The drone filibuster

Attorney General Eric Holder said that drones could be used against American citizens on American soil.  So libertarian Republican Senator Rand Paul (R-Kentucky) staged a 13-hour filibuster–a real one, in which the Senator actually occupies for the floor rather than just threatening to–in protest.  Eventually, Holder said that drones would not be used against unarmed Americans, just terrorists in an emergency.

Some Republicans were annoyed with Paul’s “stunt,” as Sen. John McCain called it, and defend an aggressive use of drones.  Some of them were lunching with President Obama when Paul was filibustering, sparking some observers to see a changing of the Republican guard (to borrow an Iranian phrase), with a new generation of Republicans challenging the traditional GOP practice of giving a blank check to anything military and championing instead civil liberties.

What do you think?From the Christian Science Monitor:

Sen. Rand Paul’s 12-plus hour filibuster was never going to block Senate confirmation of John Brennan to be CIA director, and indeed the full Senate voted, 63 to 34, Thursday afternoon to approve Mr. Brennan as the nation’s next spymaster.

But Senator Paul’s unusual maneuver – actually talking for hours on end, and not just threatening to filibuster – has had an immediate effect on a key issue that many lawmakers (and many voters) find troubling: the use of unmanned drone aircraft to kill suspected terrorists, including, potentially, US citizens on US soil.

Forced to respond, Attorney General Eric Holder in a three-line letter to Paul Thursday addressed what had been posed by Senate Republicans as a constitutional question: “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?”

“The answer to that question is no,” Mr. Holder, wrote – at long last, in the view of his critics. In a Senate Judiciary Committee hearing Wednesday, Holder would only say that killing a hypothetical suspected American terrorist on US soil who poses no immediate threat would be “inappropriate.”

Holder’s letter satisfied Paul.

“I’m quite happy with the answer, and I’m disappointed it took a month and a half and a root canal to get it,” Paul told CNN. “But we did get the answer. And that’s what I’ve been asking all along.”

Like his father, former presidential candidate and US Rep. Ron Paul of Texas, the junior senator from Kentucky is as much libertarian as he is Republican. Where most GOP lawmakers position themselves as foreign policy and military hawks, Rand Paul strongly questions some aspects of US policy here – particularly as in this case where constitutional issues regarding judicial due process are involved.

This rankles some senior Republicans. On Thursday, Sen. John McCain (R) of Arizona described some of what Paul had said during his filibuster as “simply false.”

Quoting from a Wall Street Journal editorial, Mr. McCain said, “If Mr. Paul wants to be taken seriously, he needs to do more than pull political stunts that fire up impressionable libertarian kids in college dorms.”

via Rand Paul’s drone filibuster shakes up Republicans – CSMonitor.com.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Grace

    Whether Rand Paul handled the situation the way others would have, is not the point – - he made a STRONG statement against “drones” being used on American soil. All the excuses in the world are not going to stand up to invading every single citizens privacy.

    How much PRIVACY are we going to vote against, or for, or give up?

    Eventually, Holder said that drones would not be used against unarmed Americans, just terrorists in an emergency.

    How would we be guaranteed of such a claim? Who is going to sign an affidavit to that effect? Even if they did guarantee such a claim, would the American citizens believe it, after all the promises about taxes, jobs, etc., have been swept under the oval rug? I most certainly would not!

  • http://abitibibob.hubpages.com/ Bob Hunter

    Talk is cheap, and Holder’s promise probably means nothing.

  • http://www.cyberbrethren.com Rev. Paul T. McCain

    I thought Rand Paul’s filibuster was simply marvelous. I watched for nearly an hour and came away entirely impressed. His point was well taken, well articulated and well delivered. I’m glad the White House finally gave a clear answer to the very simple question. As far as I’m concerned, Rand Paul schooled anyone who was listening on the importance of the USA Constitution, the Bill of Rights and the limitations imposed on the Executive Branch by the Constitution. It was brilliant.

  • BW

    The sad thing is is that it really took something of this level to draw attention to extra-judicial drone strikes on Americans. During the election, both presidential candidates were pretty ho-hum on the issue, even though some had been trying to point out and draw attention to the presidential “disposition-kill” matrix thing, and the killing of American citizens in Yemen in 2011 by drones. At least Rand got an answer and that is a starting point which hopefully will lead to further codifying and restrictions on who can be assassinated by drone overseas.

  • http://enterthevein.wordpress.com J. Dean

    “I’m quite happy with the answer, and I’m disappointed it took a month and a half and a root canal to get it,” Paul told CNN. “But we did get the answer. And that’s what I’ve been asking all along.”

