Senator Paul began a filibuster of Obama's nomination of John Brennan for CIA director, when Brennan refused to unequivocally answer the question of whether the Executive Branch could order drone attacks on US citizens on American soil. The filibuster lasted 13 hours and ended only when Paul could no longer postpone a bodily function.
The rules of a US Senate filibuster are that the senator can speak as long as he remains standing at his desk. Other senators can ask prolonged questions in order to give the speaker a break, often reading from articles, books, and even the Bible. The speaker can bolt snacks like candy bars, but no provisions are made for relief otherwise. Americans know the filibuster best from the Jimmy Stewart movie Mr. Smith Goes to Washington.
The administration openly claims the power
to assassinate US citizens anywhere abroad, an extension of the rules of traditional war in which combatants behind enemy lines are legitimate targets. Like George Bush before him, Obama considers the entire world the "battlefield."
An internal administration memorandum recently leaked
to the press, known as the "White Paper,"
caused a furor as critics questioned the positions the memo staked out, and the legality of some of its claims. The memo held that anyone suspected of being "an associated force" of Al Qaeda abroad may be killed immediately, anywhere, whether he is an imminent threat or not.
Last month White House Press Secretary Jay Carney outraged
civil libertarians when he said, in response to questions about the White Paper, that drone strikes on Americans abroad who have been accused of terrorism-related activities were not in violation of US law. “These strikes are legal, they are ethical, and they are wise" Carney declared.
The claims now being made by the Obama administration, of authority to assassinate Americans even in their own country, surpass claims of executive power made by any administration before it, including Presidents Richard Nixon and George W. Bush.
At the end of the filibuster, Sen. John McCain took to the Senate floor to angrily denounce Paul's parliamentary action as "ridiculous."
“To allege that the United States, our government, would drop a drone Hellfire missile on Jane Fonda, that brings the conversation from a serious discussion about U.S. policy into the realm of the ridiculous,” McCain said.
McCain had just returned from a dinner out with Obama with other Republican Senate leaders, traversing Washington in a 40-limousine caravan.
But was it ridiculous? Just last month, as a manhunt commenced for fugitive Christopher Dorner, LAPD Police Chief Charles Beck blurred the line between common-law multiple murder and "domestic terrorism," even though "terrorism" is defined as having a broader political goal. Beck invoked the laws of war into a domestic context. Beck said
"This is not about catching a fugitive suspect, it's about preventing a future crime, most likely a murder. This is an act, make no mistake about it, of domestic terrorism."
Dorner wound up dying in a cabin into which police say they fired "pyrotechnic tear gas" canisters.
On the use of drones domestically, nothing spoke louder than the administration's initial refusal to answer Sen. Paul's question. Obama Attorney General Eric Holder finally wrote a terse letter to Paul. Holder wrote:
"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."
"In combat" would presumably include the heat of a chase in which gunfire is being exchanged. Paul's question did not limit the circumstances. Holder had previously said
that a drone strike on an American citizen on US soil might be justified "in extraordinary circumstances."
However, the leaked White Paper, which has been defended by the administration, said that
"the condition that an operational leader present an "imminent" threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future. Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this 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."
Thus the memo defines "imminent" to include not-so-imminent as well. To the extent that the word "imminent" is flexible, the definition of "extraordinary" is flexible also, since the level of imminence might be one factor in defining "extraordinary." The memo makes clear that the administration is intent on preserving its prerogative to define such words as it may.
Suppose a terrorist "plot" is scheduled to be "concluded" a year hence, from the planning or even the idea stage? Could it then be rationalized that this is "imminent" and, skirting the entire law enforcement apparatus of arrests and prosecution, assassination be ordered instead? The perils of this slippery slope are crystal clear. At what point is someone assassinated for what the government says they might do, rather than what they have done or are doing?
The memo does not explain why a definition of "imminent" which means "the immediate future" would "require the United States to refrain from action until preparations for an attack are concluded." It does not explain why plotters can no longer be rounded up and prosecuted before "preparations" are "concluded."
In 2010 Obama's FBI Director, Robert Mueller, was asked by Rep. Tom Graves (R-GA) if "the federal government has "the ability to kill a US citizen on United States soil or just overseas." Mueller avoided the question by saying "I'm going to defer that to others in the Department of Justice."
The White Paper states that assassinations may move forward to stop terrorist-related activities when “there is no evidence suggesting that he has renounced or abandoned such activities.” Thus the administration places the burden on the accused of proving innocence, rather than shouldering the burden of showing guilt.
In October of 2011 Reuters reported
that, according to current and former administration officials, "the role of the president in ordering or ratifying a decision to target a citizen is fuzzy." Reuters' Mark Hosenball said officials told him that:
targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval.
The example of a drone attack, used by Senator Paul as a possible means of assassinating Americans on US soil, is only one of the means of killing under the command of a president. In 2010 the Washington Post's Dana Priest
reported that “U.S. military teams and intelligence agencies are deeply involved in secret joint operations with Yemeni troops who in the past six weeks have killed scores of people.” The article was one of the first in which the targeting of Americans for extrajudicial execution was brought to light.
The article mentioned "a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC [Joint Special Operations Command.]" The article, written before the Obama-ordered assassination by drone strike of US citizen Anwar al-Awlaki in Yemen in 2011, said that:
Both the CIA and the JSOC maintain lists of individuals, called "High Value Targets" and "High Value Individuals," whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi's name has now been added.
Whether special operations "kill teams" are deployed in the US is not known.
Civil libertarians and Constitutional advocates frequently point to the difference between accused and guilty. Glenn Greenwald
in writing for the UK Guardian said:
"The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt. One constantly hears US government defenders referring to "terrorists" when what they actually mean is: those accused by the government of terrorism."
Constitutionalists are alarmed at what Greenwald calls
"authoritarian conflation of government accusations and valid proof of guilt."
The potential for abuse of such a power by high-level government officials has not been lost on students of history, who say that such powers are often quickly turned against personal rivals, dissidents, and political opponents. Accountants with knowledge of massive financial wrongdoing and other types of whistle-blowers, and potential whistle-blowers, might be prime targets.
As Sen. Paul filibustered, CSPAN reported ever-increasing numbers of viewers logging into its online channel, and an unusual spike in television viewership. Word of the filibuster rapidly spread across the Internet. Twitter reported
"over one million tweets sent" about the filibuster.
In his speeches denouncing the slow elimination of rights and freedoms since 9/11, Sen. Paul is fond of recalling the words of James Madison. Paul frequently challenges the NDAA
(National Defense Authorization Act) indefinite military detention of US citizens without charge or trial, the rise of warrantless electronic surveillance, plans for thousands of drones in US skies
, the ubiquity of the TSA, and other manifestations of a national security state.
The Bill of Rights guarantees that all US citizens who are accused of a crime have the right to a trial by a jury of the peers, the right to confront their accusers, and the right to challenge the evidence against them. The law already makes exceptions for police defending themselves in the heat of a chase. Madison wrote:
“If angels were to govern men, neither external nor internal controls on government would be necessary."
Paul's position is that men are not angels, and so a Bill of Rights is necessary.