Deadly Drones, Due Process, and the Fourth Amendment

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William & Mary Bill of Rights Journal



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Wm. & Mary Bill Rts. J.


The use of drones to target individuals, especially American citizens, outside of the immediate zone of hostilities has been severely questioned in the media with assertions that it constitutes the executive acting as the prosecutor, the judge, the jury and the executioner without any of the protections afforded by constitutional law. A leaked “white paper” from the administration is the only unclassified legal justification for this practice. The “white paper” raises a number of legal issues. Among these are whether the President has the authority to order such killings, whether various criminal statutes or the executive order banning assassination would prohibit such operations, and whether the operations would violate international law. This article, however, only addresses the questions: whether, and if so how, the Due Process Clause of the Fifth Amendment and the Fourth Amendment would constrain these operations.

The article begins by describing the operations in question and the procedures the administration has put in place to authorize them and relates the arguments contained in the “white paper” regarding the requirements of due process and the Fourth Amendment. The article then critically assesses those arguments and raises some additional ones. In short, the article concludes that it is doubtful that the Due Process Clause is the appropriate constitutional provision applicable to drone strikes, although, if it is applicable, the current procedure, at least as outlined in the “white paper,” is constitutionally doubtful. Rather, the article asserts that it is the Fourth Amendment that is the appropriate lens under which to view drone strikes, and here the administration’s justifications have greater strength but still lack a vital element to ensure the reliability of the determinations it makes. The article suggests that extension of the Foreign Intelligence Surveillance Court’s jurisdiction to drone strikes would satisfy any Due Process or Fourth Amendment concerns, and the use of that court would neither impede the effectiveness of the drone program nor raise other constitutional concerns.

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Page numbers in the pre-publication version of this article linked here are pp. 1-26. Page numbers for the final published version are pp. 311-336.