    Yep. Holder and his leash-holder could have avoided all of this by simply making that affirmation at the outset.

    Funny enough: Obama is doing all of the things people feared Bush was going to do, yet they’re not complaining about it now. Confirms the axiom that “it’s only bad policy when the other side does it.”

  • BT

    First of all, I am not a college student-I’m 62 years old. I say move over McCain, Rand Paul just “ate your lunch”!

  • Kirk

    I’m normally not a Rand Paul fan but I love: a.) the he filibustered over this issue and that b.) he actually, no joke, filibustered. That takes stones and did a great job of drawing America’s attention to the issue.

    As to Holders response, it was cute, but totally loaded and unsatisfactory. What activities constitute “combat?” What, if any measures, must be made to apprehend a “combatant” before we extra-judicially rain fire upon him from the sky?

  • Cincinnatus

    As a general fan of the Paul clan, this was great political theater combining old-fashioned senatorial procedural politics and a crucially important issue.

    But Holder’s answer is not comforting. Note that the President still reserves the right to assassinate American citizens–even on domestic soil–without due process if said citizen is deemed to be in “combat.” Holder fails to define what it means to be “in combat,” and he fails to demonstrate where exactly in the Constitution it says that there are certain occasions when a citizen can forfeit the right of due process. In short, he can’t. Murderers–even mass murderers–get due process. No exceptions.

    The only scenario in which assassinating an American on American soil without due process would be potentially acceptable might involve an American about to detonate a nuclear weapon in, say, Chicago. But in that case, it would be better to assassinate and apologize for violating the Constitution later. The President is fighting a stupid and deeply troubling political battle here. At least pretend to care about due process! Why would he want to be on record reserving the right to assassinate fellow citizens with robots?

  • kerner

    For anyone who decries Sen. Paul’s filibuster, as a publicity stunt, consider whether it was a necessary one. These days, does the media cover anything one of the president’s opponents says in a non-stunt way? I Sen. Paul had called a press conference, made a statement and gone home, would we have heard about it? Would we even be having this conversation?

  • Dr. Luther in the 21st Century

    I wish Rand was still filibustering. That was fun. Sen McCain is just jealous, he is losing his maverick cred to a real maverick.

  • http://enterthevein.wordpress.com J. Dean

    Sometimes I wonder about McCain…

  • Mary

    Meanwhile:
    “A top Al Qaeda spokesman who is the son-in-law of Usama bin Laden has been captured overseas and charged in the United States with conspiracy to kill Americans, according to an indictment unsealed Thursday.”
    “He is expected to appear Friday morning in a federal court in New York City to face the charges.”
    So. The son-in-saw of Osama bin Laden is given a criminal trial in federal court, not a military tribunal, but Obama thinks he can kill American citizens on American soil if he thinks they “might” be planning terrorist activities. I think Rand Paul had it right when he read from Alice in Wonderland from the floor of the senate. I agree with the others before me, Holder will soon come out with a carefully worded 200 page presentation upholding the president’s right to use drones to kill American citizens.
    Reminds me of the immortal words of James Traficant Traficant (stolen from Star Trek) “beam me up Scotty”. There is no intelligent life down here!

  • Mary

    And, of course his name is James Traficant, only one Traficant!

  • Bryan Lindemood

    I applaud Rand’s daring stand here, though I’m sure I don’t agree with him on everything. And let us pray for more people politicians on both sides of the aisle who dare to bring some human decency back for the citizens of this nation.

  • sg

    “he fails to demonstrate where exactly in the Constitution it says that there are certain occasions when a citizen can forfeit the right of due process.”

    I think that would be self defense or public defense. Defense of the US against all enemies foreign and domestic would require the authorization of the use of lethal force by the president, including President Obama. Bush authorized the military to shoot down passenger planes on 9/11. That was extremely unusual. Also, police officers can shoot to kill to defend a victim or themselves from someone using lethal force like a guy holding a hostage.

  • BW

    SG @15,

    In so many cases, drone targets are not actively engaged in hostile actions against the U.S. Anwar Al-Awlaki’s 16 year old son was eating at a restaurant when he was killed by a drone. Sometimes these guys are just clerics or propagandists and pose no imminent threat to national security.

  • sg

    @16

    Yeah, I think that imminent threat thing is key. If a guy with a gun breaks into my house, I can shoot him right there because of the imminent threat. Let’s say I don’t shoot him, but I see the same guy the next day at the coffee shop, I can’t shoot him there. I have to call the police. Further, if I see a guy I am scared of, I can’t just shoot him because I feel scared. I think this last situation is the one that people fear the gov’t could act on. Waco, Texas anyone?

