A great deal of what Sen. Rand Paul did during his recent 13-hour filibuster to postpone the nomination of John Brennan as CIA Director was commendable. There aren’t too many issues for which the senator and I overlap, but I don’t mind giving him his due credit for what was a ballsy and principled move. And even though this wasn’t technically a filibuster (Paul acknowledged that the nomination would proceed and he didn’t have enough votes to bypass cloture), it was inspiring to see a Senator get up and talk until he dropped in the manner for which the ridiculous obstructionist tool that is the filibuster is actually supposed to be used.
I’ll start by making a cynical point though: A filibuster is always a stunt, whether motivated by principle or politics. For someone with pretty obvious presidential aspirations like Paul, it’s hard not to see his filibuster, at least in part, as political theater to score points and raise his profile. But, having said that, I have no doubts as to Paul’s conviction and applaud him for bringing light to an important issue that deserves robust debate.
But, it’s worth pointing out that Paul has not always spoken with the needed clarity on this issue. His filibuster was a response to the administration’s, admittedly, very weasely and incomplete answers to some of his questions about the use of drones. Specifically, Paul has focused much of his energy on whether the administration claims the authority to use drone strikes on American citizens within the United States. In his latest letter to Brennan and Attorney General Eric Holder, Paul asks, “Do you believe that the President has the authority to order lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without a trial? I believe the only acceptable answer to this is no.”
Well, no, Sen. Paul, I’m afraid the only acceptable answer to this poorly crafted question is absolutely yes. Of course the president has such authority. I know what he was trying to ask, but he did a piss-poor job of it. Ask a piss-poor question, and get a piss-poor response. Brennan and Holder both responded with letters to Paul the morning before his filibuster, with Brennan saying the CIA has no such authority and Holder saying the president would have this authority in extreme scenarios such as Pearl Harbor and 9/11. Holder’s response was vague and deficient, but it was also accurate. Every president has the authority to use military force as a last resort to kill American citizens on U.S. soil in the face of terrorist attacks or other such dire emergencies (for more on this, see here).
What Paul was trying to ask he made clearer during the filibuster when he said: “Nobody questions if planes are flying towards the Twin Towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled. They don’t get their day in court. But if you are sitting in a cafeteria in Dearborn, Mich., if you happen to be an Arab-American who has a relative in the Middle East and you communicate with them by email and somebody says, ‘Oh, your relative is someone we suspect of being associated with terrorism,’ is that enough to kill you?”
This is a decent question worth asking, but a few things should be made clear. The Obama administration has actually never claimed the authority to use drones to kill an American citizen on U.S. soil who does not represent an imminent threat, nor is his characterization completely consistent with the administration’s claimed authority abroad. Granted, they have used twisted logic for what constitutes an “imminent” threat on foreign soil. So, concerns that the same twisted logic may someday be applied to the homeland may have some degree of merit, even if such a hypothetical scenario is a bit outlandish, astronomically unlikely and not representative of current administration policy.
Of much more concern and deserving of criticism, in my opinion, is the lack of transparency and oversight surrounding the administrations’ drone program. Claiming blanket authority to kill American citizens on foreign soil engaged in combat or posing imminent threats, and then refusing to even acknowledge or answer questions about such a strike after it is carried out is unacceptable. We’ve already had situations in which American citizens have been killed by drones oversees under shady circumstances and without official comment and acknowledgement from the administration, such as the death of 16-year-old Abdulrahman al-Awlaki.
Also, the administration often cites the Authorization for Use of Military Force passed by Congress in 2001 in the immediate wake of 9/11 as part of its war powers authority “to use all necessary and appropriate force.” However, the one-page AUMF specifically cites that such authority only applies to “those nations, organizations, or persons” that “planned, authorized, committed, or aided” in the 9/11 attacks. The administration, much like the Bush administration, has stretched the AUMF to apply to affiliate and “franchise” organizations only tangentially connected to al-Qaeda. As Steve Coll pointed out in a recent New Yorker piece, “A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda’s derivative groups today is false.”
So, Paul’s concerns about the War on Terrorism being executed on shaky legal framework and extending into perpetuity are well warranted… and everyone should be glad he’s encouraging discussion on such issues, even if it takes a filibuster to do so.
In an almost humorously curt letter, Holder writes in full, “It has come to my attention that you have now asked an additional question: ‘Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.”
Rand asked the question correctly this time, and Holder responded with the obvious answer. This further highlights that we should probably be paying more attention to what the drone program actually is, rather than what people worry it could be, and to the authority the administration actual claims, rather than what they do not claim.