Drones and the War on Terror: When Can the United States Target Alleged American Terrorists Overseas?

Robert M. Chesney

Editor’s Note: On February 27, 2013, Robert Chesney testified before the House Committee on the Judiciary on the topic of drones and the war or terror.

Chairman Goodlatte, Ranking Member Conyers, and members of the committee, thank you for the opportunity to testify today.

In the pages that follow, I consider whether there is a useful—and constitutional—role that the judiciary might play in connection with the use of lethal force against U.S. persons overseas for counterterrorism purposes. I conclude that there is, though that role is a narrow one requiring very careful calibration. Before explaining that conclusion, however, I wish to make two threshold points.

First, this conversation should focus on the use of lethal force against U.S. persons (i.e., citizens and lawful permanent residents) without respect to the weapons or weapons platform that might be involved. It is true that we have grown accustomed to equating lethal force in the counterterrorism setting with the use of “drones” (i.e., remotely-piloted aircraft). That is perhaps to be expected; drones are the focus of intense public curiosity and media scrutiny, and important policy questions arise as a result of their particular capacity for loitering, gathering intelligence, striking with immediacy, and projecting force into regions that are not easily accessible by ground forces. But if the task at hand is to identify the legal boundaries hemming in the government’s capacity to use lethal force overseas against U.S. persons, then it is a mistake to frame the issue solely in terms of drones. The same issue would arise, after all, if we were speaking instead of missiles launched by manned aircraft, sea-launched missiles, shells from artillery, or bullets from a rifle. Below, therefore, I refer to the use of lethal force without specifying particular weapons or weapons platforms.

Second: Though I conclude below that some form of judicial review in this setting would be permissible as a constitutional matter and desirable as a matter of policy under certain conditions, I do not mean to suggest that such review is strictly required by current law, still less that the government acted unconstitutionally in using force in the particular case of Anwar al-Awlaki or that the positions set forth in the Justice Department’s White Paper are incorrect. On those matters, I am in general agreement with the views set forth by Benjamin Wittes and John Bellinger in their testimony today.

Having said that, I turn now to my primary focus: What can and should Congress do, going forward, with respect to the potential role of the judiciary in decisions to use lethal force against U.S. persons abroad for counterterrorism purposes? I start with an overview of the distinct constitutional issues implicated by this subject, and then turn to a survey of the options for judicial review. In addition, I also provide a concluding section that highlights larger trends that are destabilizing the overall legal architecture of U.S. counterterrorism policy, separate and apart from the issue of targeting U.S. persons in particular.

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