  • http://thinkingwithareformedmind.blogspot.com Steven Mitchell

    The problem with drone strikes or their ilk is that they circumvent two of the usual standards justifying lethal force. The first is resistance: a cop can kill an American citizen suspect without due process; and Washington killed plenty of Americans in the Whisky Rebellion. But in each case, it was because the citizen’s resistance necessitated lethal force. In addition, one must present an immediate danger to those around. Not merely imminent, but immediate. To synthesize the two and state it in the way that TN v. Garner has, deadly force is permissible only when apprehension is not possible.

    In the vast majority of cases, a drone strike will be preceded by neither resistance nor immediate threat and when apprehension is not even attempted. And that’s the sense in which use of drones is unprecedented.

  • DonS

    Rand’s action was inspiring. The issue itself isn’t the point — it’s highly unlikely that the U.S. government is going to assassinate someone on American soil using drones (or, hopefully, using any kind of weapon) in the foreseeable future. At least, I hope it is highly unlikely. But, Holder’s statements and follow-up responses to Rand’s clarifying questions were pathetically unclear and equivocating. This administration has absolutely no concept of American civil liberties. It is consumed with its own notions of the “greater good”, and will trample on the constitutional rights of any citizen who dares stand in its way. Proof of this is abundant in the HHS regulations we have been discussing regularly on this blog. Additionally, rather than close Guantanimo, as he promised, and bring all of the terrorists held there to civil or military trial, he has increased the use of indefinite detention and assassination strategies. Now, I personally don’t have a particular problem with indefinitely detaining non-citizen enemy combatants/terrorists during wartime, but he said he did, yet is willing to violate his principles for purposes of expediency. That is a dangerous attitude.

    Hopefully, Rand’s filibuster will wake up some Americans concerning the serious erosion of their precious and unique inalienable constitutional rights, bought at a tremendous price by our forefathers, before it is too late and we have become just another statist western democracy.

  • DonS

    @ 19, by “he”, of course, I meant Obama, and more broadly, the Obama administration.

  • sg

    @18 Very nice clarification. Thank you.

    @19 Holder is not civic minded. He doesn’t believe in civil rights. He only believes in identity politics, us vs. them. He doesn’t understand the spirit of the law. He just looks for ways either to exploit the written form of the laws or circumvent them as he sees fit to advance his friends over his opponents. That is it. Pure us vs. them. No quarter for them.

  • Kirk

    @sg

    I despise Holder, but to be fair to him, most AG’s play the part of legal hatchet men for their President. The WH comes to them and says “here’s what I want to do. Please justify it.” Ashcroft and Gonzales played this role for Bush, Reno played it for Clinton. It’s a singularly unappealing office.

  • sg

    @22

    yeah I agree

  • tODD

    Okay, I share the consensus view on drones and due process here, but I wonder if it’s the drone aspect we’re really reacting to.

    What got my thinking was this statement by Cincinnatus (@8):

    The only scenario in which assassinating an American on American soil without due process would be potentially acceptable might involve an American about to detonate a nuclear weapon in, say, Chicago.

    Except that police officers (sadly) routinely kill Americans on American soil without due process. I’m certainly not defending the number of such deaths — especially here in Portland, where it’s a bit of a topic. But nor can I decry all such killings. Often, they seem justified, if lamentable.

    Of course, the principle is the same: does the person being targeted constitute an immediate threat to someone other than himself? Often, that person is the police officer doing the killing — not, as such, a third party.

    But we don’t typically discuss such killings in Constitutional terms. Is it because it’s usually done by the local police? Doesn’t seem it would be all that different if the feds were doing it.

    So then is it really just about drones vs. handguns?

  • DonS

    tODD @ 24: Hopefully, everyone agrees that it is appropriate to stop someone posing an imminent threat to the safety of others, by any suitable means putting those surrounding that person at the least reasonably possible risk. Whether at the federal, state, or local level the policy for law enforcement is that shooting a person with a gun, as in the case of the police officer scenarios you describe, is appropriate when the safety of another is imminently threatened by that person. Paul’s point was that the same policy (using lethal force only when imminently threatened by lethal force) should apply for the use of drone weapons on American soil. It should have been a no-brainer, but the administration’s responses to his inquiries were equivocal, in his mind, so he sought clarification. Eventually, a day later, he got it.

