North Carolina Law Review

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Expanding "Practical Sovereignty": Pre-Deprivation Due Process Suits for Drone Strikes on non-U.S. Persons

March 27, 2014

92 N.C. L. Rev. Addendum 57 (2013)

 

It is now a matter of public knowledge that the U.S. government has operated, as part of its counterterrorism policy since September 11, 2001, a major program of extrajudicial targeted killings via unmanned aerial vehicles (i.e., "armed drones"). Undertaken by the U.S. military and the CIA pursuant to the 2001 Authorization for Use of Military Force ("AUMF"), U.S. drone strikes have targeted

members of Al Qaeda and their vaguely-defined "associates," including U.S. citizens, both overtly as an arm of U.S. troop occupations in Iraq and Afghanistan, as well as covertly in the absence of U.S. troops in Pakistan, Yemen, and Somalia.

 

The United States Supreme Court has not yet examined challenges to the legality of drone strikes under the United States Constitution or international law. A lower court dismissed a suit challenging the targeting of Anwar Al-Aulaqi, an American citizen, was dismissed in 2010 on grounds of standing and the political question doctrine. A suit challenging his killing, as well as the killing of his teenage son and another U.S. citizen suspect, is currently pending. 

 

This absence of major judicial precedent has inspired a varied academic debate. This Article attempts to contribute to that debate by sketching a framework for allowing suits challenging the non- battlefield targeting of non-U.S. persons (i.e., nonresident aliens not present on U.S. soil) to proceed on the merits in U.S. courts on grounds of constitutional due process, in light of the "functional approach" and the resultantly-expansive concept of U.S. sovereignty defined by the Supreme Court in Boumediene v. Bush.

 

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