The Filibuster of Follies 15

Rand_Paul_in_Frankfort_by_Gage_Skidmore

Senator Rand Paul made a lot of friends yesterday when he filibustered for twelve hours the nomination of John O. Brennan to be the next Director of the CIA. This was the first time a spoken filibuster lasted so long since Bernie Sanders talked for just over eight hours in 2010 to protest Obama’s tax plan. Sen. Paul’s heart is in the right place, but his actions are misguided. They will probably make the entire situation worse. Here’s why.

For starters, Paul’s filibuster focused on a marginal issue.

“I will speak until I can no longer speak,” Paul said. “I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”

All of these issues are very important, but only get a tiny portion of what’s wrong with Obama’s terror war. To the best we know, only four Americans have ever been killed in a drone strike, and only one — Anwar al-Awlaki, a rising star in Yemen’s branch of al Qaeda — was targeted deliberately. Meanwhile, thousands of other people (we don’t fully know how many) have been killed in similar circumstances in Yemen, Pakistan, Somalia, Afghanistan, Libya, and Iraq. Paul is focusing on a relatively miniscule problem.

So what of Paul’s complaint about Obama asserting the right to drone Americans domestically? While Paul tried to broaden his critique to the decision to kill, he focused all of his initial comments and his letter to the White House on drones: a classic case of mistaking a platform for a policy. To such a narrow request, Attorney General Eric Holder answered, appropriately, that while they have no intention of doing so, the White House could conceivably use drones inside the U.S. under “extraordinary circumstances.”

This makes perfect sense and is not, in fact, a dramatic departure from any legal or policy norm. The federal government reserves the right to use violence against citizens within the bounds of the law. So do local police. Under an “extraordinary circumstance,” like say a hijacking where only an armed drone is nearby to shoot down a commercial airliner potentially on a suicide course with a building, I don’t think the decision to use force would be terribly controversial.

In the much-discussed OLC White Paper (see my analysis here), the White House said it would strike Americans abroad only under three specific circumstances:

  1. An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
  2. Capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
  3. The operation would be conducted in a manner consistent with applicable law of war principles.

So if the President were to target a citizen within the U.S., it would have to meet at least that level of standard (and arguably a higher one, since within the U.S. the President is much more constrained in how he can use force). At a very fundamental level, the infeasibility of capture would be a key stumbling block, since the capacity to capture suspects, terrorists, and criminals inside the U.S. are far greater than in other countries. Moreover, there are precise rules against the President directly using force domestically — not just within Posse Comitatus, which restricts the military but also the illegality of using the CIA domestically as well. The FBI’s rules (as well as the BATF and DEA rules) for using lethal force are well established and don’t really change whether they’re used by agents on the ground or a drone in the sky.

In focusing his filibuster on John Brennan, the one man most likely to reign in the government’s use of drones, Sen. Paul also distracted from the broader issue: the issue of the rule of law. Sure, Rand eventually got around to talking about it late at night after everyone had gone to bed, but it’s the real heart of what’s wrong with the current policy.

So on its face, Paul’s filibuster seems like a tempest in a teapot. It focused on a non-issue and deflected attention from the bigger, more important issues we should be discussing. The real lost opportunity with Paul’s filibuster (especially in this way, over Brennan) is that Congress has a critical role is should be playing in the debate over the war on terrorism. Bringing Congress into the deliberations for how to construct the legal framework and accountability mechanisms is how the program becomes appropriately constrained, legal, and morally acceptable. A filibuster, especially from the opposite party over a nomination, cuts against that.

Right now, the White House is mulling over whether it will expansively redefine the original 2001 AUMF to include a broader set of targets it can target kinetically. It is a key opportunity for Congress to step in and participate in the process of writing the rules by which this conflict will be fought. Yet, there seems to be little appetite for that. Even Paul’s filibuster, a sensation especially among pundits on Twitter, garnered little more than a few junior Senators, one Democrat, and a shrug from most media. It isn’t building consensus, it’s lowering the debate.

Rand Paul would spend his time better focusing on bringing more of his colleagues on board with the idea of holding the White House responsible than engaging in theatrics. Demilitarizing foreign policy, taking the war on terror away from the CIA and placing it under the rule of explicit law, and imposing clear rules on how the President can use force are all vital, complex issues that require dedicated campaigning to change. They are also issues that aren’t advanced very effectively through slogans and spectacle.

Alas, spectacle seems to substitute for policy these days in Washington.