Just before noon on Wednesday, Senator Paul launched an old-fashioned talking filibuster of the confirmation of John Brennan — one-time Bush-administration “torture” justifier and designated bagman for the current president’s drone-strike program — to the post of director of the Central Intelligence Agency. Paul took to the Senate floor after he had received word from Attorney General Eric Holder that the administration would not rule out a drone strike against an American citizen on American soil under “extraordinary circumstances.”
Paul began by laying out his goal: “I rise today to begin to filibuster John Brennan’s nomination for the CIA. I will speak until I can no longer speak. I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”
There is no doubt that the president is overreliant on targeted killings; his administration has all but forgotten the “capture” part of “kill or capture.” And we have long advocated checking the president’s exercise of his war powers via the political and not the judicial process. Sounding an alarum on the potential abuses certainly has its uses, and, ideally, the pressure Rand Paul generates for greater transparency about secretive targeting policies will help keep the executive honest.
The legal basis for the drone program, as outlined in a leaked administration white paper, could indeed sit on a sturdier foundation. The best way to shore it up is for the Congress to update the Authorization for Use of Military Force that has governed the War on Terror since 9/11. But any new congressional authorization must not unduly constrain the commander-in-chief from targeting terrorists engaged in the active plotting of an attack against the United States.
On the other hand, Holder told Senator Ted Cruz at a Judiciary Committee hearing — after persistent questioning — that attacking on our soil an American citizen who is an enemy combatant in the absence of such a threat would be unconstitutional. We are not sure he is right about that. It would be possible to craft extreme scenarios — involving invasions, domestic insurrections, or other outlandish circumstances — in which such an attack would pass muster. But we would be testing the boundaries of the plausible, and of the Constitution. It is true that an enemy combatant who is an American citizen is still an enemy combatant and can be treated as such, but the rules are different here on our soil, where our laws apply, as opposed to the badlands of Yemen, where they don’t. As a practical matter, there are plenty of armed domestic forces here — the FBI, heck even the Social Security Administration — who may detain a terrorist and even use lethal force if necessary without anyone needing to ask the air force to rain down Hellfire missiles.
We suspect the day an administration starts killing Americans with drones at cafes — to borrow one of Rand Paul’s hypotheticals — is the day impeachment proceedings begin. If Congress is worried, though, there is a simple expedient. As Andy McCarthy has written, “Nothing prevents Congress from amending the AUMF to provide explicit protections for Americans suspected of colluding with this unique enemy. Congress could, for example, instruct that in the absence of an attack or a truly imminent threat, the president is not authorized to use lethal force in the United States against Americans suspected of being enemy combatants. Congress could also define what it means by ‘imminent.’”
The Rand Paul filibuster was great entertainment and will probably mark a new stage in his emergence as a national figure. We salute his brio, even if we suspect he is ultimately fighting a phantom menace.