[Congressional Record Volume 159, Number 32 (Wednesday, March 6, 2013)]
[Senate]
[Pages S1137-S1138]
BRENNAN NOMINATION
Mr. REID. Mr. President, as America closely observes the unfolding of
events in Syria and deals with varying threats around the world, it is
crucial that President Obama has a seasoned national security team in
place.
It is often said there is no substitute for experience, so it is
natural that a 25-year CIA veteran, John Brennan, was reported out of
the Senate Intelligence Committee by a wide margin on a bipartisan
vote.
Mr. Brennan is a highly qualified nominee and should be confirmed
immediately. As Deputy National Security Adviser since 2009, John
Brennan has been President Obama's chief homeland security and
counterterrorism adviser. He has been at the forefront of every major
national security decision made during the Obama administration. He is
responsible for the White House response to pandemics, cyber threats,
natural disasters, and terrorism attacks. He has played an instrumental
role in finding Osama bin Laden, killing bin Laden, and, in effect,
decimating al-Qaida.
[[Page S1138]]
His distinguished intelligence career began more than 30 years ago
when he joined the CIA as a career trainee straight out of graduate
school. Mr. Brennan worked his way up through the agency to serve in
senior management roles in the CIA, including as Deputy Executive
Director under George Tenant. Years spent working on covert and
analytical missions and as chief of station in Saudi Arabia give him a
comprehensive understanding of the CIA's capabilities and inner
workings. His knowledge of the Middle East will be essential as we
continue to work to defeat al-Qaida and other terrorist threats.
Mr. Brennan has distinguished himself outside of government as well.
He spent 4 years in the private sector as president and CEO of the
Analysis Corporation. His extensive intelligence background and
executive experience uniquely qualify him to lead the Central
Intelligence Agency.
Just as CIA faces the challenges abroad, it also faces significant
decisions about its future. John Brennan must guide the CIA through a
series of considerations dealing with the Agency's relationship with
our military, how the Agency should respond to the conclusions of a
recent Senate Intelligence Committee report on interrogation techniques
and practices, and, finally, the Agency's response to demands for
transparency. These considerations must not be made lightly, and John
Brennan will give them the attention they deserve in his role as
Director.
The Senate must also approach its duty to advise and consent with the
solemnity it deserves. Unfortunately, the confirmation process has
focused too much this year and the last two Congresses on partisan
political considerations and not enough on the quality of the nominees.
I am very disappointed that I am forced to file cloture on John
Brennan's nomination. What does that accomplish? If someone doesn't
like him, come here and give a big speech, wave your arms, scream and
shout, and vote against him. But why hold up the entire Senate over a
meaningless vote?
My Republican colleagues have already obstructed several critical
nominations this year. I hope that pattern of obstructionist behavior
will not persist. I do hope for the sake of the country the obstruction
of the last two Congresses will vanish. I feel very certain that in Mr.
Brennan's case concerns for national security will outweigh the desire
to grandstand for the weakened tea party.
____________________
[Congressional Record Volume 159, Number 32 (Wednesday, March 6, 2013)]
[Senate]
[Pages S1150-S1181]
BRENNAN NOMINATION
Mr. PAUL. Madam President, I rise today to begin to filibuster John
Brennan's nomination for the CIA. I will speak until I can no longer
speak. 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. That Americans could
be killed in a cafe in San Francisco or in a restaurant in Houston or
at their home in Bowling Green, KY, is an abomination. It is something
that should not and cannot be tolerated in our country.
I do not rise to oppose John Brennan's nomination simply for the
person. I rise today for the principle. The principle is one that, as
Americans, we have fought too long and hard for to give up on, to give
up on the Bill of Rights, to give up on the fifth amendment protection
that says no person shall be held without due process, that no person
shall be held for a capital offense without being indicted. This is a
precious American tradition and something we should not give up on
easily.
They say Lewis Carroll is fiction; Alice never fell down a rabbit
hole, and the White Queen's caustic judgments are not really a threat
to your security. Or has America the beautiful become Alice's
Wonderland?
``No, no!'' said the Queen. ``Sentence first--verdict
afterwards.''
``Stuff and nonsense!'' Alice said loudly. ``The idea of
having the sentence first.''
``Hold your tongue!'' said the Queen, turning purple.
``I won't!'' said Alice.
[``Release the drones,''] said the Queen, as she shouted at
the top of her voice.
Lewis Carroll is fiction, right? When I asked the President: Can you
kill an American on American soil, it should have been an easy answer.
It is an easy question. It should have been a resounding and
unequivocal no. The President's response: He hasn't killed anyone yet.
We are supposed to be comforted by that. The President says: I
haven't killed anyone yet. . . . He goes on to say: and I have no
intention of killing Americans, but I might.
Is that enough? Are we satisfied by that? Are we so complacent with
our rights that we would allow a President to say he might kill
Americans, but he will judge the circumstances, he will be the sole
arbiter, he will be the sole decider, he will be the executioner in
chief if he sees fit?
Some will say he would never do this. Many people give the President
consideration. They say he is a good man. I am not arguing he is not.
What I am arguing is that the law is there, set in place for the day
when angels don't rule government. Madison said that the restraint on
government was because government will not always be run by angels.
This has nothing, absolutely nothing, to do with whether the President
is a Democrat or a Republican. Were this a Republican President, I
would be here saying exactly the same thing: No one person, no one
politician should be allowed to judge the guilt--to charge an
individual, to judge the guilt of an individual, and to execute an
individual. It goes against everything we fundamentally believe in our
country. This is not even new to our country. There is 800 years of
English law that we founded our tradition on. We founded it upon the
Magna Carta from 1215. We founded it upon Morgan of Glamorgan from 725
A.D. We founded it upon the Greeks and Romans who had juries. It is not
enough to charge someone to say that they are guilty.
Some might come to this floor and they might say: What if we are
being attacked on 9/11? What if there are planes flying at the Twin
Towers? Obviously we repel them. We repel any attack on our country. If
there is a gentleman or a woman with a grenade launcher attacking our
buildings or our Capitol, we use lethal force. You don't get due
process if you are involved with actively attacking us, our soldiers,
or our government. You don't get due process if you are overseas in a
battle, shooting at our soldiers. But that is not what we are talking
about.
The Wall Street Journal reported and said that the bulk of the drone
attacks is signature attacks. They do not even know the name of the
person. A line or a caravan is going from a place where we think there
are bad people to a place where we think they might commit harm and we
kill the caravan, not a person. Is that the standard we will now use in
America? Will we use a standard for killing Americans to be that we
thought you were bad, we thought you were coming from a meeting with
bad people and you were in a line of traffic and so therefore you were
fine for the killing?
That is the standard we are using overseas. Is that the standard we
are going to use here? 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.
Is that so hard? It is amazing that the President will not respond. I
have been asking this question for a month. It is like pulling teeth to
get the President to respond to anything and I get no answer. The
President says he hasn't done it yet and I am to be comforted. You are
to be comforted in your home. You are to be comforted in your
restaurant. You are to be comforted in online communicating in your e-
mail that the President has not killed an American yet in the homeland.
He says he has not done it yet. He says he has no intention to do so.
Hayek said that nothing more distinguishes arbitrary government from
a government that is run by the whims of the people than the rule of
law. The law is an amazingly important thing, an amazingly important
protection. For us to give up on it so easily doesn't speak well of
what our Founding Fathers fought for, what generation after generation
of American soldiers has fought for, what soldiers are fighting for
today when they go overseas to fight wars for us. It doesn't speak well
of what we are doing here to protect the freedom at home when our
soldiers are abroad fighting for us that we say our freedom is not
precious enough for one person to come down and say: Enough is enough,
Mr. President, come clean, come forward and say you will not kill
Americans on American soil.
The oath of office of the President says that he will, to the best of
his ability, preserve, protect and defend the Constitution. He raises
his right hand, he puts his left hand on the Bible, and he says
``will.'' The President doesn't say, I intend to if it is convenient; I
intend to unless circumstances dictate otherwise. The President says,
``I will defend the Constitution. I will protect the Constitution.''
There is not room for equivocation here. This is something that is so
important, so fundamental to our country that he needs to come forward.
When Brennan, whose nomination I am opposing today, was asked
directly: Is there any limit to your killing? Is there any geographic
limitation to
[[Page S1151]]
your drone strike program? Brennan responded and said: No, there is no
limitation.
So the obvious question would be, if there is no limitation on whom
you can kill and where you can kill and there is no due process upon
whom you will kill, does that mean you will do it in America? The
Senator from Oregon asked him that question directly, in committee. And
this so-called champion of transparency, this so-called advocate of
some kind of process, responded to the Senator from Oregon by saying: I
plan to optimize secrecy and optimize transparency.
Gobbledygook. You were asked: Will you kill Americans on American
soil? Answer the question.
Our laws forbids the CIA from doing that. It should have been an easy
question. The 1947 National Security Act says the CIA doesn't operate
in our country. We have the FBI, we have rules, we have separated
powers to protect your rights. That is what government was organized to
do. That is what the Constitution was put in place to do, to protect
your rights. So when I asked, he says: No answer. He says: I will evade
your answer, and by letting him come forward we let him get away with
it.
I have hounded and hounded and finally yesterday I get a response
from Mr. Brennan, who wishes to be the CIA chief, and he finally says:
I will obey the law.
Well, hooray. Good for him. It took a month to get him to admit that
he will obey the law. But it is not so simple. You see, the drone
strike program is under the Department of Defense, so when the CIA says
they are not going to kill you in America, they are not saying the
Defense Department won't. So Eric Holder sent a response, the Attorney
General. His response says: I haven't killed anyone yet. I don't intend
to kill anyone. But I might.
He pulls out examples that are not under consideration. There is the
use of local force that can always be repelled--if our country is
attacked, the President has the right to protect and defend the
country. Nobody questions that. Nobody questions if planes are flying
toward the Twin Towers whether they can be repelled by the military.
Nobody questions whether a terrorist with a rocket launcher or grenade
launcher is attacking us, whether they can be repelled. They do not get
their day in court.
But if you are sitting in a cafeteria in Dearborn, if you happen to
be an Arab American who has a relative in the Middle East and you
communicate with them by e-mail and someone says your relative is
someone we suspect of being associated with terrorism, is that enough
to kill you? For goodness sake, wouldn't we try to make an arrest and
come to the truth by having a jury and a presentation of the facts on
both sides of the issue?
See, the real problem here is one of the things we did a long time
ago is we separated the police power from the judicial power. This was
an incredibly important first step. We also prevented the military from
acting in our country because we did not want to have a police state.
One of the things we greatly objected to of the British is they were
passing out general writs or writs of assistance. These were warrants
that allowed them to go into a house but allowed them to go into
anyone's house. What we did when we wrote our Constitution is we made
the Constitution--we made the fourth amendment specific to the person
and the place and the things to be looked for. We did not like the
soldiers going willy-nilly into any house and looking for anything. So
we made our Constitution much more specific.
I think this is something we should not give up on so easily. I think
the idea that we could deprive someone of their life without any kind
of hearing, essentially allowing a politician--I am not casting any
aspersions on the President. I am not saying he is a bad person at all.
But he is not a judge.
He is a politician. He was elected by a majority, but the majority
doesn't get to decide whom we execute. We have a process for deciding
this and we have courts for deciding this. To allow one man to accuse a
person in secret and to never get notified that they have been
accused--their notification is the buzz of the propellers on the drone
as it flies overhead in the seconds before they are killed. Is that
what we want from our government? Are we so afraid of terrorism and so
afraid of terrorists that we are willing to just throw out our rights
and our freedoms and what we have fought for and have gotten over the
centuries? We have at least 800--if not 1,000--years' worth of
protections.
Originally, the protections were against a monarch. We feared a
monarch. We didn't like having a monarch. When we came to this country
and set up our Presidency, there was a great deal of alarm. There was a
great deal of fear over having a king, and so we limited the executive
branch. Madison wrote in the Federalist Papers that the Constitution
supposes what history demonstrates, which is that the executive branch
is the branch most prone to a war, most likely to go to war, and,
therefore, we took that power to declare war and vested it in the
legislature. We broke up the powers.
Montesquieu wrote about the checks and balances and the separation of
powers. He was somebody whom Jefferson looked toward. They separated
the powers because there is a chance for abusive power when power
resides in one person. Montesquieu said there can be no liberty when
the executive and the legislative branches are combined.
I say something similar; that is, there can be no liberty when the
executive and the judiciary branches are combined, and that is what we
are doing here. We are allowing the President to be the accuser in
secret, we are allowing him to be the judge, and we are allowing him to
be the jury. No man should have that power. We should fear that power
not because we have to say: Oh, we fear the current President. It has
nothing to do with who the President is. It has nothing to do with
whether someone is a Republican or Democrat. It has to do with whether
we fear the consolidation of power, whether we fear power being given
to one person, be it a Republican or a Democrat. This is not
necessarily a right-left issue.
Kevin Gosztola, who writes at firedoglake.com, writes that the mere
fact that the President's answer to the question of whether you can
kill an American on American soil was yes is outrageous. However, it
fits the framework for fighting a permanent global war on terrorism
without any geographic limitations, which President Obama's
administration has maintained it has the authority to wage.
What is important to note is that we are talking about a war without
geographic limitations, but we are also talking about a war without
temporal limitations. This war has no limit in time. When will this war
end? It is a war that has an infinite timeline. If we are going to
suspend our rights, if there is going to be no geographic limits to
killing--which means we are not at war in Afghanistan, we are at war
everywhere. Everybody who pops up is al-Qaida. Whether they have heard
of al-Qaida or whether they have had any communication with some
network of al-Qaida, it is al-Qaida. There is a new war going on
everywhere in the world, and there are no limitations.
Glenn Greenwald has also written about this subject, and he was
speaking at the Freedom to Connect conference. He said there is a
theoretical framework being built which posits that the U.S. Government
has unlimited power. Some call this inherent power. ``Inherent'' means
it has not been defined anywhere; it has not been expressly given to
the government. They have decided this is their power and they are
going to grab it and take what they get.
This is not new. The Bush administration did some of this too. When
the Bush administration tried to grab power, the left--and some of us
on the right--were critical when they tried to wiretap phones without a
warrant. Many on the right and many on the left raised a raucous. There
was a loud outcry against President Bush for usurping, going across due
process, not allowing due process, and not obeying the restraints of
warrants. Where is that outcry now?
Glenn Greenwald writes:
There is a theoretical framework being built that posits
that the U.S. Government has unlimited power, when it comes
to any kind of threats it perceives, to take whatever action
against them that it wants without any constraints or
limitations of any kind.
As Greenwald suggests--and this goes back to Gosztola's words--
answering
[[Page S1152]]
yes to the question that you can kill Americans on American soil
illustrates the real radicalism the government has embraced in terms of
how it uses its own power.
We were opposed to them listening to our conversations without a
warrant, but no one is going to stand and say anything about killing a
person without a warrant, a judge's review or a jury? No one is going
to object to that? Where is the cacophony who stood and said: How can
you tap my phone without going to a judge first? I ask: How can you
kill someone without going to a judge or a jury? Are we going to give
up our rights to any politician of any stripe? Are we going to give up
the right to decide who lives and who dies?
Gosztola goes on to say the reason the administration didn't want to
answer yes or no to this question--can you kill Americans on American
soil--is because he says a ``no'' answer would jeopardize the critical,
theoretical foundation they have very carefully constructed that says
there are no cognizable constraints on how U.S. Government power can be
asserted.
Civil libertarians once expected more from the President. In fact, it
was one of the things I liked about the President. I am a Republican. I
didn't vote for or support the President either time, but I admired
him. I particularly admired him when he ran in 2007. I admired his
ability to stand and say: We will not torture people. That is not what
America does.
How does the President's mind work? The President--who seemed so
honorable, so concerned with our rights, so concerned with the right
not to have our phone tapped--now says he is not concerned with whether
a person can be killed without a trial. The leap of logic is so
fantastic as to boggle the mind. Where is the Barack Obama of 2007? Has
the Presidency so transformed him that he has forgotten his moorings
and what he stood for?
Civil libertarians once expected more from the President. Ask any
civil libertarian whether the President should have the right to
arbitrarily kill Americans on American soil, and the answer is easy. Of
course no President should have the right or that power under the
Constitution.
Brennan has responded in committee that now the CIA does not have the
right to do it on American soil. The problem is that this program is
under the Department of Defense, so it is, once again, an evasive
answer. They are not answering the true question: Will the Government
of America kill Americans on American soil?
Gosztola, from firedoglake.com, writes that there may never be a
targeted killing of a U.S. citizen on U.S. soil--and the question of
whether a U.S. citizen could be targeted and killed on U.S. soil may
remain a hypothetical question for some time--but the fact that the
Obama administration has told a U.S. Senator there is a circumstance
where the government could target and kill an American citizen on
American soil without charge and without trial is a stark example of an
imperial Presidency.
This is what our Founding Fathers wanted to fight against. They
wanted to limit the role and the power of the President. They wanted to
check the President's power with the power of the Senate, the power of
the House, and the power of the judiciary. We have three coequal
branches. Not one of them should be able to run roughshod on the other.
The problem is we have allowed this to happen--not me personally, but
Congress in general has allowed the President to usurp this power. If
there were an ounce of courage in this body, I would be joined by many
other Senators in saying we will not tolerate this, that we will come
together, in a bipartisan fashion, and tell any President that no
President will ever have the authority to kill Americans without a
trial. When the President says he does intend to do so, we have to
think that through.
One year ago, the President signed a law that says a person can be
detained indefinitely and that they can be sent from America to
Guantanamo Bay without a trial. He wants us to be comforted by that. He
wants us to remember and think well of him because he says: I don't
intend to do so. It is not enough. I mean, would we be able to tolerate
a Republican who stood and said: I like the first amendment, I am quite
fond of the first amendment, and I don't intend to break the first
amendment, but I might.
Would conservatives tolerate someone who said: I like the second
amendment, I think it is important and I am for gun ownership and I
don't intend to violate the second amendment, but I might. Would we
tolerate that he doesn't intend to do so as a standard?
We have to think about the standards being used overseas. Google
interviewed him not too long ago and asked him if he could kill
Americans at home. He was evasive. He said there are rules. He said the
rules outside would be different than inside. I certainly hope so.
Outside the United States the rules for killing are that someone can be
killed through a signature strike. We don't have to know what that
person's name is, who they are or whom they are with. If a person is in
a line of traffic and we think they are going from talking to bad
people to talking to other bad people, we can kill that person.
Is that going to be the standard in America? When they are asked if
they have killed civilians in their drone strikes, they say no.
However, a person is not counted as a civilian if they are male or if
they are between the ages of 16 and 50. They are considered a potential
and probable combatant if they are in the 16-to-50 age range.
My question is: If you are not a civilian, if you are in proximity to
bad people, is that the standard we are going to use in the United
States? If we are going to kill Americans on American soil and the
standard is going to be signature strikes of a person who is close to
bad people or in the same proximity of bad people, is that enough? Are
we happy with that standard? Are we happy we have no jury, no trial, no
charges, and nothing done publicly?
Eric Holder, the Attorney General's response to me is that they
maintain they are not going to do this. We should just trust them. It
is not about them, though. It is about the law. The law restrains
everyone equally, regardless of their party or whether they are
Republican or Democrat. The law is out there for the time when somebody
inadvertently elects a truly bad person.
When World War I ended, the currency was being destroyed in Germany.
In 1923, paper money became so worthless that people wheeled it in
wheelbarrows; they burned it for fuel. It became virtually worthless
overnight. At the beginning of September 1923, I think it was like 10
or 15 marks for a loaf of bread. On September 14, it was 1,000 marks.
On September 30, it was 100,000 marks. By October 15, it was a couple
of million marks for a loaf of bread. It was a chaotic situation. Out
of that chaos, Hitler was elected democratically. They elected him out
of this chaos.
My point is not that anybody in our country is Hitler. I am not
accusing anybody of being that evil. I think it is an overplayed and
misused analogy. What I am saying is that in a democracy we could
someday elect someone who is very evil, and that is why we don't give
the power to the government. It is not an accusation of this President
or anybody in this body; it is a point to be made historically that
occasionally even a democracy gets it wrong. So when a democracy gets
it wrong, we want the law to be there in place. We want this rule of
law.
As I mentioned, Hayek said that this is what distinguished us.
Nothing distinguishes us more clearly from arbitrary government and a
government of whims than a rule of law, and a stable and consistent
government is the rule of law.
Heritage has an author who has written some about the oath of office.
His name is Kesavan. He writes that the location and the phrasing of
the oath of office for the President--this is something I mentioned
earlier, that the President says he will protect and defend and
preserve the Constitution--words are important. The oath doesn't say, I
intend to preserve, protect, and defend; it says, I will.
Kesavan writes, though, that the location and phrasing of the oath of
office strongly suggests that it is not empowering but limiting. So the
President doesn't take an oath of office that says: I intend to
preserve, protect, and defend the Constitution, but I also feel that I
have inherent powers that were never mentioned by anybody that I will
be the sole arbiter of interpreting what those powers are.
[[Page S1153]]
That sounds more like a king. That is not what we wanted. We did not
want an imperial Presidency. What Kesavan suggests is that the oath of
office is not empowering but that it is limiting, that the clause
limits the President and how the President can execute or how the
Executive power can be exercised.
One unanswered word in that Constitution includes the Fifth Amendment
to the Constitution. What does the Fifth Amendment say? The Fifth
Amendment says that no person shall be held to answer for a capital or
otherwise infamous crime unless on presentment or indictment of a grand
jury. It is pretty explicit. The Fifth Amendment protects us. It
protects us from a King placing a person in the tower, but it also
should protect us from a President who might kill us with a drone.
We were granted due process. It is not always easy to sort out the
details of who is a threat to the country and who is not a threat to
the country. If it were people with grenade launchers on their
shoulders, that is easy. In fact, I agree completely. A person does not
get due process if they are actively attacking America. But we have to
realize there have been reports that over half of the drone strikes
overseas are not even directed toward an individual, they are directed
toward a caravan of unnamed individuals.
Overseas, I have no problems. If people are shooting at American
soldiers overseas, by all means, they get no due process. But we also
have to realize that many--we don't know because they won't tell us the
number, but many of the drone strikes overseas are done when a person
is walking, whether to church, a restaurant, or along the road; they
are done when a person is in a car driving; they are done when a person
is in a house eating or in a restaurant eating; or they are done when a
person is in a home sleeping. I am not even saying all those people
didn't deserve what they got, but I am saying they were not actively
involved in something that is an imminent threat, and if they were in
America, they would be arrested.
If we think a person is a terrorist in America, we should arrest
them. But here is the question: Who is a terrorist? That is why I have
been so concerned with a lot of people around here who want to say if
you are associated with terrorism. The reason is that our government
has already put out things that I think are of a questionable nature.
The Bureau of Justice put out a bulletin within the last year
describing people we need to be worried about. These are the people we
are supposed to say something about if we see something. Who are these
terrorists who live among us? People who might be missing fingers on
one hand; people who might have stains on their clothing; people who
might have changed the color of their hair; people who like to pay in
cash; people who own more than one gun; people who own weatherized
ammunition; people who have 7 days of food in their house--these are
people we should be afraid of and we should report to our government,
so says our government. Are they going to be on the drone strike list?
I think we need to get an answer from the President.
If you are going to kill people in America, we need rules, and we
want to know what your rules are because I certainly don't want to have
7 days of food in my house if that is on the list of terrorism. There
are some governmental Web sites that advise us to have food in our
house. If we live in a hurricane-prone area, we are supposed to keep
some extra food around. Who is going to decide when it is OK to have
food in our house and when it is not?
There is something called a fusion center. Fusion centers are
supposed to coordinate between the Federal Government and the local
government to find terrorists. The one in Missouri a couple of years
ago came up with a list, and they sent this to every policeman in
Missouri. This kind of concerns me. The people on the list might
include me. The people on the list from the fusion center in Missouri
whom we need to be worried about and whom policemen should stop are
people who have bumper stickers that might be pro-life; people who have
bumper stickers that might be for more border security; people who
support third-party candidates; people who might be in the Constitution
Party. And isn't there some irony there--people who might be in the
Constitution Party, who believe in the Constitution so much, they might
be a terrorist.
So I think we need to be concerned about this. Things are not so
black and white. If someone is shooting a gun at us--a cannon, a
missile, a rocket, a plane--it is pretty easy to know what lethal
attacks are and to repel them, and there should be no due process. But
we are talking about people in their home. We are talking about people
in a restaurant or a cafe that someone is making an accusation against.
If the accusation is based on how many fingers you have on your hand,
I have a problem with that standard. If the standard to be used for
killing Americans is whether a person pays in cash, I have a problem
with that. If the standard to be used in America is being close to
someone who is bad or the government thinks is bad is enough for you to
be killed and not even to count you as an accidental kill but to count
you as a combatant because you were near them--see, here is the
problem, and this is no passing problem, this is an important problem.
There was a man named al-Awlaki. He was a bad guy. By all evidence
available to the public that I have read, he was treasonous. I have no
sympathy for his death. I still would have tried him in a Federal court
for treason, and I think he could have been executed. But his son was
16 years old, and he missed his dad, who had been gone for 2 years. His
son sneaks out of the house and goes to Yemen. His son is then killed
by a drone strike. They won't tell us if he was targeted. I suspect,
since there were other people in the group--there were about 20 people
killed--that they were targeting someone else. I don't know that. I
don't have inside information on that, but I suspect that.
Here is the real problem. When the President's spokesman was asked
about al-Awlaki's son, do my colleagues know what his response was?
This I find particularly callous and particularly troubling. The
President's response to the killing of al-Awlaki's son--he said he
should have chosen a more responsible father. It is kind of hard to
choose who your parents are. That is sort of like saying to someone
whose father is a thief or a murderer or a rapist--obviously a bad
thing, but does that mean it is OK to kill their children? Think of the
standard we would have if our standard for killing people overseas is
that you should have chosen a more responsible parent. It just boggles
the mind and really affects me to think that would be our standard.
There is absolutely no excuse for the President not to come forward
on this. I have been asking for a month for an answer. It is like
pulling teeth to get any answer from the President. Why is that?
Because he doesn't want to answer the question the way he should as a
good and moral and upstanding person--someone who believes in the
Constitution should--that absolutely no American should ever be killed
in America who is sitting in a cafe. No American should ever be killed
in their house without a warrant and some kind of aggressive behavior
by them. There is nothing American about being bombed in one's sleep.
There is nothing constitutional about that.
The President says to trust him. He says he hasn't done it yet. He
says he doesn't intend to do so but he might. That is just not good
enough. It is not enough for me to be placated. It is not enough for me
to be quiet.
So I have come here today to speak for as long as I can. I won't be
able to speak forever, but I am going to speak for as long as I can to
draw attention to something that I find really to be very disturbing.
People have asked about this nomination process because I have
actually voted for a couple of the President's nominees, some of whom I
have objected to, some of whom I have had personal differences with as
well as political differences with. This is not about partisanship.
I voted for Secretary of State John Kerry. I have almost nothing in
common with him politically. I have disagreed with him repeatedly on
the floor. But I gave the President the prerogative of choosing his
Secretary of State because I think the President won the election and
he deserves to get
[[Page S1154]]
to make some choices on who is in his Cabinet.
I voted for the very controversial Secretary of Defense, Chuck Hagel.
There were things I liked about him and things I disliked about him. I
filibustered him twice before I allowed him to go forward, and people
have given me a hard time. Conservatives from my party have blasted me
for doing that, but I gave the President that prerogative.
So I am not standing here as a Republican who will never vote for a
Democrat. I voted for the first three nominees by the President. This
is not about partisanship. I have allowed the President to pick his
political appointees, but I will not sit quietly and let him shred the
Constitution. I cannot sit at my desk quietly and let the President say
he will kill Americans on American soil who are not actively attacking
a country. The answer should be so easy. I can't imagine that he will
not expressly come forward and say: No, I will not kill Americans on
American soil.
The Fifth Amendment says that no person shall be held for a capital
or otherwise infamous crime unless on the presentment or indictment of
a grand jury. It goes on to say that no person will be deprived of
life, liberty, or property without due process. Now, some hear ``due
process,'' and if a person is not a lawyer--I am not a lawyer--when we
first hear it, we think, what does that mean? What does it mean to have
due process?
What it means is we are protected. We get protections. Is our justice
system perfect? No. Sometimes a person goes all the way through due
process in our country, and we have actually convicted people who are
innocent. Fortunately, it is very rare, but we have actually convicted
people who are innocent. What are the chances that our President, going
through a PowerPoint slide show and flashcards, might make a mistake on
innocence or guilt? I would say there is a chance. Even our judicial
system, which goes through all of these processes, including a judge
reviewing the indictment, a jury reviewing it, and then a sentencing
phase and all of that going forward--we sometimes make mistakes. What
are the chances that one man, one politician, no matter what party they
are from, could make a mistake on this? I think there is a real chance
that exists. That is why we put these rules in place.
Patrick Henry wrote that the Constitution wasn't given or written or
put down to restrain you; the Constitution was to restrain us. There
has always been, since the beginning of the time we first had
government, this desire to restrain the government, to try to keep the
government from growing too strong or to try to keep the government
from taking your rights.
It is interesting that when we look at the Constitution, the
Constitution gave what are called enumerated powers to government.
Madison said these enumerated powers were few and defined. The
liberties we were given, though, are numerous and unlimited. So there
are about 17 powers given to government which we have now transformed
into about a gazillion or at least a million new powers--we don't pay
much attention to the enumerated powers or to the Constitution anymore.
But the Constitution left our rights as unenumerated; they aren't
limited. Your rights are limitless.
So when we get to the 9th and 10th Amendments, they say specifically
that those rights not granted to your government are left to the States
and the people respectively. It didn't list what those rights are. The
14th Amendment talks about privileges and immunities being left to you
also. They are to be protected.
I don't think there is a person in America--that is why I can't
understand the President's unwillingness to say he is not going to kill
noncombatants. Think about that. He is unwilling to say publicly that
he is not going to kill noncombatants, because that is what we are
talking about here. I am not talking about someone with a bazooka or a
grenade launcher on their shoulder. Anyone committing lethal force can
be repelled with lethal force. No one argues that point. I am talking
about whether you can kill noncombatants because many of the people
being killed overseas are noncombatants. Are they potential combatants?
Maybe. Maybe the standard can be less overseas than it is here for
people involved in a battle, but it is getting kind of murky overseas
as well.
For goodness' sake, in America we can't just have this idea that we
are going to kill noncombatants. We are talking about people eating in
a cafe, at home, in a restaurant. I think we need to be a little more
careful.
The power that was given by the Constitution to the Senate was that
of advise and consent. This constitutional provision provides us with
the power to consent to nominations or withhold consent. It is a check
on the executive branch, but it only works if we actually use it.
I am here to speak for as long as I can hold up to try to rally
support from people from both sides to say: For goodness' sake, why
don't we use some advise and consent? Why don't we advise the President
he should come forward and say he will not condone nor does he believe
he has the authority to kill noncombatants?
As a check on the executive branch, this power that is granted to the
Senate is the right to withhold consent. The Constitution does not
provide Senators with the specifics or the criteria of why we withhold
consent. That is left to us to decide.
I withhold my consent today because I am deeply concerned the
executive branch has not provided an answer, that the President refuses
to say he will not kill noncombatants.
The President swore an oath to the Constitution. He said he will
protect, defend, and preserve the Constitution. He did not say: I
intend to when it is convenient. He said: I will defend the
Constitution. It is inexcusable for him not to come forward.
There is an author who writes for The Atlantic who has written a lot
about the drone program by the name of Conor Friedersdorf. He recounts
the tale of al-Awlaki's son who was killed. He said when the
President's spokesman was asked about the strike that killed him, the
President's spokesman replied: Well, he would have been fine if he
``had a more responsible father.''
If that is our standard, we have sunk to a real low.
Cornered by reporters after this, White House Press Secretary Robert
Gibbs attempted to defend the kill list, which is secret, of course. We
have to remember, if we are going to kill noncombatants in America or
people we think might someday be combatants, the list will be secret.
So one will not get a chance to protest: Hey, I am not that bad. I
might have said that at one time, but I am not that bad. All right. I
have objected to big government, not all government. I am not fomenting
revolution. I was critical at that meeting. I was at a tea party
meeting, and I was critical of the President, but I am not a
revolutionary. Please, don't kill me.
Should we live in a country where we have to be worried about what we
say? Should we live in a country where we have to worry about what we
write? What kind of country would that be? Why is there not more moral
outrage? Why is there not every Senator coming down to say: You are
exactly right. Let's go ahead and hold this nomination and why don't we
hold it until we get more clarification from the President.
Conor Friedersdorf of The Atlantic writes:
. . . it's vital for the uninitiated to understand how Team
Obama misleads when it talks about its drone program. Asked
how their kill list can be justified, Gibbs--
The President's spokesman--
replies that ``when there are people who are trying to harm
us, and have pledged to bring terror to these shores, we've
taken that fight to them.'' Since the kill list itself is
secret, there's no way to offer a specific counterexample.
It is one thing to say: Yes, these people are going to probably come
and attack us, which, to tell you the truth, is probably not always
true. There are people fighting a civil war in Yemen who probably have
no conception of ever coming to America.
Friedersdorf goes on to say:
But we do know that U.S. drones are targeting people who've
never pledged to carry out attacks in the United States.
So we are talking about noncombatants who have never pledged to carry
out attacks are being attacked overseas. Think about it, if that is
going to be the standard at home: people who have never truly been
involved with combat against us.
[[Page S1155]]
Friedersdorf continues:
Take Pakistan, where the CIA kills some people without even
knowing their identities. ``As Obama nears the end of his
term, officials said the kill list in Pakistan has slipped to
fewer than 10 al-Qaeda targets, down from as many as two
dozen. . . . ''
Yet we are killing hundreds of people in Pakistan.
There is a quote that I think sort of brings this and makes this very
poignant. There is a quote from an ex-CIA agent--I think it is Bruce
Riedel--who says: The drone strike program is sort of like a lawnmower.
You can keep mowing them down, but as soon as the lawnmower stops, the
grass grows again.
Some people have gone one step further and said: For every 1 you kill
or for maybe every 1 you accidentally kill whom you did not intend to
kill, 10 more spring up.
Think about it. If it were your family member and they have been
killed and they were innocent or you believe them to be innocent, is it
going to make you more or less likely to become involved with attacking
the United States?
I have written a couple letters to John Brennan, who has been put up
for the CIA nomination. I think it looks like the first letter was sent
January 25. So here we are into March, and I only got a response when
he was threatened. So here is a guy whom the President promotes as
being transparent and wanting to give a lot of information to the
American people, he will not respond to a Senator. They treat the
Senate with disdain, basically--will not even respond to us, much less
the American people, when I asked him these questions. He finally
responded only when his nomination was threatened.
So when it came to the committee and it appeared as if I had
bipartisan support for slowing down his nomination if he did not answer
his questions, then he answered his questions. It does not give me a
lot of confidence that in the future, going forward, if he is approved,
that he is going to be real forthcoming and real transparent about
this.
I do not have a lot of anticipation or belief that we are going to
get more information after this nomination hearing. Some are now
saying: You have gotten your pound of flesh. Let him go, and we will
keep working on this. The problem is, once he is gone, the discussion
is over.
Others in my party have been trying to get information about what
went horribly wrong in Benghazi and have gotten some of that
information but only by using it as leverage to try to get the
President to do what is the honorable thing; that is, to be more
transparent with his ways.
In the first letter I sent to Brennan, I asked him the question: Is
it legal to order the killing of American citizens and that you would
not be compelled to even give your reasoning--not even specific to the
case but any of your reasoning?
Finally, as these questions came forward, some of the things were
leaked out. One of the most troubling things that came out is when
Brennan and the President finally began to talk about the drone strike
program, which, according to the former Press Secretary, they were to
deny that it existed for years.
When they finally came out, they told us a couple things about their
interpretation of it. One, they have no geographical limit to their
drone strikes. The second thing is they told us what they thought was
imminent. This is pretty important because a lot of Americans, myself
included, believe if we are being attacked, we can respond with lethal
force. But a lot of Americans think that we have to actually be engaged
in that to respond with lethal force. But they told us the way their
lawyers interpret ``imminent'' is imminent does not have to mean
``immediate.''
Only a bunch of lawyers could get together, government lawyers could
get together and say imminent is not immediate. You have to understand,
and what we should be asking the President is, Is this your standard
for America? If you are going to assert that you have the right to kill
Americans on American soil, are you going to assert--are you going to
assert--that your standard is that an imminent threat does not have to
be immediate?
I am quite concerned, when I hear this kind of evasiveness, with this
sort of nonresponse to questions.
We also asked: Would it not be appropriate to require a judge or a
court to review this?
See, here is the real interesting thing. We had a President who ran
for office saying your phone should not be tapped without a warrant. I
happen to agree with Candidate Obama. But what happened to Candidate
Obama, who wanted to protect your right to the privacy of your phone,
who does not care much about your right not to be killed by a drone
without any kind of judicial proceeding?
I think we should demand it. The way things work around here, though,
is people kind of say: Yes, we will demand it, and maybe later on this
year we will talk about a bill or talk about getting something. What
they should do is just say: No more. We are not going to move forward
until we get some justice. We are not going to let the President--any
President, Republican or Democratic--do this.
One of the other questions I asked the President was: It is
paradoxical that the Federal Government would need to go before a judge
to authorize a wiretap on U.S. citizens even overseas but possibly not
have any kind of oversight of killing an American here in America.
We have asked him how many citizens have been killed. We have not
gotten an answer to that. They say not many, and hopefully it has not
been many. But I think it is important to know. I think it would be
important to know, if we are going to target Americans in America, if
that list exists. I think it would be important to know if being close
to someone is also justified. What if you just happen to live in the
neighborhood of somebody who is a suspected terrorist? Is it OK because
you were close to them? What if you happen to go to dinner with a guy
you did not know or a woman you did not know and the government says
they are a terrorist? Just because you are having dinner with them and
you are a male between the ages of 16 and 50, does that make you a
combatant?
We also asked the question: Do you condone the CIA's practice of
counting civilians killed by U.S. drone strikes as militants simply
because they are of the same age? Similar to every other question, no
answer.
We asked him whether al-Awlaki's son was a target. No answer.
We asked how many people have been targeted? No answer.
Part of the problem with this is that we are--or Congress in general
is sloppy about writing legislation in general.
I will give an example. When the ObamaCare legislation was written--
it is over 2,000 pages--but it leaves up to the Secretary of Health, I
think 1,800 times, the power to decide at a later date what the rule
would be. So since ObamaCare, of 2,000 pages, has been written, there
have been now 9,000 pages of regulations.
Dodd-Frank is kind of the same way. Dodd-Frank is a couple thousand
pages. It now is going to wind up with 8,000 or 9,000 pages of
regulations.
We abdicate our responsibility by not writing legislation. We write
shells of legislation that are imprecise and do not retain the power.
Because of that, the executive branch and the bureaucracy, which is
essentially the same thing, do whatever they want.
This happened also with the authorization of use of force in
Afghanistan. This happened over 10 years ago now--12 years ago. I
thought we were going to war against the people who attacked us, and I
am all for that. I would have voted for the war. I would have preferred
it to have been a declaration of war. I think we were united in saying:
Let's get those people who attacked us on 9/11 and make sure it never
happens again.
The problem is, as this war has drug on, they take that authorization
of use of force to mean pretty much anything. They have now said the
war has no geographic limitations. So it is not a war in Afghanistan;
it is a war in Yemen, Somalia, Mali. It is a war in unlimited places.
Were we a body that cared about our prerogative to declare war, we
would take that power back. But I will tell you how poor--and this is
on both sides of the aisle--how poor is our understanding or belief in
retaining that power here.
About 1 year ago, I tried to end the Iraq war. You may say: I thought
the
[[Page S1156]]
Iraq war was already over. It is. But we still have an authorization of
use of force that says we can go to war in Iraq anytime. Since they
think the use of force in Afghanistan means limitless war anywhere,
anytime in the whole world, for goodness' sake, wouldn't we try to take
back an authorization of force if the war is over?
But here is the sad part. I actually got a vote on it. I think I got
less than 20 votes. You cannot end a war after it is over up here. It
has repercussions, because these authorizations to use force are used
for many other things. So the authorization of force says you can go
after al-Qaida or associated terrorists.
The problem is that when you allow the executive branch to sort of
determine what is al-Qaida, you have got no idea. For the most part I
will not be able to determine that either. All the information is
classified. There are a lot of bad people. There is a war going on in
Yemen. I do not know how much it has to do with us, you know, or how
much there is an al-Qaida presence there trying to organize to come and
attack us. Maybe there is. But maybe those are also people who are just
fighting their local government.
How about Mali? I am not sure. In Mali, they are probably worried
more about trying to get the next day's food than coming over here to
attack us. But we have to ask these questions. We have to ask about
limitations on force, because essentially what we have now is a war
without the geographic boundaries.
We have many on my side who come down here and say, the battlefield
is here in America. Be worried. Be alarmed. Alarm bells should go off
when people tell you that the battlefield is in America. Why? Because
when the battlefield is in America, we do not have due process. What
they are talking about is they want the laws of war. Another way of
putting that is, they call it the laws of war. Another way to put it is
to call it martial law. That is what they want in the United States
when they say the battlefield is here.
One of them, in fact, said, if they ask for a lawyer, you tell them
to shut up. Well, if that is the standard we are going to have in
America, I am quite concerned that the battlefield will be here and
that the Constitution would not apply. Because to tell you the truth,
if you are shooting at us in Afghanistan, the Constitution does not
apply over there. But I certainly want it to apply here. If you are
engaged in combat overseas, you do not get due process. But when people
say, oh, the battlefield has come to America, and the battlefield is
everywhere, the war is limitless in time and scope, be worried because
your rights will not exist if you call America a battlefield for all
time.
