Andy McCarthy, a former federal prosecutor formidable and, bonus, great friend of mine, has weighed in on the Rand Paul filibuster at NRO and finds it so much misguided theatrics. Further, he describes what I see as Paul's electric efforts to focus attention on executive overreach and obfuscation as a "crusade to have the Constitution ban a bogeyman of [Paul's] own making."
The "bogeyman" here is what Andy describes as the "killing of American citizens on American soil by America’s armed forces" -- which sounds pretty scary to me. This, he dryly notes, is "a scandal that clearly cries out for action, having occurred exactly zero times in the 20 years since jihadists commenced hostilities by bombing the World Trade Center."
Whether non-occurrence is reason for non-action -- or, in this case, public debate in the filibuster spotlight -- I leave to history's witness of Pearl Harbor, the 1972 Olympics, and the use on 9/11 of passenger jets as humanly guided missiles, all of which occurred exactly zero times in history before that first time. More important, though, I don't think this supposed bogeyman was at all of Paul's making. It was of the president's making, the AG's making, and the CIA director-designate's making.
On January 30, the president was asked by video blogger Lee Doren whether the administration believes "it's legal to have drone strikes on American citizens ... specifically allowed with citizens within in the United States." The president's replied:
PRESIDENT OBAMA: Well first of all -- I think, there has never been a drone used on an American citizen on American soil. And, you know, we respect and have a whole bunch of safeguards in terms of how we conduct counterterrorism operations outside of the United States.
The rules outside of the United States are going to be different than the rules inside the United States, in part because our capacity, for example, to capture a terrorist in the United States are very different than in the foothills or mountains of Afghanistan or Pakistan.
(Full statement here.)
Gven POTUS's answer -- It's never happened before (Andy's opening gambit), and the rules for drone strikes outside and inside the USA "are going to be different" -- it doesn't sound to me as if the possibility of drones strikes in the US is an imaginary fear, at least as far as the president is concerned. At the very least, some clarification is in order.
Rand Paul initially sought clarification on the drone program in general from John Brennan, the president's nominee to lead the CIA and a father of the drone program, before the president made these comments. In a January 25 letter, Paul posed a very wide range of questions about the drone program -- about its secrecy, its targeting process, whether the program's scope now includes COIN activities outside its main "al Qaeda" target, about the use of drones against US citizens and the like. (One of Paul's questions I would very much like to see further discussed is whether Brennan supports AG Holder's "2012 guidance to the NCTC that it may deliberately collect, store, and `continually assess' massive amounts of data on all US citizens for potential correlations to terrorism, even if the US citizens targted have no known ties to terrorism.") He received no answer.
After Brennan's initial confirmation hearing on February 7, which took place a couple of days after the sensational leak of a very tightly held Justice Department memo promoting a looser definition of what constitutes an "imminent threat," Paul followed up on February 12 with another letter to Brennan. This one broached the hypothetical concept of drone strikes on US citizens on US soil. Paul's first question was:
Do you believe that the president has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil?
No answer to this second letter, either. On February 20, Paul wrote another letter to Brennan, noting his failure to answer his previous queries and similar ones posed by members of the Senate Intelligence Committee. "In fact," Paul wrote, "the Chairman of the [committee], Sen. Feinstein, specifically asked you in a post-hearing questions for the record whether the Administration could carry out drone strikes inside the United States. In your response, you emphasized that the Administration `has not carried out' such strikes and `has no intention of doing so.' I do not find this response sufficient."
The question that I and many others have asked is not whether the Administration has or intends to carry out drone strikes inside the United States, but whether it believes it has the authority to do so. This is an important distinction that should not be ignored.
He further refined the basic question to describe a domestic drone strike "without trial."
