Even A Blind Rand Paul Finds A Nut Now And Then

Senator Rand Paul, as you all have seen or heard by now, is, as I write this, conducting an honest-to-goodness filibuster in the U.S. Senate over the nomination of John Brennan for Director of the CIA. Paul started his filibuster at 10:47am Central Standard Time this Wednesday.

Despite the fact that I dislike, rather strongly, Rand Paul, and despite the fact that he has said some dumb things during the time he has been speaking, I have exactly no problem with what he is doing, for a couple of reasons:

1) The filibuster should be conducted in the way Rand Paul is conducting it; that is, he is actually doing the (relatively) hard work of standing up and speaking, and speaking, and speaking, as opposed to just technically initiating a filibuster without the accompanying necessity of standing on the floor and paying the price—in terms of the sheer physical strain, as well as the public exposure—of his convictions.

2) His point for conducting the filibuster, as far as I can tell in the time I have listened to him, is a valid one. I admire anyone who is willing to stand up for hours upon hours in defense of a recognizably legitimate principle.

I will summarize his objection, the ostensible reason for his filibuster, by quoting something he said at 6:37 pm Central time—almost exactly eight hours after he began:

If you have a war that has no end, if you have a war that has no geographic limit, and then if you have strikes that have no constitutional bounds, basically what you have is an unlimited, imperial presidency.

I cannot and will not argue with that.

Now, I confess that a year ago to the day, I wrote about drone strikes on Americans in foreign lands (Can The Government Kill Citizens Overseas?), and I haven’t seen or read anything that would make me change my mind (reluctantly, I said “yes”).

But what Rand Paul is arguing, again, as far as I can tell between the bouts of nuttiness, is something different. He seems to be mostly concerned with a president’s authority to use drones, or presumably any other method, to kill Americans here, on American soil. And I can say that there is no way, under any set of normal circumstances, I would support using drones to kill Americans on American soil, without an independent due process of law. No way.

And I would expect Barack Obama, as our leader and as a Democrat, to feel the same way. I think he does, even if, just to protect his executive turf, he is somewhat reluctant to say so. And I think his Attorney General, Eric Holder, feels the same way. I believe Holder’s letter to Rand Paul, which you can see here, comes close to satisfying my concerns, since he writes:

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 circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

I say it comes close to satisfying my concerns because I think it could have been worded more clearly and more directly, sort of like this:

Senator Paul,

Unless there is a rare circumstance of an imminent catastrophic attack, such as happened on December 7, 1941, or on September 11, 2001, there is no way the Constitution permits the authorization or use of lethal military force on terrorist suspects on United States soil. None.

Eric H. Holder, Jr.
Attorney General of the United States

The problem with what Rand Paul is doing is not his message. It is the fact that such an otherwise silly man is delivering a message that merits our attention. And the fact that Senator Ted Cruz, a most disgusting and calculating opportunist from Texas—who does a mean impression of Joe McCarthy—is supporting Paul makes it all the worse.

But at the end of it all, what remains is a legitimate demand, by at least one member of the legislative branch, that its executive branch counterpart recognize the supremacy of the Constitution in its treatment of American citizens here at home.

And, as much as it pains me to say so, Rand Paul is doing a good thing in this case.

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34 Comments

  1. While I’m tempted to support this, it may not have occurred to you that what Rand Paul and Ted Cruz and their clique are concerned about is another Ruby Ridge with drone attacks. Therefore, I would almost go so far as to say that in the case of a right-wing militia with a stockpile of offensive weapons, I would be willing to look the other way if the President were to authorize a drone strike. Once again, Rand Paul appears to be right for the wrong reasons.

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    • Brad,

      Yes, I know that these types of folks fear the government, especially in terms of it attacking its citizens.

      But beyond the nuttiness, I think there are legitimate concerns here, and many liberals have expressed them, too. Glenn Greenwald has been writing about this stuff for awhile now, some of it I agree with, some of it I don’t. He made a compelling case against the use of drones domestically, I thought, when he wrote about the LA fugitive Christopher Dorner.

      I know you are being sarcastic about the use of drones on the militia-types, but there are so many out there who really believe that the government, especially as led by Barack Obama, would do such a thing that it is very scary.

