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."