We have asked him whether the strikes are exclusively focused on al-
Qaida and what is the definition of being part of al-Qaida. In 1947,
the National Security Act was passed. It said the CIA does not operate
in America. Most people--most laypeople know that. The CIA is supposed
to be doing surveillance and otherwise outside the United States of
foreign threats. The FBI works within the United States. They do some
of the same thing. But they are different groups. The CIA operating in
Iraq or Afghanistan does not get a warrant before they do whatever they
do to snoop on our enemies. The FBI in our country does. They operate
under different rules, and for a reason. We do not want them to operate
in the United States. We are not saying the CIA are bad people, we just
do not want them operating with no rules or the rules we allow them to
operate with overseas. We do not want them operating in our country.
The disappointing thing is that a month ago when I asked John Brennan
this question, as his nomination came forward, I could not get an
answer. He would not answer the question about the CIA operating in the
United States. Only after yanking his chain, browbeating him in
committee, threatening not to let him out of committee does he finally
say he is going to obey the law. We should be alarmed by that. Alarm
bells should go off when we find that what is going on here is it takes
that much for him to say he is going to obey the law.
The President has said: Don't worry, because he is not going to kill
you with a drone unless it is infeasible to catch you. Now that sounds
kind of comforting. But I guess if our standard for whether we kill you
is whether it is practical, that does bother me a little bit. It does
not sound quite strict enough. I am kind of worried that maybe there is
a sequester and the President says we cannot have tours in the White
House. Maybe he has not got enough people to go arrest you. He had
policemen by him. He is saying he is going to lay off the policemen. Of
course, he does not have anything to do with the policemen, so do not
worry about that. But he had the policemen by him that he is going to
lay off, so maybe it is infeasible because he has laid off the
policemen so it is going to be easier to kill you.
I know that sounds as though we have gone a slippery slope beyond
what he is asking for. But if his standard is it is infeasible to
capture you and that is what you are hanging your hat on, I would be a
little concerned that that may not be enough protection for Americans
on American soil.
There is a law called posse comitatus. It has been on the books since
shortly after the Civil War. It is once again one of those things a lot
of people do not think about, but it is an important thing. It says the
military does not operate on U.S. soil unless there is a declaration of
an insurrection or a civil war. There has to be a process that Congress
goes through. We have had this law for a long time.
Once again, the reason we do it is not because we think our military
are bad people. I am proud of our soldiers. I am proud of our Army. I
am proud of what they do for our country. But they operate under
different rules. It is a much more dangerous environment they operate
under. It is different. It is still dangerous in America, but policemen
have different rules of engagement than your soldiers have. There are
more restrictions and restraint on what we do in our country. So that
is why we say the military cannot operate here.
So when we asked the President, can you kill Americans on American
soil with your drone strikes, which is part of the military, it should
be an easy answer. In fact, I hope someone is calling him now and
asking him for an answer. It would save me a lot of time and breath. My
throat is already dry and I just got started. But if they would ask him
for an answer: Can the military operate in the United States? Well, no,
the law says the military cannot operate in the United States. It is on
the books. He should simply do the honorable thing and say he will obey
the law. It is simple. But I do not get why they refuse to answer it.
It worries me that they refuse to answer the question. Because by
refusing to answer it, I believe they believe they have expansive
power, unlimited power. The real irony of this is is that many on the
left, Senator Barack Obama included, were very critical of the Bush
administration. They felt as though the Bush administration usurped
power. They felt the Bush administration argued invalid aggrandizement
or grasping for power. John Yoo was one of the architects of this,
believing basically that the President just says, hey, I am going to
protect you, I can do whatever the hell I want.
Many on the left objected to that. Some of us on the right also
objected to this usurpation of power by the Republican President. But
the thing is, now that the shoe is on the other foot, we are not seeing
any of that. We are now seeing a President who was worried about
wiretaps not at all worried about the legality of killing Americans on
American soil with no judicial process.
But the law of posse comitatus prevents this from happening. It is
very clear. It has been on the books for 150-some-odd years. I think it
would be pretty easy for the President to go ahead and say that he will
obey the law. We asked Brennan the question on this and we got no
answer.
The answers we have gotten are almost more disturbing than getting an
answer, really, to tell you the truth. Because when the President
responds that I have not killed any Americans yet at home, and that I
do not intend do so, but I might, it is incredibly alarming and goes
against his oath of office. He says in his oath of office that I will
preserve, I will protect, and I will defend the Constitution. It does
not say I intend to or that I might.
[[Page S1157]]
Can you imagine the furor if people were talking about the second
amendment? Can you imagine what conservatives would say if the
President said, well, you know, I kind of like the second amendment and
I intend to, when convenient, when it is feasible, protect the second
amendment? Or what about those who believe in the first amendment, if
the President were to say, I have not broken the first amendment yet, I
intend to follow it, but I might break it, or I intend to follow it
when it is feasible? So I have all of those rules, and this is what the
President answered when he was at Google Campus a couple of weeks ago.
They asked him the question: Can you kill Americans on American soil?
He said: Well, the rules will probably be different outside the United
States than inside. That basically means, yes, he thinks he can kill
Americans on American soil, but he is going to have some rules. Do not
worry about it, because he will make some rules and there will be a
process, but it will not be due process. It will be a process that he
sets up in secret in the White House, and I do not find that
acceptable.
The only answer really acceptable, you know, we ask a question that
could be yes or no: Can you kill an American on American soil? It is a
yes-or-no question. They have been very evasive. They have never really
answered the question. But when asked it, we pretty much knew only one
answer was acceptable. That answer is no. I mean, if you do not answer
it, basically by not answering it you are saying yes. I was actually a
little bit startled when I finally got the answer: Yes, we can kill
Americans on American soil. I thought for sure that they would be
evasive to the end, try to get their nominee through without opening
Pandora's box.
But they have opened Pandora's box. It would be a mistake for us to
ignore it. It would be a mistake for us to ignore the ramifications of
what they have done. When we separate out police power from judicial
power, it is an important separation. You know, the police can arrest
you. They are allowed to do certain things. But the policeman that
comes to our door and puts handcuffs on you does not decide your guilt.
Sometimes we do not always think about how important the separation is.
But it is incredibly important that those who arrest you are not the
ones who ultimately accuse you. The court, through the people, accuses
you, and then you are given a trial to determine your guilt.
It is complicated. It is not always clear who is innocent and who is
guilty. Judges and juries make mistakes. But at least we have a
process. You get appeals most of the time. We have a significant
process going on that has a several-hundred-year tradition at the
least. So what gets me about the process that the President favors is,
it is the ``trust me'' process. You know, I have no intention of doing
bad things. I will do good things. I am a good person.
I am not disputing his motives or saying he is not a good person. But
I am disputing someone who is naive enough to think that is good enough
for our Republic, that his good intentions are good enough for our
Republic. It never would have been accepted. It would have been laughed
out of the Constitutional Convention. The Founding Fathers would have
objected so strenuously that that person would probably never have been
elected to office in our country.
Someone who does not believe that the rules have to be in place, and
that we cannot have our rights guaranteed by the intentions of our
politicians--think about it. Congress has about a 10-percent approval
rating. Think the American people want to face whether they are going
to be killed by a drone on a politician? I certainly do not. It does
not have anything to do with whether he is a Republican or Democrat. I
would be here today if this were a Republican President, because you
cannot give that much power to one person. We separated the police
power from the adjudication or from the jury power from the decisions
on innocence and guilt. It is separate from the police power,
purposefully so, with great forethought.
Some transform this--and the President has tried--Brennan has tried
to transform this into: Oh, well, we need to reserve this power for
when planes are attacking the Twin Towers. Well, that is not what we
are talking about, Mr. President. I think you misunderstand or you
purposefully obfuscate or you purposefully mislead. No one is
questioning whether the United States can repel an attack. No one is
questioning whether your local police can repel an attack. Anybody
involved in lethal force, the legal doctrine in our country, and has
been historically, has always been, that the government can repel
lethal attacks.
The problem is that the drone strike program is often not about
combatants. It is about people who may or may not be conspiring but
they are not in combat. They are in a car. They are in their house.
They are in a restaurant. They are in a cafe. If we are going to bring
that standard to America, what I am doing down here today is asking the
President to be explicit. If you are going to have the standard that
you are going to kill noncombatants in America, come forward and please
say it clearly so we know what we are up against. If you are not going
to do it, come up with what the easy answer is: I am not going to kill
noncombatants. That would have been easy for him to say.
He could have said the military at some point in time needs to repel
invasions. We know that. We are not questioning that. We are
questioning a drone strike program--we don't know, because nobody will
tell us the numbers. The numbers are secret. One Senator said in a
public meeting that 4,700 people had been killed overseas. If I had to
venture a guess, a significant amount of them weren't involved in
shooting at American soldiers. If they were, by all means kill them. If
we are fighting a war in Afghanistan--which we have been--and if there
are soldiers around the bend who are a threat to our soldiers, there is
no due process at that point. This is not what we are arguing about. We
are arguing about targeted strikes of people not involved in combat.
That is my concern.
My concern also is who is and what is a terrorist, who is associated
with terrorism. The government has put out many documents now which
tell you if you see something, say something. The documents you see, I
am not so sure these people are terrorists. If you see somebody paying
in cash or if you have a store, such as one of your customers comes in
frequently and they pay in cash, should you report them to the
government? I can't imagine that is the kind of standard we are going
to have in our country for deciding drone strikes.
When it comes to some of these people, though, I think some of the
drone strikes have probably been justified. Al-Awlaki, I think, was a
traitor. This is not from looking at classified documents, this is from
reading the lay press. By all means, he gave up on his country,
renounced his citizenship, went overseas, consorted with and aided the
enemy.
One of the interesting questions about aiding the enemy is what
exactly that means and what are the standards to be. Kevin Williamson
writes for the National Review. He wrote an article on drones that I
think truly brings this home if you are going to talk about and want to
know who are the people who potentially could be killed. In some ways
al-Awlaki was a sympathizer, someone who aided and abetted through
Internet talk and chatter. That was the main thing he was accused of.
Actually, after the fact, they said he had more direct association. I
don't know if that is true. I haven't seen the secret information on
that.
What I would say is he was initially brought up as a sympathizer.
Here is the problem. Many writers have said if you take up arms against
your country, you are an enemy combatant. I think that is true. If you
are in Afghanistan, have a grenade launcher on your shoulder and are
shooting at Americans, you are an enemy combatant. You don't get due
process.
Here is the question: If you are in Poughkeepsie and you are on the
Internet, and you say I sympathize with some group around the world
that doesn't like America, and say bad things about America, are you a
traitor? I mean, you can try someone for treason for that. I am not
sure if it will rise up to that if you are politically opposed to what
your government is doing in favor of another. Kevin Williamson gets it
pretty clearly:
[[Page S1158]]
If sympathizing with our enemies and propagandizing on
their behalf is the equivalent of making war on the country,
then the Johnson and Nixon administrations should have bombed
every elite college in America.
During the 1960s, that is all that came out was anti-America,
antiwar. Is objecting to your government or objecting to the policy of
your government sympathizing with the enemy?
Some were openly sympathetic. No one will ever forget Jane Fonda
swiveling around in North Vietnamese armored guns, and it was
despicable. It is one thing if you want to try her for treason, but are
you going to drop a drone Hellfire missile on Jane Fonda? Are you going
to drop a drone Hellfire missile on those at Kent State?
Our country objected to what happened at Kent State, which was not
good--but it was accidental since they were shooting over the heads of
these people. Can you imagine we have gone from a country that was
rightfully upset about the deaths at Kent State to a country which now
is going to say, if you are in college and you are rabble rousing
because you don't like the government's foreign policy or the
government's war actions, you are sympathizing? There are a lot of
questions that aren't being asked, because sympathizing appears to be
used as a standard for the drone strike program.
We actually had students, apparently during the Vietnam war, who were
actually raising funds for the Vietcong. That does to me sound like
treason. It sounds to me something like we are fighting an enemy and
you are giving comfort to the enemy. That does sound like treason. I
have no problem with some people actually being tried for treason, but
they get a day in court. They don't get a Hellfire missile sent to
their house. There is a difference, though, between sympathizing and
taking up arms. Most people around here who want to justify no rules,
America is a battlefield, no limits to war--they really want to blur it
all together. It is easier to say, oh, you don't want to stop anybody
who is shooting at Americans, but it is not true. I think lethal force
may be used against those engaged in lethal force.
What troubles me about the drone strike program is quite a few--I
don't know the number--the Wall Street Journal says the bulk of the
attacks in Afghanistan has been signature attacks. This means nobody
was named, nobody specifically was identified, and civilians aren't
really counted. This is because anybody, any male between the age of 16
and 60, is a combatant unless otherwise proven. If those are the
standards, I think we need to be alarmed. I think there is a difference
between sympathizing and taking up arms.
One of the interesting things Kevin Williamson and the National
Review brings out, and it is sort of a conundrum for conservatives--
because saying someone was involved and just taking the government's
words, like saying al-Awlaki was involved with these other people and
taking the government's word, we have no way of ascertaining or
questioning whether the secret information is true or not true. A few
years before this--and a lot of people don't remember this--al-Awlaki,
who was killed a couple years before this, was brought to the Pentagon
to speak as a part of a group of moderate Islamic preachers. They
thought him to be an Islamic voice of reason. He even came to the
Capitol and said prayers in the Capitol. This is the guy who the
government said was a good guy for a while and later said he was a bad
guy. I think ultimately the evidence he was a bad guy is pretty strong.
Most of his crime was sympathizing.
It wasn't enough of a standard. I think in a court, in a treasonous
court, al-Awlaki would have been convicted of treason if I were a
juror. I would have voted he was committing treason, and I wouldn't
have had trouble at all with a drone strike on him.
If we are going to take by extension the standard we used in putting
him on the list that he was a sympathizer, agitator, and a pain in the
royal you-know-what on the Internet, there are a lot of those people in
America if that is going to be our standard.
That is why I would feel a little more comforted if it weren't an
accusation by a politician who unleashes Hellfire missiles. I would be
a little more comforted--and I think we would all sleep a little better
in our houses at night--if we knew that before the Hellfire missile
comes down, a policeman would come to your door and say we accuse you
of this. They might put handcuffs on you and take you to jail, but they
don't get to summarily execute you.
That is all I am asking. I am asking for the President to admit
publicly he is not in favor of summary executions. That is really all I
am asking, about summary executions of noncombatants. It seems like a
pretty easy answer.
We could be done with this in a moment's notice if someone will call
the President and ask the question. We could be done with this because
that is what I want to hear, not that he is going to use the military
to repel an invasion. Nobody is questioning the authority of the
President to repel an invasion. I am questioning the authority of the
President to kill noncombatants asleep at home, eating in the
restaurant, or what-have-you.
One of the things Williamson brings up in his National Review article
again--which is a little bit off the subject but somewhat related--we
were fearful and we didn't do a very good job with 9/11, frankly.
September 11 occurred because of a lot of mistakes, and some of you
could look back as a Monday-morning quarterback and say, oh, we should
have done this.
One of the things that sort of bothered me about 9/11 was no one was
ever fired. In fact, they gave medals--the head of the FBI, the CIA,
everybody gets a medal. No one was ever fired.
Some of you may remember there was a 20th hijacker. His name was
Moussaoui. He was in Minnesota, and they captured him a month in
advance of 9/11. When they captured him, the FBI agent there--who was
spot on--was doing an excellent job. The agent who should have received
the medal was the FBI agent who caught Moussaoui and was asking his
superiors to get a warrant. He asked repeatedly. He sent 70 letters to
headquarters, saying: May I have a warrant to open this guy's computer,
to investigate him? He was turned down. He got no response. It was a
horrible and tragic human error.
What do we do? We promote and give medals to the people who were in
charge. That agent should have received a medal, but anybody above him
who made the decision not to even ask for a warrant shouldn't have gone
anywhere within the department.
Williamson makes the point if our law enforcement and intelligence
agencies--particularly the State Department--had been doing a minimally
competent job vis-a-vis visa overstays and application screenings, at
least 15 of the 9/11 hijackers would have been caught. They were all on
student visas, and they were all overstaying their student visas.
Nobody was paying attention. I still ask that question today. I ask, do
we know where all the students are, particularly from about 10 Middle
Eastern countries? The students who aren't from our own country, do we
know where they are? I think we have not a good enough system to know
where they all are, whether they have come and gone. This is a real
problem.
Had we actually looked at Moussaoui's computer? They did; they looked
at it on September 12. The day after 9/11 they looked at his computer.
I think it, within hours, led them and linked them up to several
hijackers in Florida and ultimately would have perhaps exposed the
whole ring.
The same thing was going on in Arizona at the same time. They had
somebody in Arizona saying there are guys who want to fly planes and
don't want to learn how to land them.
There were horrible and tragic occurrences that happened, human
breakdown. How do we fix it? We fix it the same way we do everything in
Washington: We threw a ton of money at it, and I mean a ton of money.
Billions upon billions and into the trillions of dollars have now been
spent. Really the main problem with 9/11 was a lack of communication,
lack of trying, lack of doing a good job at what you were already
supposed to be doing.
When we look at this issue, and as we go forward from here, I think
what is most important to me is we not let this go. This is the first
time I have decided to come to the floor and speak in a true
filibuster. People talk about filibuster all the time. They say the
filibuster is overused and it is abused. A
[[Page S1159]]
lot of times the filibuster in our country and in the Senate is
actually requesting 60 votes happen and we need to do everything by
unanimous consent, so it almost never happens. I have been here 2
years, and I don't think I have ever seen anybody come to the floor and
speak in a filibuster as I am doing today. I think it is important,
though, and I think the issue rises to such an occasion. There are a
lot of things we disagree on, Republicans and Democrats. I think there
are a lot of things we could actually pass up here, a lot of things we
could actually agree to we could pass if we get together, try to do
smaller bills, work on what we agreed and get away from some of the
empty partisanship.
The reason I came to the floor today to do this is because I think
certain things rise above party politics. Certain things rise above
partisanship.
I think you are right to be secure in your person, the right to be
secure in your liberty, the right to be tried by a jury of your peers.
These are things that are so important and rise to such a level we
shouldn't give up on them easily. I don't see this battle as a partisan
battle at all. I don't see this as Republicans versus Democrats. I
would be here if there were a Republican President doing this.
Really, the great irony of this is President Obama's position on this
is an extension of George Bush's opinion. It basically is a
continuation and an expansion of George Bush's opinion. George Bush was
a President who believed in very expansive powers, some would say
unlimited. He was accused of running an imperial Presidency. The irony
is this President we have currently was elected in opposition to that.
This President was one elected who, when he was in this body, was often
very vocal at saying the President's powers were limited.
When I first came here, one of the first votes I was able to receive
was a vote on whether we should go to war without congressional
approval. The interesting part is that the war was beginning in Libya.
It turned out to be a small war, but small wars sometimes lead to big
wars. In fact, that was one of Eisenhower's admonitions, to beware of
small wars, that you may find yourself in a big war. Fortunately, the
Libya war didn't turn out to be a big war, although I think it is still
a huge mess and it is still yet to be determined whether Libya will
descend into the chaos of radical Islam. I think there is a chance they
may still descend into that chaos.
But when the question came up about going to war in Libya, there was
the question of, well, doesn't the Constitution say you have to declare
war? And so we looked back through some of the President's writings as
a candidate, and one of the President's writings I found very
instructive and I was quite proud of him for having said it. The
President said that no President shall unilaterally go to war without
the authority of Congress unless there is an imminent threat to the
country. I guess we should be a little wary of his ``unless'' now,
since we know imminent doesn't have to be immediate and imminent no
longer means what humans once thought imminent meant. But Candidate
Obama did say that the President doesn't go to war by himself.
I think it would be fair to say that Candidate Obama also felt the
President didn't have the authority to imprison you indefinitely
without a trial. And I think it is also safe to say that Barack Obama
of 2007 would be right down here with me arguing against this drone
strike program if he were in the Senate. It amazes and disappoints me
how much he has actually changed from what he once stood for.
But I forced a vote on his words. I took his exact words. We quoted
him and put those words up on a standard next to me, and we voted on a
sense-of-the-Senate that said: No President shall go to war without the
authority of Congress--which basically just restates the Constitution.
Now, you would think that would be a pretty easy vote for people. I
think I got less than 20 votes. That is the sad state of affairs we are
in. There were some who actually probably believed that but refused to
vote for it because they said: Well, he is a Republican, and I won't
vote with a Republican. But I honestly tell you, were the shoe on the
other foot, were there a Republican President here and I a Republican
Senator, I would have exactly the same opinion. My opinion today on
drone strikes would be exactly the same opinion under George Bush. And
I was critical of George Bush as well. Were there a Republican
President now, I would have the same instinct and the same resolution
to carry this forward. And on the issue of war, it is the same no
matter which President.
One of the complaints you hear a lot of times in the media is about
there being no bipartisanship in Congress. Well, the interesting thing
is, actually, there is a lot of bipartisanship in Congress. If you look
at people who don't really believe in much restraint of government as
far as civil liberties, it really is on both sides. So you will find
that often on these votes on whether the Constitution says we have to
declare war in the Congress, Republicans and Democrats vote
overwhelmingly against that.
Now, you need to realize the implications of that. What they are
voting for is to say we don't retain that power and we don't want it.
The Constitution gave it to us, but we are giving it back. And this has
been going on for a long time, really, probably for over 100 years,
starting with Woodrow Wilson, who sort of grabbed for Presidential
power, and Presidents have been getting more and more powerful for over
100 years, Republican and Democratic.
There was at one time--point in time in our history a pride among the
Senate and a pride among the Congress that said: These are our powers,
and we are not giving them up. There were people on both sides of the
aisle who would stand firm and say: This is not a power I am willing to
relinquish; this is not something that is good for the country. And by
relinquishing the power of Congress, we relinquish something very
fundamental to our Republic, which is the checks and balances that we
should have--checks and balances to prevent one body or one part of the
three parts of government from obtaining too much power. So there was a
time when we tried to keep that power.
Unfortunately, the bipartisanship we have now, many in the media fail
to understand. They see us not getting along on taxes and on spending,
but they fail to understand that on something very important--on
whether an individual has a right to a trial by jury, whether an
individual has the right to not be detained indefinitely--there is
quite a bit of bipartisanship, although usually in the wrong direction.
Now, I will say there is some evolution and some trend toward people
being more respectful of this, and there has been some work on both
sides of the aisle that has brought together some of us who believe in
civil liberties.
There was a bill last year called the national defense authorization
bill. In that bill, there was a clause that said Americans can be
indefinitely detained. What does that mean? Well, it means forever,
basically, or without a trial, no sort of sentence, no sort of
adjudication of guilt or innocence, an American citizen can be held. So
there was another Republican Senator on the floor, and I asked the
question: Does that mean an American could actually be sent to
Guantanamo Bay from here, someone who is accused of something but never
gets a trial? And his answer was yes. His answer was yes, if they are a
danger to the country.
The problem with that kind of thinking is, who gets to determine
whether you are a danger? Who gets to determine whether you are guilty
or innocent? It sort of begs the question of what our court system is
set up to do, which is to try to find guilt or innocence. Guilt or
innocence isn't always apparent, and sometimes an accusation is a false
accusation. Sometimes accusations are made because people politically
don't like your point of view. So the question becomes, should we have
a process where we try to determine innocence or guilt?
So in the national defense authorization bill, there was an amendment
that said you can be indefinitely detained, an American could be sent
to Guantanamo Bay, and we had a big fight over it. We lost the first
time around in 2012. We had an amendment that tried to protect American
citizens. This was a good example of bipartisanship on our side. We had
45 votes, and I would say it was probably about 38 Democrats
[[Page S1160]]
and about 7 Republicans. So that was an example of both sides kind of
working together. But we fought and we lost.
The next year, we came back and we fought for the same amendment
again and we beat them. Interestingly, we beat them. We had 67 votes to
say that you cannot detain an American. An American can't be sent to
Guantanamo Bay without a trial, without an accusation, without a
jury, without the Bill of Rights. You can't do that to Americans. We
won the battle with 67 votes. So the bill passes, the House passes
their version without our amendment in it, it goes to the conference
committee, where they work out the differences, and they strip out our
language. So sometimes when you win around here, you lose.
But with the 67, there was a pretty good mix--maybe 35, 40 Democrats
and 15, 20 Republicans. So there is some emerging consensus or some
kind of emerging group. One of the other Senators has called it the
checks and balances caucus, and I think that is a very accurate term
because that is part of what we are arguing for. We are arguing that no
one person should get too much power or no one body will get too much
power.
Some people see all that fighting and disputing between the different
branches of government, and they see it in a bad light. They say: Oh,
with all that fighting and bickering, that is gridlock. But in some
ways, our Founding Fathers weren't too opposed to a little gridlock,
particularly if it were gridlock that said: You know what, we are not
going to make it easy to get rid of the first amendment.
It is not easy to get a constitutional amendment in our country. We
have added some through the years, but it is not easy to do. We make it
hard to amend the Constitution. In fact, we make it such that we are
not really a country that is majority rule. And I am sort of a stickler
for talking about the differences between a democracy and a republic. I
think some people are sloppy with their words and they love the idea
that America is a democracy. Woodrow Wilson said we were going to war
in the world war to make the world safe for democracy. Well, No. 1, we
are not a democracy, and we were never intended to be a democracy.
When Franklin came out of the Constitutional Convention, a woman went
up to him and asked him: What will it be? Will it be a monarchy or a
democracy? And he said: It is a republic. It is a constitutional
republic, if you can keep it. He was already worrying about whether
democratic action would lead to people straying away and giving a
government too many powers.
So we are a republic, and it is important to know the differences
between a republic and a democracy, particularly with our history and
our country. In our country, we had a period of time where majorities
passed some very egregious and unfair and unjust laws. These were
called the Jim Crow laws. They passed laws based on race or the color
of your skin, and these were passed by majorities.
The important thing about the Constitution and about rights and one
of the reasons I am here today talking about the fifth amendment and
how it gives you the right not to be committed to prison or be killed
without due process is that our Founders thought it was very important,
this whole concept between a republic and a democracy, and also
considering the idea that majority State legislatures were voting on
things such as the Jim Crow laws that would say that a White person
can't sell a house to a Black person or vice versa. Those laws were
passed by majority rule.
So any time someone comes up to me and says they want a democracy,
this is my first question to them: You are OK with Jim Crow, then?
Because democracies did bad things. But if you believe that rights are
protected and that rights should be protected and that these individual
rights are not something a democracy can overturn, then you do truly
believe in a protection that is more important than any democratic
rule.
There has been some dispute over this. There was a Supreme Court case
by the name of Lochner back in 1905. The President doesn't like Lochner
at all. He is very much opposed to it. But the one thing about Lochner
I like is that Lochner really expands the 14th amendment. The 13th,
14th, and 15th amendments were passed after the Civil War and usually
over Democratic objection.
In my State, the Democrats ruled the State legislature in Kentucky
for many, many years, and they voted against the 13th amendment, the
14th amendment, and the 15th amendment. The great champions of
emancipation, of voting rights, of all of the postwar amendments were
the Republicans.
Every African American in the country was a Republican before 1930--
virtually every African American. In 1931, in Louisville, there were
25,730 Black Republicans, and there were 129 Black Democrats. Every
African American was a Republican at one point in time.
I try to tell people, even though the numbers have been,
unfortunately, reversed, we are the party that believes in the
immutability of rights. We don't believe that the democracy can take
away your rights, that a majority rule can take away your first, your
second, or your fourth amendment rights. And I think if we got that
message out, we might change some of what is going on.
But the President is an opponent of the Lochner decision. In the
Lochner decision, a State legislature decides something, and it is not
really of importance what the decision is so much as that it is about
judicial deference, about whether the courts should say: Well, the
State legislature decided this, and majorities should get to rule.
Many believed as Oliver Wendell Holmes did, who was a dissenter in
the Lochner case. He basically said majorities should get to rule.
Herbert Croly, one of the founders of the New Republic, wrote that we
can get trapped up in all of this support for Bill of Rights and all
these ancient individual rights. If we get too carried away with this
whole idea of rights thing, we will have a monarchy of the law instead
of a monarchy of the people.
It was for good reason that we established a republic and not a
democracy. One of the best contrasts--it may not be a perfect contrast,
but I think it has some truth and validity--is that our Revolution
worked. In our Revolution we established a constrained government. In
France, the mob came into power. They had mob rule. The French
Revolution was a disaster.
Now, we had some things going for us. We had a colonial government
with English common law and adjudication, and we had adopted practices.
We were Englishmen, and we believed in the rights of Englishmen. We had
that for several hundred years in our country, so it was easier for us
to have a revolution. They didn't quite have that going on in France,
so it was different.
But one of the differences I see between America and France is that
we established a republic, and we weren't going to have majority rule
where the majority was setting up a guillotine. Ours wasn't perfect,
obviously. The Founders left and allowed slavery to still occur.
Interestingly, though, if you read the Constitution, I think they were
embarrassed by it. The word ``slave'' doesn't occur in our
Constitution. In fact, there were many abolitionist writers, one by the
name of Lysander Spooner, who actually wrote about the
unconstitutionality of slavery even before the war. And if you read the
Constitution and acknowledge that there is no word in there for
``slavery'' and nothing that says you have to be consigned to slavery--
there are things in there that say you can't be kept without being
presented with charges. ``Habeas corpus'' means ``present the body.''
In the old days in England and in different monarchies, they just
snatched you up. If you were next in line to be King or you made them
mad, they snatched you up and put you into the tower. So we came up
with the right of habeas corpus. You had to present the body and say:
He has been arrested, and these are the charges against him. We have
gotten to where there is some concern in our country about that, but we
have had that right all along.
So Lysander Spooner wrote and said: Why shouldn't a slave come
forward and say, this guy is keeping me; he is telling me I have to
work for him, but I haven't been charged with anything. What is my
crime?
Eventually, one court case did come forward, and it was ruled
incorrectly. I am not sure exactly how the arguments were, but in Dred
Scott they ruled that you can't make the argument. I don't know if
habeas corpus
[[Page S1161]]
was part of that case, but it should have been.
What I am trying to say, though, is that the rights of the
Constitution--the rights of the individual that were enshrined in the
Constitution--are important things that democracies can't overturn.
When you get to the Lochner case, which was in 1905, the majority
ruled five to four that the right to make a contract is part of your
due process. Someone can't deprive you of determining how long your
working hours are without due process. President Obama is a big
opponent to this. But I would ask him--among the other things I am
asking him today--to rethink the Lochner case because the Lochner case
really is what precedes and what the case Buchanan v. Warley is
predicated on.
Buchanan v. Warley is a case from 1917--interestingly, it comes from
my State, Louisville, KY. There was a young African-American attorney
by the name of William Warley. He was a Republican, like most African
Americans were in Louisville in those days. He was a founder of the
NAACP and, like most founders of the NAACP, a Republican.
What they did in 1914 was they sued because the Kentucky
Legislature--by a majority rule, by democratic action--passed a law
that said a White person couldn't sell to a Black person in a White
section of town or vice versa. This was the first case the NAACP
brought up.
Moorfield Storey was the first president of the NAACP, a famous
attorney. He and an attorney by the name of Clayton Blakely went
forward with this case, and they won the case. It actually passed
overwhelmingly. But, interestingly, this case to end Jim Crow was based
on the Lochner decision. So those who don't like the Lochner decision,
I would say go back. We need to reassess Lochner. In fact, there is a
good book by Bernstein from George Mason talking about rehabilitating
Lochner.
The thing is, with majority rule--if you say we are going to give
deference to majority rule or we are going to have judicial restraint
and we are going to say that whatever the majority wants is fine, you
set yourself up for a diminishment of rights.
I go back to the discussion of the Constitution limits power that is
given to Congress, but it doesn't limit rights. The powers are
enumerated; your rights are unenumerated. The powers given to the
government are few and defined; the freedoms left to you are many and
undefined. And that is important.
What does this have to do with Lochner? The case in Lochner is
whether a majority rule--a State legislature--can take away your due
process, your due process to contract. Can they take away your life and
liberty without due process? And the Court ruled no. I think it is a
wonderful decision. It expands the 14th amendment and says to the
people that you have unenumerated rights.
Now, there is some dissension on how we look at these cases. But when
you go forward to Buchanan v. Warley, the case about Jim Crow laws and
housing segregation, one of the people who was going to dissent--and I
think he thought better of it when he thought about that he would be
the first Justice in probably 70-some-odd years to say that he believed
in the Jim Crow laws and was upholding the Jim Crow laws--was Oliver
Wendell Holmes. He actually writes an opinion that has been found but
was never presented to the Court, and he ended up voting to get rid of
the Jim Crow laws, but he actually wrote an opinion in favor because he
believed so strongly in majority rule.
Some may think these are idle questions. I don't think it is an idle
question whether or not you have a democracy or a republic. I think
these questions--from Lochner, from Buchanan v. Warley, all the way
through to the present--are important.
In the last couple years, we had two cases on gun rights, the second
amendment, called Heller and McDonald. I think both of them can be seen
as, once again, an expansion of the 14th amendment to say: Your
privileges and immunities which are part of the 14th amendment include
the second amendment, and they include certain rights. In fact, I think
any power or any right not given up to the government or limited by the
enumerated powers is yours. So when they say the privileges and
immunities of the 14th amendment, I believe that means everything else.
What does that mean? It means I believe in a very circumscribed view
for the government.
One of the side benefits of having a circumscribed view of the
government would be that a government that is not allowed to do much
wouldn't get in many problems. For example, if your government wasn't
allowed to spend money it didn't have or if your government wasn't
allowed to spend money on programs that were not enumerated as being
within the purview of the Federal Government, you wouldn't have these
massive deficits. We would have never gotten in this fix if we believed
in a republic and not a democracy.
Now, what proof do I have that the current officials believe in
democracy versus republic? When ObamaCare came forward, the comments
from then-Speaker of the House Nancy Pelosi were: A majority passed
this. We passed this by majority. It is the law. Why would anybody
question the constitutionality?
The President said the same thing. The President said: A majority
passed this. What right has the court to overturn this?
The question has been written about by many brilliant scholars who
have looked at the Constitution and looked at what it means. Some of
this has to do with whether you presume liberty--and Randy Barnett has
written about restoring the Constitution--whether you have a
presumption of liberty or whether you have a presumption of
constitutionality. That may sound a little esoteric, but what does that
mean? It is whether or not, when they pass a law up here, you just
presume it is fine because it is the law and the judges should give
deference to it because it is a law.
It may sound confusing because you might think I am arguing for
judicial activism. In a way, I kind of am because if the Congress
usurps the Constitution, if the Congress takes away from your rights,
the judges should stop them in their tracks. I am not arguing for
deference to the legislature; I am arguing for deference to the
Constitution.
I am also arguing that there is a presumption of liberty. This goes
back to the way we want to look at the 14th amendment. The 14th
amendment says we have unenumerated rights. I guess, by extension, when
you go from the 14th amendment to the 9th and 10th amendments is the
best way to look at this.
The 14th amendment talks about privileges and immunities, and when
you look at what the 9th and 10th amendment do, they say those freedoms
you didn't relinquish or those powers you didn't give to the government
are left to the States and the people respectively, and it says they
are not to be disparaged. I always loved the way that was worded--not
to be disparaged. Not only is the Federal Government not to trample on
your rights, they are not to be disparaged. But these rights are
unlimited. They are yours. You got them from your Creator. These are
natural-born rights, and no democracy should be able to take these away
from you.
Now, by changing the Constitution, they could literally take away
your freedom of speech or your freedom to practice your religion. I
don't think I will see that ever happen, and it is difficult to change
our Constitution, but it is incredibly important that our Founding
Fathers put it in there and made it difficult.
I always kind of joke that if you go to a conservative meeting and
you talk about the second amendment, everybody pats you on the back and
they all love you--until you get to the fourth amendment. But if we are
going to have the second amendment, I think you have to have the fourth
amendment--the right to be free in your person from unreasonable
searches and seizures, that a judge should have to have a warrant to
come in your house. How are your guns going to be protected if they can
come in your house without a warrant? You have to have the fourth
amendment.
But you also have to have the fifth amendment. We don't talk about
the fifth amendment very much. Everything is about the second
amendment.
[[Page S1162]]
It has been all over the news. You can't turn on a channel without
hearing about the second amendment. But I think today is as good a day
as any to talk about the fifth amendment.
I have come here to filibuster the nomination of John Brennan because
I think the fifth amendment is important. But I think we shouldn't be
cavalier. I don't think we should be casual in our disregard for the
Constitution.
I think that to allow the President to trample on and shred the
Constitution and say that the fifth amendment no longer applies is a
travesty, and it is something we should not do lightly. So I think it
is worth a discussion. So far, it is sort of a one-way discussion, but
we will see. But it is worth a discussion that we talk about the fifth
amendment. It says that no person shall be deprived of their life or
their liberty. That is what it means. It is pretty clear, and it is
pretty plain. You can't take away someone's life and liberty without
due process or an indictment.
So it should trouble every American. I can't imagine that there
wouldn't be an American in our country who would not be troubled that
we are talking about killing noncombatants in America with drone
strikes. We have to get the President to respond to this. I don't think
it is good enough for the President to say: I haven't done it yet. I
don't intend to do it, but I might.
His oath of office says he will preserve, protect, and defend the
Constitution. The oath of office doesn't say: Well, I intend to when it
is convenient. I have never seen a President go out on the lawn with
the Chief Justice and say: I intend to follow the Constitution when it
is convenient. Because what he says is he won't drop a Hellfire missile
on you unless it is infeasible to capture you. That is what they are
doing overseas. If that is going to be the standard for America, if you
are not going to get a Hellfire missile dropped on you unless it is
infeasible--to me, that sounds like unless it is convenient; if it is
inconvenient. ``Not feasible'' sounds like inconveniency is the
standard.
I asked Secretary Kerry about this in his nominating process. I said:
Can you go to war without Congress approving of it, without a
declaration of war, like the Constitution says? And he said: No. I
intend to obey the Constitution--except for when I don't intend to obey
the Constitution. It is hard to get things through Congress, and it is
Congress's fault. There are too many squabbles and so many fights. So
most of the time we will come to Congress and we will ask for a
declaration of war--which, by the way, we have not done since World War
I, and when we did, it was voted on nearly unanimously.
But this is the standard we get to: We don't intend to kill anyone
and we don't intend to go to war without a declaration of war unless it
is impractical to get your approval.
That was the point. If you do not get the point of the Constitution,
if you don't get the point of what kind of system our government set
up, what kind of system our Founders set up, it was to make it
impractical. It was to make it difficult to go to war. It was to make
it difficult and make it important: There would be debate and checks
and balances. If inconveniency is our standard for going to war without
Congress, inconveniency is our standard for killing Americans on
American soil with drones, I think we have sunk to a new low. I just
cannot imagine as a country that is the standard you want to have.
I want to reiterate. This doesn't have anything to do with the
President being a Democrat. Whether he was a Democrat or Republican, I
don't question his motives. I met the President several times. I really
don't think he would do this. But the thing is, I am troubled by the
fact he will not tell us he will not.
If he is a good man and we believe him to be a good man who would
never kill noncombatants in a cafe in Houston, sitting out in a
sidewalk cafe smoking--oh, that's right, you are not allowed to smoke
cigarettes anymore--let's say they are sitting out in a cafe. If the
President is not going to kill them, why would he not say he is not
going to kill them there? That is the troubling aspect of this, if the
President will not acknowledge he is not going to kill noncombatants in
America.
The real problem with this is we are now engaged in a limitless war.
A lot of Americans may not know this but people all the time up here
are saying it. You have to read between the lines sometimes to hear
what they are saying. They are saying there is no geographic limit to
the war. That is what Brennan has said. What does that mean? I thought
we went to war in Afghanistan. I really thought that even at the time.
I was not here, but I would have voted to go to war. I thought they
were voting to go to war to get the people who attacked us on 9/11. I
was all for it. I still am all for that. But we are now using that
resolution to go to war to have no geographic limit for drone strikes
anywhere in the whole world; and not only no geographic limit, no
temporal limit, which means no timeline. There is no end to the war in
Afghanistan. The war will never end.
If you have no geographic limit--many on my side say the battlefield
is everywhere, and the battlefield is in the United States. It is one
thing to say that, but realize what they mean by that. They say because
the battlefield is here, the laws of war apply. That is what a drone
strike is. A drone strike is not something you do domestically. They
are saying the laws of war apply.
If you change the words around, what are the laws of war? Martial
law. I think if you ask Americans are you in favor of martial law by
the President, I don't think many would be. But many in this body would
gladly give up their power, would gladly say America is now the
battlefield so the laws of war should operate.
The laws of war are that there really is no due process in war. I am
not arguing for due process in war; I think it is, frankly, impossible.
If you have gone as an American to Afghanistan and you are fighting
against us, you don't get due process. You don't get your Miranda
rights. It is an impossibility to have the Constitution operating in a
battlefield. So I am not for that.
But I am against defining the battlefield as being everywhere,
including my house, my office, including everywhere in America. If it
is a battlefield, you have no rights. The war zone is a zone where you
do not get due process, you do not get Miranda rights, you do not get
an attorney. But it should be different in our country. If our country
is a battlefield, if our country is a war zone, what is left? I thought
we were fighting to preserve our way. I thought we were fighting to
preserve and protect our Constitution. What are we fighting for if we
are not going to protect our rights at home?
The Bill of Rights is too important to scrap it. The Bill of Rights
is too important to let any President, Republican or Democrat, simply
come forward and say: Well, I have not broken the Constitution yet, and
I do not intend to break the Constitution, but I might because they are
everywhere and the battlefield is everywhere and we are so frightened
that we must do anything.
I think it is good to be angry, upset, really to want vengeance
sometimes against people who attack you. I was all for punishing those
who attacked us after 9/11. But I think, also, at the same time we need
to not let that get in the way of what is our way of life and what we
are protecting here. When we look at this and we look at what is going
on with terrorism, we need to keep in perspective that these people can
do us harm, but they are incredibly weak people. They are incredibly
cowardly, in a way. You know, they have no armies. They have the
ability to inflict terrorism, which is what weak people do. People who
have no armies and no strength attack the civilians. It is a weak and
cowardly way to attack your enemies. But it is not something that we
should cower so much that we say: Gosh, someday they may come and blow
up the Senate, which would be terrible.
