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Posted by on Mar 6, 2013 in At TMV | 23 comments

Rand Paul Filibuster Poses Awkward Questions For Many

Rand Paul (R-KY) is currently filibustering the nomination of John Brennan to be CIA director. He began his effort about 11:45 EST and has promised to speak as long as he can, though he concedes that he will eventually lose a cloture vote.

Many on the left are snapping to the knee jerk reaction of attacking Paul and the GOP for this effort but the things Paul is saying are posing some rather awkward questions. His point is not that he wants to block Brennan but that we need to have the President answer questions about the recent drone memos which basically argued the President can kill anyone he wants anywhere he wants as long as he decides they are a terrorist.

Paul is speaking in support of the 4th amendment and the right of US citizens to be free from such attacks. He points out that President Obama has refused to say straight out that he would not kill non combatant US citizens in the US. Paul has made it clear he has no problem with taking on terrorists, he merely wants things to be presented to a judge (kind of like that Constitution thing requires). He also is fine with exigent circumstances that would require fast action.

Seems a pretty simple thing for the President to promise to me. Indeed if this were a President Bush or Romney I suspect many liberal senators would be outraged at the memo but they have for the most part been oddly silent on Obama.

Of course there are the exceptions both in DC and here on TMV and I applaud those who put principle above party.

I do think a cloture vote should and will take place but I think we need to listen to Senator Paul for a while and ask ourselves (and the administration) a few important questions.

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  • dduck

    Paul is an enigma to me. I don’t agree with many of his positions (too Libertarian), but I admire his non-conformist streak at least in this case, which a democrat of similar disposition might demand answers on potentially killing Americans here. I think a simple statement by POB should be sufficient reason for Paul to stop.

    I also feel, IMHO, that a Rep president might not get the drone issue agreed with so easily or be given a shrug and a pass by all the Dems.

  • The_Ohioan

    As usual, one has to take these things in context before asserting the President thinks he “can kill anyone he wants anywhere he wants as long as he decides they are a terrorist”.

    Mr. Rand’s letter is asking about strange hypothetical scenarios, much as we saw in the torture debate, (including references to Posse Comitatus Act and Insurrecton). Both references guaranteed to raise the blood pressure of the militia wing of the Tea Party.

    This strange letter is answered in what I consider a reasonable and responsible manner. You may not agree.

  • PATRICK EDABURN, Assistant Editor

    Well speaking not for Paul but for myself I have to ask you Ohioan, why is it such a big deal for the President to simply say that the 4th amendment prohibits us from killing a US citizen who is not posing an immediate threat without proper application to a judge ?

    The issue is not whether the President *would* do it but if he *can* do it.

    My view, and I think it a reasonable one, is that absent some emergency or immediate threat the President could not use the drones even if he wanted to.

    And would you adopt the same view if the same situation involved then President Bush and then Senator Feingold (just to pick two relatively similar people to the currents)

  • dduck

    Thanks for those links, Ohio. Both letters are interesting but also off putting. RP’s letter is a fishing expedition and too long and hypothetical. Holder’s letter ignores the fact that right now POB says he is the final judge and jury on U.S. citizens abroad. So that sort of makes me think he could do what he wants IN THE U.S. and Holder can’t answer for him.

    I will have to find reruns of 24 Hours and see what Jack Bauer would do. 🙂

  • Patrick,

    I agree with your take on this. Thank you for the post. When questioned at hearing, Holder refused to rule out drone strikes against US citizens in the US and declined to put firm parameters or criteria in place. He did manage to suggest that it would be easier to arrest persons in the US than in some other places in the world, but that hardly answered the question.

    There was also reference to Article II of the Constitution as giving the Prez power to use lethal force in the US…apparently in non-exigent circumstances. After reading the Politico report on this, I reviewed my copy of the Constitution, Article II. I find no such power conferred on the President, but admit the Commander in Chief power has been interpreted somewhat expansively from time to time. Whether it includes killing Americans by drone attack on American soil, without judicial review and absent exigent circumsances may be a stretch. There remains however that pesky issue of Japanese internment camps and theri constitutionality.

