The filibuster was a response to President Obama's radical, unprecedented claim that he is empowered to order, in secret, the extrajudicial assassination of an American citizen, without due process, even far from any battlefield or combat situation. Alarm at this extreme assertion of executive power was hardly a fringe position. Centrist newspapers editorialized against it. Numerous members of Congress expressed their displeasure, along with civil-liberties organizations on the left and the right. But you wouldn't know that from Frum's distillation of the controversy:
Whereas ordinary conservatism emphasizes the inefficiency and ineffectiveness of government action, libertarianism presents government as alien and malign. When Rand Paul rose early in 2013 to deliver the longest talking filibuster since Strom Thurmond battled civil rights in 1957, he did so not to oppose some new bureaucracy or tax. No, Paul rose to denounce the supposedly looming danger of lethal drone attacks on ordinary law-abiding Americans. “I will speak today until the President responds and says no, we won't kill Americans in cafes; no, we won't kill you at home in your bed at night; no, we won't drop bombs on restaurants,” he said. Repeatedly, Paul insisted that he was not accusing President Obama of plotting the murder of American citizens. Equally repeatedly, however, he made clear that he considered the danger of presidential murder of people like himself real and imminent.
In fact, Paul never once claimed that the murder of people like himself was "imminent." What struck Paul—what ought to have struck us all—is that the Obama administration was so determined to maximize its discretion that it would not, up to that point, disavow the idea that it would strike an American citizen on U.S. soil. Paul was amazed that the White House wouldn't commit to so basic a limiting principle as that. Senator Ron Wyden, a progressive Democrat from Oregon, had the same question. "I’ve asked you how much evidence the president needs to decide that a particular American can be lawfully killed and whether the administration believes that the president can use this authority inside the United States,” he said to CIA Director John Brennan. ”What do you think needs to be done to ensure that members of the public understand more about when the government thinks it’s allowed to kill them, particularly with respect to those two issues: the question of evidence and the authority to use this power within the United States?”
Far from suggesting that a U.S. senator like him might be killed by drone, Paul explicitly focused on the sort of American who is actually most vulnerable to the executive branch's disregard for the 5th Amendment. "Nobody questions if planes are flying towards the Twin Towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled. They don't get their day in court," Paul said. "But if you are sitting in a cafeteria in Dearborn, Michigan, if you happen to be an Arab-American who has a relative in the Middle East and you communicate with them by email and somebody says, oh, your relative is someone we suspect of being associated with terrorism, is that enough to kill you?"
Law professor Ryan Goodman, co-chairman of the Center for Human Rights and Global Justice at New York University, found Senator Paul's questioning useful. In a different way, Robert Gibbs, a senior adviser to Obama, justified Paul's line of questioning when he suggested the 16-year-old son of Anwar al-Awlaki, also killed in a drone strike, should've had a more responsible father if he didn't want to die.
To defend the principle of due process against a president who asserts the power to kill in secret without charges or trial is not to present government as "alien and malign." It is to critique the fallibility of men who inhabit government, not government itself. It is an impulse shared by the framers of the Constitution, not the impulse of an anarchist. Paul understands what Frum is loath to acknowledge: that U.S. officials are capable of perpetrating horrific transgressions against civil and human rights when freed from the constraints of the law and Constitution. This ought to be clear to everyone who served in the same administration as numerous proponents of torturing prisoners, and John Yoo, who believes it may be legal for the president to order a child's testicles crushed.
If you're aware that Richard Nixon wanted to firebomb the Brookings Institution, that J. Edgar Hoover tried to blackmail Martin Luther King into committing suicide, that Bill Clinton presided over the execution of a mental incompetent for political gain, that the CIA delivered a 12-year-old girl into the custody of Moammar Ghaddafy, that the FBI stopped investigating flawed forensic analysis when it saw how many convictions were implicated in the results, and that Vice President Dick Cheney (not unreasonably!) gave the order to shoot down U.S. passenger planes on September 11, 2001, is it really inconceivable that a future president would, perhaps in the aftermath of a terrorist attack, try to carry out a targeted killing of an American on U.S. soil who turned out to be innocent? For goodness' sake, Obama has already killed U.S. citizens with drone strikes, just not on U.S. soil. So it's obvious to Frum that a president can do this abroad—but discrediting even to imagine him doing it closer to home?
In Frum's view, asserting the power to order secret assassinations of American citizens isn't discrediting—an overseer objecting that that power could eventually be abused is discrediting. That's the sort of extraordinary deference to, and trust in, fallible yet extremely powerful elites that gives libertarians an opening with the public. With greater physical and social distance from elites, they're better able to see their flaws.