The sobering conclusion of this analysis is that drone use will always lie on the borderline of the rule of law. It is therefore highly improbable that anyone could devise a workable system of constitutional rights to protect persons against unlawful drone attacks by the U.S. or other sovereign nations. The ACLU tends to attach more weight than most to due process and individual privacy. In its Congressional testimony, it has taken the position that some use of drones in international affairs is unconstitutional, especially those targeted against United States citizens.
It is likely that the ACLU’s position will gain traction before the courts of law and the courts of public opinion. On the former, it is worth stressing repeatedly that our major constitutional safeguards for individual rights extend to all natural persons, whether citizens or aliens. The writ of habeas corpus, for instance, is available to aliens as well as citizens. The Fifth Amendment states that “no person shall be deprived of life, liberty or property, without due process of law.”…
The potential targets of drone attacks have no intention of subjecting themselves to the authority of the United States, so the only option left is to pursue them in territories where the United States exerts no effective control. In these settings, the futility of trial forces the government to take the controversial military option.
In dealing with that calculus, the United States could take citizenship into account in making its decision. But which way should that cut? Does a citizen deserve extra rights against the government that he has betrayed? Or should he be subject to additional sanctions? There is no clear answer, which is why U.S. policy on drone use for targeted attacks will remain an open wound in the body politic. It is both frightening and necessary to have to place such extensive trust in our public officials. But, when it comes to matters of national security, there is no other choice.