Rand Paul Doesn't Get It
It has been one week since Senator Rand Paul launched a thirteen hour talking filibuster against John Brennan's nomination to the Central Intelligence Agency. Yet even today, it's still not clear as to why Paul and his friends in the Senate spent hours aggrandizing themselves throughout the night.
Allow me some space to try to piece this together. In the wake of a successful drone strike on an American-born jihadist, Anwar al-Awlaki, Paul wrote the White House to ask whether it would be possible for a Hellfire missile to strike an American citizen on American soil. Attorney General Eric Holder wrote back to basically say "no," but also to remind the senator of a president's duty to protect American citizens from "imminent" attack in an "extraordinary circumstance."
This wouldn't do for Paul: "The U.S. Attorney General's refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening," Paul fretted. "It is an affront to the Constitutional due process rights of all Americans." It should be an "easy answer," Paul repeated throughout his filibuster.
But if it's such an easy answer, why did Paul pose the question? Why not ask if it would be Constitutional for a president to commandeer a drone and pull the trigger himself? What if a president ordered a strike on the White House, or the Capitol?
Paul actually introduced a resolution that would forbid the "use of drones to execute, or to target, American citizens on American soil who pose no imminent threat." Reductio ad absurdum, anyone?
Paul's hypothetical arrangement of a circumstance where a president would authorize a drone strike on a United States citizen "sitting in a café" is just silly. No, the president cannot arbitrarily target citizens for drone strikes. He does, however, have the Authorization for Use of Military Force (AUMF), which grants him the authority to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Congress passed this joint resolution unanimously, save one vote in the House.
What's more, the leaked Department of Justice white paper outlines the Constitutionality of drone strikes under the following conditions: "(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether the capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force."
Upon Senator Dick Durbin's reading of these conditions, Senator Mike Lee decried the administration's definition of the word "imminent" as having "taken the imminence out of imminent." Yet, it pains me greatly to say, Senator Durbin was right in asking, "was bin Laden an imminent threat to the United States when we took him out? I think he was. Was he hatching a plot to cause harm to the United States in an imminent manner? Probably not."
Visibly staggered, Senator Paul responded: "touché, a good response."
Yes, touché. Given the nature of the September 11 attacks, the white paper argues, a "definition of imminence, which would require the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself."
Too bad, said Senator Ted Cruz. Then, sounding quite mad, Cruz constructs a hypothetical situation where "if [bin Laden] were not in Pakistan, if he were living in an apartment in the suburbs of Chicago, and if he were asleep in bed -- and even if he were Osama bin Laden, a really, really, really bad guy -- there is nothing in the Constitution that gives the Federal Government the authority to fire a missile at an apartment with a sleeping person in it in the United States of America if that individual was a U.S. citizen."
In finally yielding the floor, Senator Paul concluded by encouraging the president to "obey the fifth amendment; that the constitution does apply to all Americans and there are no exceptions."
Thursday morning, Senator Paul received an answer from the Attorney General: "no." No, the President does not have the authority to use a weaponized drone to kill an American not engaged in combat on American soil. While Paul did a victory lap, he must realize that his concerns about imminence, enemy combatants and geography were not answered.
Holder's answer is consistent with the fact that a Nidal Hasan or a Faisal Shahzad would still be enemy combatants posing imminent threats to the United States by engaging in combat long before they were to actually pull a trigger or press a button.
In the end, the junior senator from Kentucky and his ilk claim to have risen in defense of the Fifth Amendment, but instead they've given the rest of us a glimpse into the bizarre world many Libertarians inhabit.
It's a world where conspiracy theories abound, Federal Reserve bankers are on par with al-Qaeda, and the president is an Orwellian Big Brother -- the sort of stuff that attracts a rather odd bunch. For as the Wall Street Journal fittingly suggests, "if Mr. Paul wants to be taken seriously he needs to do more than pull political stunts that fire up impressionable Libertarian kids in their college dorms."
I witnessed these kids in action at the 2011 Conservative Political Action Conference when I accompanied my former boss Donald Rumsfeld, who received the Defender of the Constitution award from his friend, Dick Cheney. A gaggle of Libertarian Paulites behaved as if they were at a professional wrestling bout and shouted obscenities at the two men -- some were moved to call them "war criminals."
Paul's filibuster was about as serious as the accusations hurled at Rumsfeld and Cheney, and it in fact exposed Rand as an acolyte of his father, Ron. During Rand's rant, he condemned his critics as those who "see perpetual war, perpetual war without geographic limits, and they see the battlefield here, so they want the laws of war to apply not only there but here." This is "martial law," Paul argued.
Instead, he said, "if a person is sitting in a cafe in Houston, they do get Miranda rights, they do get accused of a crime, they do get a jury of their peers." In suggesting that Awlaki or Hasan or Shahzad are simply criminals deserving to be Mirandized, the Paul boys gravely misunderstand everything about post-9/11 warfare.
Rand and Ron don't seem to understand the significance of the fall of the Berlin Wall and the collapse of Communism. The moment American Airlines flight 11 plunged into the North Tower of the World Trade Center, it was made tragically clear that warfare will likely never again be about superpower versus superpower or nation state versus nation state. Warfare is now asymmetric, where non-state actors carry out acts of war in a global battlefield. American citizens become non-state actors and enemy combatants when they commit treason and, in this particular case, take up jihad in the homeland.
This new asymmetric warfare is precisely why former Senator Joe Lieberman's Enemy Expatriation Act is so important. If passed, it would strip United States citizens of their rights if they were found to be "providing material support or resources to a Foreign Terrorist Organization, as designated by the secretary of state, or actively engaging in hostilities against the United States or its allies." A Libertarian's worst nightmare, some might say.
Though if Paul and his Libertarian kids got their way, the nightmare of September 11 could be all too real once again.