      Duane

       

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      • I’m only being somewhat sarcastic, having read the latest report from the Southern Poverty Law Center (http://www.splcenter.org/home/splc-report-antigovernment-patriot-movement-continues-explosive-growth-poses-rising-threat-of-v). Just imagine if the Republicans had won in November. Would RP still be filibustering? Or would he be rubber-stamping everything Romney wanted to do, knowing that THAT government would never send drones against his libertarian buddies out in the woods? Would they even be out there any more, given the changing pigmentation in the White House? In other words, I don’t trust Paul’s motives. He comes off like a principled libertarian, but I can’t help smelling a rat!

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        • Well, Paul is a rat, but not the rat you might think.

          I happen to believe, in fact I’m convinced, that Paul would do the same thing to a Republican president, should the circumstances be the same. He’s just that way, which is sort of what scares me about the guy. His nutty libertarianism trumps most everything else, which is why the GOP establishment didn’t want anything to do with him when he was running. He’s not all that controllable.

          My point inall this is that sometimes even wacky libertarians stumble on something that needs addressed.

          Duane

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        • Oh, by the way, that SPLC report was, uh, frightening.

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          • Yes, pretty scary. There comes a point where the homegrown nuts in the woods with their SUVs and gun-show arsenals become indistinguishable from the foreign-born nuts in the desert with their Toyota trucks and Russian-supplied arsenals! I can see a future President having to decide whether or not the next surveillance drone he sends over the hills in Texas should be armed with a laser-guided bomb. Perhaps that explains the hitch in Holder’s delivery.

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  2. King Beauregard

     /  March 6, 2013

    I’m far less impressed with Rand’s nut-finding abilities. As far as this goes:


    If you have a war that has no end, if you have a war that has no geographic limit, and then if you have strikes that have no constitutional bounds, basically what you have is an unlimited, imperial presidency.

    There are clearly limits to what Obama is doing. While I believe more transparency and oversight is needed on drones, the very act of using drones rather than any other method means a great deal of restraint. Drones are far more targeted than any other military tactic we could choose to employ; widespread bombing campaigns or sanctions would show a great deal less restraint than drones.

    But more importantly, the AUMF is still in effect, and Obama is using drones under that justification. So it’s not an imperial matter, so much as what Congress has authorized the President to do. Even then, Obama’s not exercising the full extent of the AUMF: the AUMF would allow him to go after host countries themselves, but you don’t see Obama starting a war with, say, Pakistan (the country that very likely gave bin Laden a cushy villa to retire to, just down the road from a military base).

    If Congress wants Obama to quit the drone strikes, it’s time for Congress to repeal the AUMF. Not willing to do that? Then drone, baby, drone.

    As an aside, about Holder’s statement to Rand … this is why government officials despise transparency. When you try to talk like adults to the American people like they demand, invariably they respond like children. Visit any particular leftie site, say, a toilet created by a woman who really should have starred in a remake of “Green Acres”. Holder makes a comment about how it would hypothetically be necessary in the most extreme of circumstances to use drones, and the hue and cry is “OMG HE WANTS TO KILL US ALL!!1!!!1”

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    • King Beau,

      I don’t disagree with you at all, in terms of the use of the drone program overseas. Last year I reluctantly agreed with the position of the administration on the killing of Anwar Awlaki, even though killing an American citizen in a foreign country is not exactly how it should be done in a perfect world. But since we don’t and never will live in that world, things are sometimes a little messy.

      And I completely agree that although he has escalated the use of drones, Obama has shown relative restraint, and wisely so.

      What Rand Paul’s biggest gripe, it seemed to me, was the use of drones domestically, on Americans, which is a legitimate concern in my view, albeit I think Eric Holder’s response foreclosed any possibility of using them in anything but an extraordinary circumstance, and Paul’s sometimes hysterical statements were too much. Obama and Holder do recognize the obvious limits on the use of drones domestically.

      However, there could be future administrations that could concoct a legal theory that would make it easier to target domestic terrorists, even American citizens, and thus I thought Paul’s effort was worth calling attention to that possibility, especially since we witnessed spurious legal reasoning in the Bush administration vis-a-vis torture.

