The Filibuster of Follies

Rand_Paul_in_Frankfort_by_Gage_Skidmore

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.