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.

15 responses

  1. 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. ”

    Not really, he men­tioned mis­siles sev­eral times as well. But in this case, the plat­form serves as a use­ful sub­sti­tute for the pol­icy. Unless you can point to a counter-example, the gov­ern­ment hasn’t posited its right to kill US cit­i­zens with another weapon besides a drone, with­out a trial or over­sight. So it makes sense to focus on drones at this point, espe­cially given lim­ited time and attention.

    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.”

    Deter­min­ing the “bounds of the law” is pre­cisely the ques­tion Sen­a­tor Paul wanted an answer to.

    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:”

    They were hardly “specific”.

    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;”

    It then pro­ceeded to rede­fine the word immi­nent to basi­cally mean anything.

    In other words, 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).”

    No that’s the ques­tion, does the Pres­i­dent believe and acknowl­edge that he is “much more con­strained in how he can use force”?

    In focus­ing his fil­i­buster on John Bren­nan, the one man most likely to reign in the government’s use of drones,”

    No, Sen­a­tor Paul empha­sized sev­eral times that this isn’t a mat­ter to be left to our esti­ma­tions or judg­ments of “one man”. This is a mat­ter of deter­min­ing the bounds of law. Besides, he also said sev­eral times that he didn’t object to Bren­nan in par­tic­u­lar, but instead it was about the ques­tion of the admin­is­tra­tion being open and pre­cise about what it con­sid­ers constitutional.

    It focused on a non-issue and deflected atten­tion from the big­ger, more impor­tant issues we should be discussing.”

    That’s right, it focused on a non-issue pre­cisely because it’s a “non-issue”. The sen­ate isn’t going to address the larger issues you’re sug­gest­ing it should address, if it can’t even address the sim­ple ques­tion Sen­a­tor Paul was ask­ing. He was try­ing to make a “non-issue” an issue. And I doubt it’s a coin­ci­dence that he’s the only one of the sen­a­tors who spoke who con­sis­tently drew atten­tion to the exam­ples of drone strikes abroad. None of the oth­ers did that, in fact they tried to turn it into a mat­ter dis­tinctly unre­lated to national secu­rity pol­icy. So a crit­i­cism that he should have done more or focused on some other issue seems to lack the con­text that you’re usu­ally so great at rec­og­niz­ing and bring­ing into consideration.

    • Paul: a big com­ment. I’ll take it in order.

      Unless you can point to a counter-example, the gov­ern­ment hasn’t posited its right to kill US cit­i­zens with another weapon besides a drone”

      The US has never lim­ited its strike meth­ods to a sin­gle weapons plat­form. In fact, the OLC White Paper doesn’t use the word drone once, it refers to strikes, which can be a drone, a mis­sile (most often fired by drones, remem­ber), a sniper, a SEAL team, or a machine gun.

      Deter­min­ing the “bounds of the law” is pre­cisely the ques­tion Sen­a­tor Paul wanted an answer to.”

      The White House has never, to my knowl­edge, asserted the right to use force domes­ti­cally out­side the bounds of the law. When­ever chal­lenged, includ­ing by Paul, offi­cials have said that they remain con­strained by the law. The law doesn’t mag­i­cally change when a drone is involved. This is a non-point.

      It then pro­ceeded to rede­fine the word immi­nent to basi­cally mean anything.”

      The White Paper didn’t rede­fine immi­nent at all: as I wrote in my NSN paper, that def­i­n­i­tion goes back at least to the 1980s in reac­tion to the bomb­ing of the Marine Corps bar­racks in Lebanon. This isn’t a new def­i­n­i­tion by any stretch.

      No that’s the ques­tion, does the Pres­i­dent believe and acknowl­edge that he is “much more con­strained in how he can use force”?”

      This is my pre­cise argu­ment. The Pres­i­dent has not asserted any right that is out­side the bounds of law passed by Con­gress. Invent­ing hypo­thet­i­cals is one thing, but the real legal con­straints are another. Paul’s fil­i­buster didn’t focus on that, and didn’t raise aware­ness of it either.

      No, Sen­a­tor Paul empha­sized sev­eral times that this isn’t a mat­ter to be left to our esti­ma­tions or judg­ments of “one man”. ”

      Paul can say that as much as he wants, but as leader of the CIA he would have broad author­ity to reign in the use of drones. That is how the legal and oper­a­tional frame­work is cur­rently con­structed. If Paul wants to change that, he is wel­come to intro­duce leg­is­la­tion doing so. He hasn’t.

