Now, the debate has spawned a fury of legal debate and even generated a report on U.S. policy from The Brookings Institute.

U.S. District Judge Rosemary Collyer of the District of Columbia recently heard oral arguments in Al-Aulaqi v. Panetta, a case generated from a challenge by the Center for Constitutional Rights and the American Civil Liberties Union of drone strikes on three U.S. citizens in Yemen in 2011. The trio had apparent terrorist ties. The case revolves around sensitive security issues, the judicial role in the war on terror and the Constitution.

The Brookings Institution report by Daniel Byman and Benjamin Wittes named “Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad,” from July 23, deals with how the U.S. will grapple practically and legally with drone strikes and terrorism. In the report Byman and Wittes explore the government’s defense of the strikes in public and in court.

President Barack Obama gave a speech at the National Defense University in May where he enumerated some of the “difficulties in practice” of involving a judicial review before executing drone strikes.

“The establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority,” he said, and noted it would “introduce a layer of bureaucracy into national-security decision-making without inspiring additional public confidence in the process.”

This argument was essential a doubling down on comments Attorney General Eric Holder made at Northwestern University School of Law last year. At that time he laid out the argument that U.S. citizens connected to terrorist organizations are not necessarily entitled to “judicial process.”

“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one in the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process,” Holder said.

The drone strikes, supported by the government’s distinction between “due” and “judicial” processes, was a key element in the case argued before Collyer.

The Center for Constitutional Rights and the American Civil Liberties Union have argued the killings of Anwar Al-Aulaqi, Samir Khan and Al-Aulaqi’s 16-year-old son Abdulrahman, violated the Fifth Amendment’s guarantee of “due process,” and courts need to have a role in judging the legality of government’s action, according to information from the Center for Constitutional Rights.

“The Constitution does not allow government officials to kill Americans based on vague and shifting legal criteria and evidence never presented to a court,” said ACLU National Security Project director Hina Shamsi, who argued in front of Collyer.

“The government has argued that the court should step aside when the executive branch conducts extrajudicial killings of American citizens abroad, but the Supreme Court has ruled that the judiciary has an essential role to play in protecting civil liberties even in the context of actual military conflict. The Constitution’s protections are never more crucial than when the government seeks to deprive people of their lives.”

The Brookings Institute Report offers a unique prediction about the future of the war on terror, especially with respect to the government’s practical approach.

“More broadly, the handling of U.S. citizens abroad is likely to remain a weirdly bifurcated domain in which our policy rules out non-criminal detention and largely eschews targeting—the bread and butter approaches to non-citizens abroad. Citizens, rather, are much more likely to go through process-rich handling in the criminal justice system, on the one hand, or toleration on the other—with a dollop of targeting and proxy detention thrown in occasionally. It’s not an elegant solution conceptually. But it has successfully addressed, at least in broad strokes, most of the threats that U.S. citizens abroad have posed,” the report states.

No ruling has come down from Collyer as of press time. The Brookings Institute Report is available here: Brookings Institute/tools and tradeoffs.

Dan Sabbatino is an award winning journalist whose accolades include a New York Press Association award for a series of articles he wrote dealing with a small upstate town’s battle over the implications of letting a “big-box” retailer locate within its borders. He has worked as a reporter and editor since 2007 primarily covering state and local politics for a number of Capital Region publications, including The Legislative Gazette.