Did Rand Paul Ask the Wrong Questions in His Drone Filibuster?

By focusing on improbable dangers to everyday people, the senator distracted Americans from the real issues.

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Even as redoubtable a liberal as the Washington Post's Eugene Robinson proclaimed that "Rand Paul was right."

But was he?

The drone issue is real, it is urgent, and the Obama Administration has not answered many legitimate questions about it. But the danger to our country is not the danger Paul identified in his filibuster -- that "Americans could be killed in a cafe in San Francisco or in a restaurant in Houston or at their home in Bowling Green, Kentucky." The present danger is that a new, low-cost, deniable technology will become a covert instrument of foreign policy, used on targets abroad without adequate attention to international law.It is the danger that the United States will become an international outlaw, stirring hatred abroad and eventually threatening the peace.

Kenneth Roth lays the real questions out in the current issue of the New York Review of Books. They deal with questions of customary international law and human-rights treaties -- subjects that the larger American public is, by and large, uninformed and uninterested in. Paul's filibuster has changed the subject from the uncomfortably practical to the bombastically improbable.

The killing of a U.S. citizen is important, in either practical or legal terms. The case of Anwar Al Awlaki, killed in Yemen by a targeted drone strike in September 2011, is a disturbing one. As Scott Shane, Mark Mazzetti, and Charlie Savage of the New York Times note, in the Awlaki strike, "[f]or what was apparently the first time since the Civil War, the United States government had carried out the deliberate killing of an American citizen as a wartime enemy and without a trial." Disturbing in a different way are the deaths of three other American citizens, including Awlaki's son, in strikes that were apparently not specifically targeted at them.

But in moral and legal terms, the deaths of more than 3,000 others since the drone war began are equally significant.

The Obama Administration has been, to put it mildly, grudging and ineffective in its public discussions of the issue. They have been reluctant to release legal documents on the war even to the congressional committees responsible for these issues. To the public, they have said little more than "pay no attention to that drone behind the curtain."

But those questions are all but forgotten now. Instead, we are consumed by Paul's claim that the government may be planning to take out ordinary dissenters over their biscuits and gravy. And as far as I can tell from the record, the administration never asserted such authority.

Nor did Rand Paul ever -- quite -- ask them whether they have it.

The genesis of the filibuster lies in three letters sent by Paul to Brennan while he was still the nominee. (The text of those letters is linked to Paul's Senate website here.) In the first, Paul asked Brennan whether he agrees with what Paul describes as the Administration's claim "that it is legal to order the killing of American citizens and that it is not compelled to explain its reasoning in reaching its conclusion."

In the second, he asks whether Brennan believes "the president has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil ... What about the use of lethal force against a non-U.S. person on U.S. soil?" He then asks whether the government could direct "lethal force" against a U.S. citizen on a targeting list who "was found to be operating on U.S. soil."

Finally, he asks under what circumstances it might be considered "infeasible" to capture "a terrorism suspect operating on U.S. soil," and whether it would matter if that "suspect operating on U.S. soil" was "also a U.S. citizen." In the third letter, he asks, "Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?"

On March 5, Brennan responded with a brief letter. He told Paul that the Department of Justice would respond to the presidential authority question, but that "the CIA ... does not conduct lethal operations inside the United States -- nor does it have any authority to do so."

Enter the Holder letter, dated March 4. Holder stated that "the U.S. government has not carried out drone strikes in the United States and has no intention of doing so." He then wrote that

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.

Holder's letter was infuriating and weasel-worded. But it doesn't make any claim of authority to kill American citizens on U.S. soil. In the context of the letters to Brennan, it seems to me, the actual question Holder was ducking was whether the government could target a "terrorism suspect operating on American soil." On the "extraordinary circumstances" point, it seems to be simply preserving an option that, as Jack Goldsmith points out, Rand Paul himself believes the government should have. (In his filibuster, Paul says, "Now, some of my colleagues might take to the Senate floor and say, 'Well, what if we're being attacked on 9/11? What if there are planes flying at the Twin Towers?' To that, I firmly say, by all means, use lethal force.")

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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