One piece of the Obama puzzle that is important to recall for context's sake is the president's stated disgreement with Constitutional restraints on government power. In the midst of a (hair-raising) 2001 radio discussion of the failures of the Warren Court to "[venture] into the issues of the redistribution of wealth," Obama brought up "the essential constraints that were placed by the founding fathers in the Constitution" -- but not as a good thing. Lamenting the Constitution as a "charter of negative liberties, he explained the document "says what the states can't do to you. Says what the federal government can't do to you, but it doesn't say what the federal government or state government must do on your behalf, and that hasn't shifted."
In other words, Barack Obama is philosophically at odds with Jefferson's plea: "In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution" -- lines Sen. Ted Cruz would invoke while speaking in support of the Paul filibuster.
On March 4, AG Eric Holder finally answered Paul's question to Brennan: "whether `the President has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial." Following the administration talking points, Holder also pointed out that the US government hasn't launched such a strike "and has no intention of doing so," noting the customary use of law enforcement in handling terrorists domestically. Holder then went on to say:
It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstance of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.
Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.
Was the use of military force at home, even a drone strike, to avert a military assault on the US such as Pearl Harbor or 9/11 really what Senator Paul was expressing concern about? I think not. Judging from some of the topics covered in the course of Paul's filibuster, I think he worries about what he called the "loose standard" already applied in the highly secretive foreign drone program where the US has reportedly targeted caravans, as Paul put it, for example, "going from a place where we think there are bad people to another place where there are bad people." Could this happen here? Paul discussed this question in hour six:
So let's say there are people going from a Constitution party meeting to a libertarian party meeting. Both these groups don't like big government. They hate big government. They are opposed to government. They are nonviolent as far as I know but they were on the fusion list for potential terrorists. Are we going to kill people in a caravan going from one meeting to the next?
Ridiculous? Absurd? So it would seem. But it is neither ridiculous nor absurd to note the Obama administration's demonization of political opposition of the Live Free or Die variety, with security warnings coming out of "fusions centers" urging law enforcement to be wary of anti-abortion activists, libertarians, military veterans and other *right-wingers.* Could such government-designated "threats" at home ever be targeted in the kind of pre-emptive strikes the US routinely seems to enlist drones in abroad? I don't think this is an over-the-top question -- and certainly not after Nakoula Bassely Nakoula, a US resident and producer of "Innocence of Muslims," was publicly pilloried as an enemy of all peoples and decency itself by top members of the Obama administration, publicly arrested, prosecuted for "parole violations" and jailed for one year.
On March 5, Brennan finally wrote a response to Paul, choosing to answer only the February 20 question regarding authority to strike at a US citizen on US soil without trial:
The Department of Justice will address your legal question regarding the President's authority under separate cover. I can, however, state unequivocally that the agency I have been nomirnated to lead, the CIA, does not conduct lethal operations inside the United States -- nor does it have any authority to do so.
In other words, Brennan punted to Holder, who hadn't been much help, and hunkered down, withholding further disclosure. (The Paul, Brennan, Holder letters are here.)
I conclude that the hanging, unresolved Constitutional question -- Andy's bogeyman -- is the creation of the Obama White House.
The saga continues.
On the morning of March 6, Sen. Ted Cruz, former solicitor general of Texas, and, according to his senate campaign bio, author of 80 U.S. Supreme Court briefs, who argued 43 oral arguments, including nine before the U.S. Supreme Court, picked up the standard in questioning Holder.
CRUZ: If an individual is sitting quietly at a cafe in the US, in your legal judgement, does the Constitutionallow a US citizen on US soil to be killed by a drone --
HOLDER: For sititing in a cafe and having a cup of coffee?
CRUZ: --i f that individual is not posing an imminent and immediate threat of death or bodily harm, does the Constitution allow a drone to kill that individual?
HOLDER: On the basis of what you've said, I don't think you can arrest that person.
