There are two schools of thought on interpreting the Constitution. The first argues that the Constitution is aimed inwardly, that it is to be upheld in terms of the rights and security of citizens of the United States. The second school of thought perceives law as a global ideal instead of a national one. In this second view, a country’s respect for a person’s rights and security should not stop at its borders; it should extend to the country’s foreign relations.
Proponents of the second school of thought would likely argue that Osama Bin Laden should have been allowed a trial under due process. However, members of the first school of thought would claim that the surprise attack that ended his life was legal due to his acts of terrorism against the US. (For a deeper explanation of these two schools of thought and the Supreme Court’s independence, read chapter 12 of The National Security Enterprise by George and Rishikof.)
The unconventional War on Terror has put a strain on the ideology behind both schools of thought mentioned above. In practice, we have seen that the duty to eliminate a known terrorist outweighs the duty to respect an individual’s civil liberties. In some cases, this is also true when the terrorist in question is a US citizen.
President Obama believes it would be unconstitutional to kill an American citizen without due process. However, “when a US citizen goes abroad to wage war against America, and is actively plotting to kill US citizens, and when neither the United States nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team … I would have detained and prosecuted Awlaki if we captured him before he carried out a plot, but we couldn’t. And as President I would have been derelict in my duty had I not authorized the strike that took him out” (from President Obama’s speech defending the targeted killing of Anwar al-Awlaki in 2011). Obama’s argument justifies ignoring US citizens’ Fourth Amendment constitutional right to due process if accused of a crime.
An important distinction Obama makes is that due process is to be followed unless it is impossible to capture the terrorist in question before he/she carries out a plot.
That was five years ago. Why does it matter now?
The War on Terror doesn’t seem to be slowing down, so President-elect Trump will likely have to face the issue of how to handle terrorists. His rhetoric leaves us with the feeling that he will not be soft on terrorists, presumably including ones that also happen to be US citizens.
Now the precedent has been set in this unconventional war for targeted drone strikes to be permissible, given that there is reasonable proof the intended target will instigate harm on civilians if he/she is not incapacitated. When capturing him is not possible, the current precedent is that a drone strike is an acceptable alternative. Obama was able to suspend the right to due process without consequence in al-Awlaki’s case.
We hope there won’t be another case in which a US citizen is designated as a terrorist waging war on the US from abroad. But with the spread of radical Islamic terror organizations (al Qaeda, ISIS, etc.), our legal experts need to be ready to examine such a case. It may turn out that a future case in which a drone is used to eliminate a US citizen for terrorism is deemed unconstitutional. However, I think this is unlikely due to the nature of our national security enterprise and the focus on keeping our homeland safe.