It was a hell of a show. No doubt about that. Twelve hours and 52 minutes. And Rand Paul, the junior senator from Kentucky, was not alone in his marathon filibuster. Sen. Ted Cruz (R-Texas) joined in, reading from Henry V and showing off the oratorical skills that made him an elite Supreme Court advocate. Cruz was so moved that he told Paul that Jimmy Stewart would surely be smiling down on the senator's principled stand. And the praise was not confined to Cruz. Paul's colleagues and some of the smartest members of the media hopped on board, too. (Ezra Klein praised Paul’s lecture as an example of "the highest purpose of the filibuster.")
And it was done for what seemed like an obviously wonderful cause: To think, the president of the United States would not guarantee that he would not use a drone against an American citizen on U.S. soil.
Like I said, hell of a show. But, like the author of any good screenplay, Sen. Paul made sure not to let facts get in the way of his story. Rather than use his filibuster to bring more transparency and accountability to the U.S.'s drone program, Paul opted to play to the television cameras. This is a shame.
The U.S. government's position, according to a white paper leaked last month, is a bit more nuanced. The U.S. may target an American citizen with lethal force provided that (1) the person is a senior al Qaeda operative; (2) the person poses an imminent threat to the safety and security of U.S. citizens and/or forces; and (3) it would be "infeasible" to capture the suspect.
Justifiably, Paul wanted to know whether these standards applied to Americans on U.S. soil. So he asked the administration, and Attorney General Eric Holder wrote Paul back. Stressing that the scenario is "entirely hypothetical" and "unlikely to occur," Holder went on to say that "it is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States."
Being the nation's top lawyer, this is an entirely appropriate and reasonable response. When things blow up all the time, you do not say there are no circumstances under which we will do X, if it is conceivable that a time may come when X is necessary.
Unsatisfied, Paul launched into one of the more impressive publicity stunts in recent Senate memory, droning on and on and on about the dangers that the security state poses to American citizens' liberties, and complaining about the administration's lack of transparency. And lest you think that it was not a publicity stunt, the senator's ensuing statements are revealing. Holder wrote Paul again to confirm that the president does not have the authority to kill an American on U.S. soil in a non-combat situation. On Thursday, White House press secretary Jay Carney read portions of the letter: "Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on U.S. soil? The answer to that is no."
Apparently, this was enough to mollify Paul, who told CNN, "I'm quite happy with the answer." He added, "I'm disappointed it took a month and a half and a root canal to get it, but we did get the answer."
Here's the thing, though: The administration did not change its answer at all. Immediately after reading portions of the letter, Carney added that "if the United States were under attack, [if] there were an imminent threat," the president has the authority to protect the country from that assault. Every lawyer with any knowledge relating to national security law recognizes that language as being no different from the hypothetical Holder emphasized in his first letter. Basically, all the attorney general did in his second letter was answer a straw man question: Could the president order a drone strike on a citizen not suspected of terrorist activity, who is on American soil, and without due process? Answer: No.
How informative. And with that, Paul allowed the vote to proceed on John Brennan's confirmation as CIA director, and the Senate confirmed him on Thursday afternoon. And for what? Paul caught flack from Sens. John McCain and Lindsey Graham for posing absurd hypotheticals, but Paul was, on some level, right to question just how far the government might go. The problem is that he wasted the power of the filibuster, as well as the media spotlight he had won, by failing to use the leverage to bring more accountability and transparency to targeted killings. He could have done better. He might have instead said something like this:
"Look, no one denies that if there really is an American serving as a senior level al Qaeda official within the United States, who we have evidence to believe is about to attack America, and whom it is truly impossible to capture without risking the lives of multiple U.S. soldiers, then the president should and ought to take whatever measures necessary to protect the country. But I think the administration would also agree that this is a highly extraordinary measure, and that it should have to prove that a person meets these criteria before simply blowing him or her off the face of the earth.
"We know that these are hard decisions that have to be made rapidly. We also realize that you can't be defending this stuff in court, and revealing all your intelligence. We also feel comfortable trusting the appropriate parties to make decisions based on the intelligence available. But we need some measure of accountability in this system.
"There are two ways you might do this. First, we might amend Title 10 (military) and Title 50 of the U.S. Code to require that all of these actions be signed off on by the president, and that they be reported back to the Gang of Eight (select members of the intelligence committees in the House and the Senate). Second, we might set up a committee to review the evidence ex ante any strike to confirm that the Americans in question are, in fact, senior level al Qaeda, that serious intelligence has emerged that a threat is imminent, and that a determination has been made that capture is truly not feasible.
"We cannot in good faith proceed with Mr. Brennan's nomination until we are promised in writing by the president that he will work with Congress to create some sort of system of accountability, along the lines I have laid out, in the next six months. We also would like the president to publish an accurate outline of the circumstances under which the United States government could conceivably use lethal force against a citizen, because all American citizens have a right to know what actions could put their lives in danger. If he sends a letter over to me making those promises, then I will not only end my filibuster, but vote for Mr. Brennan myself."
Sen. Paul could have used his passion to make new policy. Instead, he chose to garner publicity. Too bad, because he just might have done real good with this one.
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