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Has Rand Paul Got it All Wrong?
Although he’s beginning to look tired and sound hoarse, at this hour Sen. Rand Paul of Kentucky is continuing his filibuster. My own overriding impulse all day his been simple: good for him. He’s standing up for civil liberties in a way that involves no back room wheeling and dealing, but a powerful dose of determination, courage and sheer cussedness.
But is Sen. Paul wrong on the underlying issue?
Richard Miniter insists that he is. A fine journalist and a frequent guest on Ricochet podcasts, Richard just put up this post on Facebook:
RAND PAUL’S STAND against John Brennan’s nomination as CIA director is doing the right thing for the wrong reason. Brennan has a reputation inside the intelligence community for “failing upward” and would likely not be a stellar DCI. But Sen. Paul’s objection-that Obama might use drones to kill Americans on U.S. soil–is actually dangerous. In reality, you want the president to be able to kill Americans who are attacking civilians without a court order. Does any body really think that Lincoln have gotten a warrant every time the confederates took a shot at federal property. Should George Washington have had to get a judge’s approval to fire on the rebels in the 1794 Whiskey Rebellion? When people take up arms against our country, they are making war on us–not engaging in criminal activity. If Sen. Paul’s prevails, they will have all of the protections of criminal law–and the public will have none of the protections of military force. Hardly a good bargain.
Well?
Published in General
That’s because he claims the U.S. gov’t has the authority in certain extraordinary circumstances, as Rand Paul himself concedes it does. ·0 minutes ago
The problem is that the administration is blowing smoke and refuses to say what circumstances they wouldn’t use drone strikes. That is what the entire filibuster revolves around. ·28 minutes ago
I’m like a broken record here, but Holder did specify where it would be unconstitutional: in exactly the cases Paul fears, like a non-threatening guy in a cafe, etc.
Conor, if you have a second, could you link to the Administration claiming the right to assassinate non-attacking citizens on our soil? I haven’t seen this.
Aren’t we just left with Holder’s claim? Which seems to roughly boil down to:We can’t use drones to waste citizens on our soil because it’s Wednesday.
In the Holder/Cruz exchange, Cruz brings upexactlythe non-attacking-guy-in-the-cafe scenario that Paul fears. Holder says that such a non-threatening situation would be inappropriate for a drone strike. After a back and forth and some prying by Cruz, Holder says by “inappropriate” he means not constitutional.
Scott, isn’t he really saying that it isn’tauthorizedby the Constitution?
That is not the same thing (I think*) as saying it is inherently Unconstitutional.
Isn’t garden variety Congressional legislation sufficient to authorize the use of military assets in states?
*Though I may be way off, I’m no attorney. ·27 minutes ago
He clarified that his answer was a long-winded “no” to Cruz’s question, a question the constitutional lawyer Cruz was careful to state succinctly.
Cruz pulled out John Yoo. Love it!
After mulling this all day, Concretevol, this is just about where I come down. Rand Paul is standing up to the president on behalf of individual liberty. There may be fine-grained arguments suggesting his stand on Brennan is half-wrong–maybe even more than half wrong. But you know what? Good for Rand Paul all the same. ·0 minutes ago
Peter, I say this with love:
If after thinking about this all day you’ve concluded “Good for Rand Paul” even if his stand might be more than half wrong, then you should sleep on it. ·53 minutes ago
If Mr. Robinson’s best is to congratulate Rand Paul, even though he may be half-wrong, then some may call that,
‘damning with faint praise’. ·19 minutes ago
I think the point is……better to err on the side of liberty.
After mulling this all day, Concretevol, this is just about where I come down. Rand Paul is standing up to the president on behalf of individual liberty. There may be fine-grained arguments suggesting his stand on Brennan is half-wrong–maybe even more than half wrong. But you know what? Good for Rand Paul all the same. ·0 minutes ago
Peter, I say this with love:
If after thinking about this all day you’ve concluded “Good for Rand Paul” even if his stand might be more than half wrong, then you should sleep on it. ·53 minutes ago
If Mr. Robinson’s best is to congratulate Rand Paul, even though he may be half-wrong, then some may call that,
‘damning with faint praise’.
I think the point is……better to err on the side of liberty.
Truth matters. If Paul’s more than half wrong, he should shush. Or correct himself.
