Due Process of War in the Age of Drones

Abstract

The recent killing of one American and one Italian hostage by a U.S. drone strike has reignited the debate over how to properly rein in the errors and abuses of the drone program. The debate remains stalled, however, between two ineffective and constitutionally problematic extremes. At one end of the spectrum, several commentators have called for a special ex ante "drone court" tasked with approving strikes before they are carried out. At the other end are those who place drone strikes effectively beyond judicial review by encouraging only internal executive branch procedures. This Note stakes out the middle ground between the extremes and argues that ex post judicial review by Article III courts is the most effective constitutional check on the drone program. Ex post judicial review is the best solution because it avoids the constitutional and national security problems presented by an ex ante drone court, while satisfying the separation of powers and remedial requirements sorely lacking when the executive remains unchecked by the judiciary.