The Curious Case of Anwar Al-Aulaqi: Is Targeting a Terrorist for Execution by Drone Strike a Due Process Violation When the Terrorist is a United States Citizen?

29 Pages Posted: 8 Mar 2011 Last revised: 16 Mar 2011

Michael Robert Epstein

Journal of International Law

Abstract

In response to the horrific attacks of September 11, 2001 by al-Qaeda upon the United States, the U.S. Government has responded with a vast war on terror, both domestically and abroad. The U.S.’s pursuit of al-Qaeda and other affiliated terrorists abroad has led to increased use of advanced technology, which in turn allows the U.S. to pursue terrorists and enemy combatants in far away countries where they have little or no troop presence. These operations, occurring most often in the form of remote-controlled drone strikes, have been the increasingly favored method of combating terrorists both in Afghanistan, where the U.S. is at war, as well as territories where Taliban and al-Qaeda operatives have fled, such as Pakistan and Afghanistan. President Barack Obama allegedly has a secret kill list of high-risk terrorists who have been pre-approved for killing if they are found by U.S. operatives.

This increased use of allegedly pre-approved strikes has led to significant controversy. This note explores the claims of Nasser al-Aulaqi on behalf of his son, Anwar al-Aulaqi, who has allegedly been placed on the Obama Administration’s pre-approved terrorist kill list. Part 1 of this paper introduces Anwar al-Aulaqi and his father’s proposed injunction to have him taken off the targeted kill list. Part 2 of this paper lays out all of the current statutory and case law that the U.S. government currently acts under when pursuing and prosecuting terrorists. Part 3 of this paper explores the applicability of this legal framework to al-Aulaqi’s case and the merits of the plaintiff’s case in light of the government’s motion to dismiss. Part 4 examines the D.C. Circuit’s grant of the government’s motion to dismiss. Ultimately this case raises fundamental issues regarding the Due Process owed to U.S. citizens engaged in acts of terrorism abroad, but the sensitive nature of national security and military concerns and prudential requirements will ultimately keep full adjudication of these issues awaiting their day in court.

Keywords: due process, terrorism, Anwar al-Aulaqi, Anwar al-Awlaki, Barack Obama, drones, Yemen, state secrets, political question, ACLU

Suggested Citation

Epstein, Michael Robert, The Curious Case of Anwar Al-Aulaqi: Is Targeting a Terrorist for Execution by Drone Strike a Due Process Violation When the Terrorist is a United States Citizen?. Michigan State University College of Law Journal of International Law, Vol. 19, 2011 . Available at SSRN: https://ssrn.com/abstract=1780400

Michael Robert Epstein (Contact Author)

Journal of International Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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