      Lastly, I dis­agree fun­da­men­tally with your last para­graph. By focus­ing on a triv­i­al­ity, Paul triv­i­al­ized the topic. He took some­thing Wyden was almost get­ting trac­tion on in SSCI and turned it into the­ater. Think of Bernie Sanders’ fil­i­buster on tax cuts three years ago. It was splashy, it got a lot of press cov­er­age… but it went no where. The issue didn’t get hold of any­thing because he threw a fit instead of engag­ing on the issue and build­ing a coali­tion to enact it.

      • The US has never lim­ited its strike meth­ods to a sin­gle weapons plat­form. In fact, the OLC White Paper doesn’t use the word drone once, it refers to strikes, which can be a drone, a mis­sile (most often fired by drones, remem­ber), a sniper, a SEAL team, or a machine gun.”

        Which is why Paul also referred to strikes (with­out the drone mod­i­fier) and to mis­siles. But regard­less, say­ing drones makes it con­crete, which is an effec­tive mes­sag­ing tac­tic. Peo­ple will imag­ine and remem­ber drones bet­ter than non-specific killing. That’s a legit­i­mate fac­tor for a politi­cian to consider.

        The White House has never, to my knowl­edge, asserted the right to use force domes­ti­cally out­side the bounds of the law.”

        Prob­a­bly hasn’t. But it’s also refused to define what the bounds of law are. So it doesn’t really need to assert its right to use force out­side those bounds does it?

        This isn’t a new def­i­n­i­tion by any stretch.”

        Whether it’s new or not seems irrel­e­vant. The ques­tion is whether it should be con­sid­ered con­sti­tu­tional and legal. If that ques­tion is only being brought up now, then it’s still a good one to bring up. Some­times it takes a long time for poor laws/policies to be changed. But just because a pol­icy has existed for some period of time, doesn’t make it a good one.

        The rest of this exchange seems to be a dis­agree­ment over what’s effec­tive and what triv­i­al­izes. I think that’s prob­a­bly a dis­agree­ment we won’t make much progress on in a com­ments section.

        • Okay on the mes­sag­ing. But I’m allowed to be annoyed by it anyway.

          But it’s also refused to define what the bounds of law are. ”

          It isn’t the White House’s job to define those bounds. It is Con­gress and the Courts who do that. The White House is bound to abide by them, but not to define them. Unless you can pro­vide evi­dence of the White House oper­at­ing out­side the bounds of the law, I don’t under­stand this one. Are you sug­gest­ing the White House dis­card the sep­a­ra­tion of pow­ers and draft leg­is­la­tion, define its bounds, and then self-evaluate how well it adheres to those standards?

          What you’re really get­ting at here is how Con­gress has aban­doned its duties to keep the exec­u­tive in check.

          The ques­tion is whether it should be con­sid­ered con­sti­tu­tional and legal. ”

          Very true. Domes­ti­cally — the con­text for Rand Paul’s ini­tial com­plaints — Bran­den­burg v. Ohio estab­lished a gov­ern­ment test for how immi­nent threats are defined domes­ti­cally. Which is why I call his hand wav­ing about what is legal a bit silly: there is already legal prece­dent for that. Abroad, Con­gress can attempt to define it leg­isla­tively, but oth­er­wise the con­cept can be inter­preted broadly under the President’s Arti­cle II pow­ers to wage an autho­rized war how he sees fit.

          To repeat: if Con­gress wants to leg­isla­tively impose lim­its on this, they can and should. But fil­i­bus­ter­ing a nom­i­nee is not how that’s going to happen.

          • Okay on the mes­sag­ing. But I’m allowed to be annoyed by it anyway.”

            Def­i­nitely. And I actu­ally agree. I just think all the crit­i­cisms that you nor­mally make, which are apt and per­sua­sive in regards to ana­lysts, pun­dits, and schol­ars, are not rel­e­vant to a sen­a­tor filibustering.

            It isn’t the White House’s job to define those bounds. It is Con­gress and the Courts who do that. The White House is bound to abide by them, but not to define them.”

            Pre­cisely. Orig­i­nally I said “acknowl­edge” and I should have stuck with that rather than includ­ing “define”. What I meant, and what Paul was ask­ing for, was that the White House refused to clearly and pub­licly acknowl­edge that it is lim­ited and to acknowl­edge and clearly state what it per­ceives that lim­i­ta­tion to be.

            What you’re really get­ting at here is how Con­gress has aban­doned its duties to keep the exec­u­tive in check.”