      Finally, your point about trying to talk like adults to the American people is a damn good one. The hysteria, from both the left and right (more so on the right), on issues like this is off-putting to say the least. It is exactly why our leaders talk to us like we were freshmen in high school. I remember when Obama was viciously attacked for using the phrase “negative liberties” in a 2001 discussion about the Constitution (Limbaugh still rants about that), when all he was doing was stating the obvious: that the Constitution contains a series of “don’ts” for government, and not a series of “do’s.”

       Duane

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  3. Treeske

     /  March 7, 2013

    Exactly my thoughts Duane. Too bad such a serious issue has to be brought out by a Rand Paul. That said, when we learn some of the homegrown Militias are arming themselves with heavy Military weapons, s.a. rocket launchers, explosives and other war fighting tools, one might understand what the A.G. is saying.

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    • Treeske,

      Those folks scare me. What chain of reasoning leads one to think that a) the government is out to get them with drones and the like, and b) they can stop the government from getting them with drones and the like?

      Duane

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      • Treeske

         /  March 7, 2013

        Scares me too. We spend some of the year in an area scarier than the ones around in our four state area, especially the ex military like the “Oath keepers” scary folks.

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        • I’ll have to do more reading about Oath Keepers. They must be a relatively new group, likely created after the Scary Negro came on the scene.

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  4. ansonburlingame

     /  March 7, 2013

    Food for thought,

    Had the passengers, civilians, not “Let’s roll” within the United flight over PA on 9/11/2001, would then President Bush have been correct to use military power to shoot down that flight as it made its way to Washington, DC with F-15s on its wingtips?

    During the Clinton Presidency we had Wacco but no drones. If Clinton had had drones on hand would it have been appropriate to use such a single strike weapon against that compound intsead of ringing it with people and tanks and burning it to the ground instead?

    One of the old arguments in such cases is the use of MILITARY power within the borders of America for purposes of law enforcement. Generally speaking I oppose such use of the military for law enforcement other than National Guard forces in New Orleans for example during Katrina riots and looting.

    But what if the FBI, a civilian law enforcement agency was given drones to carry out law enforcement actions against criminals? Instead of a remote military pilot of a drone we had a well trained civilian pilot employing that new technology. Does that somehow change the “equation”? The FBI has and uses heliocopters, why not drones?

    These are serious issues and deserve serious and public discussion for sure. Frankly, I am not at all sure where I might “come down” in such a discussion.

    But I consider a filibuster VERY INAPPROPRIATE to hold such a discussion as well. And when it is used in that manner to delay a Presidential appointment to an important position, well that speaks of dysfunctional American politics as well, in my view.

    Anson

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    • Anson,

      To answer your questions:

      1. Yes.

      2. No. Neither action was justified at the time.

      3. With the proper court permission in each case, I could see the use of drones (which are stealthy tools) by law enforcement, but not as ways to execute suspects. We still have the presumption of innocence, last time I checked.

      Duane

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  5. I agree with this post, and with both Brad and King who make good points. As for the still contentious concept of targeting American citizens on foreign soil, people such as Anwar al-Awlaki, it seems to me that a war-time judicial function ought to be set up to rule on them in absentia. It appeared to me that the CIA had plenty of dirt on him.

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    • That’s pretty much what I would advocate for the use of drone assassinations on foreign soil, Jim. It doesn’t seem that difficult a process to me, since we already have a FISA court for domestic surveillance issues involving spies. Why not model one on that?

      Duane

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  6. ansonburlingame

     /  March 7, 2013

    We have exactly what Jim suggests, a military judicial system to “rule” during wartime. It is called the Uniform Code of Military Justice. But it only applies to uniformed members of the miltiary, not the civilian leaders giving those in uniform orders to carry out.

    But those civilian leaders in fact have a politically appointed court or legal oversight to govern such orders. It is the two Congressional Intelligence Committes in Congress. I wonder how many times those committees have said NO before the Executive Branch began questionable operations? We’ll never know for sure as such is classified information????

    So do we really need another court of some sort or simply make the ones in place function more effectively?

    Finally, two very different (polically) Departments of Justice have ruled on the legality of actions by two different administrations on both enhanced interrogation and drone strikes. Should some court rule on those ruling before they are enacted by the Executive Branch?

