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Administration faces another decision on lethal drones

February 11, 2014 by Scott Bomboy


More than two years after a CIA drone killed an American-born al-Qaida leader overseas, a similar attack in the planning is raising constitutional issues about due process.

Predator_droneThe Associated Press was the first to report on Monday that an American citizen who is a member of al-Qaida might be placed on a drone kill list, in an unspecified foreign country.

The AP said the Justice Department is in the process of building a legal case, behind closed doors, about the target, who is believed to be planning attacks on Americans overseas.

The death of al-Qaida leader Anwar al-Awlaki in September 2011, reportedly in a CIA drone strike in Yemen, was the first time a drone attack deliberately targeted and killed an American citizen. It set off a fierce debate about the constitutionality of such an action.

Expect the same debate in coming weeks, as President Obama, his aides and the Pentagon weigh security needs versus constitutional issues.

Those issues include whether drone attacks overseas on American citizens violate Fourth Amendment guarantees against unreasonable search and seizure, and the Fifth Amendment’s due process clause.

The AP report said that President Obama was considering the case under targeting policies that he announced last year in a national speech about counter-terrorism. But the AP also said an official source confirmed the legal process being followed in the new target’s case is the same one used when the U.S. killed al-Awlaki in 2011.

In his May 2013 speech, Obama said the Awlaki’s killing was done in accord with accepted policies.

“Not only did Congress authorize the use of force, it is briefed on every strike that America takes. That includes the one instance when we targeted an American citizen: Anwar Awlaki, the chief of external operations for AQAP,” he said.

Link: Read Speech Transcript

Obama also acknowledged there were constitutional issues as part of the equation.

“For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or a shotgun – without due process,” Obama said last year. “When a U.S. citizen goes abroad to wage war against America – and is actively plotting to kill U.S. 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.”

A Justice Department memo obtained by NBC in February 2013 was the first public attempt to shed more light on the government’s policy.

A kill order can be issued against an American citizen overseas if the person is believed to be “senior operational leaders” of al-Qaida or “an associated force.” There doesn’t need to be “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo said.

The American Civil Liberties Union said on Monday that any prospective killing of an American citizens overseas needs stronger legal standards.

"The government's killing program has gone far beyond what the law permits, and it is based on secret evidence and legal interpretations. The targeted killing of an American being considered right now shows the inherent danger of a killing program based on vague and shifting legal standards, which has made it disturbingly easy for the government to operate outside the law,” it said in a statement.

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