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American Terrorists Abroad and Due Process

Imagine you are an American citizen overseas dedicated to recruiting terrorists, planning terrorist acts aimed at the United States, and publicly calling for jihad against America. This was the life of Anwar-al-Awlaki, an American terrorist overseas. To the Obama administration, Anwar al-Awlaki was an illegal enemy combatant that was due to no judicial hearing before the CIA targeted and killed him in Yemen in September 2011.

In a speech defending the Obama administration’s policy to afford American terrorists overseas like al-Awlaki with no judicial hearing prior to their targeted killing, Attorney General Eric Holder passed on explaining the policy’s implications for the due process rights of these citizens. A deeper examination of due process, however, supports the administration’s policy that judicial hearings for American terrorists overseas need not occur before they are targeted and killed.

Due process aims to protect persons from state policies that exceed the limits of governmental authority. In the case of targeted killing, due process mainly concerns how and who the Executive may kill.

In his speech, Holder asserted that assuming there is no opportunity to capture American terrorists overseas unharmed, the Executive has no obligation to afford these citizens with due process before it targets and kills them. Rather, Holder said, “careful and thorough” Executive review of the evidence used to justify their targeted killing amounts to due process.

The administration has thus adopted a form of “administrative” due process that negates both the constitutional protections afforded to persons by the Fifth Amendment of the Constitution and the role of the courts in protecting their right to life. In so doing, the administration is essentially saying, “trust us” in how we eliminate the imminent threat posed by American terrorists overseas.

Though critics question if the administration’s policy respects due process and insist that it be vetted by the courts and the Congress, this is unnecessary. The due process rights of American terrorists overseas are invalidated when they choose to become actively involved with terrorism aimed at the United States. The administration’s policy of eliminating the imminent threat they pose is legal as a form of self-defense.

In Mathews v. Eldridge, the Supreme Court examined whether persons are due a judicial hearing prior to state actions that implicate their due process rights. In applying the due process test outlined in Mathews to the targeted killing of American terrorists overseas, it is readily evident that the test weighs heavily for the government. In other words, the Executive’s asserted an interest in protecting the nation against terrorist threats, versus the administrative, financial and security burdens it would incur by providing American terrorists overseas with unharmed capture and judicial hearings, greatly outweigh the rights which would be affected by their targeted killing.

At the same time, constitutional and operational prerogatives counsel against submitting the Executive’s policy to judicial or legislative scrutiny, except as required by statute and the relevant congressional committees. Indeed, the Constitution does not require judicial approval before the Executive may use force to eliminate imminent threats abroad, even if that threat is an American citizen, and particularly when the risk to U.S. ground forces is deemed too great.

Importantly, such scrutiny would also encroach upon the Executive’s power to protect the nation pursuant to Article II of the Constitution and the congressional authorization enacted after 9/11. In other words, the Executive has a duty to eliminate imminent terrorist threats, particularly when targeted killing through drone strikes has proven so far to be not only the most effective method to target an enemy that disguises as civilians, avoids confrontation, and hides among populations, but also the most humanitarian option today to reduce collateral harm to non-combatants.

The Founders designed a strong presidency to counter foreign threats, thus recognizing that the Congress (and implicitly the Judiciary) is too slow and too large to effectively counter threats such as terrorism. In this vein, and as held by the U.S. District Court in al-Aulaqi v. Obama, judicial scrutiny of the government’s policy would also contravene the political question doctrine which prohibits the courts from deciding on non-legal issues upon which it lacks expertise and capacity to review. In essence, targeted killing concerns political questions best decided upon democratically by elected leaders. Indeed, the imminent and unpredictable nature of terrorism makes judicial review infeasible and would hinder the Executive’s ability to counter terrorism.

In essence, Holder was saying that the Executive holds the power to decide who is targetable and when and how American terrorists overseas will die. This is not to say that the president has free reign to kill. Indeed, due process concerns arise as to the accuracy of the intelligence used to justify targeted killings, and demand that the Executive implement procedures to ensure that the administration’s “thorough and careful review” standard is reliable and responsible. Doing so will still allow the president to counter the unique threat of terrorism.