That’s because he claims the U.S. gov’t has the authority in certain extraordinary circumstances, as Rand Paul himself concedes it does. ·0 minutes ago
The problem is that the administration is blowing smoke and refuses to say what circumstances they wouldn’t use drone strikes. That is what the entire filibuster revolves around. ·28 minutes ago
I’m like a broken record here, but Holder did specify where it would be unconstitutional: in exactly the cases Paul fears, like a non-threatening guy in a cafe, etc. ·20 minutes ago
I think most of us here don’t particularly care. Make OBAMA say it – several times.
I think most of us here don’t particularly care.
Yes, that much I’ve figured out.
the words or the issue pall next to the theaterthis is the play for , of , and about Americafirst act
Impeach Obama.
I’m glad I went to confession on Saturday, as the day I agree with Conor and disagree with Paul Rahe may be a biblical sign of the end of the world.
#SetYourClocksBackToGenesis
After mulling this all day, Concretevol, this is just about where I come down. Rand Paul is standing up to the president on behalf of individual liberty. There may be fine-grained arguments suggesting his stand on Brennan is half-wrong–maybe even more than half wrong. But you know what? Good for Rand Paul all the same. ·2 hours ago
Peter, with with all due respect, gladly paid — “Let’s have a new first party; a Republican party, raising a banner of bold colors — no pale pastels. A banner instantly recognizable standing for certain values which will not be compromised.”
Whoever Rand Paul is and whatever he is doing here, he seems to have learned that lesson very, very well. Would that more of his fellow Republicans, now especially, take this same lesson to heart.
Right on Kervinlee. There are a lot of energized people right now. It’s not just the issue at hand or Brennan’s inevitable confirmation. The fact that someone is standing up to these thugs rather than business as usual is a beautiful thing.
Durbin….What a maroon. We can smoke anybody with a drone but don’t dare waterboard anybody.
“I will speak until I can no longer speak,” [Rand 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.”
If an American is in the act of carrying out a terrorist plot, no one (including Paul, as his remarks on the Senate floor make clear) would dispute that police (or armed forces) can Constitutionally use deadly force to prevent such action. But it is a huge step to use the existing standards for drone strikes in Yemen and Pakistan against US citizens on US soil; in effect to make the executive branch the sole judge, jury and executioner of anyone it suspects of treason, of inciting others to commit terrorist acts against the US, or of a “pattern of activity consistent with planning such attacks.”
Once again… It was Rand Paul’s attempt to get Brennan to state what government policy was for the use of drones on American citizens in the United States.
This is the issue. Not Brennan’s actual confirmation…but because he was part of the loop that came up with drone strikes as a way of dealing with terrorists overseas. Remember, when Alawaki was killed oversees, no one cared he was an American citizen because he was a known terrorist. But the drone killed his 16 year old son, also an American, with no proof at all that he was guilty of any terrorist involvement…and no due process. One might state that he probably was involved, he was only collateral damage, but you begin to see the problems with overlooking his Constitutional rights. That is what raised the initial questions.
Read Paul’s letters here. Don’t forget to click on the links to the original letter to Brennan, the follow-up as well. Then you understand what clarification Paul was seeking.
Without the full story, it is impossible to fully understand the path Paul took to the filibuster.
Very shrewd !
Oops, I forgot the link mentioned in the post above.
http://paul.senate.gov/?p=press_release&id=713
Rand Paul: the Rocky Balboa of the U.S. Senate!
Well, I’m afraid Mr. Miniter missed the point of the entire exercise.
Senators Paul and Cruz were clear about the situation they wanted the administration’s response on, and that situation involved U.S. citizens not involved in any immediate or imminent act of lawlessness or malfeasance. It was a hypothetical of a suspected terrorist, or other questionable U.S. citizen, just hanging out at a coffee shop.
Mr. Holder would not say, unequivocally, that it would be unconstitutional for the government to kill a person in that circumstance.
I’m puzzled as to the confusion. The issue at hand and critical distinctions were enumerated many times throughout the proceedings. “Attacking civilians” was not part of the hypothetical.
Perhaps you Ricocetti who follow this stuff more closely than I do can point me to the date and act of Congress declaring war on the person or nation or group among whom is numbered the American citizen on American soil who Constitutionally could be a proposed drone target under the Obama/Holder doctrine of Executive power?
Until then, or until Congress declares war on __________[fill in the blank], all the argumentation like “Lincoln did it” etc. is simply silly. And until then, I’ll be listening to the likes of Rand Paul.
Oh, and by the way:I couldn’t find such a date or act ‘Googling’, but I did find this:
Thanks, Doc. Coming from you, that’s high praise indeed.
