Using Drones on U.S. Citizens Abroad; Is it Legal?

A leaked document from the Department of Justice makes the position that these drone strikes that kill United States Citizens are legal. The real question is are they? I am not an attorney but I have searched the legal morass to see if I could discover a cut and dry answer. The basic foundation is that these citizens have decided for whatever reason, to travel abroad and join a terrorist organization and in turn are willing to commit acts of terrorism against the United States or its assets. This foundation really is not in dispute. If these citizens had engaged in this activity on U.S. soil, they would have been arrested, tried and if found guilty, sentenced in accordance with the law. The problem comes into it because these were United States Citizens who were living overseas. While living abroad they were involved with or engaged in organizations that were deemed terrorist organizations. They were either plotting or willing to engage in violent acts or assist violent acts against U.S. targets. In response the U.S. government authorized drone strikes that subsequently killed these individuals. In the most high profile case, it was three individuals including a small boy who were hit with these strikes. So the question becomes were these citizens not afforded due process rights as laid out in the Constitution?

We already know they were engaged in an illegal activity that was both illegal here and illegal in the country they were residing in. (Yemen) So the activities they were involved with technically have no bearing on the legality as currently you are subject to the laws of the country you are currently in. Yet, are U.S. Citizens still afforded the right of due process? If the Yemen government had been the ones to develop the mission, launch the drones and carry out the strike the legality of the issue wouldn’t exist. Because, like mentioned above you are subject to the laws of the country you are currently in. This was not the case in this instance. It was developed by United States assets who then launched the drones and carried out the strike.

There are two principles here that I can find. One is that the United States government is bound by the same laws in the Constitution as each of us. Therefore, at least in principle it was a violation and unconstitutional for the government to execute these citizens. The next principle is that the laws of the United States, including the Constitution, do not apply outside of our territorial boundaries. The only exception I can find is in an ruling by the SCOTUS that says.; “The canon of construction which teaches that legislation of Congress, unless a countrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, Blackmer v. United States, supra, 284 U.S. at 437, 52 S.Ct. at page 254” Depending on application, it pretty much means unless Congress says otherwise our laws don’t apply outside the territorial boundaries. As you can see, we have quite a dilemma. Two principles, equally as valid that appear to conflict.

See the whole issue revolves around due process. The fact they were executed really makes no difference. It is the fact they had no way to challenge, what was a death sentence. If they had been tried and found guilty and then executed there wouldn’t be a problem. It was that they were not arrested, nor tried, nor convicted of any crime by the same government who falls under the same laws as you and I. Or should follow the same laws as you and I. So how will this be resolved? I really don’t have an answer but I have an opinion.

Since the end of World War 1 there has been two separate legal hierarchies. The law of Nations and the Law of Man. Here is an example. Serbia launched a war against Bosnia that led to thousands of deaths due to ethnic cleansing. Serbia was not convicted of a crime but the leader of Serbia, Slobodan Milosevic was tried for Crimes against Humanity. Instead of being tried under the laws of nations which would have tried all of Serbia, he was tried under the laws of Man. When you look at his charges they are tied to specific actions and not to the act of launching the war. It is actually very complicated and I don’t have the time to explain it fully but you should have the gist by now.

In the case of the three individuals, under the law of Man they were deprived of their rights of due process. However, under the law of Nations they were not. In a sense the question becomes, which law has precedence over the other? In the situation of a lack of sovereignty the law of Nations prevails. The Yemen government gave permission for the strikes and as long as all international laws that govern said situation were covered the drone strikes were technically not illegal. As this case works its way through the courts I wouldn’t be surprised if we see many split decisions on the issue. I do think that ultimately the Supreme court will rule in the governments favor. Either a direct ruling, or by refusing to take the case or some technical loophole.

In the end, it will boil down to how each of us feel about this individually.


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