Drone Strikes Threaten Due Process

The chairman of the Senate Intelligence Committee, Dianne Feinstein, recently said that she will review proposed legislation that would create a special court, analogous to the Foreign Intelligence Surveillance Court, tasked with reviewing drone strikes ordered by the executive branch. A push for such legislation comes during an administration that has utilized drone strikes more than any other. During the Bush administration, less than 50 drone strikes were executed, while during the Obama administration more that 360 have been launched. Of the many people killed in these drone strikes, at least 4 have been U.S. citizens—Anwar al-Awlaki being the most notorious.

This recent course of action raises an interesting constitutional question: do drone strikes targeting U.S. citizens violate the due process clause of the Constitution? The Fifth Amendment precludes the government from depriving a U.S. citizen of life without due process of law; essentially meaning that if the executive branch orders the death of a U.S. citizen without judicial approval, they have violated the citizen’s constitutional right to due process.

Michael Isikoff of NBC News acquired a Department of Justice white paper that illustrates the U.S. government’s position with regard to lethal force against senior operational leaders of al-Qaida, who are also U.S. citizens. According to the white paper, the government may order the death of such a target when a high level U.S. government official, informed of the facts, determines: 1) that the target poses an imminent threat of violent attack against the United States, 2) that capturing the target would be unreasonable, although this option is continually monitored in the event that it becomes reasonable, and 3) that the operation would not violate relevant principles of the laws of war. The U.S. government’s position is that when these circumstances have been met, the target has received sufficient due process and that the constitution has not been violated.

This standard, however, does not apply a typical interpretation of the word “imminent.” According to the white paper, imminence does not require the threat of violent attack to take place in the immediate future because the nature of terrorist attacks requires a broader interpretation. This broader interpretation calls for incorporating the window of opportunity for the attack, the mitigation of collateral damage, and the likelihood that the use of lethal force will prevent an attack against the United States. Theoretically, this definition allows the government to launch a lethal drone strike against a U.S. citizen at anytime, regardless of how close the target is to realizing a violent attack against the United States.

This raises many questions. Who is this high-level U.S. official in the government determining whether or not this standard has been met? What standard is used to determine if due process has been satisfied if the targeted U.S. citizen is not a senior leader of al-Qaida? These are the very questions that have led the public and Congress to consider whether or not judicial oversight of these lethal drone strikes is necessary.

A promising form of judicial oversight could be a special court tasked with reviewing the facts of a proposed drone strike and approving the strike or denying it. This court could be similar to the Foreign Intelligence Surveillance Court (FISC) that was created in response to concerns that the executive branch was abusing its authority to conduct domestic electronic surveillance in the interest of national security. Typically, if the government wants to engage in domestic electronic surveillance, one of eleven judges on FISC must review each application in a closed hearing and grant the warrant. However, if the government believes an emergency situation exists that would preclude the government from following this procedure in time, it may act without a warrant so long as it reasonably believes that the surveillance is constitutional and a judge on the FISC is notified, among other requirements.

A special court empowered to review the executive branch’s decision to execute a lethal drone strike is an appropriate safeguard, consistent with our traditional governmental structure. The need for such a court is further solidified by allegations made by former top U.S. officials such as Stanley A. McChrystal, former leader of the Joint Special Operations Command, and Michael V. Hayden, former C.I.A. director, who suggest that U.S. drone strikes in Pakistan and Yemen are now more frequently targeting low-level militants. This suggests that the administration is becoming increasingly more liberal with use of drone strikes, which could certainly increase the risk for collateral damage. Also, this increase in targeting low-level militants does not instill confidence that the executive branch will apply the standard illustrated in the white paper when U.S. citizens are the targeted low-level militants. The white paper only justifies targeting U.S. citizens who are senior operational leaders of al-Qaida and who are continually planning attacks against the U.S. Since low-level militants are less likely to fall within the definition of an operational leader, yet attacks on low-level militants are becoming more frequent, it is not clear what standard the executive branch uses to determine if a U.S. citizen who is a low-level militant has been afforded due process. This ambiguity suggests that an independent court is necessary to ensure that the executive branch affords all targeted U.S. citizens due process.

The government’s stipulation that the three-point standard for killing a U.S. citizen in a foreign country provides a citizen with sufficient due process is not adequate. The nature of terrorism and the threat it poses to the United States does not outweigh the substantial interest a U.S. citizen has in their own life. By ordering the death of a U.S. citizen without judicial approval, the executive branch is exceeding the power afforded to it by the constitution by taking the life of its own citizen without due process of law. To prevent future instances of these unilateral decisions, a special court, similar to the FISC, should be established to review and approve any executive branch decision to execute lethal drone strikes targeting both U.S. citizens and non-U.S. citizens.