            Yes, I agree. And I think that’s what Paul was get­ting at too. He said repeat­edly that he thinks the Con­gress should be send­ing memos TO the White House, not get­ting them FROM the White House. But that’s not really a mat­ter Paul can settle.

            Which is why I call his hand wav­ing about what is legal a bit silly: there is already legal prece­dent for that.”

            Yes, but the White House has refused to openly state its inter­pre­ta­tion of that legal prece­dent. It seems to me that that’s part of what Paul was call­ing for. It’s also why it’s strange that the White House doesn’t just do that.

            To repeat: if Con­gress wants to leg­isla­tively impose lim­its on this, they can and should. But fil­i­bus­ter­ing a nom­i­nee is not how that’s going to happen.”

            And so we return to the ques­tion of what’s effec­tive. I guess I just don’t see a bet­ter way for Paul to use his bul­ly­pul­pit to get pub­lic atten­tion and sup­port for his efforts to get the Con­gress to act on all of this (which is some­thing some of the other sen­a­tors, includ­ing Durbin, mentioned).

          • I dunno, Paul. Eric Holder was pretty darned explicit yes­ter­day morn­ing about stay­ing within the con­straints of the law. Addi­tion­ally, from the legal analy­sis the White House has released so far, they main­tain, repeat­edly, that they stay within the bounds of the law.

            I think Paul (and every­one else cheer­ing him on) doesn’t like that the law allows the Pres­i­dent to use lethal force against cit­i­zens under some cir­cum­stances. That’s all well and good, but that’s not really what he was say­ing yes­ter­day. He was accus­ing Obama of vio­lat­ing the law and ignor­ing the con­sti­tu­tion, which is not at all the same thing.

          • Amy David­son mis­rep­re­sents the stan­dard for strik­ing at Amer­i­cans in the White Paper (she omits key stan­dards about cap­ture). She also mis­rep­re­sented Holder’s com­ments on strik­ing domes­ti­cally, imply­ing the rules are far more flip and casual than they really are, which I pasted below.

            It is this mis­rep­re­sen­ta­tion of what is actu­ally being said — notice that Holder explic­itly says they are bound by US law domes­ti­cally — that I am criticizing.

            Here’s what I mean:

            http://edition.cnn.com/2013/03/05/politics/obama-drones-cia/index.html

            In tes­ti­mony Wednes­day before the Sen­ate Judi­ciary Com­mit­tee, Sen. Ted Cruz, R-Texas, pressed Holder whether he believed it would be con­sti­tu­tional to tar­get an Amer­i­can ter­ror sus­pect “sit­ting at a cafe” if the sus­pect didn’t pose an immi­nent threat.

            No,” Holder replied.

            In a let­ter to Paul dated on Mon­day, Holder said it was pos­si­ble, “I sup­pose,” to imag­ine an “extra­or­di­nary cir­cum­stance in which it would be nec­es­sary and appro­pri­ate” under U.S. law for the pres­i­dent to autho­rize the mil­i­tary to “use lethal force” within the United States.

            How­ever, Holder said the ques­tion was “entirely hypo­thet­i­cal” and “unlikely to occur.”

          • I don’t see where the mis­rep­re­sen­ta­tion occurs. I just see you assert­ing that it was a misrepresentation.

            Not sure where you see Holder explic­itly say­ing they are bound by US law domes­ti­cally. Can you point me to that? (I believe you, I just want to see the wording).

            Holder replied with his “no” after a lengthy effort to respond with the term “appro­pri­ate”. I think that clear effort to avoid the ques­tion of legal­ity and con­sti­tu­tion­al­ity war­rants an effort to get a more for­mal state­ment clar­i­fy­ing the administration’s inter­pre­ta­tion of the law in regards to the use of lethal force against a US citizen.

            You can see his twist­ing to avoid the ques­tion in the video of the testimony:

            http://capitaltonighttx.ynn.com/2013/03/06/cruz-holder-spar-over-possibility-of-done-attacks-on-american-soil/

            Say­ing some­thing is “entirely hypo­thet­i­cal” and “unlikely to occur” is pre­cisely the lack of explic­it­ness that is the prob­lem. Deal­ing with hypo­thet­i­cals is a big part of what pol­icy and law are all about — defin­ing what responses are legal in what sit­u­a­tions. And whether it’s “unlikely to occur” (unlikely being defined by Holder) is the kind of irrel­e­vant addi­tional remark that makes his response seem so flippant.