I think the things terrorists do are terrible, but I am not saying
that because we are so frightened of them coming that we should say:
Why don't we just have camps again, you know? Why don't we just round
up--the Japanese Americans were a threat in the war and we just rounded
them up and, guess what. No Japanese Americans attacked us, so it must
have worked. I think it was an abomination what we did, one of the
worst and most tragic episodes in our history, and the fact that the
courts upheld it. But are we so frightened we are going to give up on
[[Page S1163]]
our Bill of Rights? Are we so frightened the next thing we are going to
do is round up people of a different skin color because we think they
have cousins who live in Lebanon?
We cannot really give up on what makes America special. What makes
America special is the Bill of Rights. What makes us special is really
that we are not a democracy. There are a lot of democracies around the
world. We are a republic. We are a constitutional republic. We are a
country that enshrined our rights, took care and deliberation and wrote
down our rights, and they are not supposed to be usurped by any
majority. So it is important that we know we are not a democracy, we
are a constitutional republic. It is important for me to know and say
that my rights came from my Creator. You don't have to agree with me on
that. Some people think they came naturally to them, but they think
there is a natural state of being that is free.
We do give up some freedom. We give up some freedom to pay taxes. If
I work, all of my labor is mine, and I give up some of my labor and
some of my wages to a government. To live in a civilized world you do
give up a little bit. But what I have always argued for is that we
should minimize what freedom we give up. That is why you should always
minimize taxes. You should minimize the size of your government because
everything you give up in taxes or everything you give up to your
government is loss of your sweat equity, your labor. It is yours. It is
nobody else's. So you give up the very minimum of it.
There is another argument. That is sort of the freedom argument for
why we should keep government minimized. The other argument for why we
should keep government minimized is more of an efficiency argument.
This comes from Milton Friedman, but I think he put it very succinctly.
He said nobody spends somebody else's money as wisely or as frugally as
you spend your own.
It is a simple statement, but I think in one statement, one simple
sentence, it sort of brings forward something about government that is
very true. People up here just do not spend it wisely. The reason they
don't spend it wisely is because it is not theirs. In fact, they have a
perverse and wrongheaded incentive that says: I need to spend all of my
money or I won't get it next year, so government agencies incredibly
want to spend all the money and more to make sure there is nothing left
at end of the year.
If you listen to some people, they would say: Oh, no, government is
just here to help people. Without government it would be--without this
massive huge government--we have to have the debt because we need all
the things we get from government. Will Rogers once wrote and said:
``You're lucky you don't get all the Government you are paying for.''
George Will recently wrote, and he sort of put a twist on it, and he
said that used to be true, but now I think you are getting more
government than you pay for. That is sort of the truth. We get a ton of
government. Our taxes cover about 60 or 70 percent of what we spend up
here. What kind of country gets rich borrowing 30 cents on every
dollar? What kind of family can spend 30 percent more than comes in?
Some things are pretty simple. Wealth accumulation for you or wealth
accumulation for a country is by savings. You don't get wealthy by
spending more money than comes in. So as we look to these things, I
think we need to be cognizant of the reasons we would want to have
smaller, not bigger, government. But we would have smaller government
if we paid attention to the rules.
The rules are very important, and when people talk about ``oh, that
would be a monarchy of the law,'' or they say ``that would be too rigid
to live under the laws, we need a living, breathing, evolving
Constitution,'' I think things change over time. You get new
technologies; drone strikes and things are new technologies. But I
think what does not change are certain freedoms that are going to be
the same now as they will be in 10,000 years.
I think the freedom for people to worship is something that I don't
want majority rule to decide. You say: What does the freedom to worship
have to do with drone strikes? It is hard to worship after a Hellfire
missile has been launched on you.
So all of our rights--there is a panoply of rights that are all
interconnected, and they come from the basic right to life. If you
don't have the right to be secure in your person, you don't have any
other rights. So as we diminish one right we attack at the foundation.
But if we are at a foundation where we are saying we can strike a
person in America with no trial, with no accusation, I think we have
come a long way from where we began.
I worry about it. I worry about it not just in the abstract sense,
not just in the sense that these are a right in abstract and that we
lose something we cannot actually touch or feel. I worry really about
it in the sense that I don't know how you continue to exist as a
country if you do not believe in some fundamental right, some
fundamental right and wrong.
After ObamaCare passed and there were some questions about its
constitutionality, they asked a Representative from the House side--he
was asked: What about constitutionality? He said: Why would I care?
Most of the things we do up here have no constitutional justification.
We have gotten to the point where people care more about having
enough votes. They think it is right if you have a majority vote as
opposed to that there are certain immutable rights and wrongs; that
there are certain immutable rights that were there at the founding of
our country that will be there in 100 years or 1,000 years from now:
Your right to be secure in your person, the right that the government
cannot take away these privileges.
This is not a new fight. Really, from the beginning of time there has
been a struggle with the people versus the leaders. The leaders always
want more. The amazing thing is it is sort of like a contagion. Not
many people get to be President in this country. One person gets to be.
We have had in the forties--44 or 45 Presidents. We have not had many
Presidents. But there is something contagious about the office. It is
that power corrupts, I think.
Lord Acton said it is not just that power corrupts, but that absolute
power corrupts absolutely.
I think people can become intoxicated with power. I don't know if
that is the explanation for President Obama's about-face. He was one
who at a time when he was in this body believed in some restraint,
believed in Senate authority, believed in--actually he did not even
believe in raising the debt ceiling when he was here. The thing is,
what we would hope for is someday we have a President who believes,
even after assuming office, that the powers of the office should be
protected. I think we run the risk, as we allow more and more power to
gravitate to the President, we run the risk of living under an imperial
Presidency.
I have said some inflammatory statements: that the President is
acting like a king. Some of that is inflammatory and provocative, but
some of it has some ring of truth to it or I would not get so much
push-back. Kings operate by edict. They say it is so; make it so. There
is no give-and-take. There are no checks and balances between the
legislature and the Presidency.
This has been going on for a long time. It is a titanic struggle and,
frankly, I wish more people were interested in it. I wish we had a
dozen people down here saying: No President should assume such
authority. No President has the right to say he is judge, jury, and
executioner. No President should be allowed to say that.
It is not enough for him to say: My motives are good. I don't intend
to do so. I haven't done so yet, but I might.
If that is the standard we are going to live under, we have a great
danger in our country. It is not enough. We live under the rule of law,
and the law is quite explicit. The fifth amendment says no person shall
be detained without an indictment or without due process.
I find the answer to be incredibly easy. I have asked the President
an easy question. My question is, Can you kill an American on American
soil, a noncombatant, with a drone strike? It should be an easy answer.
(Mr. HEINRICH assumed the chair.)
When a President will not answer a question or when they answer the
question and it is an evasive answer, our
[[Page S1164]]
concern is if they answer yes. I thought they would never answer the
question, but they finally did. They said: Yes, we can conceive of
situations when we might. The situations they conceive of, though, are
attacks on the country, which I don't disagree with, so they are
talking about things that are not controversial.
If planes are attacking the Twin Towers, New York or DC, there is not
any question on either side of the aisle among almost anybody in the
country or the universe who doesn't believe we can repel lethal
threats. What we are talking about are the noncombatants who are either
eating dinner, sleeping in their house or walking down the street. A
large percentage of the drone strikes have been people who were not
carrying arms or in combat.
Were they bad people? I am not positive I could say one way or the
other, but I don't want that sort of standard to be used in America. I
don't want the standard to be that if someone is close to a bad person
who happens to be a male between the ages of 16 and 50, that they are
no longer a civilian but actually a militant. Is that the standard we
are going to use in America?
I don't want the standard to be sympathizing. Has anybody ever been
on the Internet? Has anyone ever seen crackpots who are on the Internet
and say all kinds of crazy things? If someone is saying crazy things
and they happen to be against our government, is that enough for a
Hellfire missile to come down on their house? Is sympathizing enough?
People have written and talked about this. During the Vietnam war there
were some people who probably were treasonist and probably should have
been tried for treason. Having said that, I would not kill them without
some sort of due process or trial. The idea of a right to trial by jury
has been the basis of our history for hundreds and hundreds of years.
It is the basis of a foundational principle for our country. I cannot
imagine we would be so cavalier as to let it go.
As we move forward with this nominating process, I have decided to
occupy as much time as I can on the floor to bring attention to this
issue. Ultimately, I cannot win. There are not enough votes. There
would be if there was truly an uprising of bipartisan support that
would come to the floor and say: It is not about John Brennan. It is
about a constitutional principle and we are willing to delay this until
the President can explicitly say noncombatants in America will not be
killed with drone strikes. I think that is pretty easy to answer, but
it has been like pulling teeth.
I have written letter after letter for weeks and weeks trying to get
an answer on this and we have not had much luck. There have been people
who have written about the lawfulness of these lethal operations
directed against citizens, and there is a question both in the country
and outside the country of what the standard will be. Will it be the
same standard? Some say there is no standard once we get outside the
country and that anybody can be killed whether they are an American
citizen or not.
Frankly, I don't like the idea of no standard. For example, the most
prominent American who was killed overseas was al-Awlaki. His name was
publicly known to be on a kill list for months. I see no reason why he
could not have been tried in a Federal court expeditiously--if he
didn't return home, he would still be tried--given representation, and
tried for treason. These are not frequent cases that occur overseas, so
I see no reason why we would not use a Federal court. The Federal
courts are adapted in such a way that we can go into secret session if
there is classified material. The Federal courts in Washington, DC,
Philadelphia, and New York have done this on occasion. I think we could
do this in Federal court. We have convicted quite a few terrorists--I
think that they number up to several hundred--in the United States in
our courts.
The main thing I object to is people becoming so fearful they
cavalierly give up their rights. We had two terrorists in Bowling
Green, KY, my hometown, which has 50,000 people. Who would have thought
we would have two terrorists? They were conspiring to either buy or
send Stinger missiles to Iraq. I am glad they were caught and punished.
They were tried in a court.
Many people said let's just send them to Guantanamo Bay forever. Once
we go down that path where we are not going to have any due process--
our courts have done a pretty good job. In fact, I think we have not
let off anybody from one of our courts that should have been kept here
and tried.
I do have a question as to how the terrorists got into the country.
That goes back to the issue of not wanting terrorism to occur, but how
should we combat it? Is it best if we combat it in Yemen, Mali,
Somalia, Afghanistan, Pakistan or should we combat terrorism by knowing
who is coming into and leaving our country?
For example, we have allowed 60,000 people from Iraq to come into
this country in the last 2 or 3 years. Frankly, I think that is a lot.
They come here under asylum. The problem with asylum is I thought
asylum is when a county was escaping a dictatorship. We won the war in
Iraq. They have a democratic government over there, and I would not
understand why they would want to leave a democratic government. Also,
the 60,000 who leave--other than maybe the two we captured in Bowling
Green, we presume that most of them are pro-Western--are the people we
want to run Iraq. There are all kinds of reasons to stay in Iraq to run
the country.
In letting so many people come in, we didn't do a very good job
because the two terrorists who were allowed to go to Bowling Green had
their fingerprints on an IED that was in a warehouse somewhere. They
did not find a match on any of the fragments with their fingerprints on
a database until after we caught them. Once we knew their names and had
their fingerprints, we checked some fragments for their fingerprints
that had been in a warehouse for years and years. So we are not quite
doing the job.
Sometimes we want to analyze so much information that we get
overwhelmed with the information too. We collect millions and millions
and billions of pieces and bits of information, but it cannot all be
analyzed. Some of it, I fear, goes against our rights to privacy. Any
of our e-mails that are over 6 months old can be looked at. We found
out about this recently when we had an adulterous affair in our
military.
I believe our third-party records are ours. I had an amendment
recently on this, and I told people my Visa bill is pretty private.
Just because I use my Visa card doesn't mean I have given up my
information and that the government gets to look at my Visa bill every
month, but that is what we have done. A lot of these things have been
slipping away from us for a long time. It is not just President Obama;
it is 40 or 50 years of court cases.
Thirty, forty or fifty years ago, we decided that once a third party
had your records, they were not private anymore. I think that is
absurd. Think of the age we live in and how a lot of people don't use
cash at all. Our Visa cards have everything on it. We can look at a
person's Visa card and find out if they have seen a psychiatrist, what
kind of medicines they are on, what kind of magazines they get, what
kind of books they get. We can look at a person's Visa bill and find
out if they gamble or drink or what their travel plans are. We can find
out a ton of information on a person's Visa bill.
Should people be allowed to look at a Visa bill, without asking a
judge, and then say: We think he is involved in this. We are not saying
we cannot do this for a terrorist, but what we should do is go to a
judge and present some evidence and say we think he is a terrorist and
we want to look at his Visa bill. People in America should not be able
to have their Visa bill open to scrutiny, and that is basically what we
have now. Our banking records, our Visa statements, and all our records
that are held by a third party are not protected.
Some people may have heard about how they want to have cyber
security. Everybody wants their computers to be secure, including the
computer companies. They work nonstop trying to keep hackers out of
computers, but the law they want to pass gives immunity to the computer
companies. A lot of us don't think much of it. We check off the
confidentiality button and hope that after we have signed the contract,
they will not share it. They share it in a way that is anonymous, and
we put up with that in order to get a search engine. I am OK with that.
[[Page S1165]]
What I am concerned about is when we pass the cyber security bill, we
cannot sue them if they breach the policy. So then everybody's
computer, searches, and reading habits are open to the Federal
Government. Because we are fearful of people coming at us and fearful
of attacks, we give up our rights. I thought we were fighting to
preserve our rights.
So what are we fighting for? These battles are going on and on
throughout the government. The interesting thing about these battles is
that they are not always Republican v. Democrat. These are battles that
are sometimes coalitions of people from the right and people from the
left who have gotten together and fought over these issues.
In the case of trying to get the President to acknowledge he will not
do drone strikes, there have been people on the Democratic side of the
aisle who have aligned with me and helped me get this information. The
President probably would have refused until Hell froze over to give me
anything, but the fact is we had Democrats ask to get information also.
Suddenly we were able to get a coalition and get the information, but
it has not been easy. The fact that they don't want to acknowledge
limitations as to the President's power worries me that they believe in
an expansive Presidential power. In order to stop that, we have to be
protective of our rights. We have to be able to not so easily give up
on our rights.
There is a white paper that was written, and the title of it is ``The
lawfulness of a lethal operation directed against a U.S. Citizen who is
an operational leader of al-Qaida, foreign associated forces,'' and
this is from the Department of Justice. This white paper sets forth a
legal framework for considering the circumstances for which the U.S.
Government could use lethal force. One of the things they do in the
document--this was leaked repeatedly--is they tell of the criteria for
when they can kill people overseas.
We don't know the criteria for killing people in this country. They
make a contention that the rules will be different, but no one is
acknowledging exactly whom they can kill or what the rules will be. For
the people who are killed overseas by drone strikes, the thing they
come up with is that they say it has to be an imminent threat, but it
does not have to be immediate.
To my thinking, only a bunch of government lawyers could come up with
a definition for imminent threat that says it is not immediate, so that
is the first problem with it. Is that going to be the standard that is
used in America, that there has to be an imminent threat, but it
doesn't have to be immediate?
My next question is: What does that mean? Does that mean
noncombatants who we think might someday be combatants are an imminent
threat? It is a pretty important question. What is imminent. There is
no question of what imminent lethal force is. If someone is aiming a
gun, a missile or a bomb at you, there is an imminent threat, and no
one questions that. No one questions using lethal force to stop any
kind of imminent attack. We become a little bit worried when the
President says imminent doesn't have to mean immediate. When that
happens--and then we see from the unclassified portion of the drone
attacks overseas--many of these people are not involved in combat. They
might someday be involved in combat, they might have been involved in
combat, but when we kill them, most of them are not involved in combat.
So even overseas there is some question of this program, but my
questions are primarily directed toward what we do in this country.
It says the U.S. Government can use lethal force in a foreign country
outside the area of active hostilities. That is, once again, the point.
We are not talking about a battlefield. But because the battlefield has
no limits--since the battlefield is not just Afghanistan. The
battlefield has no geographic limits so the battlefield is the whole
world, and many in this body say the battlefield is the United States.
So once we acknowledge and admit that the battlefield is the United
States, this whole idea of what is imminent versus what is immediate
becomes pretty important because we are talking about our neighbors
now.
The other thing about this is we need to try to understand who these
terrorists are. Members of al-Qaida. There are no people walking around
with a card that says ``al-Qaida'' on it. There are bad people. There
were bad people associated with the terrorists--and we have killed a
lot of them--who were in Afghanistan training and part of the group
that attacked us. But there are terrorists all over the world who are
unhappy with their own local governments--some of them are unhappy with
us too--but to call them al-Qaida is sometimes a stretch and sometimes
open to debate as to who is and who isn't.
Then they use other words, and words are important. They are either a
``member of al-Qaida'' or ``associated forces.'' I don't know what that
means. Does one have to talk to al-Qaida or commit terrorism or does a
person have to be in a country where we are supporting the government
and people are attacking the government? It is not always clear.
The other question we get to when it is either al-Qaida or people
associated with al-Qaida is that now we get to the United States and we
have the government defining what they say as terrorism. So the
government has put out some documents, one by the Bureau of Justice, to
warn us of who might be a terrorist. In fact, the government has
programs where they want people to inform: If you see someone, tell
someone. If you see these people, you are supposed to inform on them.
So some of the characteristics of the people who might be terrorists--
and I don't know, they don't have to be an imminent threat or an
immediate threat, but some of these people might be terrorists. I don't
know. If the President is going to kill these people, he needs to let
them know. Some of the people who might be terrorists might be missing
fingers. Some people may have stains on their clothing or some people
may have changed the color of their hair, some people may have
accumulated guns, some people may have accumulated weatherized
ammunitions, which might be half the hunters in the South this time of
year, or people who might like to pay in cash, or people who have seven
days of food on hand. I know people who just for religious reasons are
taught to keep food on hand. In fact, government Web sites sometimes
tell us to keep food on hand for hurricanes. If you live along the
coast, one government Web site says keep food on hand, and another one
says if you do, you might be a terrorist. They are not saying you are,
but if these are the characteristics of terrorism, would you not be a
little concerned that if the government is putting this list out, we
are going to drop Hellfire missiles from drones on people in America
who might be on this list? I am particularly concerned about that.
So I think we can't be sloppy about this. We can't allow ourselves to
be so I guess afraid of terrorism or afraid of our enemies that we give
up on what makes us Americans. What makes us Americans are our
constitutional rights that are enshrined in our Constitution. It is why
we have gone to war, to defend these rights. Will we think the war
still has purpose if we are no longer able to enjoy these rights at
home?
The problem as I see it as we go forward is that I wish I could tell
people there is an end to this, that there would be a grand battle for
our constitutional rights or for what rights we lose overseas, what
rights we lose here if we travel. The problem is they don't see an end
to the war. They see perpetual war, perpetual war without geographic
limits, and they see the battlefield here, so they want the laws of war
to apply not only there but here. In other words, what they are saying
is the laws of war are martial law. These are the laws of war. These
are the laws that are accepted in war.
We accept a lot of things on the battlefield that we don't want to
accept here. I acknowledge we accept that we don't get Miranda rights
on the battlefield. We don't get due process. We don't get an attorney.
If they are shooting at us, we shoot back and kill them. But the thing
is if a person is sitting in a cafe in Houston, they do get Miranda
rights, they do get accused of a crime, they do get a jury of their
peers. That is what we are talking about here. The President should
unequivocally come forward and state that noncombatants--people not
involved with lethal force--will not have drones dropped on them.
[[Page S1166]]
The other thing he should acknowledge is the law--not only the
constitutional law but the law since the Civil War--has said the
military doesn't operate in the United States. There is a reason for
the military not operating in the United States. Why? The military
operates under different rules of engagement than policemen. The rules
are stricter for policemen. We do it because we are not in a war here
so the policemen have to call judges. A lot of people don't think this
through, though, and they will say, These people are terrible, awful
people who would cut your head off. They are right; they really are bad
people. We have really bad people in our country too sometimes. We have
murderers and rapists. But tonight at 4 a.m. if there is a rapist going
around the neighborhood and you get to a house and there isn't an
imminent thing going on but you are told he might be in this house,
before the door is broken down, they call on a cell phone, they get a
judge out of bed, and they say, we have chased him into this
neighborhood, no one is answering, we want to break the door down, can
we have a warrant. Most of the time the police have to call for a
warrant. We have a process. But when he is arrested, they don't just
string him up. We don't have lynchings in our country. We don't let
mobs decide who is guilty and who is not.
I don't question the President's motives. I don't think the President
would purposefully take innocent people and kill them. I really don't
think he would drop a Hellfire missile on a cafe or a restaurant as I
have been talking about. But it bothers me that he won't say he won't.
It also bothers me that when he was a Senator in this body and when he
was a candidate, he had a much higher belief and standard for civil
liberties and he seems to have lost that since he has been the
President.
I think this is an important issue. It goes beyond John Brennan. It
goes beyond the President. It goes to an issue that rises above I think
all other issues we consider here. I have voted for three of the
President's nominees, not because I agreed with them politically; in
fact, I disagreed with the vast majority, but I disagree with the
President on a lot of political issues. I voted for his nominations
because I think the President does get some prerogative in deciding who
his political appointees are. I have chosen to make a stand on this one
and not so much because of the person but the principle of this. I have
nothing personally against Brennan. I have nothing personally against
the President. But I have a great deal of concern about the rights that
were enshrined in the Constitution. I have a great deal of concern
about this slippery slope of saying there won't be accusations, there
won't be trials, that we will summarily execute people, and the
question is, will we execute noncombatants. If he is not going to, he
ought to say so.
In this white paper that was released, they talked about the three
different conditions. One of them was imminence, but then they
qualified it by saying imminent doesn't have to be immediate. Another
one was feasibility. They said it is not feasible to get some of these
people overseas and so we kill them. But feasibility, to a certain
extent, could be defined as convenience. So the question is, in
America, what if they live up in the Rocky Mountains and there are no
roads leading up to where they are; they are not very accessible; it is
not very feasible; so we are going to do strikes based on convenience.
Is that going to be the standard?
When we talk about standards, they say they have a process in place,
but the process is very important. The standard is important, but it is
also important that one group of people, one political group of people
or one politician doesn't get to decide that standard. And part of the
way the process in our country works is that there are checks and
balances between the three branches of government so that one branch of
government doesn't get to unilaterally decide what these standards are.
Because some of the standards are a little bit loose--whether you are
near someone. Apparently, we are not counting civilians who are killed
by drone strikes if they are males between the ages of 16 and 50. If
they were close to the people we are targeting, we just count them as
other militants. Are we going to do that in the United States?
If you are eating with 15 of your family members and one of them may
or may not be communicating by e-mail with somebody in a Middle Eastern
country, can we kill all 20 of them, and because some of them are
within the right age group, that is fine? Let's say you are eating with
your cousin who is communicating with somebody in the Middle East and
that person may or may not be a bad person, and then when you leave--
let's say you are going to a wedding and you are going from a preparty
and there are 20 cars all going to the wedding and they know or they
think they know there may be a bad person among the group; why don't we
just strike the caravan? These are called signature strikes. The Wall
Street Journal said that the bulk of our drone strikes overseas are
signature strikes. That is a good question for the President: Are
signature strikes going to be the standard for killing Americans in
America?
The President simply says the rules will probably be different for
inside than outside. Well, I frankly don't think that is good enough.
He says he has no intent to kill Americans in America. I frankly don't
think that is good enough. I don't think it is good enough for the
President to say I have no intention of breaching the fifth amendment.
Intending not to is not the same as saying I won't. His oath of office
says I will not--no, it says: I will protect, defend, and preserve the
Constitution. It doesn't say I intend to protect, defend, and preserve
the Constitution except for when it is infeasible or inconvenient. That
is not what the rules are about. I think the rules are pretty absolute.
The rules are the Bill of Rights and they are ours. We got them from
our Creator. They were enshrined in the Constitution. Nobody gets to
take them from us. Nobody. No President from any party gets to be
judge, jury, and executioner.
This decision to let this go, to let this nomination go without an
answer is a big mistake for us. If we do this--if we let this
nomination go without a debate, without significant opposition, without
demanding more answers from the President--the problem is we are never
getting any more answers. There will be some in this body who say,
Well, just let it go. The snow is coming and we want to go home. The
problem is that he is never going to answer these questions unless he
is forced to. I suspect George Bush would have been the same. I suspect
a lot of the Presidents would be the same. And I think it is
unfortunate that they see their power and their sphere of power as
being more important than our constitutional rights. But we won't get
this by just the glad hand and the winning smile. That is not going to
get any information from the President.
The only way this President would ever give us information is if we
were to stop this nomination. I am not even saying stop it personally.
My objection really is not so much to Brennan being in charge of the
CIA as my objection is to the program and to the President not
admitting that he can't do drone strikes in America.
I will continue to do what I can to draw attention to this and we
will see where things lead. But I am disappointed in the President. I
am one who while I am a Republican--I didn't vote for him in 2008 or
2012--I am one who has admired certain aspects of his policy. I admired
his defense of civil liberties. I admired him in 2007 when he said
Americans shouldn't be involved in torture. I admired him when he said
we should follow the rule of law and we should have warrants before we
tap people's phones and that we shouldn't be trolling through people's
records. But I find a great irony and, frankly, a great hypocrisy in
someone who would defend getting warrants before we tap your phone but
won't defend a trial before we kill you. Tapping one's phone is a
breach of privacy and it should only be done if a person has been
accused of a crime and evidence has been presented and a judge grants a
warrant. But killing someone with no due process, with no judicial
oversight--some are saying, Oh, we will get to it. We are eventually
going to set up a court, maybe a FISA court. Unfortunately, a FISA
court probably won't be good enough because it will be in secret and a
person should have a chance to confront their accusers and have a
public trial if a person is going to be killed.
[[Page S1167]]
Typically what I am talking about is American citizens, but there needs
to be some oversight. But the problem of waiting to do this and saying,
Oh, we will do this sometime, we will get to it eventually, never
happens. The same way with saying, Oh, we will get to--we will keep
asking the President for more information, but it never happens. If we
do not take a stand for something we believe in, it is going to slip
away from us. I think our rights are gradually eroding. I think they
are gradually slipping away from us. I think the understanding of the
Constitution as a document that restrains the government, that
restrains the size and scope of the government, has been lost on a lot
of people. I think it is something we shouldn't give up on.
When the President goes through his three different items that were
leaked through this memo, he says there has to be an imminent threat.
He says their capture has to be inconvenient or infeasible. And he says
the operation of killing the person has to be conducted within a manner
consistent with the applicable law of war.
Here is the problem. That sounds fine if you are in Afghanistan and
in the mountains fighting a war. But I am talking about downtown
Washington, DC. I am talking about living in the suburbs of Houston or
Atlanta. Are we going to have drone strike programs in America
consistent with the applicable law of war?
See, the other way to put ``law of war''--and this is not a stretch,
this is just turning the words around--``martial law.'' Now people, if
you put it that way, might have a little different impression. Do we
want martial law in our country?
If you go back to the battle we had over indefinite detention last
year, where they are saying they can take a citizen without a trial and
actually send them from America to Guantanamo Bay if they are accused
of terrorism--accused, not convicted; accused of terrorism--you start
to worry about some of the stuff happening in our country, that this
could actually happen.
One of the sort of ironies of looking at different governments and
looking at what makes people unhappy--in Tahrir Square in Cairo, there
have been hundreds of thousands of people protesting. It is interesting
what they are protesting. One of the large things they are protesting
is something called an emergency decree, which I believe went in place
by Mubarak 20-some-odd years ago. So you get leaders who come in, and
they use fear to accumulate power, and you get a decree. So you get
martial law. The martial law, ironically enough, in Egypt allows
detention without trial. They do have the right to trial, but there is
an exception, and it has been accepted for the last 20-some-odd years,
and the people are hopping mad over it. So we get involved in their
country and their politics and give them money and weapons, and we have
some of the same debate and problems here at home--whether or not you
can indefinitely detain.
The President's response to this was also pretty disappointing. It
would not have become law without him. I think he threatened to veto
it, and then he signed it anyway. Empty threats are of no value, and he
struck no great blow for America or for American freedoms by not
vetoing this. But when he signed it, he said something similar to what
he is saying now. He said: Well, I have no intent to indefinitely
detain people.
Am I the only one in America who is a little bit underwhelmed by the
President saying he has no intent to detain somebody but he is going to
sign it into law saying he has the power to? That is the same thing we
are getting now in this drone strike program: Don't worry. Everything
is OK. I am your leader, and I would never detain you. I would never
shoot Hellfire missiles at noncombatants. I will not do that.
I can take him at his word, but what about the next guy and the next
guy? In 1923, when they destroyed the currency in Germany, they elected
Hitler. I am not saying anybody is Hitler, so do not misunderstand me.
I am saying there is a danger, even in a democratic country, that
someday you get a leader who comes in, in the middle of chaos, and
says: Those people did it. Those people are the mistake. Those people
are who we need to root out.
If the laws have been removed that prevented that from happening, if
the laws have been removed and they say: We can indefinitely detain--in
Hitler's case, he said: The Jews, those bankers, the Jews did this to
us. And they were indefinitely detained. Now, am I saying this is going
to happen in our country? Unlikely. I cannot imagine any of our
leaders, for all of our disagreements, doing that. But if you do not
have the law to protect you, you do not have that protection because
you do not know who the next guy is and the next guy or the next woman.
When Madison wrote about this, he was very explicit. He said: We have
these rules in place because we do not have a government of angels. If
we had a government of angels, we would not need these rules.
I will never forget the discussion with somebody about the Kelo case.
The Kelo case was a case where the government took private property and
gave it to a richer person who had private property who wanted to
develop it. Ironically, the justification they used was blight. So they
take it from one middle-class person and give it to a rich corporation,
and they say they are doing that to rectify blight. But when they did
that and when they came down with the ruling, it was concerning the
logic of the way they get to this ruling, that basically they really do
not have this right to your property.
When the Kelo decision came down, it really bothered me. But I
remember we started having the battle in our local government. In our
local government, there was a battle over a resolution. The resolution
said--it was in the city council--the resolution said the local city
government cannot take private land and give it to another person. It
was really like so many other things. The intention of eminent domain
was to have highways and thoroughfares that you might not get
otherwise, but it was never intended to take from a private owner and
give to a corporation. That is what they did with the Kelo decision.
So, anyway, local governments began talking about this, and I was
talking to one of my local government officials--this is probably 20
years ago, 15 years ago--and their response was, but I would never do
that. I would never take private land through eminent domain and give
it to another corporation. I would never do that.
And I believed that person. And I really, frankly, give the President
the benefit of the doubt. I do not question his motives. I do not think
he probably will kill noncombatants. But I certainly do not want him to
claim that he has the authority to kill noncombatants. So this is a big
deal. It is a huge deal.
So with the eminent domain, we finally passed it in our local
commission. It was like 3 to 2, but in my town in Kentucky, you cannot
take private property with eminent domain and give it to another
private individual, because it is not about the individuals involved,
it is about the fact that we do not always have angels running our
government. We do not always know whom we are going to get.
If we ask the question, Do you want a government that is run by
majority rule or a government that is restrained by its documents, it
is a pretty important question. Ultimately, there are ramifications to
majority rule, to basically whatever the majority wants.
One, the majority can vote upon minority rules they do not pass on
themselves. In fact, Martin Luther King wrote--this is one of my
favorite quotes from him--he said: An unjust law is any law that a
majority passes on a minority but does not make binding on themselves.
I thought it was a great statement because you could probably almost
apply that to any law written on any subject. If the law excludes
certain people and is not applied to everyone, then by definition it is
an unjust law. What a great way to put it succinctly and a great way
that we should look as far as trying to write rules.
But you have to decide as a country whether you want majorities or
politicians to decide things or whether you want reliance on documents
and on a process and on a rule of law that protects you.
If we rely on, basically, the whims of politicians, I think it is a
big mistake. If we are going to rely on the politician basically
sitting in the Oval Office going through flashcards and a
[[Page S1168]]
PowerPoint presentation to make the decision on life and death for
Americans in America, I think it is a huge mistake.
Any people who watch trials and court cases realize that even courts
are not perfect. It is actually amazing how we even get it wrong with
courts and trials and juries. Many States and even many people who were
for the death penalty have questioned their support of the death
penalty because of the imperfection of our courts. Through DNA testing,
we have found we do not always get it right even with that. I think in
Illinois they stopped the death penalty after having so many DNA
testings that showed there was an incorrect diagnosis of who had
committed the crime.
So the question becomes, even with all the checks and balances of the
court, are you worried at all about having one politician accuse,
secretly charge, I guess--if you can call it a charge--and then execute
Americans? I am incredibly troubled by that. I cannot imagine we as a
free country would let that stand. I think it is an insult to every
soldier in uniform fighting for American freedom around the world that
we would just give up on ours at home, that the President would
cavalierly or incorrectly or without forethought, without sufficient
forethought, not tell us, not go ahead and explicitly say: This will
never happen in America.
His answer to me should not have been, no, we will not kill
noncombatants. It should be, never--no, never. We will never in America
come to that. Under my watch, we will never, ever allow this to happen
in America.
It is incredibly disappointing. It should be disappointing to all
Americans or anyone who believes in this. We have to realize that
trying to figure out guilt or innocence is very complicated. Anybody
who has ever served on a jury realizes how difficult it is to determine
guilt. And sometimes you are unsure. Some cases are actually decided
by, gosh, the evidence was so equal, but there was not a preponderance.
I could not become completely convinced, and this person is going to be
put to death?
Contrast the feeling a juror has and what a juror is trying to do in
finding innocence or guilt and letting someone be punished by death
with our current standard. Our current standard for killing someone
overseas is that you can be sympathizing, you can be close to people
who we think are bad, you can be in a caravan that we say bears the
signature of bad people.
Now, there is another debate that can be had about whether those are
sufficient standards for war. And the standards are different for war
in our country. But we have to adamantly and unequivocally stand up and
say to those who would say this is a battlefield: The hell it is a
battlefield. This is our country. If you want to say this is a
battlefield--if you say we are going to have the laws of war here, we
are going to have martial law here--by golly, let's have a debate about
it. Let's have a discussion in the country. Let's have everybody
talking about, are we the battlefield? Is this a battlefield? Is our
country a battlefield? Because what that means is that you get no due
process in a battlefield.
I am not here to argue and say that you get due process in a
battlefield. I am here to argue that we cannot let America be a
battlefield because we cannot say that we are no longer going to have
due process, that we are no longer going to have trial by jury, that we
are no longer going to have presentment of charges and grand juries. It
is impossible in a battlefield. In Afghanistan, it is impossible to
say: Hey, wait a minute, can I read you your Miranda rights? It is
impossible. We are not arguing for that. We are not arguing for a judge
or a jury or anything else. If people are shooting at our troops, they
can do everything possible, including drone strikes. It is not even the
technology so much that I am opposed to, but the technology opens doors
that we need to be concerned with.
Defense of our soldiers in war--there is no due process involved with
that. But realize the danger to saying America is at war, America is
the battlefield, because also realize the danger that these people--
they are Republicans and Democrats--these people do not believe there
is any limit to the war, there is no geographic limit, and there is no
temporal limit. It is a perpetual war. And many of them--if you prompt
them or provoke them--will open up and say: Oh, yes, America is a
battlefield. We need the laws of war. And you ask them: When is the war
going to end, When will we win the war, they will admit it--some of
them will frankly admit it. They will say the war may go on for a long
time. Some have talked about a 100-year war, 100 years being in these
countries. But basically we are talking about perpetual war. We are
talking about a war with no geographic limit, no temporal limit, and a
war that has come to our country.
There will be bad people who come to our country whom we need to
repel. We are not talking about that. If planes are being flown into
the Twin Towers, we have the right to shoot them down with our
military. That is an act of war. No one questions that. If someone is
standing outside the Capitol with a grenade launcher, we have a lot of
brave Capitol policemen. I hope they kill the person immediately.
Lethal force to repel lethal force has never been questioned by anybody
and is not even controversial.
But they want to make the debate about that and not about killing
noncombatants driving in their car down Constitution or sitting in a
cafe on Massachusetts Avenue. There may be bad people who are driving
in their car, and there may be bad people sitting in cafes around the
country. If there are, accuse them of a crime, arrest them and try
them.
The battlefield coming to America or acknowledging that is an
enormous mistake. So there are some big issues, some issues that we as
a country gloss over. We watch the nightly news. There is sometimes so
much hysteria about so many issues, so many people yelling back and
forth. But this is an issue that I think if we could get a frank
discussion--I have proposed to the leadership--I have not had much luck
with this--but I proposed for a constitutional debate or a debate of
importance that everybody come, and instead of hearing me all day, we
take 2 or 3 minutes and we go around the room and everybody speaks, it
is limited, but there is some kind of debate and discussion--less
speechmaking and more debate.
I proposed we have lunch together. I have asked to come to the
Democratic lunch. I have not gotten the invitation secured yet. It has
only been 2 years so it may happen, but there are many reasons for
discussion. There are many reasons why we should have civility. There
are reasons why people on both sides of the aisle can agree to this. If
we were to have a vote, maybe not on the nomination but a vote on
restricting drones--there is a bill out there that we are working on
that would restrict drones to imminent threats. It does not even get
into the distinction of the military--things in the country would be
the FBI; it would not be the military because that is the law. There is
an important reason for the law.
But we have a bill we are going to come forward with that we are
working on that would simply say there has to be a real imminent lethal
threat, something we can see. Then I think people could agree to that
because it is not so much the drone we object to. If some guy is
robbing a liquor store 2 blocks from here and the policemen come up and
he comes out brandishing a gun, he or she can be shot. Once again, they
do not get Miranda rights. They do not get a trial. They do not get
anything. If you come out brandishing a weapon and people are
threatened by it, you can be shot.
So it is important to know what we are talking about. We are not
talking about the guy coming out of the liquor store with a weapon.
Even a drone could kill him if the FBI had drones. So my objection to
drones is not so much the technology. There may be a use for law
enforcement here, but there is also potential for abuses.
Many government agencies have drones. These hopefully will remain
unarmed drones. This is a different subject. But it is a subject that
sort of dovetails from this into the next subject, which is, should you
have protection from the government snooping--from the government
looking through your bedroom windows? I remember that issue when I read
``1984'' when I was in high school. It bothered me, but I could not
quite connect. I felt somewhat secure in the sense that we did
[[Page S1169]]
not have two-way televisions. This was back in the 1970s. We did not
have the ability to look at people. The government could not look at me
in my house 24 hours a day.
So you kind of get the feeling for how terrible it would be for that
to happen. But technology was behind that. Actually ``1984'' was
written, I think, in 1949. So talk about--he was truly being able to
foresee the future. But now fast forward another 30 or 40 years and
look at the technology we have now. We have drones that are less than
an ounce, presumably with cameras--it is hard for me to believe that--
but less than an ounce with a camera. It is not impossible to conceive
that you could have a drone fly outside your window and see what your
reading material is.
It is not impossible to say they could not send drones up to your
mailbox and read at least what kind of mail you are getting or where it
is from. It is not inconceivable that drones could follow you around.
We had an important Supreme Court case last year, though, that was a
blow for privacy. This was a Supreme Court case that had to do with GPS
tagging. Everyone knows what GPS is. But what they were doing is the
police were shooting them to cars or tagging them when you were not
with your car and then following you around waiting for you to commit a
crime. If you tag everybody's car and wait for them to speed, we are
going to have a big deal on fines. There is going to be a problem.
There is also a problem with following people around waiting for people
to commit a crime. So the Supreme Court ruled, I think it was
unanimously, that you have to have a warrant to do that.
The thing about surveillance is those of us who believe in privacy
are not arguing against any surveillance. What we are arguing is that
you have to have a reason to do it and you have to ask a judge for
permission. So it is not a society where there is no surveillance or a
society where you have absolute privacy. If you commit a crime, the
police go to the judge and ask for permission to do this.
But there are some worrisome things about the direction of drones.
For example, the EPA now has drones. The EPA is flying drones over
farmland. I think some of this may be even in the defecation patterns
of the cows. I do not know exactly what they are looking for because
manure in streams is said to be a pollutant and, actually, frankly,
thousands of animals might.
But the whole idea, if you think someone is dumping anything in a
stream--I am not opposed to having laws stopping that, get a warrant,
search them or get a warrant and spy on them with a satellite or drone
or whatever you want to do. But you have to have some kind of probable
cause they are committing a crime. Because you can imagine that we
would devolve into a society where every aspect of our life would just
be open to the government to watch what we are doing.
They say there is something called an open spaces concept. They say:
You have 40 acres. The land is open so it is not private anymore. I
think that is absurd. I think that is sort of analogous to the whole
banking secrecy, such as you gave your records to your bank so you do
not care if anybody looks at them. That is absurd. I have a 40-acre
farm. I go hunting out there. I am supposed to not care if people watch
me, everything I do once I am outside my house. My privacy is only in
my house and not in open spaces?
I disagree with that. One of the interesting things about the right
to privacy, and you actually get some disagreement from people on the
right about this. There was a case called the Griswold case. It had to
do with birth control. A lot of conservatives objected to it because
they saw it as a building block for Roe v. Wade. I am pro-life and did
not like the decision in Roe v. Wade, but I actually do not mind the
decision in Griswold so much. The reason is, going back to a little bit
of the discussion we had earlier on Lochner, is that with Griswold,
what I see is they talked about a right to privacy.
Some said--the conservatives who are worried about the judiciary
coming up with new things or creating things--they thought the right to
privacy was not in the Constitution so you do not have it. I think that
is a mistake in notion. Because, for example, the right to private
property, that is not in the Constitution either, but I do not think
any of the Founding Fathers or most of us today would argue you do not
have a right to private property. In fact, I think it is one of the
most important parts. In fact, there was some debate about having it in
there. But I think the right to privacy, the right to private property,
they are part of what I would call the unenumerated rights. The
unenumerated rights are basically everything else not given to the
government.
You gave the government--or we give the government, through the
compact of the Constitution, we give the government enumerated powers.
There are about 17 to 19, depending on how you count them. But as
Madison said, they are ``few and defined.'' When you talk about the
rights, though, the 9th and 10th amendment will say those rights not
specifically delegated to the Federal Government are left to the States
and the people respectively. They are not to be disparaged.