CRUZ: The person is suspected to be a terrorist, you have abundant evidence he's a terrorist, he's involved in terrorist plots. But at the moment, he is not pointing a bazooka at the Pentagon, he is sitting in a cafe. Overseas, the US government uses drones to take out individuals when they are walking down a pathway, when they are sitting at a cafe. If a US citizen on US soil is not posing an immediate threat to life or bodily harm, does the Constitution allow a drone to kill that citizen?
HOLDER: I would not think that that would be an appropriate use of any kind of lethal force. We would deal with that in the way that we typically deal with a situation like that --
CRUZ: With all respect, General Holder, my question wasn't about appropriateness or prosecutorial discretion. It was a simple legal question: Does the Constitution allow a US citizen on US soil who doesn't pose an imminent threat to be killed by the US government?
HOLDER: I do not believe that -- again, you have to look at all of the facts. But on the facts that you have given me -- and this is a hypothetical -- I would not think that in that situation the use of a drone or lethal force would be appropriate, because --
CRUZ: General Holder, I have to tell you, I find it remarkable that in that hypothetical -- which is deliberately very simple -- you are unable to give a simple, one-word, one-syllable answer: "No." I think it is unequioval that if the US government were to use a drone to take the life of a US citizen on US soil and that individual did not pose an imminent threat, that that would be a deprivation of life without due process under the law.
HOLDER: Let me be clear. I've not been clear. I've said the use of letha force -- I'm saying drones, guns, whatever else -- wouldn't be appropriate in that circumstance.
CRUZ: You keep saying appropriate, Mr. Holder. My question isn't about propriety. It's a simple question about whether something is constitutional or not. As Attorney General, you're the chief legal officer of the Unietd States. Do you have a legal judgment on whether it would be constitutional to kill a US citizen on US soil in those circumstances?"
HOLDER: A person who is not engaged as you described -- this is the problem with hypotheticals, but the way in which you have described this person sitting at the cafe, not doing anything imminently, the use of lethal force would not be appropriate, would not be something --
CRUZ: I find it remarkable that you still will not give an opinion on the constitutionality. Let me move on to the next topic, 'cause we --
HOLDER: Translate my --
CRUZ: -- we've gone round and round.
HOLDER: Let me be clear. Translate my appropriate to no. I thought I was saying no, all right? No!
Later that same morning, Rand Paul launched his nearly 13-hour filibuster, which I wrote about for my syndicated newspaper column here.
Andy's analysis begins with the Cruz-Holder exchange:
At a hearing of the Judiciary Committee, Senator Ted Cruz was grilling Attorney General Eric Holder. Cruz seemed beside himself — in the theatrical spirit of the day — over Holder’s refusal to concede that the imaginary use of lethal force conjured up by Paul would be, under any and all circumstances, unconstitutional. The attorney general preferred the fuzzier term “inappropriate” — at least until Senator Cruz finally browbeat him into saying that by “inappropriate” he meant “unconstitutional.”
I watched Cruz and saw someone not "beside himself," but rather someone methodically and precisely seeking an question to his question.
Fuzzy was better. To be sure, Cruz is an accomplished constitutional scholar and a favorite of mine, and I can say neither of those things about the attorney general. Yet my sympathies were with Holder. I found myself wishing he’d stood by his equivocal guns. ...
Why? Read the whole piece here, but Andy goes on to argue that "contrary to Senator Paul’s assertions, and those of senators Cruz and Mike Lee, who lent their voices and scholarly heft to Paul’s filibuster, the Constitution does not prohibit the use of lethal force in the United States against American citizens who collude with the enemy."