            Here’s the text of the let­ter:
            http://paul.senate.gov/files/documents/BrennanHolderResponse.pdf

            Again, I don’t see the mis­rep­re­sen­ta­tion. I just see you say­ing David­son makes a misrepresentation.

          • The Obama Admin­is­tra­tion has claimed that it can kill Amer­i­cans in for­eign countries—it just has to decide that they pose an immi­nent threat and have a con­nec­tion to Al Qaeda or “asso­ci­ated forces.””

            This is mis­lead­ing because she leaves out two key stip­u­la­tions about this decision-making process: assess­ing the fea­si­bil­ity of cap­ture, and remain­ing within the bounds of the laws of armed con­flict. Both are crit­i­cal to the dis­cus­sion of strik­ing domes­ti­cally. Both were laid out very plainly in the White Paper she cites.

            In Ted Cruz’s ques­tion­ing, he focuses on drones again (Holder pushed back on the drone focus). Cruz defines the hypo­thet­i­cal nar­rowly, which frankly con­fused me (the cir­cum­stances he described does not meet the stan­dard for lethal force regard­less of loca­tion). He does so with the stip­u­la­tion that the cit­i­zen does not pose an immi­nent threat.

            Cruz also cuts him off repeat­edly. He wasn’t talk­ing about the cir­cum­stances even Rand Paul was refer­ring to. It would be unwise for Holder to say, unequiv­o­ca­bly, that a messy and dif­fi­cult cir­cum­stance has per­fectly clear hypo­thet­i­cal bound­aries, ESPECIALLY when it’s being defined so weirdly while under questioning.

            So to reverse this: I don’t get how this is even a real objec­tion to some­thing, when it doesn’t even exist.

          • This is mis­lead­ing because she leaves out two key stip­u­la­tions about this decision-making process: assess­ing the fea­si­bil­ity of cap­ture, and remain­ing within the bounds of the laws of armed con­flict. Both are crit­i­cal to the dis­cus­sion of strik­ing domes­ti­cally. Both were laid out very plainly in the White Paper she cites.”

            No, the White Paper begins its state­ment of the stip­u­la­tions you men­tion with the phrase: “in at least the fol­low­ing cir­cum­stances.” That “at least” makes it very vague, and not at all explic­itly defined. And more­over, “the fea­si­bil­ity of cap­ture” is left entirely up to the dis­cre­tion of the “senior offi­cial”, which again makes the pol­icy inex­plicit in regards to its views of the law. And that’s what David­son wrote in her piece: “every one of these terms is defined mess­ily or mendaciously.”

            Here’s the white paper:
            http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf

            In Ted Cruz’s ques­tion­ing, he focuses on drones again (Holder pushed back on the drone focus). Cruz defines the hypo­thet­i­cal nar­rowly, which frankly con­fused me (the cir­cum­stances he described does not meet the stan­dard for lethal force regard­less of location).”

            That’s what makes a hypo­thet­i­cal worth con­sid­er­ing, that it’s defined nar­rowly enough to be clear and pre­cise. Sure he chose to use the exam­ple of a drone, but just because a lot of peo­ple are talk­ing about drones (which we both find annoy­ing), doesn’t mean that a sen­a­tor can’t use a drone as the con­crete weapon for his hypo­thet­i­cal. I think in this case if he had not been nar­row (spe­cific), there would have been com­plaints that he was too vague.

            He does so with the stip­u­la­tion that the cit­i­zen does not pose an immi­nent threat.”

            Yea, that’s exactly the point, because that’s the case of interest.

            It would be unwise for Holder to say, unequiv­o­ca­bly, that a messy and dif­fi­cult cir­cum­stance has per­fectly clear hypo­thet­i­cal bound­aries, ESPECIALLY when it’s being defined so weirdly while under questioning.”

            I don’t see what would be unwise about it. Cruz depicts a sit­u­a­tion that actu­ally seems fairly famil­iar to me — a tar­get that a lot of intel­li­gence indi­cates is involved in ter­ror­ist dis­cus­sions or plan­ning activ­i­ties but who isn’t at that moment engaged in vio­lence. The gov­ern­ment repeat­edly strikes such tar­gets. So why is it such a “weirdly” defined hypothetical?

