The Legality of Armed Drone Strikes against U.S. Citizens within the United States

By Thompson, Marshall | Brigham Young University Law Review, January 1, 2013 | Go to article overview

The Legality of Armed Drone Strikes against U.S. Citizens within the United States


Thompson, Marshall, Brigham Young University Law Review


I. Introduction

The passage of the National Defense Authorization Act for Fiscal Year 2012 drew heated criticism from both sides of the political spectrum1 because it hinted that the U.S. military could, if necessary, detain a U.S. citizen on U.S. soil in accordance with the laws of armed conflict instead of through the criminal justice system.2 A number of commentators and politicians assert that this would violate the fundamental constitutional rights that Americans enjoy.3 The idea that the United States could use military force according to the laws of armed conflict within the United States, however, appears to be consistent with American history,4 the text of the Constitution,5 and Supreme Court precedent.6 In a similar way, the U.S. military's targeted killing of Anwar al-Aulaqi, a U.S. citizen living in Yemen, in 2011 was highly controversial and raised questions about whether the United States could lawfully use military force against its own citizens. As one commentator observed, however, "[n]o laws, international or domestic, prohibit the practice if it is carried out by a state against an enemy of that state actively engaged in an armed conflict against that state."8

Despite the fact that the laws of armed conflict have applied to the use of military force within the borders of the United States and to U.S. citizens in the past, many Americans have argued that it is a gross violation of their rights.9 It raises the question: What other aspects of military force would be permissible within the United States and against its citizens under the laws of armed conflict that run contrary to current popular assumptions? To explore this issue, this Comment poses the intentionally provocative question: Could the U.S. military conduct an armed drone strike against a U.S. citizen within the United States? The answer is most likely yes, but only under a narrow set of circumstances.

The use of unmanned armed aerial drones to target individuals during armed conflict is one of the most controversial U.S. practices in the War on Terror.10 Recent years, however, have only seen an increase in the number of armed drone attacks overseas,11 and the United States continues to defend its lawfulness.12 If the use of armed drone strikes is acceptable under the laws of armed conflict, and the laws of armed conflict apply to the use of military force within the United States, then the U.S. military could conceivably target a U.S. citizen in the United States using an armed drone. The following is a hypothetical scenario that will be referred to throughout this Comment.

A. Scenario for an Armed Drone Strike within the United States

Consider the following hypothetical:

The U.S. military has recently captured al-Qaeda operatives in Afghanistan who, when interrogated, provided consistent accounts of a plan to remotely detonate chemical weapons in the Alamo and at least two more unknown locations in or around San Antonio, Texas. The attack is supposed to happen within the next few days, but no one knows exactly when. Initial estimates place the civilian death toll at about 1,000 people. According to the detainees, the alQaeda members planning the attack live in a suburban neighborhood just outside of San Antonio. Two al-Qaeda members along with their families live in the house, which acts as the operations center for the attack. All are U.S. citizens. In preparation for the attack, the al-Qaeda members have stockpiled small arms, ammunition, chemical weapons, and even some larger anti-tank weapons as well as remote detonating equipment. Within hours, law enforcement officials have identified the house in question and have observed individuals coming and going consistent with the human intelligence. Two persons have been identified as known alQaeda operatives. Civilian law enforcement agents have made no attempt to intercept or apprehend the persons out of fear that doing so would prompt them to remotely trigger the chemical weapons, which have yet to be located.

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