So the interesting thing about your rights is there is not sort of a
list of your rights. In fact, when the Founding Fathers were putting
together the Bill of Rights, one of the objections to the Bill of
Rights was they said if we put the Bill of Rights together, everybody
will think that is all of their rights. They will say, if it is not
listed, you do not get it.
So the 9th and 10th amendments were an important part of it. In fact,
I do not know I would have voted for the Bill of Right's inclusion if
you did not have the 9th and 10th. I like all the others, of course.
But then the 9th and 10th protect all those not mentioned.
So it is an interesting thing that some on the right disagree. In
fact, the majority does not like the Griswold decision. But I actually
kind of like it because I think your right to privacy is yours, the
same as I think your right to private property is yours. It was not
delegated, it was not taken, it was not given to the Federal
Government. It is yours.
It gets back to the sort of the primacy of liberty, the primacy of
your individual freedom that you did not get that, you were not given
your freedom by government. It was yours naturally or, as many of us
believe, it is comes from your Creator. So your rights are national and
inborn. They were enshrined in the Constitution, not given to you but
enshrined and protected. As Patrick Henry said, it is not that the
Constitution was instituted among men to protect the government, they
were to protect the people from the government.
It was to limit the size of government, to try to restrain the size
of government, to try to allow for a government that lived under a rule
of law. When Hayek said nothing distinguishes an arbitrary government
from a constitutional government more clearly than this concept of the
rule of law, the important thing about the rule of law is also that the
rule of law is something that--it gives a certainty. Businessmen have
talked about certainty.
Without relinquishing the floor, I would like to hear a few comments
from Senator Lee.
Mr. LEE. The issues we are discussing are of profound importance to
the American people for the reasons Senator Paul has identified.
Americans have every reason to be concerned anytime decisions are made
by government that impair one of the fundamental God-given protected
rights that Americans have.
Anytime the government wants to intrude upon life or liberty or
property, it must do so in a way that comports with time-honored,
centuries-old understandings of due process. The rule of law, in other
words, must operate in order to protect those God-given interests to
make sure they are not arbitrarily, capriciously deprived of any
citizen.
We are talking about the sanctity of human life. When the interest at
stake is not just liberty or property but life itself, we have to
protect it. We have to take steps to protect that. So I think it is
important we carefully scrutinize and evaluate any government program
that has the potential to deprive any American citizen of his or her
life without due process of law.
I was concerned, as was Senator Paul, recently, when the Obama
administration leaked what was characterized as a Department of Justice
white paper outlining the circumstances--outlining the legal criteria
that this administration would
[[Page S1170]]
use in deciding when and whether and under what circumstances to snuff
out human life, the human life of an American citizen no less, using a
drone.
The memorandum started out with certain somewhat predictable or
familiar concepts. The memorandum started out by explaining an imminent
standard, explaining that certainly could not happen absent an imminent
threat to American national security, an imminent threat to American
life, for example. When we think of imminence, we think of something
that is emergent, we think of an emergency, something that is going on
at the moment, which unless interrupted presents some kind of a
dangerous threat.
Significantly, however, this is not how the Department of Justice
white paper actually read. Although it used the word ``imminence,'' it
defined imminence as something far different than we normally think of,
than we as American citizens use this kind of language, certainly in
any legal or constitutional analytical context.
If I could read from that memorandum, I would point out this
condition of imminence is described as follows.
It says: The condition that an operational leader--an operational
leader of a group presenting a threat to the United States--presented
imminent threat of violent attack against the United States does not
require the United States to have clear evidence that a specific attack
on U.S. persons and interests will take place in the immediate future.
Wouldn't it be the Senator's understanding if something is imminent,
it would need to be something occurring immediately?
Mr. PAUL. Yes. I think there is really no question about using lethal
force against an imminent attack. I think that is why we need to make
the question we are asking the President very clearly. The question is
if planes are attacking the World Trade Center, we do believe in an
imminent response. We do believe in an imminent defense for that. The
problem is we are talking about noncombatants who might someday be
involved. If they are in America, I see no reason why they shouldn't be
arrested.
Mr. LEE. If we are dealing with something that is imminent, we are
talking about something that is about to occur, and it is urgent. That
typically is the standard any time government officials in other
contexts, law enforcement, for example--sometimes regretfully and
tragically, law enforcement officers need to make a spur-of-the-moment
judgment call in order to protect human life. Sometimes in doing that
they have to do something they wouldn't ordinarily do. It always turns
on some kind of an imminent standard. It always turns on some kind of
an emergent threat, something that is about to occur, that is occurring
at the moment.
Yet we are told in black and white right here in this white paper
this condition, imminence, does not require the United States to have
clear evidence that a specific attack on U.S. persons and interests
will take place in the immediate future. That begs the question, what
then is the standard. Who then makes this determination? Presumably it
is the President of the United States. Perhaps it is others reporting
up in the chain of command to the President of the United States.
If actual imminence isn't required as part of this ostensibly
imminent standard, what then is the standard? Is there any at all? If
there is a standard, is it so wide, is it so broad you could drive a
747 right through it? If that is the case, how is that compatible with
time-honored notions of due process, those notions deeply embedded in
our founding documents, those notions we understand come from God and
cannot be revoked by any government?
I wish I could say the imminence standard problem in the Department
of Justice white paper is the only problem. It is not. We look to the
very next page, the page dealing with feasibility of capture. One of
the other standards outlined in the Department of Justice white paper
outlining the circumstances in which the government of the United
States may take a human life using a drone in a case involving a U.S.
citizen is that the capture must be infeasible, and the United States
must be continuing to monitor whether capture becomes feasible at some
point.
As to this standard on page 8 of the Department of Justice white
paper, it says:
Second, regarding to the feasibility of capture, capture
would not be feasible if it could not be physically
effectuated during the relevant window of opportunity or if
the relevant country were to decline to consent to a capture
operation. Other factors such as undue risk to U.S. personnel
conducting a potential capture operation could also be
relevant. Feasibility would be a highly fact-specific and
potentially time-sensitive inquiry.
In other words, they are saying it has to be something that could not
be physically effectuated during the relevant window. What is the
relevant window? The white paper makes absolutely no effort whatsoever
to define what the relevant window is. Who then makes this
determination, and according to what factors is that determination
made?
Here yet again we have a standardless standard. We have a standard
that is so broad, so malleable, so easily subject to so many varying
interpretations, no one can reasonably look into this and decide who
the government may kill with a drone and who the government may not
kill with a drone. That is a problem, and that, it seems to me, is
fundamentally incompatible with time-honored notions of due process.
Would the Senator not agree with that assessment?
Mr. PAUL. Absolutely. I think that is where the crux comes down to
this, talking about having an imminent standard. This is part of the
problem in the sense he doesn't want to talk about it. If we are going
to do something so dramatic as to no longer have the fifth amendment
apply in the United States, to have no accusation, to have no arrest,
no jury trials for folks who are to be killed in the United States, it
is such a dramatic change that you would think we would want to have a
full airing of a debate on this.
Mr. LEE. Would the Senator from Kentucky yield for a question?
Mr. PAUL. I won't yield the floor, but I will allow the Senator to
make comments.
Mr. LEE. If the Senator will yield for a question, I will ask if the
Senator was aware of the exchange some members of the Senate Judiciary
Committee had with Attorney General Holder this morning on the subject.
Mr. PAUL. Yes.
Mr. LEE. Was the Senator aware of the fact some of us asked Attorney
General Holder for a more robust analysis than the series of memoranda
authored by the Office of Legal Counsel, the U.S. Department of
Justice's chief advisory body, and the fact that so far the Department
of Justice has declined to make those available to members of the
Judiciary Committee?
Mr. PAUL. Yes, I am aware of that. I think we have a transcript of
some of the conversation from this morning.
Mr. LEE. If I may supplement that question by describing what I
encountered in connection with that, I expressed frustration to the
Attorney General over the fact that members of the Senate Judiciary
Committee--who have significant oversight responsibilities with regard
to the operation of the U.S. Department of Justice--have not had access
to that memorandum. This is part of our oversight responsibilities.
This is something we ought to be able to see, and so far it is not
something we have been able to see. I encouraged the Attorney General
to make available to members of the Senate Judiciary Committee those
very documents, which he claimed add some additional insight and would
give us some additional analysis above and beyond what this white paper
is saying. I thought that might be relevant to the Senator in
addressing my question.
Mr. PAUL. Absolutely. At this point, I will entertain comments from
Senator Cruz and a question.
The PRESIDING OFFICER (Mr. Coons). The Senator from Texas.
Mr. CRUZ. Would the Senator from Kentucky yield for a question?
Mr. PAUL. I will not yield the floor, but I will acknowledge a
question to the Chair.
Mr. CRUZ. I wish to ask the Senator's reaction to the testimony
Attorney General Eric Holder gave the Senator this morning in the
Senate Judiciary Committee. I wish to describe that testimony for the
Senate and ask the Senator's reaction to that testimony.
I would begin by saying that Senator after Senator on the Judiciary
Committee invoked the leadership of the Senator from Kentucky on the
issue of
[[Page S1171]]
drones and asked Attorney General Holder about the standards for drone
strikes in the United States. Indeed, although the Senator does not
serve on the Judiciary Committee, it was as if he were serving in
absentia, because the Attorney General was forced over and over again
to respond.
I would note the Senator's standing here today, like a modern ``Mr.
Smith Goes to Washington,'' must surely be making Jimmy Stewart smile.
My only regret is there are not 99 of our colleagues here today
standing with the Senator in defense of the most fundamental principle
in our Declaration of Independence and our Constitution; namely, each
of us is endowed with certain unalienable rights by our Creator and
that first among them is life, the right to life, and the right not to
have life arbitrarily extinguished by our government without due
process of law.
At the hearing this morning, Attorney General Holder was asked about
the letter he sent the Senator in which the Senator asked him whether
the U.S. Government could use a drone strike to kill a U.S. citizen on
U.S. soil. As the Senator knows, Attorney General Holder responded in
writing he could imagine a circumstance where that would be
permissible. The two examples he gave were: No. 1, Pearl Harbor; and
No. 2, the tragic attacks on this country on September 11, 2001. In the
course of the hearing, Attorney General Holder was asked for more
specifics. In particular, both of those were military strikes on our
country with imminent and, indeed, grievous loss of life that flowed
from it. Few, if any, disagree that the U.S. Government may act swiftly
to prevent a military attack which would mean immediate loss of life.
The question Attorney General Holder was asked three different times
was whether the U.S. Government could take a U.S. citizen, who was
suspected of being a terrorist, on U.S. soil, who was not engaged in
any imminent threat to life or bodily harm, simply sitting at a cafe--
could the U.S. Government use a drone strike to kill that U.S. citizen
on U.S. soil.
Three times when asked that direct question, Attorney General Holder
responded that in his judgment that was not ``appropriate.''
The first question--and if I may, I wish to ask a series of
questions--does it surprise the Senator the Attorney General would
speak in vague, amorphous terms of appropriateness and prosecutorial
discretion rather than the bright lines of what the Constitution
protects, namely, the right of every American to have our life
protected by the Constitution?
Mr. PAUL. Mr. President, I am quite surprised, although I guess I
shouldn't be, that we don't get direct responses. It is a pretty direct
question. It is the question I have been asking all morning. It is the
question I have been asking for a month and a half. I am talking about
situations where you have a noncombatant, someone not posing an
imminent threat, who they think make may someday pose an imminent
threat because that is what we are doing overseas. If that is the
standard overseas, I am asking is that going to be the standard here?
It amazes me.
Part of the reason we are here today in the midst of a filibuster is
because they won't answer the question directly. I applaud the attempts
to try to get a more specific question. I am not terribly surprised we
have had trouble getting a direct answer.
Mr. CRUZ. Would the Senator yield for additional questions?
Mr. PAUL. As long as I do not yield the floor.
Mr. CRUZ. After three times declining to answer a direct question,
would killing a U.S. citizen on U.S. soil with a drone strike when that
U.S. citizen did not present an imminent threat, would that be
constitutional--after three times of simply saying it would not be
appropriate, finally, the fourth time Attorney General Holder responded
to vigorous questioning--in particular during the course of the
questioning, the point was made that Attorney General Holder is not an
advice columnist giving advice on etiquette and appropriateness. The
Attorney General is the chief legal officer of the United States. I
will note I observed it was more than a little astonishing the chief
legal officer of the United States could not give a simple one-word,
one-syllable, two-letter answer to the question: Does the Constitution
allow the Federal Government to kill with a drone strike a U.S. citizen
on U.S. soil who is not posing an immediate threat? The proper answer I
suggested at that hearing should be no. That should be a very easy
answer for the Attorney General to give.
Finally, the fourth time around, Attorney General Holder stated: Let
me be clear. Translate my appropriate to no. I thought I was saying no.
All right? No. Finally, after three times refusing to answer the
question whether it would be constitutional to do so, the fourth time
the Attorney General answered.
The question I want to ask is the Senator's reaction to this
exchange. In particular when Attorney General Holder on the fourth time
finally stated his opinion--and I assume the opinion of the Department
of Justice--that it is unconstitutional for the Federal Government to
kill a U.S. citizen on U.S. soil who does not pose an imminent threat,
when he stated that, my response was I wish he had simply said so in
his letter to the Senator at the beginning. I wish John Brennan in his
questioning the Senator provided had said so in the beginning.
Indeed I then said: The Senator from Kentucky and I are going to
introduce legislation in this body to make clear that the U.S.
Government may not kill a U.S. citizen on U.S. soil if that individual
does not pose an imminent threat of death or grievous bodily harm. I
observed that if the Attorney General's view was that it was
unconstitutional for the U.S. Government to do so, then I assumed he
would be supporting that legislation. I would welcome the Senator's
reaction to that exchange.
Mr. PAUL. Well, Mr. President, the response is a little bit
troubling; that it took so much work and so much effort of cross-
examination to finally get an answer.
I will note, in his final answer, I don't ever see the words
``constitutional'' or ``unconstitutional.'' He is responding to Senator
Cruz's word of ``constitutional'' when he says: Let it be clear and
translate my ``appropriate'' to ``no.'' I thought I was saying no. All
right. No.
Well, words do make a difference, and I would feel a little more
comfortable if we would get in writing a letter that says he doesn't
believe killing people not actively engaged in combat with drones in
America, on American soil, is constitutional. That sure would have
short-circuited and saved quite a bit of time.
I will say, though, that I will believe a little more of the
sincerity of the President and of the Attorney General if we get a
public endorsement of the bill that says drones can't be used except
under imminent threat, and define that as an imminent threat where you
actually have a lethal attack underway. If we could get to that, I
think this is something that both parties ought to be able to unite by.
It is such a basic principle, I can't imagine we couldn't unite by
this. And it would have gone a long way to getting these answers.
But what still disappoints me about the whole thing is that it takes
so much work to get people to say they are going to obey the law. It
takes so much work to get the administration to admit they will adhere
to the Constitution. This should be a much simpler process.
I commend the Senator from Texas for not letting go and for trying to
get this information. I would welcome any more comments that he has.
Mr. CRUZ. If the Senator would yield for one final question, is the
Senator from Kentucky aware of any precedent whatsoever--any Supreme
Court case, any lower court case, the decision of any President of the
United States, beginning with George Washington up to the present, the
stated views of any Member of this Senate, beginning with the very
first Congress up to the present--for the proposition that this
administration seems willing to embrace, or at least unwilling to
renounce explicitly and emphatically, that the Constitution somehow
permits, or at least does not foreclose on, the U.S. Government killing
a U.S. citizen on U.S. soil who is not flying a plane into a building,
who is not robbing a bank, who is not pointing a bazooka at the
Pentagon, but who is simply sitting quietly at a cafe, peaceably
enjoying breakfast?
[[Page S1172]]
Is the Senator from Kentucky aware of any precedent whatsoever for
what I consider to be the remarkable proposition that the U.S.
Government, without indicting him, without bringing him before a jury,
without any due process whatsoever could simply send a drone to kill
that U.S. citizen on U.S. soil?
Mr. PAUL. Mr. President, I am aware of no legal precedent for taking
the life of an American without the fifth amendment or due process.
What is troubling, though, is that Attorney General Eric Holder is on
record as actually arguing that the fifth amendment right to due
process is to be determined and is to be applicable when determined
solely by the executive branch.
I would appreciate the comments and opinions of the Senator from
Texas on the idea that the executive branch gets to determine when the
Bill of Rights applies.
Mr. CRUZ. If I may give my views on that question and then ask for
the Senator's response to my views on whether the executive may
determine its own limitations, I would suggest the genesis of our
constitution is found in the notion that the President is not a king,
that we are not ruled by a monarchy, and that no man or woman is above
the law. Accordingly, no man or woman may determine the applicability
of the law to himself or herself.
For that reason, the Framers of our Constitution won not one but two
revolutions. The first revolution they won was a bloody battle for our
independence from King George, and a great many of them gave the
ultimate sacrifice so that we might enjoy the freedom we do today. But
the far more important war they won was the war of ideas, where for
millennia men and women had been told that rights come from kings and
queens and are given by grace, to be taken away at the whim of the
monarch. What our Framers concluded, instead, is that our rights don't
come from any king or queen or president; they come from God Almighty,
and sovereignty does not originate from the monarch or the president,
it originates from we the people.
Accordingly, the Constitution served, as Thomas Jefferson put it, as
chains to bind the mischief of government. And I would suggest that
anytime power is arrogated in one place--in the Executive--that liberty
is threatened. And that should be a view that receives support not just
from Republicans, not just from Democrats or Independents or
Libertarians, that should be a view that receives support from
everybody; that none of us should want to live in a country where the
President or the Executive asserts the authority to take the life of a
U.S. citizen on U.S. soil without due process of law and absent any
imminent threat of harm.
I would suggest the idea that we should simply trust the Attorney
General, trust the Director of the CIA, or trust the President to
exercise an astonishing power to take the life of any U.S. citizen, in
my judgment, is fundamentally inconsistent with the Bill of Rights. And
I would, therefore, ask the Senator from Kentucky for his reaction and
whether he shares my understanding that our rights are protected not at
the whim or grace of the Executive, but they are protected by the
Constitution and, ultimately, they are rights that each of us was given
by our Creator, and we are obliged to protect the natural rights to
life, liberty, and property that every man and woman in America enjoys?
Mr. PAUL. Well, Mr. President, this is what makes this debate so
important. This debate is about the fundamental rights that we--most of
us, or many of us--believe derive from our Creator and that it is
important we not give up on these; that we not allow a majority vote or
one branch of government to say we have now decided you don't get all
these rights anymore.
Our Founders really wanted to make it difficult to change things, to
take away our rights. So this is an important battle and one in which I
think we should engage because the President needs to be more
forthcoming. The President needs to let us know what his plans are, if
he is going to overrule the fifth amendment and if the Attorney General
is going to decide when the fifth amendment applies. That is a pretty
important distinction and change from the history of our country.
Mr. President, at this time I would like to ask for any comments,
without yielding the floor, from the Senator from Utah.
Mr. LEE. In response to Senator Paul's question, I would like to add
to the Senator's remarks and those of the junior Senator from Texas the
fact that in the concluding paragraph of the Department of Justice
white paper on this issue, the Department concludes as follows:
In sum, an operation in the circumstances and under the
constraints described above would not result in a violation
of any due process rights.
It is a rather interesting conclusion, in light of the fact that two
out of the three analytical points outlined above in the memorandum, in
the white paper are themselves so broad as to be arguably meaningless
or, at a minimum, capable of being interpreted in such a way as to
subject American citizens to the arbitrary deprivation of their own
right to live.
First, as I mentioned earlier, by proposing an imminent standard that
leaves out anything imminent--in other words, it is not just peanut
butter without the jelly; it is peanut butter without the peanut
butter. There is no ``there'' there--they define out of existence the
very imminent standard they purport to create and follow. That is not
due process. It is the opposite of due process.
Secondly, they outline a set of circumstances in which this attack
may occur, where capture is infeasible, and then they define an
understanding of feasibility that is so broad as to render it virtually
meaningless.
So at the conclusion of the memo--and the memo says:
In sum, an operation in the circumstances and under the
constraints described above would not result in a violation
of any due process rights.
It is describing constraints that are not really constraints, and
that is a problem. That amounts to a deprivation of due process.
In light of these circumstances, I think it really is imperative the
American people, or those who serve in this body--at a minimum, those
who serve on the Senate Judiciary Committee--be given an opportunity to
review the wholesale legal analyses identified by the Attorney General
today that have been prepared by the Office of Legal Counsel of the
Department of Justice. This is the chief advisory body within the U.S.
Department of Justice. It is the job of the fine lawyers in the Office
of Legal Counsel to render this advice, and we ought to have the
benefit of that. At a minimum, we ought to have the benefit of that
within the Senate Judiciary Committee.
So when I asked the Attorney General this morning whether he would
make those available, I was surprised and a little frustrated when he
declined to offer them immediately. He said he would check in with
those he needed to consult with. I reminded him he is the Attorney
General, and he does, in fact, supervise those who work in the
Department of Justice.
I hope that is satisfactory and in response to the Senator's
question.
Mr. PAUL. Yes, I agree with the comments of the Senator from Utah.
The whole problem is that if the President says my plan has due
process, that would be sort of like me saying I have passed my law, and
I think it is constitutional. Well, the same branch of government
doesn't get to judge whether it is constitutional. That is the whole
idea of the checks and balances.
We pass a law in the Senate and the Supreme Court can rule on whether
it is constitutional. So the President gets to decide that he is going
to abrogate the fifth amendment or abbreviate the fifth amendment or do
certain things, and then he says: Oh, I am really not because the way I
interpret it, I am applying the fifth amendment to my process.
Well, he can't do that. He can't be judge, jury, executioner, and
Supreme Court all rolled into one. That is an arrogation of power we
cannot allow.
Mr. President, at this time I would like to entertain comments or a
question from the Senator from Kansas without yielding the floor, if I
may.
Mr. MORAN. Mr. President, I thank the Senator from Kentucky, and I
would like to ask a series of questions.
The PRESIDING OFFICER. The Senator from Kansas.
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Mr. MORAN. First, let me outline a thought I had in listening to this
conversation and ask the Senator a question about it.
We have seen the actions of our President to be determined
unconstitutional in a recent case in the court of appeals in the
District of Columbia--a case in which the President made the
determination he could determine the definition of a recess in the
Senate--and so we now have a court that has declared the President's
conclusion in that regard to be unconstitutional.
I don't know that we want to get into the magnitude or evaluating
what constitutional violations are most damaging to the American people
or to our rights and liberties, but I would ask the Senator to compare
the consequences of the President being wrong once again in regard to
the constitutionality of utilizing a drone strike to end the life of an
American citizen. Again, I am suggesting that we have seen precedent
where the President acts unconstitutionally. Fortunately, the legal
process is there to make certain a determination is made as to the
constitutionality of that act.
In this case, what would be the consequences of a drone strike as
compared to whether an appointment to an administrative body under the
recess clause is constitutional?
Mr. PAUL. Mr. President, I think the analogy is apt. The difference
is a recess appointment you get to make your appeal to a court while
still living, which makes a big difference. In the case of the recess
appointments, the President decided he could determine when the
legislative branch was in session or out of session. So you have the
same sort of conflict again.
The President has a sphere and we have a sphere, but now he is saying
he controls our sphere also; that he can tell us when we are in session
or out of session, and he can basically do what he wishes. The Supreme
Court rebuked him pretty sternly.
So I agree with the Senator from Kansas. There is a great deal of
similarity between the two because it is, once again, the executive
branch or the President acting as if the checks and balances between
the Legislative and the executive branches don't exist; that he
basically made the decision for us that he has decided we are in
recess.
But the Senator is correct, the Supreme Court gave him a pretty stern
rebuke and said that would be unconstitutional.
Mr. MORAN. Mr. President, to the Senator from Kentucky, what is the
logical extension of a decision that it is constitutional to utilize a
drone by our military to strike at the life of an American citizen in
the United States?
And I would say, if the Senator would agree with me, most Americans
would find it repulsive, unconstitutional, and a terrible violation of
public duty if a military officer on the streets of Wichita, KS, pulled
a gun and shot an American citizen.
Really, is that not the logical extension of the idea that a drone
strike from above results in the death of a U.S. citizen without due
process? Is that any different than the ability to kill somebody in any
other manner that I think most Americans would recognize today as
prohibited without due process of law by our Constitution?
Mr. PAUL. Mr. President, the analogy that the Senator from Kansas
brings up I think is appropriate.
We have had rules on the books since the Civil War saying the
military doesn't act in our country. So it is not just a drone; it is
any sort of law enforcement in the United States. We recognize that.
We respect our soldiers. We are proud of our soldiers. But we have
limited their sphere to the sphere of war. Within the United States,
for our security we have the police and we have the FBI. It is because
the rules of engagement are different. It is different being a soldier.
It is a tough job being a soldier. But it is just not the same on the
streets of Wichita or the streets of Bowling Green, KY. So we have
different rules and we have made it different.
But the Senator is right. I think people would understand that it
would be wrong for a military officer to shoot someone on the streets
in America. It is prohibited for a good reason; not because our
soldiers are bad people, but it is because there are different rules
for soldiers. That is what is most troubling about many of these people
who say, oh, Wichita is the battlefield. And if it is the battlefield,
they don't understand why the military can't act in Wichita or Houston
or Bowling Green, KY. So it does delve into the problem that we have to
debate: Is there a limitation to where the battlefield is?
If the Senator has another question, I would yield for a question
without yielding the floor.
Mr. MORAN. Mr. President, I have an additional question, and I
believe it is my final question.
I would ask the Senator from Kentucky, through the President--we are
here at this point in time in the juncture of the Senate with the issue
of whether to confirm a particular individual to a particular office,
an administrative appointment. I would ask the Senator if he doesn't
believe the issue of the due process rights of American citizens is of
such a magnitude that the real issue that ought to be before the Senate
is not the confirmation of an individual, but we ought to resolve the
issue of whether the Senate believes it is constitutional for the due
process rights of an American citizen to be taken by a drone strike in
the United States, and the opportunity now presents itself that it
would be a reason not to grant cloture.
Let me ask it as a question. Would it not be a reason to grant
cloture on this nomination until we resolve this issue?
Mr. PAUL. Mr. President, I think it is very reasonable. It is more
important than just the nomination of one individual.
When we are talking about whether the Bill of Rights is going to be
changed, when we are talking about whether you will have the due
process to be tried in a court, or whether you could be killed--
summarily executed without a trial--that is an important change in the
history of our country.
The Senator's response also made me think of something else. Another
way to resolve this, where we could conclude this debate and get on to
the nomination, would be for the majority party to come forward with a
resolution that says: You know what. We are not going to kill
noncombatants in America with drone strikes; we are not going to use
the military; we are going to reaffirm the law.
So there is a resolution that both parties could come forward--and it
would be a wonderful resolution to this process to say: The Senate goes
on record in a bipartisan fashion as saying we are not going to
overturn the fifth amendment. If you are an American and you live in
America, you will not be killed without being accused of a crime, tried
by a jury, and convicted by a jury. I think that would be a reasonable
resolution to this, and I would entertain it if the other side were
interested.
Mr. MORAN. I thank the Senator from Kentucky for responding to my
questions.
Mr. CRUZ. Mr. President, would the Senator from Kentucky yield for a
question?
Mr. PAUL. Mr. President, without relinquishing the floor, I yield to
the Senator from Texas for a question.
Mr. CRUZ. Mr. President, I ask the Senator his reaction as to the
possible justification for the administration's repeated reluctance to
answer what should be a very straightforward question.
I find myself genuinely puzzled that both Mr. Brennan and Attorney
General Holder, when asked whether the U.S. Government may kill a U.S.
citizen on U.S. soil with a drone strike, absent an imminent threat of
harm to life or grievous bodily injury--I find it quite puzzling that
both of them did not simply respond: Of course not. Of course we can't.
We never have in the history of this country, and we never will. The
Constitution forbids it.
In my understanding of the Constitution, that was not a difficult
question the Senator asked, and I find it quite remarkable that they
treated it as a difficult question.
To be clear, there is no dispute--at least no serious dispute--that
if an individual poses an imminent threat of harm--if an individual is
robbing a bank, there is no dispute that law enforcement, a SWAT team,
can use deadly force to prevent the imminent threat to life or limb.
What this issue is about is an individual who is not posing an
imminent threat--a U.S. citizen on U.S. soil--and
[[Page S1174]]
the administration's continued reluctance to say: The Constitution
forbids killing that U.S. citizen without due process of law.
So what I want to ask the Senator about is efficacy.
Let's take a hypothetical individual whom the U.S. Government
believes to be a terrorist, who is sitting at a cafe enjoying a cup of
coffee, not posing an imminent threat to anybody. The question I would
like to ask about efficacy--and if I might, I would like to ask a
couple of questions.
No. 1, if it turns out the intelligence is incorrect, that this
individual the U.S. Government suspects of being a terrorist is not in
fact a terrorist, that they have the wrong guy; and if a drone strike
is used and that individual is killed, is there an effective remedy to
correct that tragic mistake?
Mr. PAUL. Mr. President, I think the question is well put.
The first aspect of the question is, What is the President thinking?
Why would the President not respond to us? Why would the President not
answer a pretty easy question and say that noncombatants in the United
States will not be killed with drones?
I think the reason is complicated--and it is conjecture because I
can't get in his mind. But I would say it is sort of a contagion or an
infection that affects Republicans and Democrats when they get into the
White House. They see the power the Presidency has. It is enormous.
They see themselves as good people, and they say: I can't give up any
power because I am going to do good with that power.
The problem they don't see is that the power itself is intoxicating,
and the power someday may be in the hands of someone else who is less
inclined to use it in a good way. I think that is why the power grows
and grows, because everybody believes themselves to be doing the right
thing.
With regard to exactly what would happen in the situation when there
is not an imminent threat, it boggles the mind when we can't answer
that question. And I don't have a good understanding as to why exactly
we can't get a response.
I would yield for a response from the Senator from Texas.
Mr. CRUZ. Mr. President, if I could ask the second question, in the
instance where the intelligence was wrong and a U.S. citizen was killed
by his or her government without due process of law, there obviously
would be no remedy. But I would ask about the alternate scenario.
If it were the case that this individual was in fact a terrorist, was
involved in a plot to threaten the lives and threaten the safety of
other Americans; if this U.S. citizen sitting in a cafe is killed with
a drone strike--focusing on efficacy--once he is killed, am I correct
that you can't interrogate him further; you can't find out who else was
in the terrorist plot with him; you can't find out what methods he had
put in place; you can't find out if there is an imminent threat planned
that he may know about? But if a drone from the sky simply kills him,
that knowledge perishes with him at that cafe and so undermines the
legitimate efforts of our government to protect the safety and security
of all Americans.
Mr. PAUL. Mr. President, I think it is an excellent question and
really gets to the root of the whole problem we are talking about
because we are talking about people who may not all be good people.
They may be bad people and they may be plotting to do something bad to
America, and they may be in a cafe. So there may be all kinds of
reasons to arrest and punish them, but there may be all kinds of
reasons to try to get more information from them. Particularly if they
are not involved in combat, it is hard to imagine why you would want to
kill them. If they are not involved in combat, why not capture them and
try to get some useful information out of them?
So it is a little bit difficult to understand why the President
wouldn't say what is obvious: Why would we want to kill noncombatants
in America?
The reason we keep asking the question is, of the drone strikes
overseas--which we are not privy to all of the details because some of
it is classified. But the details that have been in the press are that
a lot of these people being killed overseas are not in combat.
So the real question is, If you are going to take this drone strike
overseas and it has no geographic limitations, and you are bringing it
home to America, does the President not think it is incumbent upon him
to say: Well, yes, we are bringing it home, but we are not going to
kill noncombatants?
What an important question. I think the Senator has phrased it
appropriately and I would anticipate or respect any other response he
would like to give.
Mr. CRUZ. One final question for the Senator from Kentucky.
I am aware the Senator from Kentucky is originally from the great
State of Texas. As the Senator is no doubt aware, today is the 177th
anniversary of the fall of the Alamo.
One hundred eighty-two men were stationed at the Alamo, and after 13
days of a bitter siege, fighting an army of thousands, those patriots
gave their lives for freedom. They put everything on the line to stand
against tyranny and to stand for the fundamental right of every man and
woman to breathe freely, to control our own lives, our own autonomy, to
make decisions about what our future would be.
If I may presume to speak on behalf of 26 million Texans, I would say
I have no doubt that Texans are proud to see the distinguished Senator
from Kentucky, as a native-born Texan, fighting so valiantly for
liberty and serving as such a clarion voice for liberty at a time when
sometimes liberty has few champions.
Indeed, I would suggest if those brave patriots of the Alamo were
here, William Barrett Travis and Davy Crockett and Jim Bowie and each
of the others who gave their lives for freedom, they would be standing
side by side with the Senator and would be proud to call him brother.
Mr. PAUL. Mr. President, I would like to say that I appreciate the
remarks of the Senator from Texas. If the filibuster goes on long
enough, we would like to hear a recitation of William Barrett Travis's
last words at the Alamo. We had to memorize that as a kid, and I am
afraid my memory has gone a little dusty. But the Senator is younger
and may remember that for us.
The issue at hand is an issue that goes beyond party politics. It
goes beyond nominations. It goes beyond the President is a Democrat and
I am a Republican. I voted for three of the President's nominations,
much to the chagrin and much to the criticism of some on my side. But I
have done so because I think the President does have some
prerogatives--that is just my personal viewpoint--on choosing
appointees. This is a political appointee, but I do not consider this
debate to be about the appointee. I think this debate is more about a
constitutional issue, and I think it rises to a level above the
individual and it is something to which we need to draw attention and
about which we need to have a good healthy discussion in our country.
I don't think it has to be a bitter partisan battle. I have met the
President personally. I have flown on Air Force One with him. I respect
him, I respect the office. I think he and I could have a reasonable
conversation on this issue. In fact, I think if he were here today, he
might actually agree with much of what I am saying. What I am
disappointed in--and I do not know if it is the muddle of a large
government and not getting a message forward, but what I am
disappointed in is that it is so hard to get him to agree with what I
think he should already and probably already agrees with. But when we
are talking about doing something so different, when we are talking
about changing the way we adjudicate guilt, changing the way we decide
someone's life or death, it is too important to just say: Oh, Mr.
President, go ahead and do it. As long as you tell me you have no
intent of breaking the law or no intent to kill Americans, that is
enough.
It just simply is not enough. It is not enough to say: I have not
done it yet. I do not intend to kill anybody, but I might.
He came up with some circumstances where he might use the drone
strikes in America. Then, in the cross-examination of Senator Cruz in
the committee, we have gotten him to admit--under duress, I think, but
to admit that they are not talking about people in a cafe.
Some might say he has never mentioned people in a cafe. The reason it
[[Page S1175]]
comes up, of people not involved in combat, is that a lot of the people
who have been the victims or have been killed by these drone strikes
were not involved in combat when they were killed. They were riding in
cars, walking down the street, traveling in caravans. I am not saying
they are good people. I am just saying, regarding the standard for whom
we kill overseas, we have to ask the question, and I don't think we are
doing our job if we do not ask the President: Are you going to use the
same criteria for how you kill people overseas? Is that the same
criteria over here?
And it should not be: I will tell you later. It shouldn't be, I don't
intend to do it and I probably won't, but I might.
That is just not enough.
We are talking about basic protections that we fought our Revolution
over and really, in a way, when I see the wars that we have gone to--
and not every war has been perfectly justified or that we should have,
but when our soldiers fight, I see them fighting for the Bill of
Rights, and I think they say that too. No matter where they are around
the world, I see them fighting for the Bill of Rights and our
Constitution. But if we are giving that up, if we are not going to
adhere to the fifth amendment, it takes the wind out of the sails.
Can you imagine being a soldier in Afghanistan or Iraq or in far-
flung places around the world and you are told you were fighting for
the Bill of Rights minus the fifth amendment? Or when we say we are
going to indefinitely detain people, we are going to fight for the Bill
of Rights minus the sixth amendment? It is pretty important. These
things are what we are fighting for, so we really should at least have
a robust debate over the magnitude of these changes, over how these
will be set up, over exactly what will happen, how this process is
going to work. I am just saying that ``I am not intending to do so'' is
not enough.
Mr. President, I, without yielding the floor, would like to allow a
question from the Senator from Texas.
Mr. CRUZ. If the Senator from Kentucky would allow this question, I
would like to respond to his very gracious invitation and ask if the
following letter gives the Senator from Kentucky encouragement and
sustenance as he stands and fights for liberty? This letter was written
February 24, 1836, and it begins as follows:
To the People of Texas and All Americans in the World:
Fellow citizens and compatriots;
I am besieged, by a thousand or more of the Mexicans under
Santa Anna. I have sustained a continual Bombardment and
cannonade for 24 hours and have not lost a man. The enemy has
demanded a surrender at discretion, otherwise, the garrison
are to be put to the sword, if the fort is taken. I have
answered the demand with a cannon shot, and our flag still
waves proudly from the walls. I shall never surrender or
retreat. Then, I call on you in the name of Liberty, of
patriotism & everything dear to the American character, to
come to our aid, with all dispatch. The enemy is receiving
reinforcements daily and will no doubt increase to three or
four thousand in four or five days. If this call is
neglected, I am determined to sustain myself as long as
possible and die like a soldier who never forgets what is due
to his own honor & that of his country. Victory or Death.
William Barret Travis
My question is, Does that glorious letter give you encouragement and
sustenance on this 177th anniversary of the Alamo?
Mr. PAUL. Mr. President, I think what Travis's letter at the Alamo
talks about is that there are things bigger than the individual. At the
time he wrote that, I don't think they had much hope of surviving, and
he died at the Alamo, as well as other volunteers, some from my State
of Kentucky. But there was an issue bigger to them at the time, that
they saw as bigger than the issue of the individual. I think that is
what this debate is about.
This is not really about the person of John Brennan. This really is
not about the person of Barack Obama. This is about the body of the
Constitution, it is about our respect for it, and it is about whether
we will hold these principles so dear and we will hold these principles
so high that we are willing to try to enjoin a debate, to try to get
both sides to talk about this and to try to admit it, because we don't
want innocent people to be killed in America. We want to have the
process that has protected our freedoms for a couple of hundred years
now to remain in place, and we are unwilling to diminish that simply
because of fear.
FDR said, ``There is nothing to fear but fear itself.'' I think we
should also say that we should not let fear be so great that we allow
the loss of our freedoms. I think that is where we are, that sometimes
terrorists are everywhere and they are trying to attack us, but we need
to remember that it is our freedom that is precious, and we need to try
to do everything we can to uphold that.
At this time, I would entertain a question, without yielding the
floor, from the Senator from Oregon.
Mr. WYDEN. Mr. President, the issue of American security and American
freedom really does not get enough discussion here in the Senate. It is
my view that the Senator from Kentucky has made a number of important
points this day, and I would like to take a few minutes to lay out my
views on this issue and then pose a question to my colleague from
Kentucky. We have talked often about these issues. I always learn a
great deal.
Of course the Senate will be voting on the nomination of John
Brennan, the Deputy National Security Adviser, to be the Director of
the Central Intelligence Agency. I voted in favor of Mr. Brennan during
Tuesday's Intelligence Committee meeting, and I intend to vote for Mr.
Brennan on the floor. Virtually every member of the Intelligence
Committee now, in my view, believes Mr. Brennan has substantial
national security expertise and experience, and it is certainly my hope
that he will be the principled and effective leader the CIA needs and
deserves.
I think Senator Paul and I agree that this nomination also provides a
very important opportunity for the U.S. Senate to consider the
government's rules and policies on the targeted killings of Americans,
and that, of course, has been a central pillar of our Nation's
counterterror strategy.
For several years now, I and colleagues--Senator Paul as well--have
been seeking to get more information about the executive branch's rules
for conducting targeted killings of Americans. I am pleased that after
considerable efforts--efforts really that should not have to have been
taken to get documents that the Intelligence Committee has been
entitled to for some time--the committee has now received those secret
legal opinions.
To be clear--and this is a point Senator Paul made in the course of
this discussion--targeted killings of enemy fighters, including
targeted killings that involve the use of drones, can be a legitimate
wartime tactic. If an American citizen chooses to take up arms against
the United States, there will absolutely be circumstances in which the
President has the authority to use lethal force against that American.
But I think it has been our view--a view that I hold and that I know
Senator Paul holds--that the executive branch should not be allowed to
conduct such a serious and far-reaching program by themselves without
any scrutiny because that is not how American democracy works. That is
not what our system is about. Our unique form of government is based on
a system of checks and balances that will be here long after the
current President and individual Senators are gone.
From time to time, the Senator from Kentucky and I say we ought to
have something that we call a checks and balances caucus here in the
Senate. Those checks and balances depend upon robust congressional
oversight, and frankly they depend on bringing the public into this
discussion as well, that there be public oversight.
We share the view that details about individual operations do need to
be kept secret, but the Congress and the public need to know what the
rules for targeted killings are so they can make sure, as the Senator
has touched on in the course of this day, that American security and
American values are both being protected. It is almost as if we have a
constitutional teeter-totter: we want both our security and our
liberty. This is especially true when it comes to the rules for
conducting targeted killings of Americans.
What it comes down to is every American has the right to know when
their government believes it is allowed to kill them. Now the executive
branch has gradually provided Congress with much of its analyses on
this crucial topic, but I think more still needs to be
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done to ensure that we understand fully the implications of what these
heretofore secret opinions contain and we have a chance to discuss them
as well.
In his capacity as Deputy National Security Adviser, John Brennan has
served as the President's top counterterrorism adviser and one of the
administration's chief spokesmen regarding targeted killing and the use
of drones. He would continue to play a decisive role in U.S.
counterterror effort if he is confirmed as Director of the CIA, and the
Intelligence Committee is charged with conducting vigilant oversight of
these particular efforts.