    Nuff said. Thanks again for your piece.

  • yoopermoose

    The concept of using drones on American soil to kill US citizens my not be an abstrct concept. With the recent release of the report that “Patriot” groups are skyrocketing, I can see the government believing drones may be necessary to stop an Oklahoma City bombing type of scenario. Personally, I do not think drones should be used at all. Drones make the killing of other human beings too easy and too sanitized.

  • The_Ohioan

    My view is also that absent some emergency or immediate threat the President could not use military lethal force (either drones or something else) even if he wanted to, unless the civil authorities cannot prevent the threat. Which is what DOJ Holder’s letter says. The President could say it, I suppose, but the DOJ is the office that informs the President of his authority.

    As far as application to a judge, the same requirements and problems appertain as those considered in the torture debates, which is why I mentioned them. The law should be followed unless harm is too imminent to make that reasonable. No one is suggesting otherwise, as far as I can see.

    Military equipment and advice was used at Waco and it was determined to be legal.

    The Special Counsel noted that the military provided “extensive” loans of equipment to the ATF and FBI including, among other things, two tanks the offensive capability of which had been disabled. Additionally, the military provided more limited advice, training, and medical support. The Special Counsel concluded that these actions amounted to indirect military assistance within the bounds of applicable law

    I am certainly more concerned about Sen. Paul’s coded language exerting a deletrious effect on crackpot militias than limiting the President’s ability to ask the military to step in when civil authorities cannot prevent harm and request the military’s help. We’ve seen tin pot tyrants assault the authority of our civilian administrations before. You did read Sen. Paul’s letter?

    And, yes, I would answer the same if President Bush or Sen. Feingold actions were being questioned and resent the implication that party affiliation has anything to do with a constitutional dilemma.

  • God knows I don’t mean to be difficult, but Holder’s letter, as provided in the link above, is what I would call a response without an answer. He says we haven’t done it yet, don’t have any plans to do it, trust law enforcement,…but in an emergency [whatever that is, and hopefully that would be more than the “imminent threat” that need not be imminent in the previously provided White Paper] who knows, maybe.

    I understand folks don’t like my position on this subject generally, but as an attorney I like to think I can read legal-speak, at least a little. And Holder’s letter is mostly that IMHO.

    As for party affiliation, I would not make the case that it has much to do with this. From my perspective, the most damning critiques have come from honest progressives and civil libertarian types. Rand Paul’s criticisms are not where I would join the fray. On the other hand, I will say that there has been some Obama defending in this debate. I regard that more as Obama loyalty that party affiliation or partisanship. Just my view.

    One last thought. Waco wasn’t so pristine that I’d care to hang my hat on that one any more than I’d like to be on the same hat rack as Rand Paul. Imagine if we had used drones at the Waco compound or Ruby Ridge and then justified it legally. Oh my. Oh my. Just my opinion.

  • The_Ohioan

    Holder’s letter sounded pretty clear to me, a non-lawyer. We haven’t done it, don’t intend to do it, and only in the (hypothetical) occurrance of a catastrophic event would we even consider doing it.

    Waco was not a catastrophic event and the use of lethal force would not have been legal under the DOJ’s definition.

    I’m still more concerned about Sen. Paul’s motives than a hypothetical decision this or any other president, no matter of which party, make. Like Marc Antony, he’s not saying this administration would do such a henious thing, but some administration might. This is a typical Tea Party ploy, offer a non-existent threat and offer to fight it to the death. Having lived through the McCarthy era, I can spot a demagogue a mile away.

    Certainly a real threat of the military using lethal force against civilians (other than a catastrophic event like a physical attack from outside or within) is a concern. I’m more concerned about drones being used to gather information, though they would seem to be less efficient than the current electronic collection system now in place.

    The AUMF should be repealed and replaced with a more constitutionally correct version.

  • dduck

    As a non lawyer, I found Holder’s letter, er, amusing. Is that kind enough? Sorry lawyers, you give sharks a bad name, but when one is a politician, a lawyer and trying to cover your bosses ass, it should raise bipartisan hackles.