    Sometimes, police officers act against policy, and shoot people not posing an imminent threat. Those officers and their superiors should be disciplined or punished as appropriate, and liable for their wrongful actions. But the real concern is not the occasional rogue cop, but policymakers who are deliberately implementing unconstitutional policies for the expedience of government. When those policymakers are at the federal level, especially senior members of the administration, and particularly when individuals are being deliberately targeted, alarm bells should be ringing.

  • Cincinnatus

    tODD@24:

    I think sg and others already addressed your objection (or question). Police–and private citizens for that matter–retain the right to defend themselves or the public from imminent harm. I can shoot an intruder in my home without waiting for the police to arrest him and the lawyers to convict him. The police can shoot someone about to open fire in a shopping mall. Few people would deny the existence of a basic right of self-defense in American law. Even so, police officers and citizens are always investigated in such cases, and sometimes arrested. Why? Because it’s a big deal to circumvent due process.

    Drone strikes, as they are currently deployed, almost never intervene in situations of immediate danger. The folks assassinated by drones are never “pointing the gun at someone,” as it were. They’re in cafes, at funerals or weddings, or sleeping in their beds. While I object to this mode of warmaking as a matter of national strategy, for me it doesn’t raise any issues legally speaking (except insofar as it might violate the “rules” of war by killing innocents too). Foreign terrorists and militants have no due process rights. The problem is that the President is reserving the right to do the same to American citizens. That’s a problem.

    So yeah. It wouldn’t be much of a Constitutional problem if the government hypothetically used a drone to shoot down an American citizen about to detonate a nuke in Chicago (set aside the fact that the drone strike would probably also detonate the bomb :-P ). But say the FBI had information allegedly proving that an American citizen was planning to obtain a suitcase nuke and was planning to detonate it tomorrow. Should the government be allowed to use a drone to murder the guy in his house or at his favorite diner or on the way to his kid’s soccer game the day before?

    I certainly don’t think so. That’s why due process exists in the first place: what if the FBI is wrong? Does due process even exist any longer if the government can, at its discretion, suspend it? But apparently opinions differ.

  • tODD

    Cincinnatus (@26), sure, but as I read it — and I’m likely being more naive than my cynicism should allow for — Holder’s “combat” qualifier does seem to put the action in the realm of “imminent harm”.

    I realize that wasn’t the case for al-Awlaki, and if his situation would qualify as “combat” to Holder, then his statement is worthless as an assurance, as you note.

  • Cincinnatus

    tODD@27:

    That’s just it. Holder concedes nothing because he neglects to define combat. So we the readers are left to infer what he means by it from the evidence available. And the evidence available is not promising, given what apparently counts as “combat” in foreign drone theaters (weddings, funerals, private homes, etc.).

    Do I think this administration intends to use drones to kill American citizens in current conditions? No. But events like Waco and Ruby Ridge weren’t really “planned” by the Clinton Administration. These events come up–and now we have a government that thinks it has a legal basis for flying in Predator drones. Admittedly, the standoffs would be a lot shorter!

  • tODD

    Okay, but given all that, then Paul’s action really was nothing but a stunt. He got no new information, and didn’t in any way force the administration’s hand or box them in. All he got was some kind of reply, and national attention on the topic. I realize filibustering until meaningful restrictions or at least gaurantees were in place would have been impossible, but still.

    Paul: “I’m not leaving here until you give me a definite answer!”
    [Time passes]
    Holder: “Fine, fine … I don’t know … maybe? Depending?”
    Paul: “Thank you. My work here is done.”

  • DonS

    tODD @ 29: It’s only a stunt if you don’t think there is any value in bringing these issues before the American people. Personally, I think reminding the American people of the historic origins of their nation as a protector of human rights is the most worthwhile thing that’s happened on the Senate floor in a long time. It’s not like he was keeping the Senate from passing a budget or anything.

    Of course, these kinds of filibusters have a natural lifespan, limited by the size of a human bladder unless, like Strom Thurmond, in his record-setting 24 hour filibuster, you’re willing to use a bottle on the Senate floor. I’m rather glad he didn’t resort to that tactic. He made his point, and he was satisfied with that for now.

