I am deeply concerned by this. It has enormous potential for abuse.
The problem remains that we have no legal framework for war against non-governmental organizations. If an American citizen were an officer in a foreign army actively at war with the United States, targetting them for assasination (that's what this is) would be a legal no-brainer. So what we have to figure out is how do we conduct war against non-governmental entities, while remaining civilized but also while not tying our hands so much that we violate our nation's right to defend itself?
I don't know the answer, but it's not as simple as "You can't kill anyone who's an American citizen without a trial." Heck, if that were the case, no cop could ever shoot someone.
This, from Wikipedia on substantive due process
(which is what would be violated on a Constitutional basis):
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
So even a fundamental right has always been able to abrogated by a "compelling state interest". One example might be, as above, the police officer who shoots a perpetrator who is threatening the life of an innocent. The moral principle extends to those plotting to conduct terrorist acts against our nation; citizen or not, they may be legitimate targets for violent act in self-defense or our nation.
As an aside, note that the Fifth Amendment does not apply only to citizens, but to all persons
. And just as the right to due process conveys with a citizen when they are overseas, it can be argued that one cannot deprive a citizen of another nation who is in their nation of life liberty or property without due process of law. So this is not just about citizens. But of course, "due process of law" can also include a declaration of war by Congress. Which brings me back to my first point; how do we declare and prosecute war on non-governmental organizations?
How would you all suggest dealing with an American citizen who is a member of Al-Qaeda and is known to be assisting in executing attacks on the United States of America?
Edited PS - I just ran across a fantastic summary for this on Google Plus
. "The scandal is that there is no enforceable procedure, no clear boundaries to the war, and that no one in particular seems interested in creating either." <-- THAT is the real issue.
The scandal is not that the executive has adopted a procedure for shooting missiles at American citizens overseas: this has historically been rare, but during wars, shooting at fellow-citizens under arms for a foreign power has been uncontroversial. The scandal is that there is no enforceable procedure, no clear boundaries to the war, and that no one in particular seems interested in creating either
The drone-war debacle is the consequence of there being large swaths of de facto stateless territory filled with large numbers of de facto stateless people. North Yemen, Waziristan, eastern Libya, and most of central Afghanistan are not under any particular government's control in any meaningful sense.