    All courts (civilian or military) usually rule after actions are taken, but not rule on orders to take such actions, beforehand. Should that be changed to make courts more proactive? Had the NCA ordered air power into action over Benghazi should a court have ruled on that matter beforehand? As well should a court now sit in judgment over the NCA because of the death of 4 Americans? I sure don’t think so.

    Anson

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    • The only alternative, Anson, is to put it all in the hands of the executive branch, which means ultimately the commander-in-chief. I am not comfortable with that, when there is a better way like a FISA-like court. Until the time we get such a court, if we ever do, we will just have to trust that the president is wise in his use of drones to kill citizens overseas and, yes, we can hold him politically accountable if he is not wise.

      I don’t know another way to proceed, short of letting a bad guy continue to plot to kill his fellow citizens.

      Duane

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  7. ansonburlingame

     /  March 8, 2013

    Duane,

    I don’t think you and I are very far apart on this issue. Let’s leave out the personalities of individual lawmakers and just consider long term checks and balances in government. Congress passes laws, Presidents enforce them and SCOTUS steps in (only when asked to do so in a legal petition) to rule on constitutionality of such.

    In terms of courts, essentially any courts, the case(s) MUST be formally presented to any court before a ruling can be made. Courts themselves are powerless to INITIATE a legal proceeding, at least as far as I know about.

    As well no court, again that I know of, will accept a case unless some action has been taken either allegedly outside the existing law (crimes) or actions within existing law that might be subject to legal interpretation ( an alleged crime).

    I THINK what Jim is calling for is court action before action is taken. The President INTENDS to do such and so, please tell us Mr. “court” whether such intentions are legal. I have never heard of such legal action. OK, a restraining order can be invoked by courts but only while something is under review. I doubt that Jim would call for a restraining order on all laws passed by Congress as a matter of procedure. And again someone outside of the court system must initiate a request to cause a restraining order to be issued.

    Imagine the GOP requesting a blanket restraining order on all drone operations (or anything else for that matter) in the US, or Dems doing the same to a GOP President. Talk about gridlock.

    Technology advances and government surveilence capabilities advance with that new technology. Fingerprinting became such an issue long ago. Then DNA, and we are still arguing about the limits of such use of it. Now drones, for surveilence domestically are on the front burner. NO ONE has suggested, yet, the use of drones to kill people in America that I know of. It is simply a political what if right now as far as I can see.

    I have no idea the percentages, but MANY Americans are now routinely fingerprinted for a whole host of reasons. DNA collection will advance just as that older technology has advanced if history tells us anything. My guess is now that all members of the military have DNA characteristics on file just like fingerprints today. I think any felon is treated the same way today but not sure about that one in all states.

    Imgaine an American sky filled with drones, unseen and unheard, but overhead and “looking”. Opps, we already have that do we not, except we call them satelites today that can read a lisence plate from space or do facial surveilence as well I suppose. No one that I know of is aruging the legality of satelite surveilence, domestically, today in America.

    As I said above, this is a debate that should be held, publicly. I just don’t like using a filibuster to do so. That is “sneaky government” that avoids facing an important issue, up front and publicly.

    Anson

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    • Anson,

      Read up on how the FISA court works. The only party involved is the federal government, as it is not an adversarial court. It is an oversight body, judging the legality of surveillance activity by the executive branch.

      Congress could create and then require the president to seek a ruling from a FISA-like court, if the president determined action against an American citizen overseas was necessary, allowing for extreme situations when seeking court authority in advance is not practical (just as the FISA law does now).

      I agree with you that all the issues surrounding the domestic use of drones needs a thorough public examination. The scare about killing Americans on American soil was more of a red herring than anything else, but raising the issue was important because it leads to the other questions about privacy that you raise.

      And you’re right, I don’t think we’re far apart at all.

      Duane

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  8. Jane Reaction

     /  March 8, 2013

    As bad as it already is as far as American civil liberties is concerned, Obama signed the NDAA (Nat. Defense Authorization Act) for FY12 on New Years Eve, thanks to the coercion of lobbyists and defense contractors, and the invisible mandate of Congress. That “Defense Department” authorization granted to the executive branch of government the ability to put US citizens in military detention, indefinitely, with no right of habeas corpus, and therefore no recourse to civilian courts.