  • tODD

    DonS (@30), if, as you seem to agree, Paul’s actions were not intended to bring about any actual change, but merely to “bring these issues before the American people”, then isn’t it pretty much, by definition, a stunt? (Merriam-Webster: “an unusual or difficult feat requiring great skill or daring; especially: one performed or undertaken chiefly to gain attention or publicity”)

  • DonS

    tODD @ 32: I’m sure he would have been thrilled to have brought about actual change, and there is no reason to doubt that is his actual intention. If he was a realist, then he recognized that this one episode, by itself, would not bring a recalcitrant administration to a realization of the ways in which it is willfully trampling constitutional rights. But there is value in debate, and in bringing issues to the fore of the public’s conscience if you want to effect change in the long run. That was, I believe, the purpose of his decision to filibuster. Since, in the political world, a “stunt” is something done for cynical and self-centered purposes, I wouldn’t call what he did a stunt unless I had knowledge of his heart.

  • Cincinnatus

    tODD@31:

    Wait, wait, wait. First, I’m with DonS: there is certainly quite a lot of value in focusing the spotlight, if only briefly, on a crucial issue that most Americans (believe it or not) didn’t previously know about.

    Second, there is no evidence that Paul wasn’t intending his filibuster to be “merely” a stunt. He actually hoped to stall Brennan’s nomination. Senatorial republicans, after all, have successfully quashed several of Obama’s nominations briefly. Surely he hoped that Holder would actually relent. And Holder’s words do represent something of a compromise: he did clarify, in response to Paul’s inquiries, that Americans must be “in combat” for a drone strike to be justified. My critique is that this isn’t actually a substantive concession, but many observers think something significant has happened.

    In the end, though, are you critiquing Paul if all this turned out to be only a stunt? Why? I mean, I’m pretty jaded about the spectacular character of modern mass politics (i.e., it’s all spectacle), but at least this spectacle actually mattered. Similarly, Democratic senator Elizabeth Warren yesterday grilled the Treasury Department, demanding to know why criminal penalties haven’t been and likely aren’t going to be assessed against executives of big banks like HSBC that have been involved in money laundering for drug cartels and other shady activities. Was she at any point likely to accomplish anything substantive? No, but her “stunt” brought important attention to an urgent issue. And that’s valuable in my opinion.

  • Cincinnatus

    Ahem: there is no evidence that Paul was intending his filibuster to be merely a stunt. I.e., he surely hoped it would bring about real change.

  • kerner

    tODD:

    I said this @9, but it bears repeating:

    For anyone who decries Sen. Paul’s filibuster, as a publicity stunt, consider whether it was a necessary one. These days, does the media cover anything one of the president’s opponents says in a non-stunt way? If Sen. Paul had called a press conference, made a statement and gone home, would we have heard about it? Would we even be having this conversation?

  • DonS

    Kerner @ 35: Exactly. As you say, we wouldn’t even know there had been a press conference.

  • SKPeterson

    Paul’s actions may very well have been a stunt. So what? What was Obama’s Chicken Little schtick regarding the sequester but another form of political theater. What Paul succeeded in doing was reframing a significant portion of the war on terror and the threats that our laws and actions have taken against our liberties. In doing so, he embarrassed both the President, McCain and the chickenhawks in the Senate (I note the irony of some of those very same chickenhawks coming to the floor of the Senate to bask in the reflective glow of Paul’s popular action. McCain – still a royal jerk). Now, this was only a skirmish as these things go, but it does herald that some elements of the public and the Congress are now successfully challenging some of the underlying assumptions regarding the war on terror. Paul has succeeded in shifting the center of debate, which may lead to not only questioning the limits of the war on terror on domestic soil, but the drone-related assassinations conducted in foreign territories. I would love to see a senator (like that perennial ass Schumer) explain why U.S. tax laws and obligations are perfectly able to follow U.S. citizens (and residents) around the globe without let or hindrance, but the protections of due process outlined in the Constitution become null and void once you leave U.S. airspace or territorial waters.

  • DonS

    As SKP said @ 37, the real political stunt is Obama’s closure of the White House to public tours because of the sequester. What an arrogant, rude joke, especially for the tourists and schoolchildren who have already scheduled tours in the coming weeks, for virtually no savings. Just to hurt the public and try to manipulate them to oppose budget cuts.

    Pathetic.

  • Patrick Kyle

    The left mocked those who feared Obama would morph into a dictator. Now he and his tyrannical Atty General, have far surpassed Bush in their assault on our Constitutional rights.

  • sg

    @38

    Interesting point. Did the president fire the employees who give the tours? If he didn’t, then what are they doing now? I agree, that is a petty and malicious stunt.

  • kerner

    sg:

    More petty and malicious than you think. White House tours were conducted by volunteers, not employees. So, I don’t think we save verymuch money by letting them go.

    http://www.examiner.com/article/obama-shuts-down-white-house-tours-run-by-volunteers-cites-sequester

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