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Due Process in the Drone Era

By Alexa Potter

Shortly following the September 11, 2001 terrorist attacks on U.S. soil and as a means of self-defense, Congress passed the 2001 Authorization for Use of Military Force (AUMF). The AUMF authorized the President to “use all necessary and appropriate force” against those he determined to have planned, authorized, committed, or aided the September 11 attacks in order to deter and prevent future acts of international terrorism against the U.S. Under the Obama administration, the AUMF proved to be the legal backbone of military drone operations against suspected al-Qaeda terrorists abroad.

However, controversy arose when the Obama administration’s drone program extended to the alleged targeting and killing of Americans suspected of being involved with and active in terrorist organizations like al-Qaeda. In 2010, the father of  Anwar Al-Aulaqi, a Yemeni-American dual citizen and alleged terrorist, accused the Obama administration of placing his son on government “kill lists” for months at a time without charge, trial, or conviction, and subsequently authorizing the use of lethal force against his son. The administration neither confirmed nor denied Al-Aulaqi’s allegations (the memo approving Al-Aulaqi’s targeting was subsequently released by a federal court of appeals in 2014). Although the court dismissed the case for lack of standing and political question, the court noted that the U.S. Constitution places responsibility for military decisions in the hands of the executive and legislative branches, decisions of which should not be subject to judicial intrusion or inquiry.

In 2013, a leaked Department of Justice white paper report detailed the legality of using lethal force in foreign territory against American citizens suspected of involvement in al-Qaeda, or, simply put, “actively engaged in planning operations to kill Americans.” The papers outlined that the use of lethal force against American citizens without prior habeas corpus or due process proceedings is lawful because the executive branch has a duty to protect the nation, the U.S. has a right to self-defense, and the AUMF authorizes the President to use all necessary and appropriate military force against al-Qaeda. Thus, an American citizen’s constitutional rights to due process and habeas corpus would not protect him from lethal targeting, as the process due in any situation is determined by the Mathews v. Eldridge balancing test in which courts weigh the private interest that will be affected by a government action and the government’s interest in that action and subsequent burden in omitting action. The report claimed the balancing test would favor the U.S. government’s public interest in protecting the nation over a citizen’s private interest in protecting his own life, as there is no governmental interest more compelling than the security of the nation.

The Supreme Court has long recognized the President’s constitutional power to protect national security and has acknowledged the President’s authority to employ the military in any manner he deems most effectual in conquering and subduing the enemy without interference, particularly from the judiciary. However, as the drone war continues under the Trump administration, the executive branch’s lack of accountability in targeting alleged terrorist-affiliated persons may continue to pose issues of due process for American citizens abroad. When a government targets its own citizens, there must be a plethora of checks and balances to ensure those citizens retain the basic rights granted them under the Constitution. American citizens, thus, must ask themselves: if our constitutional rights, including due process and habeas corpus, can be overridden by the executive branch to protect national security, then what branch has the power and authority to ensure our rights are not infringed upon?


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