A number of colleagues on the Senate Intelligence Committee of both
political parties I think share a number of the views that Senator Paul
and a number on this side of the aisle have been expressing today and
in the past few days. I would especially like to express my
appreciation to the former chairman of the Intelligence Committee,
Senator Rockefeller. There is no one more committed to the principles
the CIA stands for. There is no individual more committed to the
principles the CIA stands for than Senator Rockefeller, and he believes
more needs to be done to ensure that Congress has the power to do
responsible oversight. Senator Udall, Senator Collins, and Senator
Heinrich are all ones who share that view as well. In doing that, we
recognize that we have a responsibility and that ultimately it is up to
American voters to decide whether Congress is fulfilling its obligation
to conduct vigorous oversight of the executive branch's actions and
activities.
Let me then turn to the question that has received most of the
attention today and is really about what I would like to explore for a
moment or two with my colleague from Kentucky. The President has also
said--I was encouraged by a number of his comments, including the State
of the Union Address--that with respect to counterterrorism efforts, no
one should take his word for it that the administration is doing things
the right way. As part of that, he said he was going to engage the
American people in a discussion of these kinds of issues. When it comes
to continuing the public debate about the rules for conducting targeted
killings, there are a number of questions which need to be explored.
One question I will address to Senator Paul involves the question he
and I have been interested in for some time, and that is the question
of the geographic limitation with respect to the use of lethal
authority.
Senator Paul and I--as well as others--have been asking for some
time: What are the limits with respect to these lethal authorities, and
in particular whether they can be used inside the United States?
I have listened to a bit of the comments made by Senator Paul
concerning the confirmation hearing tomorrow. The point the Senator has
made this afternoon is an issue I and others have asked of the Attorney
General for some time, and we have not been able to get an answer.
In recent weeks Senator Paul has sent a number of letters on this
topic. He has received two responses and he has shared them with me.
For purposes of this question, I think the response from John Brennan--
and he stated his view on this quite clearly--was quite constructive.
He said the CIA does not conduct lethal operations inside the United
States, and most importantly--as per the conversations the Senator from
Kentucky and I have had--Mr. Brennan said the CIA does not have the
authority to conduct those operations.
He was unequivocal with respect to what would happen if he was
confirmed as the head of the CIA, that he would not have the authority
to conduct those operations. So for purposes of anybody who is kind of
keeping score, I just say that Mr. Brennan--on the questions the
Senator from Kentucky and I have been interested in--was clear and
forthright. I have been interested in this for some time. I am glad the
Senator from Kentucky has asked the question. We have now gotten an
answer that is unequivocal from Mr. Brennan.
That brings us to the second response from Attorney General Holder.
This letter repeated the statement that the U.S. Government has not
carried out any drone strikes inside the United States and that the
Obama administration has no intention of doing so. It goes on to say
that the Obama administration ``rejects the use of military force where
well-established law enforcement authorities in this country provide
the best means for incapacitating a terrorist threat.'' I would
certainly agree with this position. It is clear to me that prosecutions
in Federal court provide tough effective means for dealing with
terrorist suspects, which is why there are a great many terrorists who
are now sitting in American prisons today locked behind bars and
exactly where they belong.
The Attorney General went on to state:
It is possible . . . to imagine an extraordinary
circumstance--Such as Pearl Harbor or the 9/11 attacks--in
which it would be necessary and appropriate under the
Constitution and . . . laws of the United States for the
President to authorize the military to use lethal force
within the territory of the United States.
This is what I wish to unpack a little bit with my colleague from
Kentucky after asking this question a number of times and thinking a
lot about what the answer ought to be. On this particular issue it
seems to me the Attorney General has certainly moved in the direction
of what we wanted to hear. I want to kind of outline it, and I think we
agree on most of it, but I want to have a chance to exchange some
thoughts.
One of the core principles of American democracy is that we do not
ask our military to patrol our streets. It was important to me to hear
the Attorney General emphasize that principle. I know there are some
who believe the military ought to be given more domestic counterterror
responsibilities such as capturing and detaining terrorist suspects
inside the country. I do not share that view, and I know the Senator
from Kentucky does not share that view. I am grateful the Obama
administration has now said they don't share that view either. In fact,
as I have talked about with a number of colleagues, I actually voted
against the annual Defense authorization bill for the past 2 years
because I was concerned that those two bills didn't adequately address
that particular principle.
The Attorney General suggested what I think we would all consider an
unlikely scenario, the Pearl Harbor and 9/11 attacks, in which it would
be lawful and appropriate for the President to use military force
inside the United States. As I read that statement--and this is the
point of my question to my friend from Kentucky--it sounds a lot like
the language that is in article 4 of the Constitution which directs the
U.S. Government to protect individual States from invasion. In my
judgment, if the United States is being attacked by a foreign power,
such as the 1941 attack on Pearl Harbor, the President can indeed have
the military power to use the military to defend our country.
The reason I have been asking this question and have been interested
in exploring it with my colleague from Kentucky is that I think it is
extremely important to establish that unless we have an extraordinary
situation, such as Pearl Harbor, the President should not go around
ordering the military to use lethal force inside the United States. Our
military--we are very proud of them--plays a vital role in efforts to
combat terrorism overseas, but here at home we rely on the FBI and
other law enforcement agencies to track down the terrorists, and they
do their job well.
I thought it was helpful to see the Attorney General, as part of what
has been discussed here, clarify and establish that the President can
only use military force inside the United States in extraordinary
circumstances such as the Pearl Harbor attack. The Senator from
Kentucky and I have had discussions over this, and I thought about it
overnight and thought about our discussions. My sense is that the
Senator from Kentucky doesn't believe the Attorney General's response
was clear enough. I very much respect his view on this point.
One of the reasons why I wanted to walk briefly through a little bit
of history is that I think there are some issues still to be debated.
My colleague has certainly been correct in asking valid questions
because the Attorney General has left open the possibility of using
military force inside the United
[[Page S1177]]
States outside of the extraordinary Pearl Harbor circumstance I have
mentioned.
So, through the Chair, I ask the Senator: I think the Senator is
raising some important questions. In fact, my friend has asked some of
the most important questions that we could be asking here on the floor
of the Senate. It seems to me the Attorney General has ruled out using
military force inside the United States except in cases of an actual
attack by a foreign power. I understand why my colleague from Kentucky
would say we ought to be engaging more with the administration and
asking for additional insight. I want it understood that I have great
respect for his effort to ask these kinds of questions and force them
to be debated on the floor. Senator Paul has certainly been digging
into these issues in great detail. Frankly, on the question of how we
balance American security and American liberty, we have worked together
often, and we are certainly going to be working together in the future
on these issues in the days ahead.
I wish to allow the Senator from Kentucky to respond to my question.
I ask that my friend recognize that while we might differ a bit on the
aspect of the Attorney General's response which I have cited this
afternoon where there would be an instance of an extraordinary threat
to our country, I do see--almost as part of what article 4 is about--
the President's ability to defend us in those kinds of situations. I
know my colleague from Kentucky may see it differently, and, frankly,
he is raising important issues. I am interested in his thoughts on that
this afternoon.
The PRESIDING OFFICER (Mr. Brown). The Senator from Kentucky.
Mr. PAUL. Mr. President, I thank the Senator from Oregon for coming
to the floor and being a champion for the Bill of Rights. We get a lot
of grief in Washington about a lack of civility--people yelling and
screaming at each other. In my dealings with Senator Wyden--who is on
the other side of the aisle--I think it is evident that people can be
from different perspectives, find common ground, and try to get to a
point which is not a partisan point. I have tried to make it not so
much about red as it is about principles. I voted for two or three of
the President's nominations, and I think he deserves some latitude with
his political nominees. I think the Senator from Oregon said it well
when he said we have use of authorization of force in Afghanistan. Most
people think that was going toward Afghanistan. It has been so broadly
interpreted that it means worldwide war basically forever, and that is
sort of why we get into some of these problems. Not only is it
worldwide, which is a big debate in and of itself, worldwide means at
home too. The battlefield is here.
I agree with the Senator from Oregon that Brennan was very
forthright. It was a little bit onerous getting the response, but once
we got the response, it was exactly what was appropriate. He said he
would obey the law, and the law was very clear: The CIA does not
operate in the United States. The problem is not with his response but
that the Department of Defense is the one directing the drone programs
and it doesn't answer the final question.
As far as Holder's response, if it would have been written as the
Senator from Oregon states it, there probably wouldn't be much of a
problem. I think maybe recounting the letter gives it a little more
strength than the letter actually possesses in its own words. If he
were to say we were ruling out all strikes other than extraordinary
strikes, that would actually be a pretty good letter. Instead he says
he can imagine this under certain circumstances, and he lists a couple
of circumstances. The interesting thing is that a lot of us agree that
in a situation such as Pearl Harbor and 9/11--probably the Senator from
Oregon and probably me--we can repel a military attack. The reason we
asked the next question, and the reason I am concerned about the next
question--and I have only seen the unclassified version of these--but
the unclassified versions of the drone attacks indicate that a
significant amount of them are not killing people with a weapon. People
like to talk about taking up arms. Well, a lot of people are not
carrying around arms. It doesn't make them good people, but they are
not carrying around arms. They are not actively shooting our soldiers
or us. At the particular time they kill them, they look like
noncombatants. If we have somebody sitting in a cafe in our country--
even if it is a bad person--most of us would probably rather arrest
that person. If they were arrested, one, they would get the due process
of our country; and two, if they were bad people, we might actually get
information from them. So I wish to see a little bit better wording.
The last thing I would say--and I would appreciate hearing the
Senator's response--is the Attorney General was in the Judiciary
Committee this morning. He was asked a bunch of questions on this. I
looked through the transcript of a couple of them and it is still like
pulling teeth. He was asked four times: Do you think it is
constitutional to kill someone in a cafe in Seattle or Houston or
Louisville? He kept saying it wasn't appropriate, but language is
important when we are talking about this. Appropriate is not strong
enough. It is sort of like the President is saying: I have no
intention. We want him to say he won't, rather than not having
intention.
He didn't quite put it together in his response, but in his
response--combined with the questioning--we can get the opinion that
maybe he thinks it is not constitutional to kill noncombatants having
dinner. Wouldn't it be easier if they just said that? At this point, I
would entertain a question without yielding the floor.
Mr. WYDEN. Mr. President, just responding to the point of the Senator
from Kentucky and noting the fact he would not be giving up the floor
in the process, I think the Senator from Kentucky is making an
important point, and the way I read it, it would focus on ensuring that
our country would be protected against those kinds of exceptional
circumstances.
I would just like to leave the discussion here by noting that I think
both of us feel this is just the beginning of this debate. The nature
of warfare has changed so dramatically--and I particularly appreciate
the chance to work on this in a bipartisan way--we are going to have to
be continually digging in and trying to excavate more information about
how all of this actually works without in any way jeopardizing sources
and methods and ongoing operations. I think we can do it.
With respect to how I read particularly that part of the letter--and
I thought a lot about it--I think the two of us and others can be part
of what we can call the ``checks and balances caucus,'' so we can just
make sure people understand this is about liberty and security, and I
think we can flesh this out more in the days ahead. I know I have had
four sessions now with the classified documents that were made
available as a member of the Intelligence Committee and I still have a
lot of questions. Some of those I think we will have to ask in a
classified way, but I think others of them we can ask in a public way,
and the two of us can work on that together.
I also think there is a very strong case for beginning to declassify
some of the information with respect to these drone policies, and I
think that can be done as well, consistent with protecting our national
security.
So I think the Senator from Kentucky has made a number of important
points this afternoon. I thank him for the chance to work with him on
these issues and I look forward to continuing this discussion in the
days ahead and I appreciate the time.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. PAUL. Mr. President, a lot of the process by which we are getting
this information wouldn't have happened without the Senator from Oregon
as well as the senior Senator from Georgia both working together to get
information. It is the way the system ought to be working. One of the
good things about the body is both Republicans and Democrats working
together to get information from--not necessarily adversarial but in a
way adversarial--another branch of government. We are a branch of
government, but it is not partisan against partisan, it is bipartisan
working for the power of the checks and balances to try to ensure a
leveling. I thank the Senator from Oregon for helping to get the
information to make this a much fuller debate.
Without yielding the floor, I will entertain a question from the
Senator from Florida.
[[Page S1178]]
The PRESIDING OFFICER. The Senator from Florida.
Mr. RUBIO. I thank my colleague for the opportunity. Let me begin
by--I have been here a while. Let me give my colleague some free
advice: Keep some water nearby. It is handy. Trust me.
Anyway, I thank the Senator for entertaining my question. Let me just
begin by saying my question is about the motivation for being here on
the floor today. What brought me here is I have been reading some of
the accounts of what is going on and people are talking about the
involvement of the Senator from Kentucky in a filibuster and some are
already characterizing it as another Republican filibuster of one of
the President's nominees. Just to be clear because, as I understand,
the only thing I have heard the Senator from Kentucky say leading up to
now about the primary issue in coming to the floor today is that the
Senator from Kentucky asked a very straightforward question on an issue
of constitutional importance. Yet he has not received a straightforward
answer. Not only has the Senator from Kentucky not received an answer,
but we saw testimony earlier this morning that, quite frankly--I
watched the video two or three times and I personally do not understand
why it was so difficult to basically just say yes or no.
So I wish to start out by asking, just to be clear, the motivation to
be on the floor today is not to deny the President a vote on one of his
nominees but the motivation is that the Senator from Kentucky has asked
this administration a very important and relevant question and has been
unable to receive a straightforward answer to that question?
Mr. PAUL. Mr. President, my response to that is yes. In fact, I have
actually voted for several of the President's nominations. My trying to
draw attention to this issue is because I believe it is an incredibly
fundamental issue; that is, how we would kill people--Americans--on
American soil, whether the Constitution applies, whether the fifth
amendment applies.
So my motivation in doing this is not partisan. It is something that
has to do--and I have said, frankly--and I truly mean this--if it were
a Republican President today I would still be in the same place because
the American people deserve answers on this.
There are different rules in war than there are here. We need to
acknowledge and separate ourselves and say we are not completely--we
are not in the middle of a battle zone. We still do have Miranda rights
and we still get an attorney in the United States. It is not the same
as a battlefield, but if he is bringing battlefield strategy home, we
need to know before he starts doing it and at least we need to know the
rules. Does the Constitution apply?
I would entertain a further question from the Senator from Florida
without yielding the floor.
Mr. RUBIO. Without yielding the floor, the followup question I have--
because I think this is actually a very useful exercise for the folks
who have been snowed in today and there is nothing better to watch than
C-SPAN and for the people who are able to be here today to actually
understand the structure of our government and how it was designed,
because it is my personal opinion we have gotten away from some of
that.
Let me describe for a second my position that leads up to the
question I am going to ask. I am actually a member of the Intelligence
Committee, which means we reviewed this nomination. I have questions
that I care about that were somewhat different than the valid ones the
Senator from Kentucky is raising. As a member of that committee, I
asked those questions and I am going to seek answers to those
questions.
We have a job to do. I think that is important for people to
understand. Members of the Senate have an important constitutional role
to give advice and consent on these nominations. We have an obligation
not just to pass these folks through but to actually ask serious
questions to determine if they are qualified for the position they are
going to hold. We want our Senators to be doing that in both parties,
no matter who the President may be.
So I undertook that effort as far as the Intelligence Committee. I
asked my questions. I got answers to my questions. I believe the
nominee is qualified and I believe the President has a right to his
nominees, even if they are not the people we would nominate. I believe
ultimately these nominees deserve a vote. That is why I voted yesterday
to move this nomination on.
Just as the President has a right to his nominations and ultimately
to have a vote on those nominations, so, too, do Members of the Senate
have a right to their role and, in particular, to ask relevant
questions on issues of important public policy and get answers from the
administration. This is not--I think sometimes this is being lost. We
have different branches of government, but they are coequal branches of
government. The Presidency, the executive branch, is it important?
Absolutely, it is important. It is the Commander in Chief. It is the
top single office in the Nation. But the legislative branch is a
coequal branch with a job just as important. In order to do that job,
we have to have access to information, the ability to ask relevant
questions, and to get straight answers. To be frank, sometimes I feel
when we ask questions of this administration, they feel as though it is
beneath them to answer questions from us, from time to time. I think
that is very unfortunate.
My question is--when the Senator from Kentucky is here today raising
these issues, it is my opinion--and I would like to hear what the
Senator has to say--this is more than just an issue of the
constitutionality of this particular program, it is a defense of this
institution. It is a defense of the legislative branch. It is a defense
of the Senate as an institution. Irrespective of how one feels about
the nomination or the program or where the Senator falls on this
constitutional issue, it is a defense of this institution, and it is a
constitutional--not a constitutional right, a constitutional obligation
to ask relevant questions of public policy and to get answers, to ask
questions so the people back home will know the answers to these
questions. If we are not going to ask these questions, who is going to
ask them? The press? Maybe in a press conference, but that is not what
they are paid to do; that is what we are paid to do. That is what we
were elected to do.
So I would like to hear the Senator's views on that, because my
belief and what I am picking up from everything Senator Paul is saying,
the Senator is actually on the floor today standing for the obligation
this institution has to ask questions such as this and to be able to
get straight answers to these questions.
Mr. PAUL. Mr. President, I think the Senator from Florida has it
exactly right. This is about checks and balances, it is about the
coequal branches of government, and it is about how we limit usurpation
of power by checking and balancing each of the different powers.
So when Montesquieu wrote that there can be no liberty when you
combine the executive and the legislative, they were separated for a
reason. When the Constitution says Congress declares war not the
President, it was separated for a reason. So when we look forward to
these things--and the Senator from Kansas brought this up earlier--when
the President says, I have the ability to determine when you are in
session or not and I can do recess appointments when I think you are
out of session, that is a great usurpation of power to one branch and
we should fight it as an institution, Republican and Democrat, and not
make these partisan issues.
So I agree with the Senator from Florida. I believe there is a need
for those checks and balances. By the body not struggling to get as
much information as they can--not even in this case as much about the
individual as about the policy--then I think it is a mistake for the
body not to. I agree with the Senator from Florida completely. It is
something that should be defended. It is not something to be derided as
partisan because I don't see it as partisan at all. I see it as a
defense of the separation of powers and of the checks and balances.
At this time I yield, without yielding the floor, for another
question.
Mr. RUBIO. This will probably be my last question. Before I get to
it, let me say that all the other Senators--I know some of my
colleagues have already come to the floor and some might be watching or
some might be nearby. I would just say this, to think about this
[[Page S1179]]
for a moment. One may or may not agree with the position of the Senator
from Kentucky on this issue. Maybe a Senator saw the Attorney General's
answer and saw his testimony this morning and that Senator is satisfied
with it. Maybe another Senator is not that concerned about this issue
at all. I don't think that is the issue. I think what we need to
remember is that all of us have something we care deeply about or
multiple things we care deeply about, and the day will come when
something you care about or some issue you are involved in or some
question you have, you will try to raise that question, and it may be
under a different administration. I think we have to remember the
President will not be President forever. There will be a new President
in 3\1/2\ years and after that and so forth and some folks may still be
here. At some point in the future, all of us will have questions we
want answered and we will have an administration or some other
organization of government that refuses to give us straight answers.
When that moment comes, you will want your colleagues to rally to your
side, even if they don't agree with you, and defend your right as a
representative of the people of your State to ask important questions,
particularly questions of constitutional importance, and get straight
answers to those questions.
It is my feeling--and the Senator may comment on this--if he had just
gotten a straight answer to that letter, if he had just gotten a
straight answer in the testimony today, this would not have been
necessary. If they would have taken in the question, which I think is a
pretty straightforward question, and answered it in a straightforward
way, all of this could have been avoided and this nominee could have
had a vote. But, instead, they decided to go in a different direction
and it baffles me.
Here is a question I have. I think this is important also for the
people watching back home. Often, they may say: Why do you have to do
it this way? Why can't you just answer the question and not have to do
this process of starting and stopping things from moving forward? My
view is--and I want to share it with the Senator and get his
impressions--twofold. No. 1, these are the tools that are at our
disposal. That is why the system was created and designed this way. One
of the things the Senate has at its disposal to preserve and protect
its prerogative to ask important questions are the rules we have set up
here. They don't protect just one Senator but every Senator here, even
if I don't agree with others. One of the things that gives us the
ability to ask and have questions answered is this role we have of
confirming nominees.
Secondly, I would say this is not the Secretary of the Treasury, this
is not some other unrelated Cabinet position, this is the Central
Intelligence Agency, which is directly related to the program the
Senator from Kentucky has relevant questions about. So I guess I wanted
to hear from him a little bit more about why he chose this particular
nomination and why and how it is relevant to the larger question he is
asking.
Mr. PAUL. The answer to the question is that we have tried the normal
channels and have been for a month. We sent the standard letters. We
sent three different letters to John Brennan and we didn't get any
response. But when the leverage became used or the leverage became
apparent that both Republicans and Democrats on the Intelligence
Committee were asking for more answers, then we finally began to get
answers. The answers unfortunately didn't quite answer the question.
As the days wore on, we have actually gotten more answers. Since I
have been standing here this morning, we have now gotten the report of
the Attorney General's testimony before the Judiciary Committee. In
that, under withering cross-examination, I guess is the best way to put
it, he finally owns up and says: Well, maybe somebody in a cafe, it
wouldn't be appropriate to kill them in America.
The Senator from Texas wanted to go one step further. We don't want
you to say whether it is appropriate; we want you to say whether you
think you have the power to do it, whether you think you have the
constitutional authority to kill someone who is a noncombatant in a
restaurant or in their house or in their church or wherever. Do you
think you have the power to kill noncombatants? It is a pretty
important question. I think we may have eked out some of the answer
from Attorney General Holder.
It would be nice if we would actually get that in clean language,
where the Attorney General would now say this is our policy. But, see,
this comes from allowing the executive branch so much power. If you
allow them the power to make the rules, to make the decisions without
any kind of oversight or scrutiny, the danger is that there will be no
process. So the thing is right now we have a program going on where we
kill people around the world with drone strikes, and there are criteria
and standards for how we do it.
The obvious question is: You are going to do that in America? Under
what standards? We have had at least allegations, we have had some who
have said the bulk of the drone strikes around the world have been
signature killings, which means the people are not identified who are
being killed, that it is a long line of traffic and we blow up the line
of traffic.
Now, we can debate whether in war we may have a looser criteria for
whom we are blowing up, but I would think that in America we would not
blow up a caravan going from a wedding to a funeral, from a church to a
house, from a political meeting back to their home. We would have
different rules in America. If you are accused of a crime, if they
think you are somehow a terrorist, then they would arrest you,
particularly if you are in a noncombat opportunity. Why in the world
would the President take the position that if you are eating in a
cafeteria, you are eating at a restaurant, you are at home asleep, that
you could not be arrested?
So it is a real easy question, and the President should, very
frankly, answer the question: I will not kill noncombatants in America.
I cannot imagine why the President cannot answer an easy question.
There have been people on both the right and the left who have been
asking these questions. Glenn Greenwald writes a lot about this issue.
This is a pretty interesting proposition that he puts forward. He says:
If you posit that the entire world is a ``battlefield,''
then you're authorizing him to do anywhere in the world what
he can do on a battlefield. . . .
That has been my point. If the United States is the battlefield, and
we are going to have the laws of war--or another way it can be put is
martial law--in America, if we are going to have that in America, you
need to know about it because martial law--living under martial law--is
the way they live in Egypt. That is why they just had a rebellion in
Egypt and overthrew Mubarak. Because they had, by martial law,
indefinite detention.
So those who say the battlefield is here, we need to live under the
laws of war in our country--and they tell you to shut up if you want an
attorney--by golly, be careful about that. Be quite careful if you are
going to let us go to that sense.
So Greenwald says:
If you posit that the entire world is a ``battlefield,''
then you're authorizing him to do anywhere in the world what
he can do on a battlefield: kill, imprison, eavesdrop,
detain--all without limits or oversight or accountability.
That's why ``the-world-is-a-battlefield'' theory was so
radical and alarming (not to mention controversial). . . .
He also quotes from Esquire, from Charles Pierce, who said:
This is why the argument many liberals are making--that the
drone program is acceptable both morally and as a matter of
practical politics because of the faith you have in the guy
who happens to be presiding over it at the moment. . . .
So you will remember, many of these people did not like George Bush,
and they railed and railed about wiretaps, and now they are
suspiciously quiet when we get to a killing program.
But he says: If you have so much confidence because you like the guy,
the President in charge of this--he says--that ``is criminally naive,
intellectually empty, and as false as blue money to the future.''
He goes on to say:
The powers we have allowed to leach away from their
constitutional points of origin into that office have created
in the presidency a foul strain of outlawry that (worse) is
now seen as the proper order of things.
If that is the case--
And the author says he believes it is--
[[Page S1180]]
then the very nature of the presidency of the United States
at its core has become the vehicle for permanently unlawful
behavior.
This is coming from a liberal.
Every four years, we elect a new criminal because that's
become the precise job description.
So we have to ask some important questions. I am not asking any
questions about the President's motives. I do not question his motives.
I, frankly, do not think he will be killing people in restaurants
tonight or in their house tonight. But this is about the rule of law.
It is not so much about him. It is not so much about John Brennan. It
is about having rules so that someday, if we do have the misfortune of
electing someone you do not trust--electing someone who might kill
innocent people or who might kill people whom they disagree with
politically or they might kill people whom they disagree with
religiously or might kill people of another ethnic group--we are
protected. That is what these protections are about. But they are not
so much about the individuals involved now.
But there is a program that is going on around the world that is
killing individuals with drones, and it is done in a warlike fashion.
The thing is, in war you do not get due process. So these people around
the world do not get Miranda rights, and I am not arguing for that. If
you have a gun leveled at an American in Afghanistan, you are going to
be killed with no due process. I am not arguing for that. But I am
arguing it is different if you are in Afghanistan pointing a weapon at
us or here pointing a weapon at us. It is different if you are eating
dinner or if you are in your home at night.
So I think there are clear and distinct differences, and there is no
excuse for the President not giving us a clear-cut answer.
There is a writer by the name of Conor Friedersdorf who writes for
The Atlantic. I will get into that in just a minute.
At this time, I would like to, without yielding the floor, stop for a
question from the Senator from Georgia.
Mr. CHAMBLISS. I thank the Senator from Kentucky.
First of all, let me say, I appreciate the Senator's passion. I
appreciate the fact that, as he knows--and he and I have had some
discussions about this issue over the last several days and weeks--the
Senator is bringing this to the forefront, as he has done.
We have talked about the Senator's question that he submitted to Mr.
Brennan for answering. This is not a rocket science question. This is a
question that is perfectly reasonable, perfectly rational, and a
question that ought to be able to be addressed by the administration in
a very quick, simple, direct response. I have been dumbfounded, as the
Senator from Kentucky knows, about the fact that he did not get a
straightforward, simple answer immediately.
But the fact of whether a drone attack--and I am one of those who
thinks we need to detain and interrogate folks as opposed to just
firing drones at everybody because we are losing a lot of valuable
information from folks whom we take shots at versus folks whom we are
able to detain and interrogate--but still, I know the Senator from
Kentucky agrees with me that at the end of the day, we need to take out
bad guys, guys who seek to do us harm. The Senator's position all along
has been that with due process that ought to happen.
My question to the Senator is, with the administration not giving him
a straightforward answer--and I understand the Attorney General, in
response to some questions today in the Judiciary Committee, again was
very evasive on the question, in spite of having given the Senator a
letter just yesterday on this issue--that there still is not a
straightforward, black-or-white, as it appears to me they could give
you, answer to this question; am I correct about that?
Mr. PAUL. Mr. President, the Senator from Georgia is correct. I also,
while he is on the floor, want to thank him for getting some of this
information to come forward. Because it has been a very onerous task,
and without his leadership on the Intelligence Committee, as well as
Republicans and Democrats asking for more information, we would not
have gotten anywhere. With that input, we have been able to get some
answers.
The answers have not all been good. Brennan has answered, with the
appropriate answer: The CIA does not work within the United States.
That should be pretty obvious because everybody knows that and that is
the law. The problem is, it does not answer the final question because
the drone program is under the Department of Defense, and if we are
going to bring that home to America, I think the Intelligence
Committee, as well as the whole body, ought to be not just waiting for
the President to tell us how he is going to use it in America. We have
civil law in America and we ought to be part of that process. But I do
not think we can allow it to go on without our input.
Mr. CHAMBLISS. Let me, Mr. President, if could, ask the Senator again
a little different question to make sure I understand exactly what the
Senator has asked for.
The Senator's position, as I understand it, has been all along that
if we have bad guys flying airplanes into a tower or if we have folks
who are firing missiles or tanks or weapons of any sort in the United
States, seeking to carry out an act of war, an act of terrorism, taking
those guys out is not a problem.
Mr. PAUL. Yes. Mr. President, the idea of combating lethal force I
think is questioned by very few, if anybody. If planes are flying into
the Twin Towers, we obviously send up F-16s. We have missiles. We do
whatever we can to stop an attack on America.
What I am concerned about--the same way if it is a domestic
terrorist. If there is someone outside the Capitol with a grenade
launcher, we do not give them Miranda rights. We kill them. That is the
way it works. If you are exerting lethal force against American
soldiers anywhere in the world or in our country, you use lethal force
to stop that. Sometimes you cannot stop to even ask permission from
Congress. You do that. Imminent threats are repulsed.
But because of all the drone attacks--and I am not saying they are
necessarily wrong the way they are done--it is just that they are done
at people who are not in the middle of a battle. So if we transfer that
to America, I do not think that is acceptable for America.
It is a different debate on whether it is always a good idea, whether
we should do it, what the rules should be overseas. But the rules we
have currently I do not think are appropriate for the United States.
Mr. CHAMBLISS. Again, Mr. President, if I could direct a question to
the Senator: The fact is that from a pure oversight standpoint--Armed
Services, Intel--these committees that have jurisdiction over the issue
of fighting the war on terrorism need to have the right kind of
information so we can ask the right questions. Getting the right kind
of information out of this administration has been worse than having a
root canal and more difficult than having a root canal.
I again am appreciative of the Senator being forceful in asking the
question, and I think at the end of the day, again, he has had no issue
relative to ultimately having a vote on Mr. Brennan.
I am not supportive of the nomination of Mr. Brennan, but I think he
ought to have a vote, and I intend to express myself in much greater
detail on it a little later. But from the standpoint of simply moving
the issue forward, if the administration had come to the Senator with a
direct answer days or weeks ago, when he asked the question, we
probably would not be here now.
Again, I thank the Senator for his comments on this issue.
Mr. PAUL. Mr. President, I wish to thank the ranking member of the
Intelligence Committee and also say this could come to a close anytime
if the President will sort of say what Attorney General Holder was
trying to say this morning, and put it into actual words, that he
thinks he has the military authority to reject imminent attack. I think
we all agree to that. But if he says he is not going to use drones on
people who are not engaged in combat in America, I think we could be
done with this debate--I think one phone call from the President to
clarify what his position is or from the Attorney General to actually
write out what his position is.
But I guess the reason I am kind of alarmed is, we have a quote from
the Attorney General saying the executive
[[Page S1181]]
branch will decide when and if to use the fifth amendment.
I understand in times of war and on battlefields that is a different
story. I am talking about in the United States. I do not think the
executive branch gets an option of whether to adhere to the fifth
amendment in the United States. But if they could be more clear on
that, I think we could be done with this debate at any time.
I have never objected to a vote on Brennan, on the nominee for the
CIA. But I have objected to the idea that basically we are just going
to throw out the baby with the bathwater and the Bill of Rights becomes
something of lesser importance.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, would my friend yield without losing for the
floor for a unanimous consent request?
Mr. PAUL. Without yielding the floor, I would be happy to yield.
____________________
[Congressional Record Volume 159, Number 32 (Wednesday, March 6, 2013)]
[Senate]
[Pages S1181-S1226]
UNANIMOUS CONSENT REQUEST--EXECUTIVE CALENDAR
Mr. REID. Mr. President, I ask unanimous consent that the Senate
proceed to the consideration of Calendar No. 43; that the cloture
motion at the desk be reported; that the mandatory quorum under rule
XXII be waived; that there be 90 minutes for debate, with 30 minutes
under the control of the chair and 1 hour under the control of the
vice-chair of the Intelligence Committee, with 30 minutes of the vice-
chair's time under the control of Senator Paul; that following the use
or yielding back of that time on the nomination, the Senate proceed to
vote on the cloture motion; that if cloture is invoked, the Senate
proceed to vote on the confirmation of the nomination, without
intervening action or debate; further, that the motion to reconsider be
considered made and laid on the table, with no intervening action or
debate; that no further motions be in order to the nomination; that the
President be immediately notified of the Senate's action, and the
Senate then resume legislative session.
Mr. President, before I hear from my friends on the consent, I have
no problem if people want to talk for a long time, no problem. I have
done it a time or two in my day. But I think that the rest of the body
needs to know if we are going to finish tonight or tomorrow or the next
day. So my consent request is pretty direct. We would have 90 more
minutes of debate, an hour under the control of the Senator from
Georgia, and 30 minutes under the control of Senator Feinstein or their
designees.
The PRESIDING OFFICER. Is there objection to the majority leader's
consent request?
Mr. REID. Mr. President, I would simply say, if there is objection,
we will come back tomorrow.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, reserving the right to object, let me,
if I may, direct a question to the majority leader through the Chair.
As I understand what the Senator is asking, for 90 more minutes--30
minutes to Senator Feinstein and 30 minutes for me, and Senator Paul
would have 30 minutes-- it would start right now, basically?
Mr. REID. Yes, basically.
Mr. CHAMBLISS. Continuing to reserve the right to object, I guess,
then, I would direct a question to the Senator from Kentucky since he
has the floor. What amount of time does the Senator think he wants to
utilize?
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. PAUL. Mr. President, reserving the right to object, I would be
happy with a vote now. I have talked a lot today. But the only thing I
would like is a clarification. If the President or the Attorney General
will clarify that they are not going to kill noncombatants in America--
he essentially almost said that this morning.
He could take his remarks, that he virtually agreed ultimately with
Senator Cruz, and put it in a coherent statement that says the drone
program will not kill Americans who are not involved in combat.
I think he probably agrees to that. I do not understand why we could
not put that into words. But if he does, I want no more time. If not, I
will continue to object. If the administration and the Attorney General
will not provide an accurate answer, I object.
Mr. REID. Mr. President, I am not in a position to talk for the
Attorney General. We will just finish this matter tomorrow.
The PRESIDING OFFICER. Objection is heard.
Mr. REID. Mr. President, everyone should plan on coming tomorrow. We
are through for the night.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. PAUL. Mr. President, at this time, without yielding the floor, I
would like to entertain a question from the Senator from Pennsylvania.
Mr. TOOMEY. Mr. President, I want to thank the Senator from Kentucky
for raising a very important issue. I would just like to have a little
bit of clarification so that I understand exactly what has transpired
and the exact question to which the Senator from Kentucky would like a
response.
My perception, my understanding, is this seems like a very simple and
basic request. So I am surprised that we did not have a simple and
straightforward answer. So I wonder if the Senator from Kentucky would
just summarize briefly for me, so that I understand clearly the exact
request that he made to the administration.
Mr. PAUL. Mr. President, in late January we sent a letter to John
Brennan, the nominee for the CIA, asking a bunch of questions. Included
among those questions was, Can you kill an American in America with a
drone strike? We got no response and no response and no response.
Thanks to the intervention of the ranking member on the Intelligence
Committee, as well as members from the opposite aisle on the
Intelligence Committee, we finally got an answer about 2 days ago. The
answer from John Brennan was that he acknowledges the CIA cannot act in
the United States. That is the law. That was nice. But the Attorney
General responded and said they do not intend to. They have not yet,
but they might.
Mr. TOOMEY. Am I correct in understanding that is currently the state
of play? That is the most recent response the Senator has gotten in
writing from the administration?
Mr. PAUL. Mr. President, that is the only direct response I have
gotten. I have also read the testimony from the Judiciary Committee
where the Senator from Texas cross-examined the Attorney General, who
responded indirectly to my question by saying: It was inappropriate, we
probably would not do that.
But he would not answer directly whether it was unconstitutional. It
appears at the end that he may have said that it would be
unconstitutional, say, to kill noncombatants.
It should be a pretty simple answer really. That is all I am asking.
I can be done anytime if I could just get a response from the
administration or the Attorney General saying they do not believe they
have the authority to kill noncombatants in America.
Mr. TOOMEY. Further clarification: If the administration seems to be
unwilling to state unequivocally that they recognize they do not have
the legal authority to kill a noncombatant American on American soil,
did they suggest under what circumstances they would?
Did they suggest a process by which they would identify an American
citizen noncombatant on American soil who might be subject to being
killed by a drone strike?
Mr. PAUL. Well, there has been a white paper that was released that
goes through a series of things. They do have a step or a process they
go through in determining whom to kill. The problem I have is that in
foreign countries--I do not know the exact number because it is
classified, but in foreign countries many of the people being killed
are not actively engaged in combat.
I am not saying that is right or wrong or making an opinion on that
matter. But I am saying that is not a standard I can live with in the
United States. So let's say one-third of the drone strikes are going
against people who are eating dinner with their family or walking down
the road or sleeping in their house. If that is our standard and we are
going to do drone strikes in America, I could not tolerate or live with
myself if I would accept a standard in the United States that would
allow that to happen.
Mr. TOOMEY. Mr. President, judging from the response, what I
understand is
[[Page S1182]]
that there is a standard that applies overseas. But we have not
gotten--correct me if I am mistaken--a definitive word as to whether
that same standard would apply domestically to American citizens. If we
have not gotten a definitive answer, then we, it seems to me--again,
correct me if I am wrong--but then it would suggest to me that we have
no idea what standard would be used. I cannot imagine that we would
find it acceptable to be in a situation where an administration would
suggest that using a drone to kill an American noncombatant on American
soil, without even disclosing the process by which they would determine
that was appropriate--this is kind of hard to understand. Am I
understanding it incorrectly?
Mr. PAUL. Well, the interesting thing about this is for many years,
no one would talk about the drone strike program at all. Then,
recently, one of the former spokesmen for the President said he was
instructed to never say it existed. But now that it is in the open, the
President, a week ago, was asked at Google when he was there for an
interview: Can you do this?
His answer: Well, the rules would probably have to be different
inside than outside.
That implies he thinks he can do it in America. Then the question
becomes, What are those rules? This is as much about the checks and
balances of--you know, they say we have the ability to advise and
consent. This is some friendly advice I am giving to the President
today that he ought to think about or we should think about as a body
whether we are a check and balance to the power of the Executive,
whether it is Republican or Democratic.
I think it is immaterial. No President should have the power to make
these decisions unilaterally.
Mr. TOOMEY. Mr. President, I will finish. I just want to make two
points: One is I think we ought to have a robust debate about the
circumstances under which we would use drone strikes overseas and
understand the implications. Think about this. We have what is still,
to the United States, a relatively new threat in the form of these
nonstate actors, these terrorist organizations that are sometimes
affiliated with each other, sometimes not, scattered around the globe.
This is new.
In addition, we have new technology we never had before. It was not
terribly long ago the idea of flying an unmanned drone and using it to
kill a person who could be hundreds or thousands of miles away, that
was completely implausible. Now, of course, we have the ability to do
it. When new circumstances and new technology come to bear, we ought to
have a discussion about when and whether and how it is appropriate to
use that.
When we are talking about American noncombatants on American soil, I
think the starting point ought to be, we are not going to do that. The
onus ought to be on whoever has an explanation for when and whether and
why and under what circumstances we would, and that ought to be debated
very, very carefully and thoroughly. Until such time, I think it ought
to be easy to acknowledge this is not going to take place.
If we cannot get a direct answer to that question, then I have to say
I think the Senator from Kentucky is performing an important service in
putting a spotlight on this. I commend him for doing it. I thank him
for doing it. I am finished with my questions.
Mr. PAUL. I thank the Senator from Pennsylvania for asking his
questions and being part of the debate. I think that ultimately we
could get this straightened out in the sense that it is not so much
about the debate about the person as it is about the issue.
If we could get the administration or the Attorney General to put
their answer in a succinct form and simply say they believe they have
the authority to repel an attack, which most of--I think all of us
agree to that, but they do not have the authority to kill someone in a
restaurant, to kill someone at home in their house, to kill someone
when they are eating dinner; that, really, if you want to say that you
can use drones in America to strike people, not only would it have to
be remarkably different, it could not be anything like the way we use
drones around the world, which brings up some other important
questions.
The thing is this has brought us to a much bigger and important
debate. When people tell you that America is a battlefield, when they
tell you the battlefield is here, realize what they are telling you.
They are telling you your Bill of Rights do not apply because in the
battlefield, you really do not have due process. I am not arguing for
that. I am not arguing for some kind of silly rules for soldiers to ask
for Miranda rights and do all this. War is war. War is hell. But we
cannot have perpetual war. We cannot have war that has no temporal
limits. We cannot then have war that is a part of our daily life in our
country; that we are going to say from now on in our country, you do
not have the protections of the Bill of Rights.
So I think it is incredibly important. We have been kind of blase
about this whole drone strike program. It should come home to where we
can really think about it because that is what they are asking to do.
They are asking to bring the drone strikes to the homeland.
So I think we need to be careful. We need to ask important questions.
I think at the very least we need to be asking the question: Can you do
this with no due process? Are we not going to have an accusation? Are
we not going to have a public accusation or charge? Are we not going to
have a trial by jury?
I started out today reading from ``Alice in Wonderland.'' I would
like to go back to ``Alice in Wonderland,'' because it sort of points
out the absurdity of where we are at this point. We think of Lewis
Caroll as being fiction. Of course it is fiction. We think Alice never
fell down a rabbit hole. Of course she did not. She is not real. The
white queen and her caustic judgments are not really a threat to us.
But there is a question: Has America the beautiful become Alice's
Wonderland? We can hear the queen saying: No. No. But her response is,
Sentence first, verdict afterwards.
Well, that is absurd. How could we sentence someone without
determining first whether they are guilty or innocent? Only in Alice's
Wonderland would you sentence someone before you try them. Would you
sentence someone to death before you accuse them? Do we really live in
Alice's Wonderland? Is there no one willing to stand up and say to the
President: For goodness' sake, you can't sentence people before you try
them. You can't sentence people before you determine whether they are
guilty.
