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.

Self-driving cars now legal in California

On Tuesday, California Governor Edmund “Jerry” Brown signed a bill authorizing “self-driving cars” to be tested on public roads in California. Google co-founder Sergey Brin and state senator Alex Padilla were both present for the bill’s singing. The California bill, Senate Bill 1298, not only authorizes the cars to be tested on public streets but it also calls on the DMV to develop requirements and regulations to determine when the automated cars will be considered “road-ready”. Google is currently the primary developer of this technology, which they have already been testing in Nevada.

The Senate Bill lays out very specific guidelines for when and how the automated cars can be driven on the road. Currently, the bill only allows these cars to be driven on public roads “for testing purposes”. There is a section however that outlines the procedure for when these cars can eventually be used by the general public. Until that time, the cars can only be operated by company testers.

To be allowed on the road, the bill requires that a specially licensed operator is sitting in the driver’s seat, ready to take over the controls at a moment’s notice. This is for safety purposes because the technology is still quite new. Although according to Sergey Brin, the automated cars have successfully logged about 300,000 miles without the drivers needing to intervene. Further, there has only been one reported accident and it was while the car was being driven by one of the test drivers. This technology has a promising future that could eventually change the way we as a population travel.

While Google is the primary developer of this technology they currently do not have an interest in producing cars themselves. Their primary goal is to continue to develop and fine tune this technology so that it can then be sold to manufacturing companies. The system combines different technology to allow the car to successfully operate without assistance. The technology includes cameras and radar senses located around the car. The car also includes an advanced computer system that analyzes all of the data at split second speeds. This allows the car to properly respond to any number of situations that might occur while on the road.

The possibilities of this technology are seemingly endless, but there are also potential issues that may occur. Brin imagines a future where eventually there will be more automated cars on the road than human operated ones. He predicts that this technology will be of great use to those who are unable to drive, such as the elderly, individuals with certain disabilities, and even those who are too intoxicated. There is also an idea that eventually your automated car could drive you to work, drop you off, and then drive home to park itself safely in your driveway. This would likely be further down the road, however it is clear that the possibilities are endless.

Even with all of the possibilities that this technology could bring, there could still be potential issues with its widespread use. One of the issues that Google is dealing with now is how best to react to unpredictable pedestrians. Also, while the technology makes the car drive very carefully, many drivers will likely be hesitant to give over the controls to a computer. Google recognizes that their will likely be hesitance at first, but Brin is confident that individuals will “get over” this feeling.

It is also interesting to examine potential legal issues that will certainly arise with automated cars. Such as, who would be responsible in the event of an accident? Would it be the owner of the car, even though they were not driving? Would it be Google, who developed the technology? Or will the manufacturer who produced the car be liable? The widespread use of these automated vehicles will no doubt raise interesting legal questions. However, until the time that this technology is available to the public, it is exciting to look at how this technology could potentially change the future of transportation as we know it.

GUEST ENTRY: Robots and the Law: Will Robots Be Entitled To A Jury of Their Peers?

In our first guest entry, Attorney Arthur F. Licata analyzes the legal issues that accompany the potential use of self-aware robots in a global society. Invoking images of a not so distant future, “Will Robots Be Entitled To A Jury of Their Peers” demonstrates that the present legal infrastructure is unprepared for this potential wave of oncoming technology. This article leaves the reader wondering whether these predictions will ever manifest, or whether inventors or government will account for grave uncertainties.

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