That seems like a "loose standard," indeed, if Andy is suggesting that Cruz's US citizen and terror suspect at the cafe may automatically be deemed to be "colluding" on the exectuive branch's say-so and is therefore lawfully subject to lethal force. Who defines "colluding"? Who defines "enemy"? The executive branch? After this decision is made, does the president then have the authority to sentence said "enemy" to death? Paul addressed what should be extremely troubling about this hypothetical in hour one of his filibuster:
When we set up our presidency, there was a great deal of alarm, there was a great deal of fear over having a king, and so we limited the executive branch. Madison wrote in the Federalist Papers, he said that the Constitution states what history demonstrates, that the executive branch is the branch most prone to war, most likely to go to war, and therefore we - we took that power to declare war and we vested it in the legislature. We broke up the powers. Montesquieu wrote about the checks and balances and the separation of powers. He was somebody who Jefferson looked towards. They separated the powers because there was a chance for abuse of power when power resides in one person. Montesquieu said there can be no liberty when you combine the executive and the legislative. I would say something similar. There can be no liberty when you combine the executive and the judiciary. That's what we're doing here. We're allowing the President to be the accuser in secret and we're allowing him to be the judge and we're allowing him to be the jury. No man should have that power. We should fear that power. Not because we have to say oh, we fear the current President. It has nothing to do with who the President is. It has nothing to do with whether you're a Republican or Democrat. It has to do with whether or not you fear the consolidation of power, were you - whether you fear power being given to one person, whether they are a Republican or a Democrat. This is not necessarily a right-left issue.
This resonates, and particularly in the midst of a presidency that has increasingly aligned the United States with jihadists, Muslim Brothers, and forces of sharia-censorship, a subject, not incidentally, Andy writes passionately about. At what point do vocal or active opponents of such Islamic realignment, for example, become the "enemy" of this, or any other White House? Is not the shocking precedent of the arrest and incarceration of Nakoula Bassely Nakoula, the producer of "Innocence of Muslims," a dangerous harbinger of what it means to be defined as an "enemy" by the US government? "The future must not belong to those who slander the prophet of Islam," the President Obama told the General Assembly of the UN on 9/25/12.
Dare I ask ... says which man's army?
Another point Andy argues is that the Framers "tunderstood that some threats could be existential in nature." He goes on to quote Hamilton (from Federalist 23):
"it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."
Heedlessly, Senator Paul and his supporters figure they have a handle on the infinite. We can safely assume, they tell us, that the Constitution bars attacks in the U.S. on Americans who — if you can follow this — appear to be non-combatants, even if they may be working with the enemy, as long as they are not engaged in “imminent” violence. ...
I am confused. What Andy describes certainly seems to fit the US government's approach to terrorism suspects to date. The government, to date, has indeed been restrained by the Constitution and other law, in not using lethal force against suspected non-combatants, "even if they may be working for the enemy." His bottom line here, though, is:
The fact that we do not appear to need lethal military force in the homeland in this conflict does not mean we will never need it.
So leave the Constitution alone.
This I don't get, either. Isn't it Brennan, Holder and Obama -- not the Constitution at all -- that the lawmakers are "not leaving alone"? Aren't they urging the White House to affirm they are bound by the Fifth Amendement and do not have authority to zap a US citizen who is not imminently taking up arms against the country? Surely, in the, yes, simple scenario the senators describe -- not adding any data points -- a drone strike would indeed deprive a US citizen of his right to due process under the law, not to mention his life. (Following the filibuster, Holder would issue a terse letter to Rand Paul conceding this point.)
Andy goes on to offer his solution to make Paul's "bogeyman" vanish.
The goal, according to Senator Paul, is to shackle the president. That is done by trimming his sails in the Authorization for Use of Military Force (AUMF), not by trimming his constitutional power.
Senator Paul has the controversy he sought because the Obama administration arrogantly claimed nigh-limitless power to kill anyone, anywhere, at the president’s whim.
This is exactly the very real -- not imaginary -- problem that Paul brought to public light. I, as a US citizen on US soil, am grateful for that. I am also appreciative of the fact that Paul and Cruz and the other filibuster supporters put the administration on notice that the co-equal legislative branch is trying to restore some balance of long out-of-whack powers.
There is no reason to believe the president actually intends to abuse such power — he has not done so to this point and, as National Review’s Editors point out, “the day an administration starts killing Americans with drones at cafés — to borrow one of Rand Paul’s hypotheticals — is the day impeachment proceedings begin.”