There has been discussion in our country about whether even the
courts can sometimes make mistakes. Some States have gotten rid of the
death penalty because they have made mistakes and through DNA testing
they have found that sometimes they convicted the wrong person. Can you
imagine, with all the checks and balances of our court system--which I
think is the best in the entire world, with attorneys on both sides
whether you can afford them or not. There is an argument back and
forth, and there are all of these procedural protections, and you may
appeal, and still sometimes we get it wrong.
If we can get it wrong in the best system in the world, do you think
one politician might get it wrong? You will never know because nobody
is told who is going to be killed. It is a secret list. How do you
protest? How do you say: I am innocent. How do you say: Yes, I e-mail
with my cousin who lives in the Middle East, and I didn't know he was
involved in that. Do you not get a chance to explain yourself in a
court of law before you get a Hellfire missile dropped on your head?
It amazes me that people are so willing and eager to throw out the
Bill of Rights and just say: Oh, that is fine. Terrorists are a big
threat to us, and I am so fearful that they will attack me that I am
willing to give up my rights. I am willing to give up on the Bill of
Rights.
I think we give up too easily.
The President has responded, and he said he hasn't killed anybody yet
in America. He says he doesn't intend to kill anyone in America, but he
might. I, frankly, just don't think that is good enough.
The President's oath of office says ``I will,'' not ``I might'' or
``I intend to,'' the President says ``I will protect, preserve, and
defend the Constitution.'' He doesn't say ``I will do it when it is
[[Page S1183]]
practical'' or ``I will do it unless it is infeasible, unless it is
unpleasant, people argue with me. I have to go through Congress, and I
can't get anything done, then I won't obey the Constitution.'' It is
out there. It is a rule. He doesn't get to choose.
Recently he made some choices where it appears as if he believes he
does have some sort of superpower, some power that sort of exceeds the
other branches of government. Recently he told the body of the Senate
that he decides when we are in recess, he decides when we are working.
The court rebuked him. The court told him it is unconstitutional, and
they reversed his decision. Do you know the people he appointed through
a recess--do you know what they are doing right now? They are still at
their post. They are still working in defiance of the court. This will
have to go to the Supreme Court. I guess it will take another year or
so to go up there, but he has been told what he did was illegal.
I guess what disappoints me most about this, though, is that the
President, when he ran for office, was actually someone for whom I had
a great deal of respect on the issues of civil liberties. I work with
many on the other side of the aisle because, frankly, many on the left
and some on the right--we truly do believe in civil liberties and in
protecting the individual. I think the President was one of those when
he was in the Senate.
The President, when he ran for office, often talked about, it isn't
American to torture people. I agree with him. He said it isn't American
to give up on the right to privacy, to say you don't need a warrant to
tap someone's phone. I agreed with him, and I respected that about him.
I can't for the life of me understand how he goes from that kind of
belief where he believes so much in the constitutional protections to
your phone, but he is not willing to stand up for the constitutional
protection to your life? It doesn't make any sense at all. And if he
does, why won't he say it?
I have my own sort of theory on this, and this applies both to
Republicans and Democrats. My theory is that it is sort of a contagion,
it is sort of an infection that you get when occupying the Oval Office.
They think, oh, I am a good person, so more power for me would be a
good thing.
Lord Acton said that power corrupts, and absolute power corrupts
absolutely. There is a danger when someone has so much power that they
think more power, more power and more power--I will do good with that
power. The problem is that even if that is a good person, someday
someone occupying that office may not be a good person. Someday you may
get someone in the Oval Office who says: What about those people? They
look different from us. What about those people? They have different
color skin. What about those people? They have a different color
ideology than I have. What about those people?
The danger is also that we have already defined some of the people
who we think might be terrorists. The Bureau of Justice came out with a
list of characteristics, and they said: If you see this, report on it.
If you see this, tell someone. They want you to inform on your
neighbor, so you need to know which one of your neighbors is a
terrorist. They gave you some descriptions of people to be worried
about. They said people missing fingers, people with colored stains on
their clothes, people who have weatherized ammunition, people who have
multiple guns, people who like to use cash. If that is the criteria or
the criterion for who is a terrorist, I would be a little bit worried
if you are one of those people--you might have a drone attack in your
bed tonight.
This has gone on in more than one place. The fusion centers they
developed were supposed to be a liaison between the Federal Government
and the local government. In these fusion centers, for example, in
Missouri, they also came up with some characteristics of people who
might be terrorists. They actually send it out as a memo to all the
police officers. Can you imagine if you are one of these people--people
who are pro-life, people who are for secure borders, people who support
third-party candidates? The big irony of all is people who belong to
the Constitution Party. If you believe in the Constitution too much,
you might be a terrorist. They say it was a mistake, and they
eventually apologized. Now they don't--they try not to have their memos
become public, I think.
The point is, if this is what we are getting to and this is the
criterion for who is a terrorist, you would think--you really would
think you would be worried about giving your President the authority to
kill Americans on American soil without any kind of due process. I find
it quite alarming.
I think the answer he could have given is pretty simple. I think
there is a possibility he may actually even agree with some of the
things we are saying here today. Why won't he give it? I think
Presidents, Republican and Democratic, don't give the answer because
they are afraid of constricting their authority. They believe in some
sort of inherent power, which is not listed anywhere, but they think
they have it. They don't want to give up any of it. They jealously
guard this power. They have this power, and they don't want to give it
up. That is why they won't answer us with a straight answer.
You get things. The only word I can think of is gobbledygook. You get
this craziness that comes from attorneys that doesn't make any sense.
He was asked: What is an imminent threat?
These people we are going to kill with drones have to be an imminent
threat.
His attorneys say ``imminent'' doesn't have to mean ``immediately.''
That is the only way he can justify this because probably half of these
drone attacks are people who really aren't engaged in any kind of
combat. That is a different debate. You can argue right or wrong
whether we should be killing these people not involved in combat
because there is evidence they are conspiring to hurt us and to attack
us. That is another argument, but it is a pretty low standard. You can
argue that, well, that is war over there, and that is a lower standard,
and I can accept it, but for goodness' sake, could there be any
question that in America we are going to accept a standard so low, a
standard that basically says that if we think you might someday be
engaged in hostilities, we can kill you? We need to be careful because
the criteria for the drone strike program overseas really is something
that I think most Americans wouldn't accept for their fellow citizens.
Overseas, one of the most famous American citizens they killed was
al-Awlaki. Before he was killed, he was primarily thought of as someone
who they said was a sympathizer. I think there is no question he was a
sympathizer. I think he denounced his citizenship. He was a bad guy. He
sympathized with our enemies. I think he could have been tried for
treason. I think if I were on a jury, from what I have read of
nonclassified information, I would have voted his guilt and for his
death. The thing is, some kind of process might be helpful.
His son, though, 16 years old, was killed 2 weeks later in a separate
drone strike, and he was on nobody's list that I know of; they won't
respond. I think the response by the President's spokesman is
reprehensible. It really should be called out. It is really sort of
this flippant response that I think shows absolutely no regard for
individual rights or for Americans. He said: Well, the kid should have
chosen a more responsible father. Think about that. Is that the
standard you wish your government to operate on in America? We have a
lot of criminals in our country. We have a lot of bad people. If you
happen to be the son of a bad person, is that enough to kill you?
The other thing is that people killed overseas who are not the
target--they don't call them civilians because they say anybody between
the age of 16 and 50 who is a male is a potential combatant. Are we
going to use that same standard here in our country? Are we going to
use the standard in our country that if you just happen to be a male
and you happen to be standing near somebody we have judged to be a
problem, that we are going to go ahead, and, oh, I guess that is not
even collateral damage; that person was probably a bad person because
he was standing close to this person?
I think there are different standards for war than there are within
our country. It is not always going to be perfect, and there is a
legitimate debate over what the rules should be in a war,
[[Page S1184]]
where a war is overseas, and exactly what happens. I think good, honest
people can disagree on some of that. What I worry about are the people
who say America is a battlefield because when they say America is a
battlefield, they say they want the laws of war to apply here. The
reverse of that is basically, if you reverse the laws of war, they are
talking about martial law, is what they are talking about, law that is
acceptable under extreme circumstances.
I don't think what we have in our country right now is a circumstance
where I would accept martial law, but we have already instituted some
of the things you will see in other countries under martial law. In
Egypt, they have indefinite detention. That is their emergency decree
that occurred back in the 1970s, and it went on and on to the present.
They have martial law, and they are very unhappy about having martial
law, indefinite detention. You saw it last year. We have indefinite
detention in America.
The President's response again was inadequate. What did the President
say to having indefinite detention in our country? He said: Well, I
don't intend to use it. I would rather have a President who has the
chutzpa to not sign the legislation and send it back and say: Take it
out or I won't sign it. I would have a lot of respect for someone like
that.
Mr. President, without yielding the floor, I would be happy to
entertain a question from the Senator from Texas.
The PRESIDING OFFICER (Mr. Blumenthal). The Senator from Texas.
Mr. CORNYN. Mr. President, I wanted to come to the floor to pose a
few questions to my colleague from Kentucky. First, I would say that I
admire his fortitude and his willingness to ask appropriate and
reasonable questions of the administration on a matter of grave
importance. This is a matter no less important than our constitutional
government itself that does not give sole power to the administration
to make these decisions but recognizes that the Congress is a coequal
branch of government. Indeed, we have important oversight
responsibilities in the Department of Justice, the Department of
Defense, and there isn't a more delicate and important matter than the
limitations placed on the government when it comes to dealing with our
own citizens.
I would like to ask the Senator from Kentucky whether he is aware of
some of these issues.
First of all, shortly after President Obama took office, the Holder
Justice Department declassified and released detailed, previously top-
secret legal memos attempting to explain the legal rationale for the
enhanced interrogation program the Central Intelligence Agency used
during the Bush administration. These memos were written by the Office
of Legal Counsel at the Department of Justice, which is frequently
called the lawyer for the executive branch, which issues those
authoritative memos. President Obama, Eric Holder presumably decided
that they would release those previously classified memos that
explained the legal rationale for the enhanced interrogation program.
I would further ask the Senator if he recalls that when the Obama
administration made these legal memos--highly classified legal memos--
public documents, does he remember the Attorney General made some
specific comments? In fact, he said: We are disclosing these memos
consistent with our commitment to the rule of law. Yet today, that same
Justice Department refuses to release to Members of Congress--including
this Senator, the Senator from Kentucky, and other Members who have
oversight responsibilities--the very same legal rationale in this case
for the drone strikes the Senator from Kentucky is talking about.
So I wanted to ask, first of all, of the Senator from Kentucky
whether he believes I have accurately recited the facts, but then to
ask him whether he sees a double standard here on the part of the
Obama-Holder Justice Department where on one hand they release these
legal memos from the Office of Legal Counsel, and in this case, instead
of releasing the legal rationale for the authority to make drone
strikes, they issue what is, in essence, a white paper, or press
release, that was linked to the news media.
I would ask the Senator from Kentucky to respond.
Mr. PAUL. Mr. President, the question from the Senator from Texas is
a very good one, and there does seem to be a double standard going on
here. There seems to be one standard for wiretapping of phones or
interrogation, but there seems to be much less a standard for actually
killing. It seems to be hypocritical and one would wonder why.
With regard to releasing the memos and how they come about their
process, some of that was leaked. It is always curious to me that it is
as if the leaks come out on purpose; as if they are intentional. The
leaks happen right before a nomination process. I don't know the truth
of that, but I do think that not only should we get the memos, but if
there is going to be a drone strike program in America, perhaps we
should actually be writing the rules and sending them to the President.
That would be our job--not to listen to him and what he is going to do
on drone strikes in America, but actually spelling out and having an
open discussion. Because in America I don't think that should be a
secret--how we are going to go about this in America.
I see no reason not only to get the drone memos, and I think it would
be more consistent with their earlier position, but I think what we
should do is be a part of the process of determining how we go forward,
with whether we are going to have drone strikes in America and what the
rules would be.
Mr. CORNYN. Mr. President, will the Senator yield for another
question?
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. I would ask a further question of the Senator from
Kentucky. I believe the question he has asked--whether the President
has the power to authorize lethal force, such as a drone strike against
a U.S. citizen on U.S. soil and without trial--is a very clearly stated
question and one, I believe, the Senator and the rest of the Members of
Congress are entitled to a very clear answer on.
I was in the Senate Judiciary Committee hearing with the Attorney
General this morning where we attempted to ask him on a number of
occasions what his answer would be to this question. Yet he equivocated
and he was ambiguous. He seemed to be ambiguous when a clear answer
would serve him just as well, a point the Senator from Kentucky has
made.
The question I have for the Senator is: Wouldn't in all likelihood
the legal rationale or justification issued by the Office of Legal
Counsel at the Department of Justice include a discussion which would
illuminate and elucidate the answer to the Senator's question?
In other words, I would assume, without having seen that classified
memo, that it would go through a rather lengthy analysis of the
hypothetical situations under which these drone strikes might be used
and would, in all likelihood, I think, shed some light on and clarify
the answer to the Senator's question. Wouldn't that be a reasonable way
to answer what is a very straightforward and reasonable question?
Mr. PAUL. Mr. President, piecing together what I have heard of some
of his testimony, I actually think he did finally admit to some things
that I think are consistent with what I am saying. They haven't put it
in writing previously. I would think he could almost take his testimony
today--where he almost at some point seems to agree that it would be
unconstitutional to kill noncombatants, people not actively engaged in
combat--and if he would say that, I think he would answer my question,
basically. Because I have never been talking about people engaged in
lethal force. You don't get much due process there. If you are engaged
in lethal force, lethal force is used against you. So one would think
he could answer that simple question, similar to what he actually
stated in his testimony today, but they won't give us a succinct
answer, or any answer, really. So that is the answer we have been
trying to get to all along.
Mr. CORNYN. If the Senator will yield for another question.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. To the Senator's last point, I am reading from a letter
dated March 4. It is from the Attorney General to Senator Paul, and he
says:
The question you have posed is therefore entirely
hypothetical, unlikely to occur, and
[[Page S1185]]
one we hope no President will ever have to confront.
But he goes on to say, in response to Senator Paul's question:
It is possible, I suppose, to imagine an extraordinary
circumstance in which it would be necessary and appropriate
under the Constitution and applicable laws of the United
States for the President to authorize the military to use
lethal force within the territory of the United States.
In other words, to the Senator's point, on one hand he said it was a
hypothetical question, unlikely to occur, and one we hope no President
would ever have to confront; and then, on the other hand, he said it is
possible to imagine a scenario under which it would happen. That would
appear to cast a further lack of clarity on something that should be a
straightforward yes or no.
Mr. PAUL. Mr. President, here is the interesting thing about saying
it is hypothetical and it wouldn't happen. I could buy that, except for
the fact that our foreign drone strike program--a significant amount of
the drone strikes--are on people not actively engaged in combat.
Whether that is right or wrong is another question, but since we
already have an example of a significant amount of those being used on
those not engaged in active combat, it is hard for him to say this is a
rare, unusual, hypothetical thing that could never happen, because it
seems as though it is a big part of the drone program overseas.
Mr. CORNYN. Mr. President, I said that was my last question, but I
would ask the Senator to yield for this last question.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. It strikes me, Mr. President, that there is a clear
double standard here. The Senator has asked a reasonable question, to
which he has not gotten a clear answer, and one that is clearly within
the purview of the Senate in our oversight capacity for the Department
of Justice and as a coequal branch of government. On one hand, the
Obama-Holder Justice Department not only released a white paper but
released previously classified legal memos from the Office of Legal
Counsel on the enhanced interrogation program, saying it was consistent
with their commitment to the rule of law, but today, in response to an
eminently reasonable request, is giving the Senator from Kentucky what
I think can appropriately be called the Heisman, or stiff arm, and
denying him access to that.
So I wanted to come to the floor and make that point and ask those
questions and say again that I admire the Senator's fortitude and
willingness to stand up and challenge the administration on this issue.
It would be easy to satisfy the Senator's request. He has made that
very clear. He is not intending to block a vote on this nomination, but
he is intending to get the information he has requested, and he is
entitled to it.
Mr. PAUL. Mr. President, the questions and points the Senator from
Texas has made are very good points, and it also shows we are not that
far apart in trying to find an answer to this, because, there is no
ultimate ability for me to stop this nomination. I am already getting
tired and I don't know how long I will be able to do this, so I can't
ultimately stop the nomination. But what I can do is try to draw
attention to this and try to get an answer. That would be something, if
we could get an answer from the President. And I think we would all
sleep better and feel more comfortable if he would say explicitly that
noncombatants in America won't be killed with drones. The reason it has
to be answered is because our foreign drone strike program does kill
noncombatants. They may argue they are conspiring or they may some day
be combatants, but if that is the same standard we are going to be
using in the United States, it is a far different country than I know
about. Ours is a country where dissent, vocal dissent, even vehement,
vociferous dissent as far as whether our country should go to war,
whether our country should raise taxes, lower taxes, has always been
allowed. We allow a great deal of dissent in our country. But some of
the people whom we have said we are targeting have been dissenters,
probably traitors too, but they have also been people who have been
vocalizing it more than they have been shooting anybody.
That is not to say you can't be a traitor even if you don't shoot
anybody. But if you are going to be accused of treason or of being a
traitor in the United States, I would think you would get your day in
court, probably. It is particularly troublesome since some of the
descriptions of who might be a terrorist are such that I would be a
little bit concerned about the slippery slope to who is and who is not
a terrorist. I can't imagine in America we would do that without an
open accusation, without a trial by a jury, without a verdict.
I think it is important this discussion go on, and I am not
ultimately setting the goal that I can stop this nomination. I am here
today to draw attention to a constitutional principle, to try to get
the administration to admit publicly they will not kill Americans who
are not involved in combat. But it hasn't so much to do with Brennan or
his nomination, it has to do with a constitutional principle.
Ultimately, Brennan will be approved. He will be the head of the CIA.
This will be a blip in his nomination process. I hope people will see
it more as an argument for how important our rights are; that no one,
no branch of government, no individual politician should be above the
law, should be able to dictate and say what they think the law is.
We had some of this even under a Republican President. I was critical
of President Bush for saying he had the ability to interpret the law;
he had the ability to put signing statements, which were extensive
sometimes, which gave his interpretation of what the law was or what he
thought the law was. So I have been critical of both sides thinking
they have more power than they have.
Our Founding Fathers were brilliant in the sense that they separated
the powers and had these coequal powers of government, these branches
of government that were somewhat pitted against each other. And by
having equal power and by being able to judge the power of the other
branch, no one branch could accumulate too much power. But in our
country it has been going the other way for a long time. It hasn't been
just Democratic Presidents or just Republican Presidents, it has
frankly been both. For maybe 100 years or so power has been gravitating
and gravitating and gravitating to the Presidency. And not just the
Presidency. When people talk about the bureaucracy, these are people
who are within the executive branch--millions of them. When we passed
ObamaCare, it was 2,000-some-odd pages, but there have been 9,000 pages
of regulations written since. ObamaCare had 1,800 references to ``the
Secretary of Health shall decide at a later date.'' We gave up that
power. We gave up power that should have been ours, that should have
been written into the legislation. We gave up that power, and as a
consequence we gave it to the executive branch. We gave it to people--
many of them we call bureaucrats--who are unelected. So we gave away
power. It is a struggle, and it should be a perpetual struggle, but we
shouldn't give in on that struggle and give up that power.
There was mention the President should reveal to us drone memos on
how he is making the decisions. We have had some leaks about that, but
I would go one step further. Not only should the President let Congress
know what he is doing, maybe we should tell him what to do. Maybe the
Congress should be setting the rules for how we do drone strikes. Maybe
the Congress should be protecting the American people from their
government.
That sounds terrible, protecting you from your government. That is
what the Constitution was about. The Constitution wasn't written to
restrain your behavior, it was written to restrain your government's
behavior.
A lot of people get confused when we talk about religion and the
first amendment. But if you read the first amendment, it says Congress
shall make no law. It doesn't say anything about your religious
preferences. It is not supposed to limit your involvement in
government. It is really not supposed to limit so much religious
involvement in government or even religion.
We have a prayer every morning in the Senate. You can't have it in
your public school, but we have a prayer every morning. Explain that to
me. We have the Ten Commandments around here. So does the Supreme
Court. But
[[Page S1186]]
you can't have it in your local school. I think we have gotten confused
on things. It was really about government getting involved in your
religion.
We didn't want to establish a church. We thought it was a bad idea to
have an official church, and I still think it is a bad idea to have an
official church because then the government would be telling the church
what to do. But it is really all about the documents that we have
protecting you from an overbearing government.
Your government was given a few defined powers, the enumerated
powers. There are 17, 19--depends on how you want to count them--but
there are not very many. They are few and defined. But your liberties
are many--basically, unlimited and undefined.
When you read the ninth and tenth amendment, it says those rights not
explicitly given to government are left to the States and the people.
They are yours. They are not to be disparaged.
These are important debates we are having. When Montesquieu talked
about the separation of powers and the different checks and balances,
he said: There can be no liberty when you combine the executive and the
legislative. Likewise, I would add to that there can be no liberty when
you combine the executive and the judiciary.
So if you allow the President to tell you he can have drone strikes
on Americans, on American soil, you are allowing him to be not only the
executive, you are allowing him to be the judiciary. If he makes it
secret, nobody can object.
I remember one time I was complaining to another Senator about these
things called suspicious activity reports. Your bank is required to
file them on you. In fact, if you pay your Visa bill through your bank,
over the phone, you have done a wire transfer, and you can be part of a
suspicious activity report. If you turn cash in to the bank or get cash
out of the bank over a certain amount, you can get a suspicious
activity report.
I was concerned about this because there have been 8 million filed
since
9/11, and the Senator's response is he has never heard anybody complain
about it. The reason nobody complains is they are secret. They don't
tell you they are doing this.
So if you get on the kill list, it is a little hard to complain. We
might have a kill list for a couple of years in the United States, on
American citizens, and nobody might complain because it is secret. You
don't know you are on the list.
So I think it is important that we have a big debate and discussion
over this; that we let the President know he doesn't get to write all
of these rules on killing American citizens; that the Constitution
still applies in our country.
The reason this is a big debate is that when you are in a war, the
Constitution doesn't always apply on the battlefield in another
country. There is a debate over whether the Constitution is here or
whether it extends beyond the borders. But the practical matter is we
can't really enforce the Constitution beyond our borders. You sort of
consent to your Constitution, you sort of consent to your government by
voting. We have that arrangement in our country, but it doesn't happen
in Mexico, Europe, or Afghanistan, and it certainly doesn't happen in
the middle of hostilities. So you don't really get due process over
there. That is the real danger. That is the problem. That is the rub.
This whole thing is about the use of authorization of force that was
passed after 9/11 to go to war in Afghanistan. If you had voted on
that--you didn't; your leaders did. But had you voted on that, you
would have thought: I am going to war in Afghanistan to get the people
who attacked us on 9/11.
I was all for it. I still am. I think that was something we needed to
do. We couldn't let people attack us, but I don't think you would have
thought, when you voted for that, you were voting for a worldwide war
with no end that included America as part of the battlefield. That is
the real problem.
The administration, John Brennan, who wants to be head of the CIA,
and Eric Holder, the Attorney General, they all believe--and many here
believe this also--there is no geographic limit to the war. It is not
in Afghanistan. They say it is everywhere, but they say everywhere
includes here.
Here is the problem: If you don't think you can apply due process in
the middle of a war, what happens if they say the war is here? That
means you don't get any protection. So if you are accused of a crime, I
guess that is it.
I can't imagine that is what we want as Americans. I just can't
imagine we would believe or acquiesce or allow the President to
basically say he is going to make the decisions for us; that he
basically would kill noncombatants in America.
I, frankly, think eventually he will admit--it would be nice if he
would admit it tonight--that he is not going to do it. If anybody has a
phone, give him a call. Let him know we would like to know an answer.
And I think it would be appropriate.
When the Attorney General came this morning to the Judiciary
Committee to answer questions, he was asked repeatedly this question:
Can you kill noncombatants if they are sitting and having tea somewhere
in America? He kind of weebled and wobbled and went around the issue.
Finally, we said: We want to know, is it constitutional? Do you think
you can do this?
Instead of saying we might not, we don't intend to--and it sounds
like he finally admits at the end that it is unconstitutional. But then
why can't we get them to issue a statement? Why can't we get them to
say explicitly: We are not going to do this? I see no reason. It would
take them 5 minutes to jot this down on a piece of paper. If they don't
intend to do it, why not tell us?
When your government won't tell you they are not going to do
something, when they won't answer, no, they don't have the power, they
are saying to you, yes, they have the power.
If they will not answer your question and say: No, I will not kill
Americans who are not involved in combat here at home, if they cannot
tell you that, they are saying, yes, they will kill Americans not
involved in combat. It is a simple question.
Conor Friedersdorf writes for the Atlantic, and he writes:
Does President Obama think that he has the power to kill
American citizens on U.S. soil? If he accuses a guy in the
Arizona desert or rural Montana of being an Al Qaeda
terrorist, is it ever kosher to send a drone over to blow him
up, as was done to--
People overseas--
Or is it never okay to drone strike an--
American citizen to death here in America?
It's an easy question.
Answering it wouldn't jeopardize national security in any
way.
So why do Obama administration officials keep dodging it?
When the President was asked this question in a Google Plus interview
last week, he said: Well we might have different rules inside the
country than outside the country.
Well, that sort of assumes he thinks he can kill Americans here, and
he might have different rules. He might have more protections, but he
is not going to tell you. He says it is secret. I, for one, am not very
comforted.
When the President says he hasn't killed any Americans yet and he
doesn't intend to kill any Americans--but he might--that doesn't really
comfort me so much. I don't think that is strong enough language.
The Presidential oath of office says, ``I will preserve, protect, and
defend the Constitution.'' It doesn't say: I intend to. It doesn't say:
I intend to preserve, if it is convenient; I intend to preserve,
protect, and defend the Constitution if it is convenient.
In his memo, he says he is only going to kill people if it is
infeasible. To me, that sounds a little bit like, yes, it is tough. It
is inconvenient, so I am going to preserve, protect, and defend the
Constitution as long as it is feasible. It just doesn't inspire me.
Friedersdorf goes on to say with regard to the President's answer in
Google: ``But he still didn't give a straight answer.''
Counterterrorism adviser John Brennan--whose nomination we are
talking about--won't answer either. He finally did answer, but only
under duress. His answer was actually the appropriate answer. He said
the CIA can't do this in America. But it begs the question--because the
CIA is not in charge of the drone program; the Department of Defense
is. So we need an answer from the Department of Defense, and we get an
[[Page S1187]]
answer from Eric Holder that says they haven't done it yet, they don't
intend to do it, but they might. He doesn't say specifically that they
will not.
These answers have been out there for a while, and we have been
through this and around this and asked questions. These are simple
questions. These are questions I can't imagine why we can't get an
explicit answer to--unless the answer is no. Unless the answer is that
they don't want limitations on their power. Unless the answer is that
they don't want to be constrained by the Constitution. Unless their
answer is that the Bill of Rights doesn't apply to them when they think
it doesn't apply to them. And that is the real danger.
Eric Holder--your Attorney General--was asked about this and asked
about the fifth amendment. He was asked: Does it apply?
He said: Well, it applies when we think it applies.
What does that mean? I know it is a debatable question--overseas,
American citizens, this and that--but I don't think it is a debatable
question. In our country, does the fifth amendment apply? I don't know
how you can argue the fifth amendment doesn't apply. I don't know how
you can argue we have an exemption to the Bill of Rights when we want
to.
But this is the President--the same President who argued he gets to
determine when the Senate is in recess because he didn't get a few of
his appointees last year, also argued that the Senate was in recess and
said he could appoint anybody he wanted--and he did.
It went to court, and the court rebuked him. The court said: You
don't get to decide all the rules for all of government. The Senate
decides when they are in recess; you decide when you are in recess, but
you don't get to decide the rules for the Senate.
They struck him down. Has he obeyed the ruling? Has he listened to
what the court did? Has he been chastised and rebuked by the court?
The people he appointed illegally are still doing that job. All of
their decisions are probably invalid. So for the last 2 or 2\1/2\
years--however long these recess appointments have been out there--all
of these decisions are going to be a huge mess. They have made all
these decisions, and it is going to be uncertain whether the decisions
are going to be valid. All of this happened because for some reason he
thought he had power he doesn't actually have. I think there are some
analogies to what we are talking about.
Now, one of the rules he said he would adhere to, as far as the drone
strikes overseas, was that there has to be an imminence to the threat.
Then his team of lawyers followed up and concluded: Well, it has to be
imminent, but it doesn't have to be immediate. I think only a gaggle of
government lawyers could come together and say ``imminent'' doesn't
mean ``immediate.''
Spencer Ackerman wrote, in Wired, about this. The title is, ``How
Obama Transformed an Old Military Concept So He Can Drone Americans.''
``Imminence'' used to mean something in military terms;
namely, that an adversary had begun preparations for an
assault. In order to justify his drone strikes on American
citizens, President Obama redefined the concept to exclude
any actual adversary attack.
It is important to get that and to register that he has defined a
potential imminent attack to mean that it excludes any actual adversary
attack. So you are under imminent attack but there is no attack. It is
a bizarre logic, but it is done to widen what they can do to grant them
more power.
Ackerman goes on to say:
That's the heart of the Justice Department's newly leaked
white paper--
These drone memos--
first reported by NBC News, explaining why a ``broader
concept of imminence'' (.pdf) trumps traditional
Constitutional protections American citizens enjoy from being
killed by their government without due process. It's an
especially striking claim when considering that the actual
number of American citizens who are ``senior operational
leader[s] of al-Qaida or its associated forces'' is
vanishingly small. As much as Obama talks about rejecting the
concept of ``perpetual war'' he's providing, and
institutionalizing, a blueprint for it.
This is what we are talking about. Don't think if you give the
President the power to kill Americans, that it is a temporary power.
The use of authorization of force, they say, has no geographic limit
and no temporal limit. There is no end to the war. There is no end to
the lessening or the abrogation or the giving up of your rights. If you
give up your rights now, don't expect to get them back.
Ackerman goes on:
Imminence has always been a tricky concept. It used to
depend on observable battlefield preparations, like tanks
amassing near a front line, missile assemblage, or the
fueling of fighter jet squadrons. Even under those
circumstances, there has been little consensus--
internationally about various wars that we have had in the past.
President George W. Bush contended that the U.S. had to
invade Iraq not because the government knew Saddam Hussein
was about to launch an attack upon America, but because it
didn't.
Because it was unknown, because we fear things we don't know--we
don't know so we conclude yes, and we preemptively attack.
Bush contended that the uncertainty about Saddam's weapons
of mass destruction augmented by 9/11's warnings of shadowy
terrorist groups plotting undetectable attacks redefined
``imminence. . . . ''
So when I say this is not a partisan battle, I am true to my word.
President Bush started this. President Obama is expanding this.
The real irony, though, is President Obama ran as the anti-Bush
candidate. He ran as the guy with the real moral umbrage at what
President Bush was doing and in the end he is taking Presidential power
to a new level beyond what President Bush could have ever imagined. So
Bush contended that they could invade because they were uncertain about
what Saddam could do. He:
. . . redefined ``imminence'' to mean the absence of
dispositive proof refuting the existence of an unconventional
weapons program. . . .
Imminence is the absence of proof that you don't have something. So
you have to prove a negative, you have to prove you don't have
something, or you are an imminent threat.
That would be sort of like saying to Mexico: Prove to us you don't
have a nuclear weapon or we are going to bomb Mexico City. It is a
bizarre notion of imminence. So Mexico is now an imminent threat to the
United States because they are unwilling to prove they don't have a
nuclear weapon. You can see the convoluted logic that occurs here.
But when U.S. troops invaded, they learned that Saddam did
not possess what Bush or Condoleezza Rice famously termed a
smoking gun that could come in the form of a mushroom cloud.
The undated Justice Department white paper, a summary of a
number of still-classified legal analyses, redefines
imminence once again. Al-Qaida leaders are ``continually
planning attacks,'' the undated white paper says, and so a
preemptive attack ``does not require the United States to
have clear evidence that a specific attack on U.S. persons
and interests in the immediate future.''
Realize what this means. First of all, nobody has an al-Qaida card. I
think we say every terrorist in the world is in al-Qaida because then
they have to prove otherwise. So nobody has an al-Qaida card. Everyone
is in al-Qaida. So we say that unless you can prove that you are not
attacking us, because we know the history of al-Qaida is to continue to
attack us, we can preemptively attack you.
But now we are talking about bringing that kind of gobbledygook,
jumbled logic to the United States. Are these going to be the standards
by which we kill Americans?
Ackerman goes on:
For an adversary attack to be ``imminent'' and a preemptive
U.S. response justified, U.S. officials need only
``incorporate considerations of the relevant window of
opportunity, the possibility of reducing collateral damage to
civilians, and the likelihood of heading off future
disastrous attacks on America.''
So if we say al-Qaida is always attacking us and we say you are part
of al-Qaida, then we can kill you. But the thing is, that is an
accusation. If you are a U.S. citizen, you live in San Francisco or
Houston or Seattle and someone says you are a member of al-Qaida,
should not you get a chance to defend yourself? Shouldn't you get to go
to court? Shouldn't you get a lawyer? Are these not things that we
would want in our country?
Ackerman goes on. He says:
There is a subtlety at work in the Justice Department
framework. It takes imminence out of the context of something
an enemy
[[Page S1188]]
does and places it into the context of a policymakers's
epistemic limitations.
So really we are not looking to say someone has a rocket launcher on
their shoulder. We are saying because we think that these people do not
like us and will continue to attack us, we can preemptively kill them.
Realize that this kind of logic is being used overseas, and that is
debatable. But now they are going to bring this logic to America. So
when you read stuff like this, that imminence is out of the equation
and in its place we are going to put a ``policymaker's epistemic
limitations'' or estimation--that is how we are going to decide who is
going to be killed in America? All we know is what we have in the
foreign drone program.
We have no evidence yet because no one has told us. They just told us
they have not killed anyone yet, they don't intend to, but they might--
but they haven't told us what the rules are they are going to use in
this context--what rules are going to be used in America? If you are
going to kill noncombatants, people eating dinner in America, there
have to be some rules. Does the Constitution apply?
When Eric Holder was asked about the fifth amendment, he said the
fifth amendment applies when they think it applies. He says the
executive branch is very careful and they are very conscious of the
fifth amendment and they do try to apply the fifth amendment when they
can.
I mean, it is a different story when you are talking about a war
overseas and you are talking about people who live in our country. You
don't get the option of determining when the fifth amendment applies.
Ackerman goes on to say:
If there is a reasonable debate about what imminence means
in an era of terrorism, and what standards ought to be
accepted for defining it as an international norm, that
framework--
where they talk about that they are thinking about what the terrorist
is thinking rather than what the terrorist is doing basically preempts
the whole idea of determining or trying to discuss or figure out what
imminence really means.
Ackerman goes on:
All that matters to justify a drone strike attack is for
the U.S. to recognize that it can't be all-knowing.
So interestingly it's not intelligence that drives the attack, it's
you saying I don't know but I am worried that these people do attack us
continuously, so by me not knowing their plans, that is a justification
for an attack. Realize, that could be the standard in the United
States.
It's the logical equivalent of the CIA's signature strikes,
which target anonymous military-age males in areas where
terrorists operate--
This should be the thing that should just scare the you-know-what out
of you. If we are killing people overseas who we don't know their name
because we think they are in a caravan going from a place where we
think there are bad people to another place where there are bad people,
that is a fairly loose standard. So, let's say there are people going
from a Constitution Party meeting to a Libertarian Party meeting. Both
these groups don't like big government. They hate big government. They
are opposed to government. They are nonviolent as far as I know, but
they were on the Fusion List for potential terrorists. Are we going to
kill people in a caravan going from one meeting to the next? Are we
going to have to name the person we kill in the United States?
You say, oh, that is absurd. We would never do that. Well, what about
whose phone we tap? Do we have to name that person? It used to be the
requirement. It has gotten less so over time. We have gotten to the
point where the fourth amendment protections to name the person, place,
and what you want to look at have become looser over time. I think it
is a legitimate question. If you are going to target Americans on
American soil, are you going to name them first? Are you going to tell
us who is on the list? The list overseas is secret so the question is,
is the list going to be secret in the United States? How do you get
your due process if you don't know you are on the list? It is a little
bit late after the drone attack to say: Hey, it wasn't me. I didn't
really mean what I said in that e-mail. I should not have made that
comment on line.
Some liberals think they have had a double standard on this and
haven't been very good. Some have been more honest in their criticism
of the President being hypocritical. The President seemed to be
concerned at one time about warrants for wiretaps. He seemed to be
concerned about Americans and torture. He seems to have lost a little
bit of that when we talk about whether to kill Americans on American
soil.
Eugene Robinson, whom I would consider a liberal pundit, wrote an
article printed in the San Antonio News called ``Judicial Review Needed
For Drone Hits Of Citizens.'' He begins this way. He says:
If George W. Bush had told us that the ``war on terror''
gave him the right to execute an American citizen overseas
with a missile fired from a drone aircraft, without due
process or judicial review, I'd have gone ballistic.
These are Eugene Robinson's words. If he had heard this about George
Bush, he would have gone ballistic. To his credit he says:
It makes no difference that the president making this
chilling claim is Barack Obama. What's wrong is wrong.
Robinson goes on to say:
The moral and ethical questions posed by the advent of
drone warfare are painfully complex. We had better start
working out some answers because, as an administration
spokesman told me recently, drone attacks are the ``new
normal'' in the ongoing struggle against terrorist groups
such as al-Qaida.
These attacks have become normal. They have become commonplace. They
have become the rule rather than the exception. But at least Eugene
Robinson is someone who is consistent in his application of criticism.
He says he would have gone ballistic had George W. Bush done exactly
what President Obama is doing and his response is, ``It makes no
difference that the president making this chilling claim is Barack
Obama. What's wrong is wrong.''
The question of when we get due process, whether it applies to you
here or overseas, is a big question. But under our concept of
government, it is not a question that should be left up to one branch
of government. You know, should one branch of government get to decide
that you don't get due process? That the fifth amendment doesn't apply
to you? This is an incredibly important question. John Brennan and the
nomination today pale in comparison to that question. Does the
President alone, unilaterally, get to decide whether the fifth
amendment applies to you? Or can he say that he is going to secretly
accuse you of a crime and that the fifth amendment doesn't apply to
you?
This is worrisome because the Attorney General has been asked about
the applicability of the fifth amendment to the drone program. He said
the fifth amendment applies when they think it applies. He says they
try to give some kind of process. It is not due process. Due process
involves a jury and a judge and public trial and an accusation. By
process, they mean they get together and look at a PowerPoint
presentation. They go through some flash cards and they decide who they
are going to kill. That is the process. They may say you are demeaning
the process by treating it flippantly, about whether they are serious
about the process. Is that the process you want for someone in America?
Do you want in America, for the process for you being accused of a
crime, to be a PowerPoint presentation by one branch of government,
maybe in a political party you are part of, maybe in a political party
you are not part of?
There are things in politics that are partisan. I don't think I would
want Americans to be subject to any partisanship with determining
whether you get the fifth amendment, whether you get a jury trial. I
can't imagine anybody would. I don't care whether it is a Republican or
Democrat, I don't want a politician deciding my innocence or guilt; it
is as simple as that. The President should say unequivocally we are not
going to kill noncombatants, we are not going to do PowerPoint
presentations in the Oval Office on Tuesdays. We are not going to have
Terrorist Tuesdays for Americans. He should say that. I don't think it
is that hard. It is an easy question to the President.
Mr. President, are you going to have Terrorist Tuesdays for
Americans?
Are they going to put flashcards of Americans up and pass them around
the table in the Oval Office with pictures of Americans on them and
decide
[[Page S1189]]
who is going to die and who is going to live? Are they going to
publicly charge people or are they going to secretly charge people? Are
they going to have any kind of trial or any kind of representation?
Does anybody get a chance to say: Hey, it wasn't me. I didn't do it.
Does anybody get a chance to represent or have representation?
This is an article we found interesting also by Noah Shachtman. This
was also printed in ``Wired.'' It is called ``U.S. Drones Can Now Kill
Joe Schmoe Militants in Yemen.'' This is not quite about the domestic
issue so much and a little bit about the foreign issue. However, there
is a linkage between the foreign drone attacks and what will become the
domestic drone attacks.
Why? Because those are the only drone attacks we know and we have not
been told that there will be an American plan for killing Americans and
a foreign plan for killing Americans or foreigners overseas. We have
not been told that. We have not been told anything. We have been told
to go and sit in a corner--including the Senate and Congress--and be
quiet. They have a process. They have a PowerPoint presentation, and
they have flashcards. I don't think that is adequate.
Noah Shachtman writes in ``Wired'':
In September, American-born militant Anwar al-Awlaki was
killed by a U.S. drone strike in Yemen. In the seven months
since, the al-Qaida affiliate there has only grown in power,
influence, and lethality. The American solution? Authorize
more drone attacks--
It kind of brings me back to that quote from the CIA agent. He said
drone attacks are like a lawnmower, but when you quit mowing the lawn,
the terrorists come back; sometimes they may be more numerous. The
question is, Can they kill them all? Can they kill every terrorist in
the world? For every terrorist they kill, maybe 3 or 4 pop up--maybe 10
pop up. What happens to the families who happen to be the ones whom we
make mistakes on or happen to be in the wrong place at the wrong time?
I know the President's spokesman found it cute to say: Oh, they
should have chosen more responsible parents. I don't find that
endearing or cute. I find it reprehensible to say that is the standard.
We have to ask the question: Is that going to be the standard in the
United States? Are we going to kill people because they are related to
bad people and then flippantly say they should have chosen better
parents after we kill a 16-year-old? Shachtman goes on to write:
The American solution? Authorize more drone attacks--and
not just against well-known extremists like Awlaki, but
against nameless, faceless low-level terrorists as well.
A relentless campaign of unmanned airstrikes has
significantly weakened al-Qaida's central leadership in
Pakistan.
