Dillon Guthrie*
[This essay is available in PDF at this link]
Abstract
Once dismissed for decades, the topic of unidentified anomalous phenomena (“UAP”), previously labeled as unidentified aerial phenomena and unidentified flying objects (“UFOs”), now attracts the sustained attention of Congress. In the annual U.S. defense and intelligence authorization measure enacted in each of the last four years, lawmakers have included bipartisan provisions tightening oversight of this matter. One Senate-passed UAP bill would even have directed the federal government to exercise eminent domain over any “technologies of unknown origin and biological evidence of non-human intelligence.” Relenting to this pressure, the national security establishment has grudgingly acknowledged that UAP are not the “illusions” Secretary McNamara told Congress about but real—and that they may challenge national security. So, who knew what about UAP when? Meanwhile, researchers at Harvard University, Stanford University, and elsewhere have begun to study these phenomena in earnest. This Article cannot determine whether UAP are natural occurrences, drones, secret U.S. or foreign advanced technologies, something else entirely, or some combination of these possible explanations. But legal and policy analyses have not kept pace with these developments, leaving a chasm rather than a foundation upon which legislators, other policymakers, academia, and the business community may build.
This Article begins to fill that space by studying UAP statutes and related governmental actions in five areas. First, this Article surveys congressional efforts to refine the historically laden definitions of these phenomena, shaping governmental efforts that hinge on the overarching import of these terms. Second, the activities of a novel office within the Department of Defense created to gather, analyze, and report to Congress on UAP data are evaluated, together with other U.S. governmental and international actors. Third, requirements providing for the gradual, if uncertain, declassification and public disclosure of UAP governmental records are discussed. Fourth, this Article analyzes one mechanism Congress created for persons to allege without retaliation that the government or contractors may be conducting secret UAP retrieval, research, reverse-engineering, or similar activities. Fifth, implications for contractors and others of prior statutory prohibitions against federal funding of any such unauthorized UAP activities are assessed. What emerges does not paint a full picture given the secrecy, ridicule, and conspiracism that continue to pall any serious discussion of UAP. But, by charting the strange waters of these UAP laws, this Article hopes to indicate routes of passage along which future legislation, policy, and scholarship may be ventured—if not free from hazard, then at least with a map.
*Dillon Guthrie is an attorney in Washington, D.C., who has served as a counsel at the Federal Reserve Bank of New York, an advisor on the Senate Committee on Foreign Relations, and a legislative aide to Senator John Kerry.