    The last pact between citizens of the United States and their government has been the promise of swift justice including the right to have a jury of peers. If the NDAA, challenged by a group of journalists, and sure to go to the Supreme Court, is upheld, we have NO justice and very little recourse.

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    • Jane,

      The National Defense Authorization Act of 2013 is now the law and you will find that the indefinite detention clause from the 2012 version that you mention is not what it once was. As Rand Paul, one of the leading worriers in Congress over these things, put it:

      The bill this year contained the amendment I supported which sharply limited the detention power, and eliminated it entirely for American citizens in the US. While it is only a partial victory, it was a big victory. Particularly compared to what passed last year.

      Check it out.

      Duane

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  9. King Beauregard

     /  March 8, 2013

    Here’s where Bob Cesca says a lot of smart things:

    http://www.huffingtonpost.com/bob-cesca/obama-drone-policy_b_2838315.html

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    • Do you agree with the following from Cesca:

      The AUMF should be repealed, the president’s war powers rescinded and the use of drones regulated and defined, otherwise we’re allowing the president to retain war powers in perpetuity, making them ostensibly permanent.

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      • King Beauregard

         /  March 11, 2013

        Yes. But in the meantime, I trust and expect Obama to use those powers as effectively and responsibly as he can. That will mean innocent civilians will die, but that has to be weighed against the lives jeopardized by not taking out al Qaeda targets. As I like to remind people, imagine how much good a single drone strike against bin Laden could have done, to prevent 9/11 and two wars.

        In ethics class, they’re fond of thought experiments where you can pull a lever to redirect a train to smash into one crowd of people or another, and you’re supposed to decide whether it’s “better” to kill the one person on track A or the five people on track B (one of whom is a serial killer). Well, so long as the AUMF is in place, that’s Obama’s day job … and I say he does it better than 99% of his critics could.

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  10. Duane,

    (Sorry about the delayed response here, but I had actual work to do most of this week; the kind that I get paid for.)

    Anyway, on this topic, see my comments on your post “Can The Government Kill Citizens Overseas?” from last year. As you may remember, I also had an Op-Ed piece on this subject in the Globe last year titled “A New Star Chamber.” An expanded version is on my blog at http://theabsurdityindex.wordpress.com/2012/04/10/a-new-star-chamber/

    So what it comes down to, IMHO, is the rather significant question of whether an American citizen loses his or her Constitutional rights if he or she is in a foreign country. Well, it doesn’t say anything on my passport about that issue. So, I suppose it would also depend on the Treaties we may (or may not) have with the country in question.

    Now a treaty has, ipso facto, the same effect as the constitution itself. That is to say, Congress cannot change a treaty with a statute. Of course, the U.S. routinely violates treaties because they are sometimes inconvenient (see Seal Team 6 vs. Bin Laden and our treaties with Pakistan) Besides, we are the big bully of the world, so who’s going to object?

    The other problem with this drone thing is how Holder and other administration lawyers, like their predecessors under Bush, just invent stuff to make their case. Holder says there is a difference between “Due Process” and “Judicial Process.” Well, that’s bullshit. Due process is a subset of judicial process. They are not mutually exclusive.

    Then there is all this crap about “enemy combatants” and what “imminent” means in the phrase “imminent threat.” An enemy combatant is a person engaged in an armed conflict against, in our case, us. But I don’t know if flying planes into tall buildings qualifies as “armed conflict.” In any case, I don’t believe an American can be an enemy combatant, civil wars notwithstanding. On the contrary, such a person is a traitor. Under our Constitution, traitors are entitled to a trial and must have two witnesses against them. The fact that an American citizen who is alleged to be a traitor lives in a foreign country does not give our government a license to kill– by drone or otherwise.

    And “imminent?” The word means immediate. And in this case, that means DUCK! So, unless the American traitor has locked and loaded and is rapidly paddling toward out shores, there is no imminent threat. And “planning” doesn’t count either.

    Bottom line, we pretty much do what we want to do and bend the law to justify it. So, we are at the mercy of our political leaders who, when challenged on these issues can only say, Trust Us!

