Are Drone Attacks Against Americans Legal?

Can the government use drones against American citizens? Legal Lad uncovers the scary truth.

Adam Freedman
March 22, 2013

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Both men had allegedly participated in al-Qaeda but nonetheless they were citizens.   The Fifth Amendment to the Constitution says that no person can be deprived of his life (or liberty or property) without “due process.” And when it comes to Americans who commit “treason” – that is, engaging in war against the U.S. or giving “aid and comfort” to her enemies – the Constitution provides very specific due process requirements. A conviction for treason must be supported by the testimony of at least two witnesses. The counter argument is that al-Awlaki and Khan were not merely aiding the enemy, but had joined the enemy – effectively renouncing their U.S. citizenship.

Traitors or Combatants?

Granted, al-Awlaki and Khan were not on U.S. soil at the time of the attack, but that does not necessarily change the analysis. Indeed, Federal law prohibits anyone – including the government – from killing American nationals overseas.   However, the Obama administration concluded that the federal statute must implicitly contain exceptions for national security threats. And there are legal experts who maintain that once U.S. citizens join up with an enemy force with which we are at war, they become valid targets as enemy combatants – and the government doesn’t have to wait until we literally confront them on the battlefield.  The bottom line appears to be this: If Americans are committing treason by supporting our enemies, they must get due process, but if they actually join enemy forces, they become combatants who do not merit due process.

Smile, You’re on Drone Camera

Although drones haven’t been used to attack Americans on American soil, there is a separate controversy about the use of drones for surveillance purposes. Drones are a potentially powerful law enforcement tool because they can catch people breaking the law who don’t even know they’re being watched. Some civil liberties groups complain that the use of surveillance drones would violate the Fourth Amendment to the Constitution, which protects citizens against unreasonable “searches and seizures.” Whether such challenges hold up in court may depend upon the surveillance technology that is used by the drones. The Supreme Court has upheld the ability of law enforcement to use airplanes to gather evidence – at least to the extent the evidence is visible to the naked eye or an ordinary camera. Other decisions, however, suggest that more intrusive technologies, like thermal imaging, might violate the Fourth Amendment if not supported by a warrant.   In the meantime, a number of state legislatures have either passed or are considering laws to prevent law enforcement from using drones to obtain evidence against citizens.

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