Senator Rand Paul of Kentucky performed a national service by filibustering the nomination of John O. Brennan to lead the Central Intelligence Agency — an old-fashioned, talk-’til-you-drop filibuster at that.
Mr. Brennan’s qualifications for the position are not at issue here. He is a dedicated public servant, and, as former CIA station chief in Riyadh, one with important experience in the intersection of Islamist terrorism with Middle Eastern politics. He has served both Democratic and Republican administrations, and his professionalism is not in question. Unlike the objections to Chuck Hagel’s appointment as secretary of defense, Senator Paul’s decision to stand in the way of this appointment is not about persons but about policy – specifically, the Obama administration’s claim that it has a legal and ethical mandate to carry out extrajudicial killings of American citizens overseas that are indistinguishable from assassinations, and, especially, the administration’s recent terrifying expansion of that policy to include the option of putting to death Americans in the United States without trial, proper legal process, or meaningful oversight. Given that the CIA has been the instrument entrusted with carrying out these killings in several cases already, holding up Mr. Brennan’s appointment is appropriate.
We are suffering from the conflation of rhetoric and reality. Our “War on Terror” is not a war in any conventional sense of the word, and our insistence that in this war the “battlefield is everywhere” takes literally a phrase that is not literally true. Al-Qaeda and its sympathizers are savages who will kill when and where they can; they could strike anywhere, but it does not follow that everywhere is therefore a field of battle subject to the law of war. The Museum of Modern Art and the Mall of America might be possible targets for terrorists, but martial law is not in effect in those locations, nor should it be. If John Walker Lindh had been killed during a shootout at Tora Bora or during the prison uprising at Qala-i-Jangi, that would have been of no special concern. There is no question that killing an American citizen under arms in the course of battlefield combat is easily within the bounds of acceptable national-defense action.
But that is not the question before us. Instead, we are faced with an arrangement by which the president may designate any American, at home or abroad, as an “enemy combatant,” and place him on a list of people to be killed — not in the course of combat, but in targeted operations indistinguishable from assassinations. The legal justification for this is derived from the penumbras of the 2006 Military Commissions Act — but Congress has passed no law specifically authorizing the premeditated, targeted killings of American citizens abroad, to say nothing of American citizens at home. I very much doubt that such a law could pass Congress, even as defective and unreliable as our Congress can be. Passing such a law would not make these killings any less problematic, but it would introduce a much-needed balance-of-powers element to the situation.
Our definition of “enemy combatant” is terrifyingly elastic. Far from being limited to armed men carrying out acts of violence, it stretches to cover men such as Anwar al-Awlaki, an al-Qaeda propagandist known, somewhat ridiculously, as “the bin Laden of the Internet.” Mr. al-Awlaki was probably guilty of treason and other serious crimes, but the Constitution contains specific provisions and standards for treason cases, which do not include assassination. Odious as he was, Mr. al-Awlaki came to the attention of our shockingly incompetent national-security administrators when, having been feted at the Pentagon and invited to offer prayers at the Capitol, he turned out to be a sympathizer with and encourager of Islamist terrorism. He blogged, he preached, he made propaganda videos — and that is what put him in the crosshairs. Government officials say there is more to the story, but that “more” is to be found only in classified documents, which makes real oversight — the kind exercised by informed citizens — all but impossible.
My friend and colleague Andrew C. McCarthy argues that we can trust the federal government to exercise a commonsense standard in these cases. He points to the Jose Padilla episode; Mr. Padilla, too, met the definition of “enemy combatant,” but he was apprehended on an airplane in Chicago rather than in some rathole in Peshawar, so there was no call to put him instantly to death. My own conception of citizenship is such that the convenience of the authorities ought not determine questions of life and death.
One of the great markers of civilization in republican Rome was a meaningful conception of citizenship as a sacred institution. A Roman citizen could be put to death, but only for a very limited number of crimes — treason notable among them — and according to very narrowly defined processes. (Patricide was punished in a particularly unpleasant fashion — projectio in profluentem.) A Roman citizen could not be whipped, tortured, or crucified — which is what spared St. Paul from suffering the same fate as his Savior. When it came to citizens, certain lines were not to be crossed. But like our definition of “enemy combatant,” the Roman definition of “treason” was elastic, subject to liberal interpretation by the executive branch, and soon enough “treason” came to mean “disagreeing with Nero.” Barack Obama is no Nero. There are some conservatives who believe that he is the worst and most dangerous president we have ever had. I am not among them, being a hardline Wilson-hater. But even those conservatives who do believe he is the worst president we have ever had have no reason to believe that he is the worst president we ever will have, and I have spent enough time looking at the national budget to be fairly well armored against arguments that Washington is capable of behaving collectively in a prudent or responsible fashion.
Senator Paul is right to take this opportunity to, as somebody once put it, stand athwart, yelling “Stop!” Senator Ted Cruz and others are right to encourage him in this. If your government can put you to death without trial — not on the field of battle, but at breakfast — then you are not a citizen at all: You are a subject. And Americans were not born to be subjects.
— Kevin D. Williamson is National Review’s roving correspondent. His newest book, The End Is Near and It’s Going to Be Awesome, will be published in May.