    Herb

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    • King Beauregard

       /  March 8, 2013

      The problem here is the AUMF. Congress has granted the President both power and responsibility for stopping terrorists. If you are the President and all that is on your head, are you going to do anything less than everything in your power where terrorists are concerned?

      If Congress truly objects to the Executive Branch wielding this much power, it’s up to them to repeal the AUMF. Until they do, Obama is going to do exactly what an intelligent, responsible man will do when given a huge job where failure is not an option: he’s going to use all the power at his disposal to make sure he succeeds. I would expect no less of him.

      Like

      • Suppose, just suppose, that in a year or two or three that technology has evolved to the point that a drone can be small, relatively quiet and carry a gun. And let’s also suppose that an American terrorist is holed-up on American soil, threatening to take out a building or a city, or a group of hostages. And, he’s out of sight of snipers but a drone, either flying or wheeled, can get at him. Is the FBI going to discard the option because of the Holder ruling? I wouldn’t think so – what’s the difference between a drone and a sniper? I really don’t see any if the drone can be used that way.

        Also, this discussion revives the problem of defining “war”. Pearl Harbor is one thing, Bin Laden quite another. The “war on terror” is not a real war because terrorists are stateless creatures, and yet they are more than mere criminals because their objective is the destruction of a nation and a way of life, ours. I think we do need a new judiciary structure to deal with them, something like Herb’s “star chamber”, but one that adheres to some newly-defined system of due process in absentia, and to make it work I think we need a Constitutional amendment that defines terrorism in terms of its stated or demonstrated objective and redefines traitors so as to distinguish them from other criminals.

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        • King Beauregard

           /  March 8, 2013

          All very intelligent and well-thought-out. It’s a shame that most of the rest of the Internet turns into howler monkeys on this topic. Makes me ashamed to be a leftie, frankly.

          Like

    • Herb,

      The power to conduct war, when you think about it, is chilling. It involves the authorization of maiming, killing, destroying property, disrupting food and water supplies to populations, and, sadly, the accidental (and sometimes purposeful) killing of non-combatants, including children.

      Such war power, really the ability to conduct a declared war, is given to our president, under our Constitution, the same document you say “protects everyone’s liberty.” Well, it most certainly does not protect everyone’s liberty, particularly in wartime.

      Congress has essentially declared an open-ended, transcontinental war on al Qaeda and other terrorist groups that declare themselves at war with us. The entire world is the battlefield because, as AG Holder said last year,

      We are at war with a stateless enemy, prone to shifting operations from country to country.

      And as a preface to that statement, he said,

      Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.

      You wrote,

      So what it comes down to, IMHO, is the rather significant question of whether an American citizen loses his or her Constitutional rights if he or she is in a foreign country.

      An American citizen does not have the protection of the Constitution while out of the United States, as the State Department will tell you:

      While in a foreign country, a U.S. citizen is subject to that country’s laws and regulations which sometimes differ significantly from those in the United States and may not afford the protections available to the individual under U.S. law.

      The question here, of course, is whether the United States government is bound to recognize the constitutional rights of an American citizen while that person in a foreign country. The answer that has been given is yes, unless that person is in a foreign country as part of a war effort against the U.S. and, as Holder said, such an American “decided to commit violent attacks against their own country from abroad.”

      The AG explained:

      It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

      This principle has long been established under both U.S. and international law.   In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups.

      Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law.   The Constitution empowers the President to protect the nation from any imminent threat of violent attack.   And international law recognizes the inherent right of national self-defense.   None of this is changed by the fact that we are not in a conventional war.

      Holder also recognized the limitations of such action, saying that we would need the consent of the host nation, “or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.”

      As specifically addressing the thorny constitutional problem of an enemy combatant that also happens to be an American citizen, Holder’s reasoning seems solid to me:

      Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.

      The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.  Where national security operations are at stake, due process takes into account the realities of combat.

      All that leads to his triad of circumstances that would legalize the killing of Americans abroad:

      First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

      You wrote in your piece:

      Some time ago, a friend asked me, “As a direct result of the Patriot Act, enhanced interrogation and warrantless wire taps, how many American lives so you think have been saved or grievous injury avoided?” My answer to him was that it would be the same number of lives that would have been saved by following the Constitution. Neither situation can be proved one way or the other. Of course, the latter protects everyone’s liberty, while the former denies it.