    BTW, WTF is AUMF? 🙂

  • SteveK

    Correct me if I’m wrong (like you wouldn’t 🙂 ) but I thought that there were special committees where classified information was shared with members of congress with top security clearances and, for the security of the United States of America, this information could not leave the room or be shared with others… Even other members of congress.

    Now it seems that Mr. Paul, the republicans in congress, and several here feel that their right to now trumps US security… Color me baffled.

  • ShannonLeee

    I don’t know if a one and a trillion chance of needing to kill an American terrorist on american soil is enough to leave that door open.

  • SteveK

    Now it seems that Mr. Paul, the republicans in congress, and several here feel that their right to now trumps US security… Color me baffled.

    That’s right to “know” not right to “now”… but you new that.

  • The_Ohioan
  • dduck


  • PATRICK EDABURN, Assistant Editor

    After 12 hours Paul has yielded the floor.

  • adelinesdad

    As someone who has been critical of the use of drones for assassination, I’m actually finding myself having a hard time getting worked up about this one. My objection to the use oversees, especially against US citizens but I’d argue this extends to everyone, is that when there is not an imminent and demonstrable danger, the pursuit of a suspected terrorist is essentially a police action. And like all police actions every attempt should be made to take the suspect alive and safe and to minimize the chance of innocent casualties, neither of which drone assassinations do. Police officers, especially SWAT team members, put themselves at great risk every day to do this when it would be much easier to drop a bomb on the place.

    Now, to bring this to Paul’s issue, I think the same logic applies. If someone can be apprehended safely then we should do it. But if someone is an imminent and demonstrable threat and can’t be apprehended safely, then we take them out. We all recognize that the police have the authority to do this. I think legalistically it seems like it matters that it’s the military, and not the police. But practically I don’t see how that matters (either way, you’re dead and didn’t get a trial). I wouldn’t expect the administration to specify exactly when they would or wouldn’t use deadly force any more than I’d expect a police officer to specify exactly when he would pull the trigger or not in every conceivable hypothetical scenario. It all depends on the circumstance.

    Like I said, I’m not sympathetic to the US drone policy so I kind of want to be on Paul’s side on this, so I’m open to anyone pointing out what I’m missing.

  • dduck

    12 hours, wow, great RP. That’s about how long it would take for A president to get whatever legal permission would be in effect at the time. Meantime POB can say he won’t use a killing drone (not a observer one) on any U.S. citizens here.

  • DORIAN DE WIND, Military Affairs Columnist


    I agree with you. I just would add that if we have the luxury of time — before the terrorist sets off whatever WMD — we should get a court order/judge’s approval first.

  • dduck

    To clarify: If it is a Jack Bauer moment, I’m sure any president would act and worry about criticism or prosecution later. The legal test, such as it might be, is to slow down an otherwise non-imminent situation, which hopefully would be 99.999% of the time.

  • DORIAN DE WIND, Military Affairs Columnist

    The U.S. does not have the authority to use a drone attack against a U.S. citizen not engaged in combat on U.S. soil, Attorney General Eric Holder told Sen. Rand Paul (R-Ky.) in a Thursday letter.

    White House press secretary Jay Carney revealed the letter at his Thursday press briefing. It was sent in response to a 13-hour filibuster Paul held on the Senate floor Wednesday to criticize the administration’s drone policy.

    Read more here

  • SteveK

    2 G.O.P. Senators Assail Colleague’s Filibuster Over Drones

    Senators John McCain and Lindsey Graham on Thursday assailed Senator Rand Paul’s filibuster of an Obama administration nominee over drone policy a day earlier, suggesting an emerging split in the Republican Party over antiterrorism tactics.
    “To allege that the United States, our government, would drop a drone Hellfire missile on Jane Fonda, that brings the conversation from a serious discussion about U.S. policy into the realm of the ridiculous,” Mr. McCain said.
    Mr. Graham said he did not remember Republican critics attacking President George W. Bush for employing drone strikes, and he said the question for Republicans was, “What are we up to here?”

  • dduck

    Just as Holder’s last letter to RP was not sufficient to answer the question for me, I hope to read this new letter and then make a judgement.

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