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Mar 7

Written by: Diana West
Thursday, March 07, 2013 4:54 AM 

The following exchange is from Hour 4:

SEN. CRUZ: After three times declining to answer a direct question -- would killing a U.S. citizen on U.S. soil with a drone strike, when that U.S. citizen did not present an imminent threat, would that be Constitutional -- after three times simply saying it would not be "appropriate," finally the fourth time, attorney general holder responded to vigorous questioning.

In particular, the course of the questioning, the point was made that Attorney General Holder is not an advice columnist giving advice on etiquette and appropriateness. The attorney general is the chief legal officer of the United States. And I will note that I observed it was more than a little astonishing that the chief legal officer of the United States could not give a simple one-word, one-syllable, two-letter answer to the question: Does the Constitution allow the federal government to kill with a drone strike a U.S. citizen on U.S. soil who is not posing an immediate threat? The proper answer, I suggested at that hearing, should be no, and that should be a very easy answer for the attorney general to give. Finally, the fourth time around, attorney general holder stated - quote - "Let me be clear. Translate my appropriate to no. I thought I was saying no. All right?  No."

So finally after three times refusing to answer the question whether it would be Constitutional to do so, the fourth time, the attorney general asked that. So the question that I want to ask is your reaction to this exchange and in particular when Attorney General Holder on the fourth time finally stated his opinion and I assume the opinion of the Department of Justice that it is unconstitutional for the federal government to kill a U.S. citizen on U.S. soil that does not pose imminent threat, when he stated that, my response was that I wish he had simply said so in his letter to you to begin with.

I wish John Brennan in his questioning that you provided had said so to begin with, and indeed I then said that the Senator from Kentucky and I are intending to introduce legislation in this body to make clear that the united states government may not kill a U.S. citizen on U.S. soil if that individual does not pose an imminent threat of death or grievous bodily harm. And I observed that if the attorney general's view was that it was unconstitutional  for the U.S. Government to do so, that I assumed he would be supporting that legislation. I welcome the reaction to that exchange.

SEN. PAUL: Well, Mr. President, the - the response is a little bit troubling that it took so much work and so much effort of cross-examination to finally get an answer. I will note that in his final answer, I don't ever see the words Constitutional or unconstitutional . He is responding to Senator Cruz's words of Constitutional. He says let me be clear, translate my appropriate to no. I thought I was saying no. All right? No.

Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he [Holder] doesn't believe killing people, not actively engaged in combat with drones in America on American soil is Constitutional. It sure would have short-circuited and saved quite a bit of time. I will say, though, that I will believe a little more of the sincerity of the President and of the attorney general if we were to get a public endorsement of the bill that says drones can't be used except for under imminent threat, and define that as a - an imminent threat where you actually have a lethal attack under way. And if we could get to that, I think this is something that really both parties ought to be united by. It's such a basic principle that I couldn't imagine we couldn't unite by this. I think you have done a long way to trying to get these answers.

But I guess what still disappoints me about the whole thing is that it takes so much work to get people to say they're going to obey the law. It takes so much work to get the administration to admit that they will adhere to the Constitution. It should be a much simpler process, but I commend the Senator from Texas for not letting go and for trying to get this information. I would welcome any more comments that he has.

SEN. CRUZ: If the Senator would yield for one final question? Is the Senator from Kentucky aware of any precedent, any Supreme Court case, any lower court case, the decision of any President of the United States beginning with George Washington up to the present, the stated views of any member of this United States Senate beginning with the very first congress up to the Senate, up to the present. Is the Senator from Kentucky aware of any precedent whatsoever for the proposition that this administration seems unwilling to embrace or at least embrace explicitly and emphatically? Namely, that the Constitution somehow permits or at least does not foreclose the united states government killing a U.S. citizen on U.S. soil who is not flying a plane into a building, who is not robbing a bank, who is not pointing a bazooka at the pentagon but who is simply sitting quietly at a cafe, peaceably enjoying breakfast, is the Senator from Kentucky aware of any precedent whatsoever for what I consider to be the really remarkable proposition that the united states government, without indicting him, without bringing him before a jury, without any due process whatsoever, can simply send a drone to kill that united states citizen on U.S. soil?

SEN. PAUL: Mr. President, I'm aware of no legal precedent for taking the life of an American without the Fifth Amendment or due process. What is troubling, though, is that Attorney General Eric Holder is on record as actually arguing that the Fifth Amendment right to due process is to be determined and is to be applicable when determined solely by the executive branch. Now, I would appreciate the comments and opinion from the Senator from Texas on the - the idea that the executive branch gets to determine when the bill of rights applies.

SEN. CRUZ: If I may continue my questioning and give my - my views on that question and ask your response to my views on - on whether the executive may determine its own limitations, I would suggest the genesis of our Constitution is found in the notion that the President is not a king, that we are not ruled by a monarchy, and that no man or woman is above the law. And accordingly, no man or woman may determine the applicability to himself or herself. For that reason, the framers of our Constitution won not one but two revolutions. The first revolution they won was a bloody battle for our independence from King George. And a great many of them gave the ultimate sacrifice so that we might enjoy the freedom we do today.

But the far more important war they won was the war of ideas, where for millennia, men and women had been told that rights come from kings and queens and are given by grace to be taken away at the whim of the monarch. And what our framers concluded instead is that our rights don't come from any king or queen or president, they come from God almighty and sovereignty does not originate from the monarch or the President, it originates from We, the People. And accordingly, the Constitution served, as Thomas Jefferson put it, as chains to bind the mischief of government.

And I would suggest that any time power is arrogated in one place, in the executive, that liberty is threatened. And that should be a view that receives support not just from Republicans, not just from Democrats or Independents or Libertarians, that should be a view that receives support from everybody, that none of us should want to live in a country where the President or the executive asserts the authority to take the life of a United States citizen on U.S. soil without due process of law and absent any imminent threat of harm. I would suggest the idea that we should simply trust the attorney general, trust the director of the CIA, Trust the President to exercise an astonishing power to take of life of any U.S. citizen, that trust, in my judgment, is fundamentally inconsistent with the bill of rights. And I would ask the Senator from Kentucky's reaction if you share my understanding that our rights are protected not at the whim or grace of the executive but they are protected by a Constitution and ultimately they are rights that each us was given by our creator and we are obliged to protect the natural rights to life, liberty and property that every man and woman in America enjoys.

SEN. PAUL: Well, Mr. President, this is what makes it this debate so important. This debate is about fundamental rights that we - that most of us or many of us believe that we derive from our Creator and it's important we not give up on these, that we not allow a majority vote or one branch of the government to say we've now decided you don't get all of these rights anymore. Our founders really wanted to make it difficult to change things, to take away our rights. And so this is an important battle and one in which I think we should engage because the President needs to be more forthcoming. The President needs to let us know what his plans are. If he's going to overrule the Fifth Amendment and if the attorney general's going to decide when the Fifth Amendment applies, that's a pretty important distinction and change from the history of our country....

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