Expanding 'Practical Sovereignty': Pre-Deprivation Due Process Suits for Drone Strikes on Non-U.S. Persons

Abstract

It is now a matter of public knowledge that the U.S. government has operated, as part of its counterterrorism policy since September 11, 2001, a major program of extrajudicial targeted killings via unmanned aerial vehicles (i.e., “armed drones”). Undertaken by the U.S. military and the CIA pursuant to the 2001 Authorization for Use of Military Force (“AUMF”), U.S. drone strikes have targeted members of Al Qaeda and their vaguely defined “associates,” including U.S. citizens, both overtly as an arm of U.S. troop occupations in Iraq and Afghanistan, as well as covertly in the absence of U.S. troops in Pakistan, Yemen, and Somalia.

The United States Supreme Court has not yet examined challenges to the legality of drone strikes under the United States Constitution or international law. A lower court dismissed a suit challenging the targeting of Anwar Al-Aulaqi, an American citizen, in 2010 on grounds of standing and the political question doctrine. A suit challenging his killing, as well as the killing of his teenage son and another U.S. citizen suspect, is currently pending.

This absence of major judicial precedent has inspired a varied academic debate. This Article attempts to contribute to that debate by sketching a framework for allowing suits challenging the nonbattlefield targeting of non-U.S. persons (i.e., nonresident aliens not present on U.S. soil) to proceed on the merits in U.S. courts on grounds of constitutional due process, in light of the “functional approach” and the resultantly-expansive concept of U.S. sovereignty defined by the Supreme Court in Boumediene v. Bush.

Part I of this Article explains why due process ought to be applied to drone strikes via Boumediene. Part II adapts Boumediene’s “practical sovereignty” inquiry to drone strikes on non-U.S. persons. Part III follows with a discussion and a rejection of typical separation of powers and secrecy-related arguments against providing due process through judicial proceedings. Finally, Part IV explains why judicial proceedings should take the form of civil suits as opposed to warrant process.

Keywords: Targeted Killing, Drone, Unmanned Aerial Vehicle, Terrorism, War on Terror, Judicial Review, Separation of Powers, Practical Sovereignty, De Facto Sovereignty, Habeas Corpus, Boumediene, Due Process