Scenario 5: Un-uniformed Nazi who’s an American citizen, at his house in NYC, is stuffing arms into a bag in order to walk out and start shooting (or lord knows what). I would think that’s fair game because it’s imminent.
Am I wrong that it’s that last two scenarios that are at issue here? ·
In Scenario 4, the enemy spy is actively engaged in executing a plot against the USA. If you have to have a sniper shoot him to prevent critical information from going out on the wireless, you can.
If he’s at a cafe reading a paper, you don’t assassinate him. You arrest him.
Candidly, I love the furor, and I love the attention. I love Rand Paul standing up to the administration, and I love John McCain showing his true self.
My reading is that both sides of this particular argument have it wrong. The citizen/non-citizen distinction is not meaningful in this analysis. The relevant portions of the Constitution or Bill of Rights speak of “persons”, not of citizens. The only distinction that matters is “enemy combatant.”
Once someone has become an enemy combatant engaged in war against the USA, that person is fair game. Killing that person is not assassination, whether by drone, by sniper, or by poison. As far as I can tell, it doesn’t matter (constitutionally) whether they are in a coffee shop in LA, a house in Pakistan, a cave in Afghanistan, or on a battlefield somewhere.
Obviously, this leaves a lot of space for abuse. I believe that Congress has the power to define “enemy combatant.” Absent that, the President should make the operative definition known and should stick to it.
If my analysis misses something, please fill me in. But I see nothing that mandates differing standards for US citizens.
I don’t think the anti-gun movement and Paul’s filibuster are unrelated. Paul takes us back to colonial America. State militias had real meaning as a counter-weight to aggresive federalism. As the government nibbles away at gun rights it’s possible that somewhere down the line an administration could claim that a state militia is armed, dangerous and an imminent threat to national security. Let’s say the Georgia Militia doesn’t take kindly to laying down their arms and submitting to arrest since they are only excercizing their constitutional rights. Couldn’t a hypothetical radical administration, sometime in the future, send a drone out to administer the coup de grace with a well placed missle? If this country could elect and re-elect a radical Obama think what some future like minded president could be capable of. I think Paul is digging into the guts of the constitution when he talks due process. Is it so farfetched to contemplate the far left conspiring to disarm America while supressing dissent by lumping conservatives of varying stripes with domestic enemies?
Mike:
Your ‘hypothetical’ sounds quite plausible and is, no doubt, of concern to thousands who voted for Tea Party candidates (not just for Rand Paul).
These folk are the boots- on- the- ground of the Tea Party but, like the shabby relatives who show up to a family cocktail party, they are sometimes an embarrassment to the Republican leadership (at every level), who wish to distance themselves from such paranoid and fanciful ideas.
On Ricochet, there is more tolerance for these ‘fringe’ concerns, likely, because of our anonymity and the stated purpose of Ricochet which encourages a host of differing opinions, within a broad conservative readership.
Here at Ricochet, we all care about the survival of our American way of life. However, there is a chasm between those who feel that the battlefield on which we engage is all in the realm of ideas, Constitutional law and politics, and those who believe that, at some point in the future, the arena of the scholarly, legal and esoteric, will no longer be sufficient to hold back the tsunami that we see approaching.
Both views must recognize the value and necessity of the other.
Your ‘hypothetical’ sounds quite plausible and is, no doubt, of concern to thousands who voted for Tea Party candidates (not just for Rand Paul).
These folk are the boots- on- the- ground of the Tea Party but, like the shabby relatives who show up to a family cocktail party, they are sometimes an embarrassment to the Republican leadership (at every level), who wish to distance themselves from such paranoid and fanciful ideas.
On Ricochet, there is much tolerance for these ‘fringe’ concerns, likely, because of our anonymity ·5 minutes ago
But that is exactly the kind of paranoia the founding fathers had about government in general. It is one reason one sees constant mention of limiting the power of government, of not allowing them to drive the discourse, etc.
Just because the government says so doesn’t mean it is so. There is this little thing called proof. The government alleges many things but doesn’t always win those allegations. So having the government simply say you are an “enemy combatant” doesn’t mean it is so. Perhaps you are only a thorn in their side, a constant critic. That’s the point of the constitution.
The position that everything is going to be okay, they have our best interests in mind, and no one is interested in taking away our freedom is a position one can take.
Disagreeing with that position is not paranoia. It’s sanity.
Devereaux:
You are so right!
The overriding message that the founders are imparting is that of distrust of government!
“Let no more be said about the confidence of men, but bind them down from mischief with the chains of the Constitution.” Thomas Jefferson