I am not saying we should not use drones. I am not saying they are
not a valuable weapon that has helped us to decimate our enemies. I am
just saying it is different in a warzone than it is in our country. If
the President cannot acknowledge that being in battle somewhere is
distinctly different than walking down the street in Washington or
Baltimore or Philadelphia, it is beyond me how we can let him get away
with that.
. . . militants were chosen for--
These drone strikes--
robotic elimination based solely on their intelligence
``signatures''--their behavior, as captured by wiretaps,
overhead surveillance and local informants.
We don't know the names of the people who were killed in these drone
strikes except to know it was largely in the tribal areas of Pakistan.
We are targeting people and we do not know their names. We cannot know
much about them if we don't know their names. We are targeting them by
their signatures, where they go, and whom they visit.
Probably, inevitably, the milkman or the doctor has to go to the
terrorist camp. Maybe some of them are complicit, but some of the
people who may not be quite the people we think we are after are in a
caravan going from city to city. Maybe they are in the local food
distribution business and make good money selling it. But the question
is whether that is the kind of standard we would like to have in
America. Would a signature strike be acceptable in America? These are
questions that ought to be asked and the President ought to answer.
These people are being targeted by their signature. Their behavior is
captured by wiretaps, overhead surveillance, and local informants.
Shachtman goes on to say:
A similar approach might not work in this case, however.
In Yemen, where we have a lot of drone strikes, he says:
Every Yemeni is armed.
It is going to be kind of hard to tell who is friend or foe when they
are all fighting and they are all mad at each other.
So how can they differentiate between suspected militants
and armed Yemenis?
Shachtman goes on to say:
What's more, al-Qaida in the Arabian Peninsula--the Yemeni
affiliate of the terror collective--``is joined at the hip''
with an insurgency largely focused on toppling the local
government, another official told the Washington Post last
week. So there's a very real risk of America being
``perceived as taking sides in a civil war.''
The Yemeni drone campaign--actually, two separate efforts
run by the CIA and the military's Joint Special Operations
Command--will still be more tightly restricted than the
Pakistani drone war at its peak. Potential targets need to be
seen or heard doing something that indicates they are
plotting against the West, or are high up the militant
hierarchy.
``You don't necessarily need to know the guy's name. You
don't have to have a 10-sheet dossier on him. But you have to
know the activities this person has been engaged in,'' a U.S.
Official tells the Journal.
Gregory Johnsen, a Yemen specialist at Princeton
University, believes that these ``signature'' strikes--``or
something an awful lot like them''--have actually been going
on for quite a while in Yemen.
He goes on to say that he thinks that ``Awlaki's son was killed just
a month after his dad,'' in a signature strike. He says he thinks `` .
. . there have been 13 attacks in Yemen in 2012.''
When we talk to people around here, they say there are no signature
strikes. What are we supposed to believe? A lot of people are saying
they have evidence and have heard there are signature strikes. Those in
power who have the secret say we are not. It is hard to know what to
believe.
I think one thing that is easy to understand, though, is that I
cannot imagine we would allow such a standard in the United States
where we don't name whom we are killing and that we kill people
involved in a caravan. I think it should be pretty easy for the
President to say there will be no signature strikes in America.
Shachtman goes on to say:
Many of them have hit lower-level militants, not top terror
names. This authorization only makes targeting killings
legally and bureaucratically kosher.
But despite the increased pace of strikes--those 13 attacks
are more than they were in all of 2011--al-Qaida in the
Arabian Peninsula. . . . In fact, White House
counterterrorism adviser John Brennan last week called it the
terror group's ``most active operational franchise.''
All of which leads Micah Zenko at the Council of Foreign
Relations to wonder where this drone campaign is going. ``By
any common-sense definition, these vast targeted killings
should be characterized as America's Third War since 9/11,''
he writes. ``Unlike Iraq and Afghanistan--where government
agencies acted according to articulated strategies,
congressional hearings and press conferences provided some
oversight and timelines explicitly stating when the U.S.
combat role would end--the Third War is Orwellian in its lack
of cogent strategy, transparency, and end date.''
``Since these attacks are covert, the administration will
offer no public defense, he adds. But ``it begs [CIA director
David] Petraeus' haunting question at the onset of the Iraq
war in 2003: ``Tell me how this ends?''
That is a question I have for the President: How does the war end?
How do we win? How do we declare victory and when will the war end? The
problem is we have come up with a scheme that basically has no
geographic limitations on where the war is fought. It is harder to
defeat an enemy if the entire war is the battlefield. It is not only a
problem with determining victory, it is a problem with ultimately
coming home.
The other problem with having no geographic limitations to this is
saying that war is here; the war is in America and the battlefield here
at home is one where we are going to have rules or the laws of war are
going to apply in our everyday life.
Before we were talking about drone strikes in America, the Center for
Constitutional Rights has been concerned
[[Page S1190]]
even about American citizens overseas. On September 30, they put out
this release which said:
Today, in response to the news that a missile attack by an
American drone aircraft had killed U.S. citizen Anwar Al-
Awlaki in Yemen, the Center for Constitutional Rights, which
had previously brought a challenge in federal court to the
legality of the authorization to target Al-Awlaki in Yemen,
released the following statement: ``The assassination of
Anwar Al-Awlaki by American drone attacks is the latest of
many affronts to domestic and international law'' . . . ''The
targeted assassination program that started under President
Bush and expanded under the Obama Administration essentially
grants the executive the power to kill any U.S. citizen
deemed a threat, without any judicial oversight or any of the
rights afforded by our Constitution. If we allow such gross
overreaches of power to continue, we are setting the stage
for increasing erosions of civil liberties and the rule of
law.''
Now what they have said there is not completely noncontroversial, and
I might even take some issue with the fact that they are saying the
Constitution applies everywhere. Some argue it applies to U.S. citizens
whether here or at home, and I think there is some debate as to that. I
think the only place we can guarantee that the Constitution applies is
in our country. The only border we ultimately control is in our
country. The courts we ultimately control are here. However, the entity
doing the killing is the American military killing a citizen overseas.
So I personally have been of the belief that what we should do is try
people for treason. It is one of the four crimes in the Constitution
that is actually labeled, displayed, and given to the Federal courts.
There are specifics on what is actually treason. I personally don't
think it would be that hard to try people for treason. I think we could
do it without--we could start at the very top court and not have appeal
after appeal.
I think there was evidence that al-Awlaki could have been tried in
Federal court for treason and then targeted.
People say: Why would we want to give any protection to people who
have denounced their citizenship, who hate America, and who are
conspiring with the enemy?
I guess the way I would respond is that I don't like murderers and
rapists either. I don't like violent people who commit crimes in our
country. But because we prize our system so much and because we want to
make sure we arrest, convict, and possibly execute the right person, we
have trials. So we think it is pretty important that we have trials. So
I agree when people say these are bad people. Yes, these are bad
people. Many of them deserve what they get. The problem is, if we give
up on the process of how we do it, if we give up on the Constitution,
or if we say that kind of standard is going to be brought back to the
homeland, or if we say America is a battlefield, there is a real
problem. There is a problem in doing that because I think if we do
that, the standard becomes so loose, we really won't have what we
really expect as Americans.
The Center for the Constitutional Rights goes on with this comment by
Pardiss Kebriaei, a senior staff attorney. They went to the court, and
they asked for information on some of these drone strikes, and they
were denied. She responds:
In dismissing our complaint, the district court noted that
there were nonetheless disturbing questions raised by the
authority being asserted by the United States.
There certainly are disturbing questions that need to be asked again
and answered by the U.S. Government about the circumstances and the
killing and legal standard that governs it.
In October 2012 there was an article by Greg Miller in the Washington
Post. It was entitled ``Plan for Hunting Terrorists Signals U.S.
Intends to Keep Adding Names To Kill List.'' The editor notes that this
project was based on interviews with dozens of current and former
national security officials, intelligence analysts, and others who have
examined and were examining the U.S. counterterrorism policies and the
practice of targeted killings.
This is the first of three stories that appeared:
Over the past 2 years, the Obama administration has been
secretly developing a new blueprint for pursuing terrorists,
a next-generation targeting list called the ``disposition
matrix.''
The matrix contains the names of terrorism suspects arrayed
against an accounting of the resources being marshaled to
track them down, including sealed indictments and clandestine
operations. U.S. officials said the database is designed to
go beyond existing kill lists, mapping plans for the
``disposition'' of suspects beyond the reach of American
drones.
Although the matrix is a work in progress, the effort to
create it reflects a reality setting in among the nation's
counterterrorism ranks: The United States' conventional wars
are winding down, but the government expects to continue
adding names to kill or capture lists for years.
Among senior Obama administration officials, there is a
broad consensus that such operations are likely to be
extended at least another decade. Given the way al-Qaida
continues to metastasize, some officials said no clear end is
in sight.
``We can't possibly kill everyone who wants to harm us,'' a
senior administration said. ``It's a necessary part of what
we do . . . We're not going to wind up in 10 years in a world
of everybody holding hands any saying, ``We love America.''
That timeline suggests that the United States has reached
only the midpoint of what was once known as the global war on
terrorism. Targeting lists that were regarded as finite
emergency measures after the attacks of September 11 are now
fixtures of the national security apparatus. The rosters
expand and contract with the pace of drone strikes but never
go to zero.
Meanwhile, a significant milestone looms: The number of
militants and civilians killed in the drone campaign over 10
years will soon exceed 3,000 by certain estimates.
We have heard an estimate recently by a Member of the Senate who said
4,700 have been killed.
The Obama administration has touted its successes against
the terrorist network, including the death of Osama bin
Laden, as signature achievements that argue for President
Obama's reelection. The administration has taken tentative
steps toward greater transparency, formally acknowledging for
the first time the United States' use of armed drones.
Less visible is the extent to which Obama has
institutionalized the highly classified practice of targeted
killing, transforming ad-hoc elements into a counterterrorism
infrastructure capable of sustaining a seemingly permanent
war.
Spokesmen for the White House, the National
Counterterrorism Center, the CIA and other agencies declined
to comment on the matrix. Privately, officials acknowledge
that the development of the matrix is part of a series of
moves, in Washington and overseas, to embed counterterrorism
tools into U.S. policy for the long haul.
White House counterterrorism adviser John O. Brennan is
seeking to codify the administration's approach to generating
capture/kill lists, part of a broader effort . . .
CIA Director David Petraeus is pushing for an expansion of
the agency's fleet of armed drones. The proposal, which would
need White House approval, reflects the agency's
transformation into a paramilitary force and makes clear that
it does not intend to dismantle its drone program and return
to pre-September 11 focus on gathering intelligence.
The U.S. Joint Special Operations Command, which carried
out the raid that killed bin Laden, has moved command teams
into suspected terrorist hotbeds in Africa. A rugged U.S.
outpost in Djibouti has been transformed into a launchpad for
counterterrorism operations across the Horn of Africa and
into the Middle East.
The Joint Special Operations Command has also established a
secret targeting center across the Potomac River from
Washington. The current and former U.S. official said the
elite command's targeting cells have traditionally been
located along the front lines of its missions, including Iraq
and Afghanistan. But the joint committee has now created a
national capital region task force that is a 15-minute
commute from the White House so it can be more directly
involved in deliberations about the al-Qaida list.
The developments were described by current and former
officials from the White House as well as intelligence and
counterterrorism agencies. Most spoke on the condition of
anonymity because of the sensitivity of the subject. These
counterterrorism components have been affixed to a legal
foundation for targeted killings the Obama administration
has discussed more openly over the past year. In a series
of speeches, administration officials have cited the legal
basis, including the congressional authorization to use
military force.
This really gets to the crux of the matter, which is that the
authorizations for all of these activities around the world and then
ultimately here at home all come from the use of authorization of force
when we went to war against Afghanistan after 9/11. The problem is, how
do we finally conclude war? Is perpetual war OK with everybody? How
would we conclude the war in Afghanistan?
The President said he is bringing troops home. It is actually another
thing I admire about the President. I think it is time to come home. I
think we have accomplished our battle. I think we have accomplished our
plan. But the thing is, if we are going to end
[[Page S1191]]
the war, why would we not end the war? I think it means we end that war
and we go somewhere else. There is a question of whether we can
continually afford perpetual war. There is a question of whether it is
advisable. There is a question of whether or not we go so many places
that maybe in the end we are doing more harm than good.
The thing about the wars as they go on is we have to figure out a way
to try to end war. We have to figure out a way to try to limit war. Our
goal shouldn't be to expand war to proportions that have no limit. To
say there are no geographic limits on war I don't think should be an
admirable thing. I think it is a mistake in policy to say we can have
perpetual war with no limits, with no geographic limits, with no
temporal limits.
It is hard to end a war anymore, though. It used to be easy. In the
old days, you won a war and you came home. The problem is that we can't
even end the Iraq war. The Iraq war has been over for a couple of years
now--at least a couple of years. I tried to introduce a resolution to
end the Iraq war, to deauthorize the war, and it was voted down. I
think I got less than 15 votes. How do we end war?
The problem is that people take these resolutions and they stretch
them and they pull them and they contort them to mean things that
really they were never intended to mean. I don't think being involved
in a protracted war in Yemen or Mali or any of these other places was
intended when we went to war in Afghanistan. I just don't think that
was the intention.
Critics contend that the justifications for the drone war have become
more tenuous as the campaign has extended further and further beyond
the core group of al-Qaida operatives behind the strikes on New York
and Washington. Critics note that the administration still doesn't
confirm the CIA's involvement or the identities of those who were
killed. Certain strikes are now under legal challenge, including the
killing last year of the son of al-Awlaki.
Counterterrorism experts have said, though, that the reliance on
these targeted killings is self-perpetuating, yielding undeniable
short-term results that may obscure the long-term costs. I think that
is a good way of putting it because when we think about it, obviously,
they are killing some bad people. This is war, and there has been some
short-term good. The question is, Does the short-term good outweigh the
long-term costs not only in dollars but the long-term costs of whether
we are encouraging a next generation of terrorists?
This is a quote from Bruce Riedel, a former CIA analyst. He says:
The problem with the drones is it's like your lawn mower.
You got to mow the lawn all the time. The minute you stop
mowing, the grass is going to grow back.
Maybe there is an infinite number of terrorists. Maybe the drone
strikes aren't the ultimate answer. There are a billion Muslims in the
world. Maybe there needs to be some component of this that isn't just
the killing fields. I am not saying that many of these people aren't
allied against us and would attack us and they don't deserve to die; I
am just not sure it is the ultimate answer, it is the ultimate way. I
am also concerned that the people who are the strongest proponents of
this are also those who want to bring the war to America and say that
America is part of this perpetual battlefield.
The United States now operates multiple drone programs,
including acknowledged U.S. military patrols over conflicted
zones in Afghanistan and Libya and classified CIA
surveillance flights over Iran. Strikes against al-Qaida,
however, are carried out under secret lethal programs
involving the CIA and the CSOC. The matrix was developed by
the NCTC under former Director Michael Leiter to augment
those organizations' separate but overlapping kill lists. The
result is a single, continually evolving database in which
biographies, locations, known associates, and affiliated
organizations are all catalogued.
So are strategies for taking targets down, including
extradition requests, capture operations and drone patrols.
Obama's decision to shutter the CIA's secret prisons ended
a program that had become a source of international scorn,
but it also complicated the pursuit of terrorists. Unless a
suspect surfaced in the sights of a drone . . . the United
States had to scramble to figure out what to do.
``We had a disposition problem,'' said a former U.S.
counterterrorism official. . . .
The database is meant to map out contingencies, creating an
operational menu that spells out each agency's role in case a
suspect surfaces in an unexpected spot. ``If he's in Saudi
Arabia, pick up with the Saudis,'' the former official said.
``If traveling overseas to al-Shabaab . . . we can pick him
up by ship. If in Yemen, kill or have the Yemenis pick him
up.''
There has been some discussion as to what to do with these people. It
is a complicated situation, but I think the take-home message from all
of this is that what we are stuck in is a very messy sort of
decisionmaking, a type of decisionmaking that I do not think is
appropriate for the homeland, for the United States. I think the idea
that in the United States this is to be a battlefield, and you do not
need an attorney, you do not need a court, or you do not get due
process, is really repugnant to the American people, and should be.
I think it is something we have given up on too easily if we let the
President dictate the terms of this. If the President is unwilling to
say clearly and unequivocally that he is not going to kill
noncombatants in America, I do not think we should tolerate that. I
think there should be a huge outcry and the President should come
forward and explain his position.
This discussion tonight is not so much about John Brennan, it is not
about his nomination so much as it is about whether we believe that in
America there are some rights that are so special that we are not
willing to give up on these.
So as we move forward into this debate, it is not about who gets
nominated to be the head of the CIA. It is about principles that are
bigger than the people. It is about something bigger and larger than
the people involved. It is about constitutional principles that we
should not give up on.
I think we should all judge as inadequate the President's response
when he says he has not killed Americans in America yet, he does not
intend to, but that he might. I do not think that is a response that we
should tolerate.
So as we move forward in this debate, we need to understand and we
need to fight for something that is classically American, something we
are proud of and something our soldiers fight for; that is, our rights,
our individual rights, our right to be seen as an American, to be tried
in a court by our peers. I think if we are to give up on that it is a
huge mistake.
One of the things we have to ask is, What kind of standard will there
be? If there is going to be a program in America, what kind of
standard? If we are going to kill Americans in America, what kind of
standard will there be?
If the standard is to be sympathy, you can imagine the craziness of
this.
Mr. President, I would at this time yield for a question, without
yielding the floor, from my colleague from Kansas.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. MORAN. Mr. President, thank you.
Through the Chair, Mr. President, I would like to ask the Senator
from Kentucky a couple of questions.
I have been listening to the conversation, to the debate, to the
discussion on the Senate floor throughout the afternoon, and I would
ask the Senator from Kentucky these questions: Is it not true that the
Constitution of the United States is a document designed to protect the
freedoms and liberties of Americans?
I would ask the Senator from Kentucky, while sometimes perceived to
be a grant of authority, is not really the main purpose of the U.S.
Constitution to make sure the American people enjoy certain liberties
and freedoms that the Founding Fathers who wrote that document believed
were important for American citizens? And whether or not that is true,
I will let the Senator from Kentucky tell me, but if that is the case,
if it is constitutional to intentionally kill an American citizen in
the United States without due process of law, then what is not
constitutional under the U.S. Constitution?
If the conclusion is reached--as the administration, at least, is
unwilling to say that is not the case--if the conclusion is reached
that it is within the powers of the Constitution for the executive to
allow for the killing of an American citizen in the United States, then
what is left in our Constitution that would prohibit other behavior? If
you can go this far, what liberties remain for Americans?
Mr. PAUL. Mr. President, I think it is a good question because,
ultimately,
[[Page S1192]]
the question is, Who gets to decide? Does the President get to decide
unilaterally that he is going to do this? And how would you challenge
it? If you are dead, you have a tough time challenging, basically, his
authority to do this.
But, no, I cannot imagine in any way that you can usurp and go beyond
the constitutional requirements in the United States. I see no way he
can do that, and I cannot imagine that he would even assert such a
thing. But it still boggles the mind that he will not explicitly say he
will not do this.
Mr. MORAN. Well, I would, again, through the Presiding Officer, ask a
question of the Senator from Kentucky.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. MORAN. Again, in the absence of the assurance or the statement
from the administration--from the President of the United States or his
Attorney General--I ask the Senator from Kentucky, is not this the
appropriate venue for us to insist upon that answer? Is it not
appropriate for this to be the venue on which we, as a U.S. Senate,
make clear that it is unconstitutional, in our view, for the death of a
U.S. citizen in the United States by military action?
This is the opportune moment because of the pending confirmation of
the nomination of the head of the Central Intelligence Agency. So while
today's order of business really is an administrative appointment, is
this issue not so important that we need to utilize this moment, this
time in the Senate to make certain that question is answered in a way
that makes clear--not only for today and for the current occupant of
the CIA and its administration, but for all future Americans, all
future CIAs, all future military leaders--that it is clear that in the
United States American citizens cannot be killed without due process of
law?
Mr. PAUL. Mr. President, I think it is a good point. I think also a
point to be made is that one resolution to this impasse would be to
have a resolution come forward from the Senate saying exactly that;
that our understanding is--and this has been something that Senator
Cruz and I have discussed: whether we should limit the President's
power by legislation or by resolution, basically saying that repealing
an imminent threat is something the President can do, but killing
noncombatants is not something that is allowed under the Constitution.
I think the courts would rule that way should the courts ever have to
rule on this. But it would be much simpler and more healthy for the
country if the President would simply come out and say that.
Mr. MORAN. Perhaps, Mr. President, finally, I would ask the Senator
from Kentucky, while this opportunity to discuss this issue on the
Senate floor has occurred today, it certainly is an opportunity for the
American people to understand a significant basic constitutional right
may be at stake. And while the Senator from Kentucky has led this
discussion, I would ask him, has he now received, as a result of
bringing this attention to this issue, any additional reassurances from
the Attorney General or the President of the United States that the
administration agrees that there is no constitutional right to end the
life of an American citizen using a drone flying over the lands of the
United States and attacking a U.S. citizen?
Mr. PAUL. Mr. President, since we began this today, I have had no
communications from the White House or the Attorney General. The only
thing we have gotten indirectly was that the Attorney General was
before the Judiciary Committee today and that he did seem to backtrack
or acknowledge a little bit, under withering cross-examination. He was
not very forthcoming in saying what we would like to hear: that they
will not kill noncombatants in America. But I think that is still a
possibility from them. I think his answers were not inconsistent with
that.
But you would think it would be a little bit easier and they would
make it easier on everyone, and you would think they would want to
reassure the public that they have no intention--not just they have no
intention--but that they will not kill Americans.
Mr. MORAN. Again, Mr. President, if I can ask the Senator from
Kentucky a question through the Presiding Officer, while there is a
significantly important issue before the Senate today--and that is the
confirmation of the Director of the Central Intelligence Agency--I
would ask the Senator from Kentucky, is not the more important issue,
the less pedestrian issue, that we face on the Senate floor and in the
United States of America one that has been with us throughout our
history, one that was with us when the Constitution was written, and
one that has been with us every day thereafter; that is, what is the
meaning of the words contained in the U.S. Constitution, and what do
they mean for everyday citizens, that they know that their own
government is constrained by a document created now more than 200 years
ago? Is that not the most important question that faces our country and
its citizens on a daily, ongoing basis?
Mr. PAUL. Yes, I think American citizens get that. But not only that,
I come from a State that has two large military bases. When our
soldiers go off--and when I talk to them--they talk of fighting for our
Bill of Rights, they talk of fighting for our Constitution. They do not
think they are going off to conquer any people. They truly believe and
they honestly appraise that they are fighting for our Bill of Rights.
So that is why I see this as somewhat of an insult to our soldiers,
to say that and to insinuate somehow that the Bill of Rights is not so
important; that our fear is going to guide us away or take us away from
something so fundamental and so important.
I think Americans do realize that the protections of having a jury
trial are incredibly important and that assessing guilt is not always
easy when you are accused of a crime. I think Americans know it is
really important to try to get it right when someone is accused of a
crime. So I think the American people are with us in wanting to find
these answers.
The Senator is right. This is not ultimately about the nomination;
this is about a question that is bigger than any individual. It is
about something that our country was founded upon; that is, basically,
the individual rights.
Mr. MORAN. Mr. President, I thank the Senator from Kentucky for
responding to my questions.
Mr. PAUL. Mr. President, we have had a good and healthy debate today.
I think we have hit upon a few points. We may have even hit a couple
points more than once.
When we think about it and put it in perspective, so many of the
battles we have up here are battles that I think the American public is
sometimes disgusted with. They see a lot of things we do as petty and
partisan. Sometimes I see disagreements up here that I think are
completely partisan and completely petty on both sides.
But I think this issue is different in the sense that this is not
about this particular individual and his nomination. I have actually
voted for the President's first three nominations to his Cabinet. So I
have not taken a partisan position that the President cannot nominate
his political appointees. I have looked carefully at the nominees. I
have asked for more information. I have tried to extend debate on some
of the nominees. But in the end, I voted for three out of three and
many of the judges that the President has put forward, not necessarily
because I agree with their politics. I do not agree with much of the
President's politics.
In fact, one of the few things I did agree with the President on was
the idea of civil liberties, was the idea that you do not tap someone's
phone without a wire, without a warrant, that you do not torture
Americans, and that you did not kill Americans without due process.
These are things I thought the President and I agreed on. So I am not
so sure exactly, you know, where we stand with that. I actually kind of
think that probably he still does agree with me, or I still agree with
him. But the question is, why cannot he publicly go ahead and announce
he is not going to kill noncombatants?
This is a resolution we have talked about. This resolution says: ``To
express the sense of the Senate against the use of drones to execute
American citizens on American soil.''
Expressing the sense of the Senate against the use of
drones to execute American citizens on American soil.
Resolved, that it is the sense of the Senate that the use of
drones to execute or target American citizens on American
soil who pose no imminent
[[Page S1193]]
threat clearly violates the constitutional due process of
rights. The American people deserve a clear, concise and
unequivocal public statement from the President of the United
States that contains detailed legal reasoning, including but
not limited to the balance between national security and due
process, limits of executive power, and distinction between
the treatment of citizens and noncitizens within and outside
the borders of the United States.
The use of lethal force against American citizens and the
use of drones in the application of the lethal force within
the United States territory.
There is another article that I think is of interest. This is another
article by Spencer Ackerman in Wired. This talks about once again the
signature strikes, the idea that basically we are killing people whose
names we did not know. The title of this was: ``CIA Drones Kill Large
Groups Without Knowing Who They Are.''
The expansion of the CIA's undeclared drone war into the
tribal areas of Pakistan required a big expansion of who can
be marked for death. Once the standard for targeted killings
was top-level leaders in al-Qaeda or one of its allies.
That's long gone, especially as the number of people targeted
at once has grown.
This is the new standard, according to a blockbuster piece
in the Wall Street Journal: ``Men believed to be militants
associated with terrorist groups, but whose identities aren't
always known.'' [may be targeted.] The CIA is now killing
people without knowing who they are, on suspicion of
association with terrorist groups. The article does not
define the standards, [but the standards are said to be]
``suspicion'' and ``association.''
While this is overseas, it kind of gets to the point we have been
talking about: What is the standard that will be used in America? If we
are to have drone strikes in America, what is the standard we will use?
Is it a standard that says you have to be suspicious, or that you have
to be associated?
Strikes targeting those people, usually groups of such people, are
what we call signature strikes. The bulk of the CIA's drone strikes are
signature strikes now, which is a remarkable thing. So what we are
talking about--that is one of the reasons why we are concerned here--is
that if the President claims he can do strikes in America, and the bulk
of the current strikes overseas are signature strikes, would it not be
worrisome that we could kill people in America without evening knowing
their name?
The bulk of CIA's drone strikes now are ``signature''
strikes.
It was written in the Wall Street Journal in an article by Adam
Entous, Siobhan Gorman, and Julian Barnes. And the ``bulk'' really
means the bulk. The Journal reports that the growth in clusters of
people targeted by the CIA has required the agency to tell its
Pakistani counterparts about mass attacks. We are talking about pretty
significant attacks here. They are only notifying them when they are
going to kill more than 20 at a time.
Determining who is the target is not a question of intelligence
collection. The cameras on the CIA fleet of Predators and Reapers work
just fine. It is a question of intelligence analysis, interpreting the
imagery collected from the drones, from the spies and spotters below,
to understand who is a terrorist and who, say, drops off the
terrorist's laundry. Admittedly in a war with a shadowy enemy, it can
be difficult to distinguish between the two. So the question is, is
this the kind of standard we will use in the United States? Will we use
a standard where people do not have to be named? We do not know. The
President has indicated his drone strikes in America will have
different rules than his drone strikes outside of America. But we have
heard no rules on what those drone strikes will be.
So we have drone strikes inside and outside. They are going to have
different rules. But we already know that in a large percentage of the
drone strikes overseas we are not naming the person. Is that going to
be the standard? We also know we have targeted people for sympathizing
with the enemy. We talked about that before. In the 1960s, we had many
people who sympathized with North Vietnam. Many people will remember
Jane Fonda swiveling herself around in a North Vietnamese artillery and
thinking, gleefully, that she was just right at home with the North
Vietnamese.
I am not a great fan of Jane Fonda. I am really not too interested in
putting her on a drone kill list either. We have had many people who
have dissented in our country. We have had people in our country who
have been against the Afghan war, against the Iraq war. I was opposed
to the Iraq war. There have been people against the government on
occasion. What are the criteria for who will be killed? Does the fifth
amendment apply? Will the list be secret or not secret? Can you kill
noncombatants?
And people say, well, the President would never kill noncombatants.
The problem is, is that is who we are killing overseas. We are alleging
that they may be conspiring someday to be combatants or they might have
been yesterday. But are we going to take that same kind of standard and
use it in America? Are we going to have a standard that if you are on
your iPad typing an email in a cafe that you can be targeted in a drone
strike? These are not questions that are inconsequential. These are
questions that should be known. These are questions that should be
public. These are questions that should be discussed in Congress. In
fact, we should not be asking him for drone memos, we should be giving
him drone memos. We should not be asking him how is he going to run the
drone program, we should be telling him how he is to run the drone
program. That is our authority. We have abdicated our authority. We do
not do what we are supposed to. We are supposed to be the checks and
balances. But we have let the President make those decisions because we
have largely abdicated our responsibility.
In this Spencer Ackerman story from Wired, he talks about and goes on
to say:
Fundamentally, though, it is a question of policy, whether
it is acceptable for the CIA to kill someone without fully
knowing if he is the bombsmith or the laundry guy.
The Journal reports:
The CIA's willingness to strike without such knowledge,
sanctioned in full by President Barack Obama, is causing
problems for the State Department and the military. As we
have written this week, the high volume of drone attacks in
Pakistani tribal areas contributes to Pakistani intransigence
on another issue of huge importance to the United States,
convincing Pakistan to deliver the insurgent groups it
sponsors to peace talks aimed at ending the Afghan war. The
drones do not cause that intransigence. Pakistani leaders,
after all, cooperate with the drones and exploit popular
anti-American sentiment to shake down Washington. The strikes
become cards for Pakistan to play, however cynically.
I think this is quite true of Pakistan. They play both sides to the
middle. They play both sides to get more money from us. I think they
have been complicit in the drone attacks, and then they complain about
them publicly. They have two faces, one to their people, and one
privately to us. But the question is, have we gotten involved more in
Pakistan than getting al-Qaida leaders, and have we gotten more
involved with a war in Pakistan that involves people who want to be
free of their central government?
Ultimately, we as a country need to figure out how to end the war. We
have had the war in Afghanistan for 12 years now. The war basically has
authorized a worldwide war. Not only am I worried about the perpetual
nature of the war, I am also worried that there are no geographic
limitations to the war. But I am particularly concerned, and what today
has all been about, I am worried that they say the United States is the
battlefield now. My side, their side, the President, everybody thinks
that America is the battlefield. The problem is, they all think you do
not get due process in a battlefield. Largely they are correct. When
you are overseas in a battlefield, it is hard to have due process. We
are not going to ask for Miranda rights before we shoot people in
battle. But America is different.
So one of the most important things I hope that will come from today
is people will say and people will listen: How do we end the war in
Iraq? How do we end the war in Afghanistan? I got a vote. I tried to
end the Iraq war 2 years after it ended, by taking away the
authorization of use of force. I still could not get that voted on.
It is even more important not only to end the war in Iraq, but
ultimately to end the war in Afghanistan. Because the war in
Afghanistan, the use of authorization of force is used to create a
worldwide war without limitations, to create a war that some say the
battlefield is here at home. This battlefield being here at home means
you do not get due process at home.
[[Page S1194]]
There have been Members of the Senate stand up and say, when they ask
you for a lawyer, you tell them to shut up. Is that the kind of due
process we want in our country? Is that what we are moving toward? So
the questions we are asking here are important questions. These
questions are: Does the Bill of Rights apply? Can they have exceptions
to the Bill of Rights?
One of the articles from the National Review recently was by Kevin
Williams. We got into this a little bit earlier. I thought it was an
important article because it talked about what our concern is is about
what standard we will use. What will be the standard for how we kill
Americans in America? He talked a little bit about how his belief is
that al-Awlaki was targeted mainly as a propagandist. An interesting
thing about al-Awlaki is that before he was targeted, he was actually
invited to the Pentagon. We considered him to be a moderate Islamist
for a while.
We invited him to the Pentagon. I think he actually gave and said
prayers in the Capitol at one point.
The question is if we made a mistake the first time about whether he
was our friend--and I think we did--could you make a mistake on the
other end? The question is, if governments are to decide who are
sympathizers and people who are politicians, with no checks or
balances, are to decide who is a sympathizer, is there a danger that
people who have political dissent could be included in this?
The way Williamson describes al-Awlaki was that he was first and
foremost an al-Qaida propagandist. He was a preacher and a blogger who
first began to provoke United States authorities through the online
bile which earned him the faintly ridiculous sobriquet the bin Laden of
the Internet.
Was he an active participant in planning acts of terrorism against
the United States? The FBI did not think so, at least in the wake of 9/
11 attacks. The Bureau interviewed him four times and concluded he was
not involved. The Defense Department famously invited him to dine at
the Pentagon as part of the Islamic outreach efforts, and in 2002 he
was conducting prayers in the U.S. Capitol.
Throughout the following years, al-Awlaki became a sort of al-Qaida
gadfly, dangerous principally because he was fluent in English and,
therefore, a more effective propagandist. It was not until the first
Obama administration that al-Awlaki was promoted by United States
authorities from propagandist to operations man.
You may remember the context. The Obama administration had been
planning to try 9/11 conspirators in New York City when the country was
thrown into a panic by the machinations of the would-be underpants
bomber, Umar Farouk Abdulmutallab.
The Obama administration, in an interesting about-face--whereas it
had been planning to try Khalid Shaikh Mohammed in New York and his
coconspirators there, definitively turning our back on Guantanamo--
turned around and made a decision that it couldn't do it in New York.
Al-Awlaki was a part of this. He was a propagandist and part of this.
They said Abdulmutallab actually sought out al-Awlaki in Yemen and al-
Awlaki had blessed his bomb plot and even introduced him to a
bombmaker. This, according to the Obama administration, is what
justified treating al-Awlaki as a man at arms earning him a place on
the national secret hit list.
Williamson asked this question:
If sympathizing with our enemies and propagandizing on
their behalf is the equivalent to making war on the country,
then the Johnson and Nixon administrations should have bombed
every elite college campus in the country during the 1960s.
These are his words, not mine. He goes on:
And as satisfying as putting Jane Fonda on a kill list
might have been, I do not think that our understanding of the
law would encourage such a thing, even though she did give
priceless aid to the communist aggressors in Vietnam.
Students in Ann Arbor, MI, were actively and openly raising
funds for the Vietcong throughout the war. Would it have been
proper to put them on kill lists?
I don't know.
Williamson said:
I do not think that it would. There is a difference between
sympathizing with our enemies and taking up arms against the
country.
They aren't the same thing. We have to ask ourselves, what is the
standard? Could political dissent be part of the standard for drone
strikes?
You say, well, that is ridiculous. We have listed people already on
Web sites and said they were at risk for terrorism for their political
beliefs. The Fusion Center in Missouri listed people who were of pro-
life origin and listed people who believed in secure borders for
immigration. They listed people who were supporters of third-party
candidates, the Constitution Party or the Libertarian Party. These
people were listed in a mailing sent out to all the police in the State
to be aware of these people. Be aware of people who have bumper
stickers on their cars supporting these people.
That, to me, sounds dangerously close to having a standard where the
standard is sympathy not for your enemies but sympathy for unpopular
ideas or ideas that aren't popular with the government. That concerns
me. It concerns whether we could have in our country a standard that is
less than the Constitution. The Constitution is a standard where I
can't imagine we would want to give up on this standard, or any
President could assert a standard would not be the Constitution.
There was an article in Human Rights First which was published in
December of 2012. It begins with this prefacing statement:
We are establishing precedents that other nations may
follow, and not all of those nations may--and not all of them
will be nations that share our interests or the premium we
put on protecting human life, including citizens.
This was a statement by John Brennan. It is a statement that actually
carries some weight and should be thought through. This is the reason
why I say this filibuster is not so much about Brennan as it is about a
constitutional principle.
The Obama administration has dramatically escalated targeted killing
by drones as the central feature of counterterrorism response.
Mr. President, at this time I have a unanimous consent request. I
wish to read it into the Record. With this unanimous consent request, I
would emphasize that this would be ending the debate and allowing a
vote on Brennan. Part of this unanimous consent request would be the
establishment of a vote on this resolution as well as setting a vote up
on the confirmation of John Brennan to be CIA Director.
The resolution states:
Resolved, that it is the sense of the Senate that:
1. The use of drones to execute, or to target, American
citizens on American soil who pose no imminent threat clearly
violates the constitutional due process rights of citizens.
That is the most important clause of that. I think it is important
for the American people to know that apparently the other side is going
to object. Object. It is important to know the majority party here in
the Senate, the party of the President, is going to object to this
statement being voted on. They may still vote against it if they wish,
but they are going to object, I understand, to having a vote on this
statement. The use of drones to execute a target, American citizens on
American soil, who pose no imminent threat, clearly violates the
constitutional due process rights of citizens.
What we are talking about is a resolution that says what we have been
trying to get the President to say: You can't kill noncombatants. You
can't kill people in a cafe in Seattle. That is what we are asking. It
is blatantly unconstitutional to kill noncombatants. I can't understand
why we couldn't get a resolution, particularly because I am willing to,
with this resolution, move forward and let the vote occur on Brennan.
The second part of the resolution is:
The American people deserve a clear, concise, and
unequivocal public statement from the President of the United
States that contains detailed legal reasoning, including but
not limited to the balance between national security and due
process, limits of executive power and distinction between
treatments of citizens and noncitizens within and outside the
borders of the United States, the use of lethal force against
American citizens, and the use of drones in the application
of lethal force within the United States territory.
Basically, the second part of the resolution asked, basically, we do
our job and ask the President to let us know what is going on with the
program. If there is an objection to this, it would be an objection to,
No. 1, killing citizens who are noncombatants and, No. 2,
[[Page S1195]]
to giving us a report on what the program will actually entail.
Mr. President, I ask unanimous consent that at a time to be
determined by the two leaders tomorrow, the Senate vote on this
resolution as I just read it, and with the addition to it they then
turn to the Brennan nomination or be allowed to proceed to a vote.
The PRESIDING OFFICER (Mr. Heinrich). Is there objection?
Mr. DURBIN. Mr. President, reserving the right to object.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. I would say to my friend from Kentucky that I am chair of
the Constitution, Civil Rights and Human Rights Subcommittee of the
Judiciary Committee. We are scheduling a hearing on the issue of
drones, because I believe the issue raises important questions, legal
and constitutional questions. I invite my colleague to join us in that
hearing if you wish to testify. I think this is something we should
look at and look at closely. That is why this hearing is being
scheduled. I believe at this moment it is premature to schedule a vote
on this issue until we thoroughly look at the constitutional aspects of
all of the questions the Senator has raised today, which are important.
Because of that, I have no alternative but to object.
The PRESIDING OFFICER. Objection is heard.
Mr. PAUL. Mr. President, I am disappointed the Democrats choose not
to vote on this. The answer around here for a lot of things is we will
have a hearing at some later date to be determined. The problem is this
is a nonbinding resolution. This is a resolution just stating we
believe in the Constitution and, A, Mr. President, send us some
information about your plan, how it is going to work. It doesn't change
the law. In fact, I wish it could do more than that. We have an actual
bill which will be introduced. We will actually try to change the law.
This is a symbolic gesture and a way to allow us to move forward. I
am disappointed we can't.
This was an article that was published in Human Rights First in
December of 2012. As I said, it has an opening statement by John
Brennan I think is actually well thought out and recognizes some of the
advantages and disadvantages of drone strikes.
John Brennan begins by saying:
We are establishing precedents that other nations may
follow, and not all of those nations may--and not all of them
will be nations that share our interests.
Think about what he is saying there. Other people are going to get
drones. We have already lost a drone in Iran. How long do you think it
is before Iran has drones? How long do you think it is before Hezbollah
has drones or Hamas has drones? I think there is a certain amount of
thought that ought to go into a drone-killing program, particularly
when the people who are being killed by the drones will have their own
drones, I think within short order.
The Obama administration has dramatically escalated
targeted killing by drones as a central feature of his
counterterrorism response. Over the past 2 years the
administration has begun to speak more openly about the
targeted killing program, including in public remarks by
several senior officials. While we welcome and appreciate
these disclosures, they nevertheless provided only limited
information.
Experts in other governments have continued to raise
serious concerns about:
The precedent that the United States targeted killing
policy is setting for the rest of the world, including
countries which have acquired or are in the process of
acquiring drones, yet have long failed to adhere to the rule
of law and protect human rights--
We would like to believe we actually have rules in place, and we
would not misuse drones. Imagine what it is going to be like when
countries get drones that have none of the rules, none of the checks
and balances.
The impact of the drone program on other U.S.
counterterrorism efforts, including whether U.S. allies and
other security partners have reduced intelligence sharing and
other forms of counterterrorism cooperation because of the
operational and legal concerns expressed by these countries;
the impact of drone operations on other aspects of U.S.
counterterrorism strategy, especially diplomatic and foreign
assistance efforts designed to counter extremism, promote
stability, and provide economic aid; the number of civilian
casualties, including a lack of clarity on who the United
States considers a civilian in these situations.
Of note and of consideration also is whether the legal
framework of the program that has been publicly asserted so
far by the administration comports with international legal
requirements.
The totality of these concerns, heightened by the lack of
public information surrounding the program, require the
administration to better explain the program and its legal
basis and to carefully review the policy in light of the
global precedent it is setting and serious questions about
the effectiveness of the program on the full range of U.S.
counterterrorism efforts. While it is expected that elements
of the U.S. Government's strategy for a targeted killing will
be classified, it is in the national interest that the
government be more transparent about policy considerations
governing its use as well as its legal justification, and
that the program be subject to regular oversight.
Furthermore, it is in the U.S. national security interests to
ensure that the rules of engagement are clear and that the
program minimizes any unintended negative consequences.
