “military capabilities could become law enforcement capabilities.”

The footage collected from those flights was shared with local law enforcement agencies when they asked for it, according to the report. In the case of the surveillance flight in California, the footage was handed to the local police on a thumb drive. In Arizona, it was stated in a memorandum about the requested National Guard flights that part of the mission for the flights was to deter the protests. Though the surveillance planes ultimately were not used for deterrence, the report stated that “[d]eterring protests and demonstrations, assuming they are lawful, is not consistent with constitutional rights.”

But that report refers to planes that have far less surveillance capabilities than the military helicopters NBC News found circling over protests. Surveillance experts say that data collection could present unforeseen problems, like if a police department requests surveillance drones or advanced cell phone data collection technologies through the National Guard. That could encroach on Fourth Amendment protections if deployed to augment law enforcement in the future, explained Geoffrey Corn, a professor of national security at South Texas College of Law in Houston and retired U.S. Army lieutenant colonel.

“The American people do not expect that if they are out in a peaceful protest that their activities are subjected to surveillance by high-tech military intelligence assets,” Corn said.

Supporting police

To find out what local police departments gathered from the military surveillance flights and how they used this data, NBC News filed 15 records requests with local law enforcement agencies and the National Guard divisions in locations where military helicopter flights were found. NBC News did not receive relevant information about the purpose of the flights in Philadelphia, Minneapolis, Atlanta and Washington, D.C., from the requests.

When NBC News tried to gather more information about why military aircraft were used and what kind of information was gathered about protesters, National Guard units said they conducted their missions to support local law enforcement. But all local law enforcement agencies would not provide additional information about what data was collected during the observation flights or what it was used for.

The Philadelphia Police Department ordered 11 Pennsylvania National Guard flights over Philadelphia because the June protests were so widespread that law enforcement was stretched thin, said Wood, the Pennsylvania National Guard director. He added in that case, “The information that’s being collected is being collected by a law enforcement officer in the back of the aircraft and is being transmitted to law enforcement on the ground.” The Philadelphia Police Department did not respond to multiple requests for comment.

In Minneapolis, where NBC News located eight military Black Hawk flights in circular patterns over the weekslong protests that began after Floyd was killed in police custody, the National Guard confirmed it provided aerial support for local law enforcement. That support included transporting cargo and passengers, as well as “observation flights,” Col. Scott Rohweder, the Minnesota National Guard director of operations, said.

But it’s also clear that in at least one case in Washington, D.C., National Guard helicopters were also used as a form of intimidation. On June 1, two helicopters flew so close to the crowds below that they created deafening noise and fiercely strong winds that snapped tree branches, a tactic usually reserved for deterrence in combat. The helicopters did not receive the correct authorizations before taking off over the protests, according to a report in Defense One. The Washington, D.C., National Guard did not respond to requests for comment.

On the radar

NBC News found far more military flights than were analyzed in the Air Force inspector general report thanks to data collected from open-source researchers.

John Wiseman, an engineer at Disney who analyzes open-source flight data as a hobby, wrote code that scours radar captured on the public and unfiltered flight radar tracking website ADS-B Exchange to search for aircraft that move in circular patterns over metropolitan areas. He created a series of Twitter bots, called the Advisory Circular network, which tweet details of an aircraft when one is flying in a circular pattern in areas where Wiseman’s code is analyzing the radar. He provided NBC News with a spreadsheet of all the flights his bots had detected between May 28 and June 14.

Then with help from Steffan Watkins, an open-source research analyst who specializes in finding hard-to-track planes and ships whose research has been cited in The New York Times, The Globe and Mail and The Seattle Times, NBC News located which planes belong to the military using the registration numbers on the planes.

NBC News analyzed aircraft that flew in circles over 12 cities and found in four of those cities military aircraft that flew in surveillance patterns over protesters gathering to demonstrate against racist police violence. That raised reservations for Hunter, the Center for a New American Security fellow.

“That the response to protests is being militarized is something that concerns me quite a bit,” Hunter said.

In the dark

Elected officials and seasoned military academics still don’t know what data federal agencies and local law enforcement collected during last summer’s protests and how it was used. Between June and October, dozens of elected officials sent 12 different letters to the FBI, the Department of Homeland Security, the Drug Enforcement Agency, the Department of Justice, the National Guard and other agencies questioning the scale of the government surveillance over the protests and calling to put an end to the practices altogether.

In an Oct. 15 letter sent to members of the Privacy and Civil Liberties Oversight Board, two members of Congress and one senator pleaded for information about what private data had been collected about protesters. Among their biggest fears: They had already learned that Customs and Border Protection collected 270 hours of footage over protests in 15 cities. This data, the letter warned, “involves serious threats to liberty.”

But officials continue to receive little feedback, including Rep. Anna Eshoo, a Democrat from California who has written to eight federal agencies following the June protests.

“Americans must be able to protest peacefully, unencumbered by government interference, and any surveillance of peaceful protesters is highly problematic and potentially unconstitutional,” Eshoo said. “The sight and sound of military aircraft circling over protests in American cities should be of concern to all of us, not based on what issue citizens are protesting and whether we agree or disagree with them.”