            Also, Cruz cuts him off each time only after Holder repeat­edly uses the term “appro­pri­ate”. Since it was Holder’s insis­tence on using the word “appro­pri­ate” that was the ques­tion, it’s rea­son­able that Cruz would cut him off after he uses it. Note, Holder is a very smart lawyer — he knows the impor­tance of words in legal mat­ters and it’s highly unlikely that he repeat­edly and con­sis­tently used the word “appro­pri­ate” sim­ply as a mat­ter of irrel­e­vant semantics.

            So to reverse this: I don’t get how this is even a real objec­tion to some­thing, when it doesn’t even exist.”

            Wait what? The law reg­u­larly objects to things that “don’t exist”. That’s what the law does, it’s pre­scrip­tive and pre­emp­tive (in con­trast with judg­ment of par­tic­u­lar cases/people). We don’t just out­law things that have already once occurred. To pro­vide a non-CT related exam­ple: that’s pre­cisely what the debate in finan­cial reg­u­la­tion is about: clearly and use­fully defin­ing what is and is not legal so that cor­po­ra­tions and busi­nesses can act legally. Just because a bank had never before engaged in some arcane ver­sion of a con­flict of inter­est or insider trad­ing, doesn’t mean the Con­gress couldn’t act to define that activ­ity as illegal.

          • Paul:

            My last response on this. The White Paper may not sat­isfy crit­ics of the pro­gram, but it is a legally defen­si­ble argu­ment. It set a spe­cific stan­dard for tar­get­ing Amer­i­cans abroad and addi­tional, set­tled law sets a fur­ther stan­dard for strik­ing here. That is: the mil­i­tary and intel­li­gence ser­vices are held to a higher stan­dard when oper­at­ing here than when they’re in a con­flict zone. This is no sur­prise, and is in fact firmly estab­lished in the law.

            Ted Cruz’s non­sense about killing peo­ple at cafes or Rand Paul’s non­sense about drone-missiles at Jane Fonda are just that: pure non­sense. They are not the basis for a law, nor are they a suit­able or appro­pri­ate foun­da­tion for law-making. That they both use cases where even abroad we wouldn’t launch a strike speaks to a deeper igno­rance about this topic I find truly worrying.

            Today Bren­nan got con­firmed. And in fact, when these ques­tions are stated plainly and clearly, they get clear responses:

            http://www.scribd.com/doc/129147170/Senator-Rand-Paul-Second-Letter

            Any­way, it was a neat exchange. But I think beyond this we are just talk­ing cir­cles around each other.

          • I dunno, I sup­pose my expe­ri­ence with IC red-team sce­nar­ios and mil­i­tary war-game exer­cises might have inured me to absur­dity, but I didn’t see their hypo­thet­i­cal exam­ples as any more ridicu­lous than much of the intel­li­gence mate­r­ial that the IC churns out regularly.

            But I agree we’ve exhausted the topic.

  2. he also could have con­nected the domes­tic drone story with dhs’s 2700 armored per­son­nel car­ri­ers, their billion-plus rounds of hol­low point ammo, #ndaa, police mil­i­tari­sa­tion, pros­e­cu­to­r­ial over­reach, end of due process .. it’s all one package …

    but i am glad he did what he did

  3. Paul was ask­ing whether the Pres­i­dent could tar­get an Amer­i­can for assas­si­na­tion on US soil, with­out a trial. This is impor­tant because Amer­i­cans sus­pected of ter­ror­ism abroad have been assas­si­nated by the Pres­i­dent, and we as Amer­i­cans have every damn right to know whether and under what cir­cum­stances, the Pres­i­dent believes he can con­duct sim­i­lar tar­geted killings within the United States.

    From the per­spec­tive of a scholar or a lawyer, espe­cially one who has stud­ied the nation’s secu­rity appa­ra­tus, the answer is suf­fi­ciently obvi­ous that the President’s response is not even required.

    But from the per­spec­tive of many Amer­i­cans, the answer was not obvi­ous. Indeed, the President’s tor­tured and eva­sive response prior to the fil­i­buster not only refused to directly answer the ques­tion, but it did so with an arro­gance and con­de­scen­sion that, while per­haps entirely appro­pri­ate for a blog post, was nonethe­less beneath the office of the Pres­i­dent of the United States. Faced with the President’s dis­mis­sive and insult­ing response, Sen­a­tor Paul had two choices: Either lie down and sub­mit to the answer that was given, or fight. Forced to choose, he opted to fight, and in so doing, proved him­self to be a man of courage, prin­ci­ple and leadership.

    Thea’s what this was about, whether the Pres­i­dent could brush Paul aside, and whether Paul would sub­mit. Paul did not sub­mit, and came out look­ing like a hero.

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