Eye in the Sky: U.S. Citizen Casualties in the Shadow War

Article excerpt

"Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?" (1)

I. Introduction

In the wake of the September 11, 2001 terrorist attacks, the protection of U.S. national security became the impetus for far-reaching legal action. (2) In response to recent u.S. national security measures, legal scholarship has continuously examined the use of military force, and the legal justifications and constraints surrounding such action. (3) One particular area of this debate focuses on the controversial use of unmanned aerial vehicles (UAVs), or drones, and the legality of carrying out UAV-targeted strikes against alleged members of Al Qaeda throughout the Middle East and Asia-Pacific regions. (4)

Following the 9/11 attacks, the United States directed hostilities into Afghanistan, engaging the Taliban government and Al Qaeda. (5) Thereafter, the United States extended its use of force beyond Afghanistan, developing a covert program to carry out strikes against terrorist threats in Pakistan and Yemen, and eventually in Somalia under the Obama Administration. (6) Two strikes in Yemen conducted under the obama Administration claimed the lives of three U.S. citizens, raising issues of whether the United States may target U.S. citizens with alleged terrorist connections, or carry out operations resulting in the collateral deaths of U.S. citizens. (7)

On September 30, 2011, the Central Intelligence Agency (CIA) carried out a drone attack on a convoy traveling in Yemen, killing Anwar al-Awlaki (also spelled Anwar al-Aulaqi) and Samir Khan. (8) The target of the attack was al-Awlaki, a dual U.S.-Yemeni citizen whom U.S. officials had long suspected of encouraging terrorism. (9) The Obama Administration authorized the targeted killing of al-Awlaki in April 2010 after he allegedly became more active in terrorist plots against the United States. (10) Khan, a U.S. citizen living in Yemen who also had terrorist connections, was traveling with al-Awlaki when the CIA engaged his convoy. (11) Less than a month later, a U.S. military strike killed al-Awlaki's son, Abdulrahman al-Awlaki (Abdulrahman), bringing the total of dead U.S. citizens on Yemeni soil to three during the Obama Administration. (12)

This Note explores whether the United States acted lawfully in carrying out the strikes that killed al-Awlaki, Khan, and Abdulrahman by first examining the evolution of international law and the laws of war. (13) Part II.B traces the development of domestic law in relation to the war on terrorism and what constitutional protections, if any, apply to U.S. citizens abroad. (14) Next, Part II.C brings to light the Obama Administration's justifications for engaging terrorists--including U.S. citizens--through drone strikes. (15) Part II.D examines the context of the United States' use of force against al-Awlaki, Khan, and Abdulrahman. (16) Finally, this Note assesses whether this use of force was proper under international and domestic constitutional law. (17)

II. History

A. International Law and Laws of War

1. Historical Laws of War

The laws of war consider when one state is legally justified in using force against another. (18) Historically, the laws of war break down into two concepts: jus ad bellum and jus in bello. (19) Jus ad bellum, which modern scholars refer to as "just war theory," examines whether there are proper justifications behind waging war. (20) Traditional principles of jus ad bellum only permit a country to wage war if certain requirements are met: there is a just cause, there is right intention, the state has proper authority and publicly declares war to its own citizens and the foreign state, the war is waged only as a last resort, there is a probability of success, and there is macro-proportionality. …