Again, like Paul, I don't find intent or the lack of precedent sufficiently reassuring. More to the point, though, I think the NR editors are naive to believe that "impeachment proceedings" against Obama -- a president, after all, whose White House website hosts a piece of creative artwork fraudulently passed off as an official birth certificate -- would ever be initiated for anything.
So, assuming the administration is simply trying to protect the president’s institutional turf, it has made the error of conflating the theoretically limitless power the Constitution could potentially vest in the president if a threat were dire enough with the finite authorization Congress has actually given the president for the use of force in this conflict.
Senators Paul and Cruz have suggested that the constitutional claim they’ve posited — viz., presidents are not empowered to kill Americans on American soil absent an imminent threat of violence — is “easy,” “clear,” and “obvious.” I respectfully disagree. It is none of those things. What is easy, clear, and obvious is that if we do not need certain troublesome authorities to fight a war successfully, Congress can withhold them.
Why does it make a difference whether this curtailment comes from the AUMF rather than the Constitution? Because, absent a sudden-attack situation, the Constitution makes Congress the master of what force is lawfully authorized, while our tradition holds that the courts are masters of what the Constitution means.
Congress, to be sure, has abdicated its powers over war-making (and much else) to the presidency. Of course, reminding the president that he is bound by the Constitution at home (at least) wouldn't seem to eliminate further executive "curtailment" coming from trimming the AUMF, as Andy advocates. Meanwhile, it would be helpful to debate whether the US drone program even constitutes "war-making" in the first place, or whether it has taken us to a weird, hybrid, Wild West law-enforcement-style approach to "terrorism" that in fact utterly fails to address the ongoing jihad on the West.
Back to Andy.
Since 2004, courts have made themselves a part of the national-security equation to an unprecedented degree. When challenged to construe constitutional doctrines, they seek to impose logic. Senator Paul’s proposal of a Constitution-based no-lethal-force exception to the principle that an American who joins the enemy may be treated like the enemy is not logical.
To iron out the inconsistencies, the courts may well conclude that if Americans are not to be treated as enemy combatants for purposes of lethal force, they should not be treated as enemy combatants for purposes of capture, detention, interrogation, and military war-crimes trials. Furthermore, if they follow the trajectory of the Supreme Court’s 2008 Boumediene decision, courts may well conclude that any core constitutional protections extended to American citizens must also be extended to alien enemy combatants. That would be the end of the law-of-war approach to counterterrorism.
Is that Senator Paul’s objective? I do not know. Many of his libertarian supporters would welcome it. Most Americans would disagree, recognizing that the war paradigm has been instrumental in preventing a reprise of 9/11.
I do know this: If all the senator really has in mind is some curtailment of presidential overreach, the right way to do that is to limit the AUMF. If his ambition is greater, if he believes the country would be better off ending the war paradigm and returning to peacetime due process, the forthright way to do that is to repeal the AUMF. That would be a terrible mistake, but one we could withstand, however painfully. What we might not be able to withstand is the shackling of constitutional powers we may someday need to sustain the United States.
I would suggest other remedies to explore as well: a new look at "treason," more stringent standards for citizenship generally (so we "grow" fewer jihadists), immigration laws that prevent the Islamic demographic in this country from growing to the point where sharia is the people's choice, travel bans and restrictions that keep jihadists from leaving their caves and mountaintops and coming into the West, energy policies that stop the wealth transfer to sharia dictatorships in the Middle East.
Meanwhile, "the war paradigm" Andy invokes has been a national tragedy of losing, wasteful wars and, as Andy has often written, willful blindness. After more than a decade, the US has failed to articulate or recognize the need for a counter-jihad strategy, endlessly surrendering liberty to the advance and influence of Islamic law.
No amount of drone strikes anywhere can change that.