      Again, while I agree that torture and warrantless wire taps should be illegal, I can’t agree that the Constitution protects “everyone’s liberty,” especially folks who are overseas and engaged in warlike activities against us. I submit to you that I suspect Holder’s legal arguments, quite restrained compared to, say, defending torture, would hold up under Supreme Court scrutiny.

      You also wrote in your piece:

      The right to a trial by jury, due process, facing your accusers and Habeas Corpus go back 800 years to the Magna Carta. Those rights and many others have been incorporated into our Constitution’s Bill of Rights. They may be inconvenient for law enforcement and the military, but they are there to protect you and me and anyone anywhere who is suspected of being a criminal (or a terrorist) but is not one until convicted by a jury.

      I ask you this: Do you think the Magna Carta envisioned the situation in which an Englishman in a foreign land, working to wage war against his homeland using such things as dirty bombs and the like, would be given due process? Clause 39 says:

      No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

      That applies to a criminal justice system not a state of declared war, right? Now I guess my entire point in this absurdly lengthy reply, Herb, is that as long as Congress authorizes us to be in a perpetual state of war against a vagabond enemy that has no national home, then we have to face the fact that the rules of war are different from the rules of the criminal justice system.

      As King Beauregard suggested above, we need to either demand that Congress repeal the AUMF, or be willing to live with the unpleasant reality of droning folks, even American folks, who are on the other side of the war.

      Duane

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  11. And, I forgot to mention, the new judiciary (star chamber) must of course have some kind of oversight, probably by legislative committee.

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  12. ansonburlingame

     /  March 9, 2013

    Wow!

    We begin by discussing the use of drones, anywhere, and wind up with a proposal for a constitutional amendment to define terrorism??? I even read above that a war on terror is not a traditional war and thus……?

    However one point made by Jim I agree with. A drone is a “sneaky” way to conduct surveilence. Well any surveilence is in fact “sneaky”. Advancing technology lets it become even more difficult to detect by those being surveiled which is the whole point when conducted by law enforcement.

    Now some surveilence requires FISA approval beforehand, like wire taps, etc. Should FISA approve every picture taken by a drone before the drone every goes into the skies? I doubt it as we now have cameras all over the place doing the same thing, even to catch you running a stop light! Must FISA approve every picture taken by a satelite as well?

    Then there is the “death threat” from a drone. Jim points out there is little potential difference between a drone used for such purposes and a sniper. Must FISA approve every shot taken by a sniper before he shoots to kill? Let’s say the CIA has accumulated strong evidence against an American living overseas that is plotting another 9/11 attack, or something even “smaller” like an attack on another embassy. At some point the CIA might well “sneak in” and use a sniper to kill such a plotter, right. Hollywood make make a movie of such events. Actually it does so all the time anyway. But now the CIA might use a drone instead. Hmmm?

    Ever since humans began living together the balance between law enforcement to protect society and the unrestrained use of law enforcement for other nefarious purposes has been a difficult balance to achieve. Fingerprinting, DNA, drones, etc. are simply advancing technology to increase the ability of law enforcement to protect society, IF such technology is used “properly”.

    Once a “bad guy” is identified as a real threat to society, well stop right there. Many will ask exactly what does it take to identifiy any “bad guy or gal”, whether it was a cave man stealing a goat or now a terrorist trying to blow up NYC. I’m not worried about goats but blowing up American cities is…….. or killing our troops “over there” as well.

    As this debate continues I would be very interested in examples of the use of force by constitutionally mandated authorities (all the way down to a county sheriff) that got the wrong “bad guy”. For sure the American killed in wherever recently by a drone sure seemed to me like an American that “needed killing” and I for one do not grieve his loss or criticize the President for authorizing his “killing” by whatever means!!

    But of course I am not a complete civil libertarian looking for “rogue agents” under every rock, all the way to the White House, But such folks do exist as well. However a “law” will never prevent, all the time, a cop from beating Rodney King, either. That is when deterrence must come into play and effective legal action taken against such cops, after the fact of the beating occurs, in my view.

    Anson

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