How the U.S. operates and publicly explains its targeted
killing programs will have far-reaching consequences. The
manufacture and sale of unmanned aerial vehicles is an
increasing global industry and drone technology is not
prohibitively complicated.
I will give you an idea where there is a marketplace for drones. Last
year, I introduced a bill to require a warrant before you could use a
domestic drone to spy on citizens. Before I introduced it or anybody
knew outside my office, we already had calls in lobbying coming from
drone manufacturers. So this is a big business.
Some 70 countries already possess UAVs, or drones,
including Russia, Syria and Libya, and others are in the
process of acquiring them. As White House counterterrorism
chief John Brennan stated: The United States is
``establishing precedents that other nations may follow, and
not all of them will be nations that share our interests or
the premium we put on protecting human life, including
innocent civilians.''
By declaring that it is an armed conflict with al Qaeda's
``associated forces,'' (a term it has not defined)--
I think this is an important point because everybody is always
saying: Don't worry. You are fine. You are not a terrorist. We are only
going after terrorists. The problem is, as I said, the government has
defined terrorism in this country to mean things that may not include
terrorists--paying cash, having weatherized ammunition--so there are a
lot of different things they have used as a definition. But let's say
they are going after al-Qaida, people working with them or associated
forces--what that means I don't know, particularly since al-Qaida is a
little hard to define because they do not have membership cards. Some
of them probably don't use the label at all. I doubt many of them have
any communication with any kind of central headquarters or central
group called al-Qaida.
By declaring that it is in an armed conflict with al
Qaeda's ``associated forces,'' without articulating limits to
that armed conflict, the United States is inviting other
countries to similarly declare armed conflicts against groups
they consider to be security threats for purposes of assuming
lethal targeting authority. Moreover, by announcing that all
``members'' of such groups are legally targetable, the United
States is establishing exceedingly broad precedent for those
who can be targeted, even if it is not to utilize the full
scope of this claimed authority. As an alternative to armed
conflict-based targeting, U.S. officials have claimed that
targeted killings are justified as self-defense responding to
an imminent threat. . . .
The problem is we have defined imminent to be not immediate. So
having a murky definition of what imminent is allows us to run into
problems.
It is also not clear that the current broad targeted
killing policy serves U.S. long-term strategic interests in
combating international terrorism. Although it has been
reported that some high-level operational leaders of al-Qaida
have been killed in drone attacks, studies show the vast
majority are not high-level terrorist leaders. National
security analysts and former U.S. military officials
increasingly argue that such tactical gains are outweighed by
the substantial cost of the targeted killing program,
including growing anti-American sentiment and recruiting
support for al-Qaida.
The broad targeted killing program has already strained
U.S. relations with allies and thereby impeded the flow of
critical intelligence about terrorist operations.
The problem is, when we talk about this, one of the most important
things to our intelligence is actually human intelligence. We get
information from people who are our friends, who live in those
countries, who blend into the population and are part of their
population. But we have gone on to destroy some of this intelligence in
the sense that one of the people who helped us to
[[Page S1196]]
get bin Laden was a doctor in Pakistan by the name of Dr. Shakil
Afridi. If we don't stand by the people who give us intelligence and
give us information, we will not get more. But when he did help us,
somehow his name was leaked. I don't know where the leak came from, but
his name was leaked and then he was arrested by the Pakistanis. He is
now in prison for the rest of his life.
I have asked several times, both to the previous Secretary of State
as well as to the current Secretary of State, and I asked the current
Secretary of State point-blank and directly: Will you use the leverage
of foreign aid to say we are not going to give you foreign aid if you
don't release this doctor who gave us information?
It is a little ironic that we will not do it, particularly since at
one point in time we actually had, I think, a $25 million reward for
any information that led to helping us get bin Laden. So it is kind of
disappointing that we haven't held out and supported our human
intelligence and people such as Dr. Afridi, who helped us get probably
the most notorious terrorist of the last century.
While the U.S. Government does not report the number of
deaths from drone strikes, independent groups have estimated
that the drone program has claimed several thousand lives so
far.
Estimates and public comments by some Senators have said as many as
4,700. What we don't know about the 4,700 but what would be an
important statistic, I think, or maybe a troubling statistic, would be
how many of the 4,700 were killed in combat--actually holding weapons,
fighting, going to a battle, coming from a battle--and how many of the
drone strikes were actually on people who weren't involved in combat. I
think if that number were released, if that number were made public, it
would concern you even more because you may well find out a lot of the
people--and we have seen some of the strikes on television, with people
in their cars, people walking around without weapons, people eating
dinner, people at home in their houses. I am not saying these are good
people necessarily, I am just saying the drone strike program we have
in place currently seems to have a very low threshold for whom they
kill. So the question would be whether you are going to use that kind
of standard if you have a domestic drone strike program in the United
States.
I think we are getting to the point, and that is one of the most
important questions as we look at the foreign drone program, is
understanding what the parameters are that allow us to kill people in
foreign countries and are those the parameters that are going to be
used here.
For the most part, over the last decade, they haven't admitted we
even have a drone strike program. But now that they admit it, the
President doesn't want to answer any questions about it. He doesn't
want to deny he will use it here. He just says he isn't intending to
use it here but then says: Oh, probably there will be different rules
inside the United States than outside the United States.
This is where the Senate ought to get involved, instead of punting
this to another time. The Senate ought to say we are not going to wait
for the President to send us a memo. We are going to send him a memo.
We are going to tell him what the rules on drone strikes are. We are
going to tell him the Constitution does apply to Americans,
particularly Americans in the United States, and there are no
exceptions.
I find it inexcusable that the Attorney General says: Well, the fifth
amendment, we will use it as needed, basically. We will use it when we
choose. The problem with that is I don't think the executive branch
should get to pick and choose.
Without yielding the floor, I am going to allow a question from my
colleague from Texas.
Mr. CRUZ. I thank the Senator from Kentucky, and I want to ask the
following question: Is the Senator from Kentucky aware of the reaction
the American people are having to his extraordinary efforts today?
Given the Senate rules do not allow for the use of cellular phones on
the floor, I feel quite confident the Senator from Kentucky is not
aware of the Twitterverse that has been exploding. So what I want to do
for the Senator from Kentucky is to give some small sampling of the
reaction on Twitter so he might understand how the American people are
responding to his courageous leadership, to Senator Paul's doing
something that in the last 4 years has happened far too little in this
Chamber, which is standing and fighting for liberty.
So I will read a series of tweets.
So proud of Rand Paul standing up for what's right. Stand
with Rand.
Rand Paul: a reason to be proud of your elected
representatives again. Keep going, Rand.
Proud of Senator Rand Paul and all who have joined him in
this effort. Stand today with Senator Rand Paul.
So happy with Rand Paul right now. Someone finally using
the system to aid, not usurp, our rights.
Rand Paul filibusters Brennan nomination--over four hours
now. Glad someone in the Senate has some spine.
That was tweeted a while ago.
Rand Paul is a hero today, a man with a backbone.
Today Rand Paul is my hero.
Kentucky Senator Rand Paul is a true constitutional hero in
his filibuster against CIA nominee.
I can honestly say, I am proud to currently live in Rand
Paul's State of Kentucky.
So proud of Rand Paul. He's bringing it. He's not going to
let our constitution get trashed. A breath of fresh air. PRAY
4 THIS FIGHT 4 RAND.
I am so beyond proud of Rand Paul and the way he is
standing up for each and every American citizen right now by
filibustering the Senate.
I am VERY proud of Senator Rand Paul. This is an important
moment when one person had the courage to yell STOP. Stand
with Rand.
So proud of Rand Paul. We need more like him. Stand with
Rand.
Rand Paul is now in hour 7 of his filibuster. He is
standing up for our rights. Thank you. Stand with Rand.
It is frightening that Obama seeks to have an ever growing
amount of power. Drone strikes are frightening. Stand with
Rand.
Dear GOP. The base is crying out for more of you to stand
with Rand. If you want the base's votes, get it together.
Stand with Rand. We need you now more than ever. This
president has usurped his power. We can't say anything bad
against him.
Stand with Rand. So long as Rand speaks, we'll be tuned in.
It is unconstitutional to target and kill Americans on
American soil with a drone. Stand with Rand.
A retweet from Senator Rand Paul. I will commend the Senator from
Kentucky. He was so flexible he was able to tweet while he was standing
on the floor. A retweet from Senator Rand Paul's tweet: ``I will not
sit quietly and let President Obama shred the Constitution,'' with the
hashtags ``filiblizzard'' and ``Stand with Rand.''
Here is a more mixed one, but nonetheless demonstrating the respect
the Senator from Kentucky is earning across the aisle.
I may not always agree with Rand Paul but he has my
respect. He's very willing to do what he feels is right.
Stand with Rand.
From Congressman Justin Amash:
Why won't President Obama simply state that it is
unconstitutional and illegal for government to kill Americans
in U.S. without due process? Stand with Rand.
Stand with Rand, because we deserve to know if American
citizens should fear murder from our Government.
Everyone should be aware of this important moment in
American history. Stand with Rand.
Proud to call Rand Paul my Senator. Stand with Rand.
It is unconstitutional to target and kill Americans on
American soil with a drone. Stand with Rand.
The Federal Government does not have the power to kill its
citizens whenever it wants. There is something called due
process. Stand with Rand.
Fight for our constitutional rights and liberties. Stand
with Rand.
Stand with Rand. I have gained a lot of respect for Senator
Paul today. This is not a right or left issue, it is a civil
liberties issue. Thank you Rand Paul and others who are
taking a stand for patriotic Americans.
A great day for liberty when Senator Rand Paul and a
handful of others stood up for liberty. Stand with Rand.
It is ironic that a Nobel Peace Prize winner won't
guarantee that he won't use drones against Americans. Stand
with Rand.
I will note to the Senator from Kentucky and ask his reaction to
these--this is but a small sampling of the reaction in Twitter. Indeed,
in my office I think the technical term for what the Twitterverse is
doing right now is ``blowing up.''
I suggest to the Senator from Kentucky and then ask his reaction--I
suggest that this is a reflection of the fact that the American people
are frustrated. They are frustrated that they
[[Page S1197]]
feel too few elected officials in Washington stand for our rights, are
willing to rock the boat, are willing to stand up and say the
Constitution matters. And it matters whether it is popular or not, it
matters whether my party is in power or another party is in power. The
Constitution matters. Our rights matter. And I think so many Americans
are frustrated that they view elected officials as looking desperate to
stay in power, desperate to be reelected to do everything except fight
for the Constitution and fight for our liberties, and I think this
outpouring the Senator from Kentucky is seeing is a reflection of that
great frustration.
I join with the sentiments of these and many others on Twitter. I ask
the Senator from Kentucky if he was aware of this reaction and what his
thoughts are to the many thousands more--I haven't been able to read
their tweets--and their words of encouragement as the Senator from
Kentucky more than anyone is standing with Rand.
Mr. PAUL. Mr. President, I thank the Senator from Texas for coming to
the floor and cheering me up. I was getting kind of tired. I appreciate
him bringing news from the outside world.
As you know, we are not allowed to have electronics on the floor, so
I don't really have much knowledge of the electronic outside world. But
actually it is probably a good thing for every American eventually not
to see their phone or their computer for about 8 hours.
The thing is, people think that we should not--people are always
saying don't fight, get along, and stuff. I think people do want that.
I think at the same time they want you to stand up and stand for
something and believe in something. It doesn't have to mean that we do
it in an acrimonious way. Even the Senator from Illinois and I usually
have civilized words together. There is a smile.
The thing about it is that there are principles we ought to stand
for. I think the most important principle here, though, is that really
this is a tug-of-war between the executive branch and the legislative
branch. There may be some partisanship, that we can't all get together
in the Senate to say to the President that we think his power should be
restrained, but I think at the same time there are some on the other
side who are saying that. Really, that is what this should be about.
It is about how much power a President can have. Can a President have
the power to decide to kill Americans on American soil? But not only
that, can the President have the power to decide when the Bill of
Rights applies? Can you be targeted because you have been alleged to
have committed some crime and your Bill of Rights is stripped away even
if you are here in the United States? I think it is a pretty easy
question.
Maybe someone from the media would ask the President tonight--I don't
know if he is still up or not--but ask the President the question. Ask
him, do you plan on killing Americans who are not in combat? Do you
plan on killing Americans who are not in a combat position, people whom
you might be accusing of some kind of crime but who are actually not
engaged in combat? I would think it would be a simple answer. In fact,
I am willing to go home if we can get an answer from the President that
says: People not engaged in combat won't be on any target list. It is a
pretty simple question to ask and a pretty reasonable question to ask.
After much jockeying and debate with the Senator from Texas asking
the Attorney General this question, we finally did get to where it
seems as though he was coming toward not trying to but being forced to
say it is not constitutional to kill noncombatants.
It should be an easy question. So we will take a telegram. We will
even take a tweet. If the Attorney General would tweet us, we can have
that relayed to the floor and let him know--let us know that basically
they acknowledge that their power is not unlimited.
I don't think this is really an overstatement of the cause. This has
been written up. Glenn Greenwald has written this up. Conor
Friedersdorf has written this up, talking about if you have a war that
has no end, if you have a war that has no geographic limit, and then if
you have strikes that have no constitutional bounds, basically what you
have is an unlimited imperial Presidency.
This is not a partisan issue. A lot of this began under George Bush.
It has been continued, expanded, doubled, and quintupled and made 10
times worse by the current President. But even under George Bush,
nobody ever maintained they could kill Americans at home. I can't
imagine that the President, when he comes forward and says he has not
killed Americans and he does not intend to do it but he might--that
somehow we are supposed to be placated by that. Somehow that is
supposed to be enough.
This is not the first time we have seen this--not the first time we
have seen a reversal of fortunes here, reversal of what I think he
stood for as a candidate. I have said many times, probably 10 times
today that I admired the President. I admired the President when he was
a Senator on many issues. I admired the President when he ran for
office. But the President who ran for office and said we are not going
to tap phones without a warrant, the President who ran for office and
said we are not going to torture people now says we are going to kill
people with no due process? I find that incredibly hypocritical and
incredibly ironic. I see no reason why he can't come forward and say:
We don't get to pick and choose when the fifth amendment applies. We
don't get to pick and choose when people can be accused of crime and
get no adjudication and be killed by a drone.
I just cannot imagine he can't answer these questions. It is not
enough to say: I don't intend to do so.
Last year when we passed the national defense authorization bill,
there was included in that the ability to indefinitely detain an
individual, an American citizen. In fact, I asked another Senator on my
side--I said: Does that mean you can send an American to Guantanamo
Bay?
He said: Yes, if they are dangerous.
That would be fine if we all agreed who is dangerous and who
committed a crime, but that would be an accusation, and that would have
to be adjudicated somehow, and if you don't get a trial, how do we
determine your innocence or guilt or whether you are going to be sent
to Guantanamo Bay?
The President, like so many times, said: I don't support indefinite
detention. I would veto that.
No, no, I won't veto that this time, but I would veto that if I were
still Candidate Barack Obama. But I am President Barack Obama, I am not
going to veto that.
So instead he says: I have no intention of detaining anyone.
Here is the problem. It is not good enough. The law is for everybody.
It is not for saying: Oh, I am a good President. I am very--I went to
Harvard. I am not going to detain anybody.
That is not enough. The law is what the law is. If the law allows you
to be detained as an American citizen, what about the next guy who is
not so high-minded, the next guy who decides he is going to detain
political opponents and ethnic groups or people he dislikes? What
happens when that happens? It is not enough to say: I don't intend to
do something.
I would think the leader of the free world, the leader of I think one
of the most important nations if not the most important nation or
civilization we have had in historic times--I have high hopes and high
estimation of who we are as a people. It is not enough for him to say:
I don't intend to break the Constitution. You either believe in the
Constitution or you do not.
I think illustrative of sort of this opinion was when I interviewed
or asked questions to Senator Kerry when he was being nominated. I
asked him these questions about, can you go to war without a
declaration of war.
His answer was, oh, of course I will support the Constitution, except
for when I won't support the Constitution, when it is inconvenient. It
is sometimes hard to go to war, it is messy, there is all this voting
stuff, and people don't want to vote to go to war, they don't want to
raise taxes. It is just hard to get the votes for war. So when it is
inconvenient, I will not.
That is the problem.
He asked me or sort of insinuated that I was an absolutist. I don't
know how to halfway believe that Congress should declare war. I don't
know how to halfway believe in the fifth amendment. This is not one we
are even debating exactly what it means, what the
[[Page S1198]]
establishment clause of the first amendment means. There is really not
a lot of debate over what due process is. When you are accused of a
crime, when you are accused of something, you are indicted. When you
are accused, you get a trial, you get due process. Nobody is really
debating what that means. Yet the Attorney General for this President
has said that the fifth amendment will be applied when they can.
To be fair, I think he is referring to foreign strikes. He is talking
about foreign strikes. To tell you the truth, it is kind of muddled,
whether the Constitution applies to people in foreign lands or in
foreign zones. But that is the whole point of this. The point is that
this is America. We are not talking about a battlefield. We are not
talking about people using legal force. If you are in America, if you
are outside the Capitol and you have a grenade launcher, you will be
killed without due process. You don't get due process. You don't get an
attorney. You don't get Miranda rights. Nobody thinks that you do. But
if you are sitting in a cafe, and somebody thinks you e-mailed your
cousin in the Middle East, and they think you are conspiring with them,
you should be charged. You should be imprisoned if they can make the
charges stick. But they should not just drop a Hellfire missile on your
cafe experience.
We have to realize and the President above all people--someone who
taught constitutional law should realize that his opinion is not so
important. Even as the President, it is not so important. For him to
say that he doesn't intend to kill people--I would defy a
constitutional lawyer in our country to say that is important. The law
is what it is, and he is going to give us a legal interpretation of the
law and not what his intent is. To say he hasn't killed anybody yet, to
say he has no intention of killing anybody but he might, is just not a
legal standard I chose to live by. It concerns me.
It concerns me that we have documents in the United States that are
produced by the government that indicate people who might be a
terrorist. The Bureau of Justice came out with one last year, and it
said people who are missing fingers, people who have colored stains on
their clothes, people who have more than 7 days of food might be
terrorists. Ironically, another government Web site says that if you
live on the coast, you should have 7 days of food because there might
be a hurricane, you might need to have the food. But another Web site
says that if you do, you might be crazy and a lunatic and a
survivalist, and you might be someone we might need to target with a
drone. If you see somebody hiding this, you are supposed to report
them. If you hear of people who have guns in their house or lots of
weatherized ammunition or ready-to-eat meals, they could be on the
target list. Of that is whom we are targeting to be terrorists, I would
certainly want a trial. I just wouldn't think it would be enough to be
accused.
People say: Oh, well, they are just members of al-Qaida, but they
don't have a membership card. I don't know that we have looked at
anybody's because they are dead; they were blown up with a missile, so
no one is looking at their al-Qaida membership card. The thing is in
the United States they might say someone is associated with al-Qaida or
associated with terrorism. We have had experience with government
offices and officials talking about people who might be terrorists.
The Fusion Centers in Missouri said people who are pro-life might be
terrorists. They said people who are for secure borders might be
terrorists. They said the people who vote for the Constitution Party or
the Libertarian Party might be terrorists. So if they believe in
signature strikes, I guess if we see the traffic going to the
Libertarian Party Convention, that could probably hit a caravan and hit
a whole bunch of them at once.
People say that is absurd. The President is not advocating that. He
is advocating a drone strike in America, and all we have to compare it
with is the drone strike overseas. He doesn't want to talk about it,
but when forced to, he says the rules will probably be slightly
different inside the United States than they will be outside the United
States. I guess he does believe he has a right to have a drone strike
program in the United States. He will just have slightly different
rules.
I have an important question for him. He needs to give me a call. Is
one of the rules of inside the U.S. drone strike program to obey the
Constitution that a person will get a trial by a jury of their peers?
Is that going to be in the rules for inside America as opposed to
outside America?
It is disturbing that it has been so hard to get any information on
this. I wouldn't have gotten any information at all--I don't think--had
we not gotten some support from the other side.
The Senator from Oregon stood in the committee. In fact, he asked the
question before I did. I was fascinated he asked the question. Senator
Wyden stood in the Intelligence Committee and asked: Can you do a drone
strike on Americans on American soil? John Brennan's response--I kid
you not--we need to optimize transparency and we need to optimize
secrecy. That was his answer. Here is the followup question: What does
that mean? Does that mean you can kill Americans on American soil? What
are you trying to say or what are you trying not to say? To Brennan's
credit, he finally answered the question only when there was a threat
of him not getting out of committee--thanks to the bipartisan support
of Republicans and Democrats threatening to hold him up. He finally got
out, but on the day we threatened to hold him up, he finally responded.
I sent him questions a month and a half previously, and I finally got
an answer after the threat of his nomination not coming out of
committee. This is not the way it should work. The President is
bragging about how transparent the guy is, that he believes in
transparency, that he is such a high-minded fellow, but he won't give
any answer unless someone forces him to. The same thing with the
President.
So we finally get an answer and John Brennan says: Well, the CIA
cannot kill people in the United States, it is against the law. Yes, we
knew that. Thanks. Thanks for admitting you are going to obey the law.
We feel blessed that you said you will now obey the law. But it is sad
that it took a month and a half--and under severe duress--that they
have admitted they will obey the law and the CIA will not kill you in
America.
The problem is it is kind of a tricky answer because they are not the
ones running the drone program. The Defense Department runs the
program. You can be sure the CIA is not going to kill you, but the
Defense Department might. Still the answer is: We haven't killed
anybody yet. We don't intend to, but we might. So that is what we are
going to have to be satisfied with.
So we got the answer from the Attorney General, and his was a little
more detailed and actually had some good things in it. Basically, he
concluded by saying they could conceive of a place where someone could
get attacked or where the United States might attack Americans, but the
examples they came up with were not what we were asking about. So it is
sort of akin to answering a question but answering the question that
wasn't asked.
They said: Well, if planes are flying at the Twin Towers and if Pearl
Harbor is happening again, obviously, we could see a use for drone
strikes. Well, me too. I mean, if we are being attacked and there is a
war or even if there is a person with a grenade launcher, we have the
ability to respond to that. No one is questioning that. The reason this
question comes up is that a significant portion of the drone strikes
overseas are occurring on people who are not involved in combat.
Now there are allegations that there are bad people and they may have
been in combat but are not currently in combat. The question is: Are we
going to use the foreign drone strike model in the United States? Are
we going to kill noncombatants in the United States? Are we going to
kill people whom we suspect? That sort of gets us to the other question
when we talk about what rules and procedures we expect in our country.
Do we expect that the police would come and arrest you and put you in
jail for the rest of your life because they suspect something? Is
suspicion enough? Obviously not. We believe that is the beginning of
it. Usually, it involves probable cause and involves a judge to get
information.
I have a message here--not from the White House. It is a message
saying the White House hasn't returned our phone
[[Page S1199]]
calls. If anybody knows anybody at the White House and wants to come,
we are looking for an answer from the White House. We have called
Justice also. I think the answer says something about the sequester.
Maybe they are going to call me when the sequester is over.
I think one of the courtesies they ought to think about is--
particularly if what they are hearing is something that they don't
object to--why not end the debate by going ahead and letting us know?
Why not go ahead and let us know they agree they are not going to be
killing noncombatants. I would think that would be a pretty easy answer
for them. In negotiating with any kind of executive branch--this one or
others--that when we get a nonanswer or a nonresponsive answer or get a
refusal to answer, I think that is when we need to be concerned that
the answer is not the answer they want to be public. It is an answer
that perhaps the fifth amendment will be optional depending on who is
judging the circumstances.
As we look forward and look at some of the information that has been
gathered over time on this, one of the interesting articles we have
collected on this was an article in the Los Angeles Times entitled
``Police employ Predator drone spy planes on the home front.'' This is
an article by Brian Bennett.
Reporting from Washington--Armed with a search warrant,
Nelson County Sheriff Kelly Janke went looking for six
missing cows on the Brossart family farm in the early evening
of June 23. Three men brandishing rifles chased him off, he
said.
Janke knew the gunman could be anywhere on the 3,000-acre
spread in eastern North Dakota. Fearful of an armed standoff,
he called in reinforcements from the state Highway Patrol, a
regional SWAT team, a bomb squad, ambulances and deputy
sheriffs from three other counties.
He also called in a Predator B drone.
As the unmanned aircraft circled 2 miles overhead the next
morning, sophisticated sensors under the nose helped pinpoint
the three suspects and showed they were unarmed. Police
rushed in and made the first known arrests of U.S. citizens
with help from a Predator, the spy drone that has helped
revolutionize modern warfare.
But that was just the start. Local police say they have
used two unarmed Predators based at Grand Forks Air Force
Base to fly at least two dozen surveillance flights since
June. The FBI and Drug Enforcement Administration have used
Predators for other domestic investigations, officials said.
``We don't use [drones] on every call out,'' said Bill
Macki, head of the police SWAT team in Grand Forks. ``If we
have something in town like an apartment complex, we don't
call them.''
The drones belong to U.S. Customs and Border Protection,
which operates eight Predators on the country's northern and
southwestern borders to search for illegal immigrants and
smugglers. The previously unreported use of its drones to
assist local, state, and federal law enforcement has occurred
without any public acknowledgement or debate.
Congress first authorized Customs and Border Protection to
buy unarmed Predators in 2005. Officials in charge of the
fleet cite broad authority to work with police from budget
requests to Congress that cite ``interior law enforcement
support'' as part of their mission.
In an interview, Michael C. Kostelnik, a retired Air Force
general who heads the office that supervises drones, said
Predators are flown ``in many areas around the country, not
only for federal operators, but also for state and local law
enforcement. . . .''
But former Rep. Jane Harman (D-Venice), who sat on the
House homeland security intelligence subcommittee at the time
and served as its chairwoman from 2007 until this year, said
no one discussed using Predators to help local police serve
warrants or do other basic work.
Using Predators for routine law enforcement without public
debate or clear legal authority is a mistake, Harman said.
``There is no question that this could become something
that people will regret,'' said Harman, who resigned from the
House in February and now heads the Woodrow Wilson
International Center for Scholars, a Washington think tank.
The point is it isn't so much about technology. I am not opposed to
drones being used even domestically. It is about the individual
freedom, it is about the process, and it is about how they are used.
For example, just like in national defense, if someone is robbing a
liquor store and it is safer to get the robber down with a drone, that
is fine. If someone is armed and robbing and threatening people in the
liquor store and people as they come out, I don't mind if that person
was shot with a drone or a rifle from a policeman. It is what it is. As
one of my friends who is a physician would say when people would come
in wounded from robbing someone: Well, I guess that is an occupational
hazard if you break into homes. The thing is it isn't the force we are
talking about, it is whether the process is right. So they can use
lethal force when lethal force is threatened. The question about drones
is whether they are being used with warrants, if they are spying on
someone or doing surveillance on someone.
One of the bills we introduced last year was a bill to require
warrants for drone surveillance. This is a hot topic, and I think it
will probably get up to the Supreme Court. I don't believe it has yet.
There were cases that were talking about GPS tagging of cars, and the
Supreme Court ruled they cannot do that without a warrant.
My suspicion is they will rule in favor of warrants on drones too.
Although there is some dispute over what they call open spaces. I think
that with open spaces we need to be concerned that just because you are
not inside your house does not mean you don't still deserve some
privacy on your own land. So it is not so much that the drone is
necessarily our enemy, but it just allows the government to do so much
more. We need to be very careful about the safeguards of the
Constitution and requiring whether these safeguards are met as far as
protecting our liberty.
This is from the same article from the Los Angeles Times:
In 2008 and 2010, Harman helped beat back efforts by
Homeland Security officials to use imagery from military
satellites to help domestic investigations. Congress blocked
the proposal on grounds it would violate the Posse Comitatus
Act.
The Posse Comitatus Act is pretty important and it has been part of
our discussion today and we are not the first person to raise this. The
military is not authorized to operate in the United States. Some may
say: Why not? The reason is they operate under different rules of
engagement than our police do. In Afghanistan, Iraq or in any kind of
war theater, they have warrants, they don't have Miranda rights, and
they don't get due process in war. At home we do. That is why it is
important we get folks to acknowledge this is not a battlefield.
America is not a battlefield. It is a place where we have
constitutional rights and have for hundreds of years.
The Posse Comitatus Act--after the Civil War--regulated and
prohibited the military from acting as a police or taking a police role
on U.S. soil. Proponents say the high resolution cameras, heat sensors,
and sophisticated radar on the Border Protection drones--and this is
the other point--were legislated to be used on the border.
One could argue that there is a Federal role for monitoring borders
for national defense and other reasons, but now they are loaning them
out to local law enforcement and law enforcement is also buying drones
directly. So they have high-resolution cameras, heat sensors, and
sophisticated radar on the Border Protection drones that can help track
criminal activity in the United States just as the CIA uses predators
and other drones to spy on militants in Pakistan, nuclear sites in
Iran, and other targets around the globe.
For decades, U.S. ports have allowed law enforcement to conduct
aerial surveillance without a warrant. This is part of that sort of
open spaces doctrine. I am not saying it makes it right but that the
government has been doing it for decades. Some of the courts apparently
have ruled that what a person does in the open--even behind a backyard
fence--can be seen by a passing airplane and is not protected by
privacy laws. I don't think I agree with that. If a person is swimming
in their pool in their backyard or in the hot tub, just because we have
the technology to be able to see them in their hot tub, does that mean
they have a right to look at what people are doing in their backyard? I
don't accept that. I think it has been abused and we should be fighting
against this surveillance state.
Advocates say Predators are simply more effective than other planes.
Flying out of earshot and out of sight, a Predator B can watch a target
for 20 hours nonstop, far longer than any police helicopter or manned
aircraft.
What I would say there is it seems as though that might be somewhat
analogous to the GPS case. The Supreme Court ruled that you can't tag
people's
[[Page S1200]]
cars and watch them constantly, waiting to see if they break any laws.
So I would think the same for a Predator, that you stake them out,
watch, and you will eventually get somebody breaking the speed limit or
running a stop sign. I don't think that is what was intended.
Howard Safir says, ``I am for the use of drones.'' He is the former
head of operations of the U.S. Marshals Service and former New York
City police commissioner. He said, ``Drones could help police in
manhunts, hostage situations and other difficult cases.''
I agree completely. If someone is being held in harm's way, if
someone is being held and threatened, drones are a great idea. So it is
not that I am opposed to the technology. I am not particularly excited
about them hovering outside our windows looking over our shoulders at
what magazines we read, whether we are reading any free market
magazines that might be offensive to government officials. So I think
we don't want people looking into our activities in our houses without
a warrant. But I think in situations where people have already broken
the law, there is lethal force being exposed and there are people in
danger, why wouldn't we want to use a drone versus a policeman to save
the life of a policeman going into a difficult situation. So I think
those probably will come to fruition. That doesn't bother me.
In some ways it is a little bit analogous to the situation we are
talking about with drone strikes by the military in the United States.
It is not so much that anybody is opposed to using a drone to shoot
down a plane that is flying in to attack us, or people who are flying
into a building to knock a building down, or flying into the Capitol.
Nobody is opposed to using a drone when there is a lethal imminent
force. The problem is it has gotten so convoluted. The President said
an imminent threat doesn't have to be immediate. So that is the kind of
thing we are concerned about. We are not concerned about an imminent or
lethal threat where someone responds. What we are concerned about is a
drone strike against a noncombatant. It seems as though it ought to be
an easy question for the President. Couldn't he at least respond and
say, I have always believed this, I just forgot to mention it, and we
weren't very clear in the way we expressed it but, obviously, we would
never use a drone against a noncombatant. He needs to say that, though,
because the drones overseas are being used against noncombatants and we
need to know what the rules are going to be.
This is a long, drawn-out day, but it is to try to get some answers.
It is to try to shame the President into doing the right thing. I think
he knows what the right thing is. I think the President, part of him
would like to do the right thing. But I think there is a certain
stubbornness there too. I think there is a certain belief that he is
the President and Presidents have all this power and he doesn't want to
give up any of that power. I think some of that we see with Republicans
and Democrats, frankly. When people leave the legislative branch and go
to the White House, they think, I am a good person. I would never use
power wrongly, so why would it be wrong if I got more power? Why would
it be wrong if I said, I am going to use the fifth amendment, people
will get due process, except for sometimes when I think they are bad
people, and then I won't use the fifth amendment, they won't get due
process.
Privacy advocates say that drones help police snoop on citizens in
ways that push current law to the breaking point. Ryan Calo, director
for privacy and robotics at Stanford Law School's Center for Internet
and Society, says:
Any time you have a tool like that in the hands of law
enforcement that makes it easier to do surveillance, they
will do more of it. This could be a time when people are
uncomfortable and they want to place limits on that
technology. It could make us question the doctrines that you
do not have privacy in public.
I think that is a good point. Maybe we will question some of the
things we have said before about open spaces now that we can crisscross
every inch of our open spaces. We have to imagine that we now have
drones that weigh less than an ounce, so we are not even talking about
the pictures of you coming down--some of us after a while don't want
pictures of us in our bathing suit, whether it is 2 miles up or whether
it is from 5 feet in front of us. So I can't imagine we would
eventually rule that a drone could swoop down and be 10 feet over our
fence. What is the question going to be? Can they be 10 feet over our
fence or 2,000 feet in the air and still snoop without any kind of
problem at all?
Do we want to live in a police state is basically what the question
is. Do we want to live in a surveillance state? It is going to take
people to stand up and say enough is enough, that we are not going to
do this, instead of everybody being like a herd of lemmings and going
off the cliff saying, ``Lead me, lead me, take care of me.''
We have to ask the question that Franklin asked: Are you going to
trade your liberty for security? Are you so fearful, are you so afraid
that you are willing to trade your liberty for security? That is sort
of the underlying question to this entire debate.
The Los Angeles Times article continues:
This can be a time when people are uncomfortable and they
want to place limits on that technology. It could make us
question the doctrine that you do not have privacy in public.
This is from a June 13 article, 2012, in ``Wired'' magazine by
Lorenzo Franceschi-Bicchierai:
We like to think of the drone war as something far away,
fought in the deserts of Yemen or the mountains of
Afghanistan. But we now know it is closer than we thought.
There are 64 drone bases on American soil. That includes 12
locations housing Predator and Reaper unmanned aerial
vehicles, which can be armed.
Public Intelligence, a non-profit that advocates for free
access to information, released a map--
which is probably not a very good idea to release a map of where our
drone bases are in the United States.
The possibility of military drones as well as those
controlled by police departments and universities flying over
American skies have raised concerns among privacy activists.
The other thing that should concern everybody, and probably people
saw this as they had some university students seeing if they could
commandeer a drone. So they had a drone fly over and the guy who didn't
know the frequency all of a sudden within 2 minutes is commandeering
the drone. There are questions whether that is what happened in Iran or
whether the thing landed accidentally. I don't know the answer to that,
but I think it is of concern that the drones could be commandeered and
used by the people. It is also a concern that ultimately our enemies
are going to have these drones too, and so while war is a messy thing
and there are a lot of imperfections to war, I think the way we act in
war should be the way we ultimately want to be treated in war. It is
easier said than done and I don't think it is an easy doctrine, but it
is something I think we should aspire to.
The possibility of military drones as well as those
controlled by police departments and universities flying over
American skies has raised concerns among privacy activists.
The American Civil Liberties Union explained in its December
report that the machines potentially could be used to spy on
American citizens. The drones' presence in our skies threaten
to eradicate existing practical limits on aerial monitoring
and allowing for pervasive surveillance, police fishing
expeditions, and abusive use of these tools in a way that
would eventually eliminate the privacy Americans have
traditionally enjoyed in their movements and activities.
I have told people that when I first read ``1984,'' I was bothered by
it. Everybody is bothered by Big Brother being able to have these two-
way televisions in your house and they see everything you do. You can't
escape Big Brother. But part of the consolation I had and part of the
feeling was, Well, they can't do this. The technology doesn't exist.
When I was a kid it didn't exist.
It is amazing, though, to think that Orwell writes this in 1949,
before any of this technology. We were getting closer in the 1970s when
I was a kid and now we are there, though. The technology is there. So
while technology is not an enemy and technology is not something we can
or should ban, technology makes our privacy more important, it makes
the defense of our privacy something that needs to be guarded more
jealously, because our government now does have the technology to see
our every movement, to monitor our every move. So do our enemies, for
that matter. So one can imagine, we don't want
[[Page S1201]]
the police GPS tracking us and we probably don't want our political
opponents tracking our car, either. So there have to be some
protections of privacy.
The issue and discussion of privacy has been one that conservatives
and people on the right haven't always been as unified about.
Libertarians on the right have been better with these issues and some
conservatives have as well. But the question has always been, Do you
have a right to privacy? I have always said, Sure, you have a right to
privacy. I can't imagine why you wouldn't have a right to privacy.
Some on the conservative side say, Well, you don't have a right to
privacy; nobody talked about it in the Constitution. You don't
necessarily have a right to privacy. I have to disagree because I think
what is talked about in the Constitution are the freedoms we gave up or
agreed to have limited. The freedoms that you didn't agree to have
limited are unnamed. They are unenumerated. And the 9th and 10
amendments say they are to be left to the States and people. The 9th
and 10th amendments say that there is a plethora of rights, there is an
unlimited amount of rights and they are yours. They stay with you,
unless the government explicitly takes these rights away from you.
So the conclusion I come to with the right to privacy is I think you
do have a right to privacy. I think we have a right to private
property. Private property isn't listed in the Constitution, either,
but I think all of our Founding Fathers believed in private property
and some of them talked about actually putting the words in there. But
I think some of them liked more the idea--instead of life, liberty, and
property, they liked life, liberty, and the pursuit of happiness, and I
think it has a more noble ring to it because it is not talking about
the property, but pursuit of happiness does involve the pursuit of
gaining things you will own.
One of the things about our government and about the rule of law, and
one of the things that frankly I think a lot of people don't think
about but that makes us an incredibly prosperous Nation is the
certainty of the law. By that, what I mean is the certainty of
ownership. This gets to sort of the idea of not only do we want these
rights for the civil protections so we can't be incarcerated or accused
of a crime falsely without being able to defend ourselves, we also want
the rule of law to be consistent for everyone and not mutable. We don't
want it to be arbitrary. We don't want the whims of any politician or
any executive to be able to decide what the law is.
This isn't the first time I have had some disagreement with the
President on this. When we had some of the bankruptcies, when the car
companies were going bankrupt, I believe it was with the Chrysler
bankruptcy, that as things went through, there were people who were
creditors and they owned part of the company.
I learned this firsthand because I actually had some Fruit of the
Loom. When Fruit of the Loom went bankrupt, I thought, well, I will get
something, right? They will be bought out, and I will get some money
when they are bought out. I did not get anything. I was an unsecured
creditor. Apparently, in the Chrysler thing, so were the labor unions.
Usually what happens is that as a company, unfortunately, goes
bankrupt, all those contracts would be renegotiated, and really then
the car companies could become competitive. They could become like
Toyota or other successful companies that are nonunionized. And they
might become successful again.
But instead we took the actual bankruptcy law and turned it on its
head. When we do this and when we bail out banks and things and change
the rules at midpoint, it changes what investors do, and it changes
that certainty investors need either in banks or in car companies.
Pension plans invest in a lot of these things. So a lot of people
think, oh, well, the President had preference for the union because he
liked the union. Well, that is fine. But teachers are in a union too,
and they had a pension plan, and they owned Chrysler stock, and they
got ripped off because he changed the law and gave the money to the
autoworkers' union. But he took it from somebody else.
The problem is that you need those pension funds, some of which are
for regular working folks. Firemen have them. Police have them.
Teachers have them. It is one of the things that were not fully
explained in the Romney campaign. He got so much grief for running
these funds, but a lot of the people who became successful along with
him and who made money were just average, ordinary citizens who are
teachers, firemen, and policemen. Their pension plan was there in Bain
Capital. I think that was never fully explained.
But my point is, with the rule of law, that certainty is what creates
wealth in our country. One of the reasons it is hard for Africa to get
ahead--Africa has great resources--diamonds and minerals. One of the
big reasons they do not get ahead is there is corruption in their
government. Some of that corruption we aid and abet because we give
foreign aid directly to corrupt governments that steal it.
Mubarak was one of the richest men in the world--probably worth
between $5 and $10 billion, maybe between $15 and $20 billion. We gave
him $60 billion, so I guess we should be thankful he only stole one-
third of it. Mobutu in Central Africa stole billions. There was no
running water, no electricity. He and the soldiers around him lived
high off the hog, and they took our money and stole it as well.
But the problem is that not only do you have the kleptocracy and the
stealing of foreign aid, but then you do not have the certainty of your
property. A lot of capital formation in our country is based on your
home loans. It used to be before the housing market went south, but it
still is. It is where a lot of capital comes from, particularly for
average, ordinary citizens borrowing against their house.
If you do not have that certainty of the law, it is a problem. So
what we are talking about today is more certainty of your liberty from
unfair prosecution or unfair arrest or unfair death, ultimately, from a
drone, which takes consistency of law, which takes that the
Constitution will be adhered to and will be adhered to consistently and
not in an arbitrary fashion. So it is important not only for your civil
liberties, it is also important for your private property as well to
have a rule of law.
People talk about a rule of law, and they talk about it all the time.
I do not think it fully gets through to everybody exactly what a rule
of law means and how important it is. Hayek wrote that nothing more
clearly distinguishes an arbitrary society from a stable society than
the rule of law. He said that the rule of law is what gives that
certainty to the marketplace. So it is not enough just to have freedom.
You can have complete and random anarchic freedom, and you may well not
get prosperity if you do not have a law that stabilizes things. You
have to have a police force and a judiciary that enforces contracts.
So that is a lot of what goes on in the developing world that they do
not have. They have kleptocracy, which we aid and abet by giving them
money and giving it to thieves because the thieves are our friends, not
somebody else's friends. But then they also have this instability by
not having a rule of law.
The drones' presence in our skies ``threatens to eradicate
existing practical limits on aerial monitoring . . .
This comes from an article in Wired by Lorenzo Franceschi-Bicchieri.
As Danger Room reported last month, even military drones,
which are prohibited from spying on Americans, may
``accidentally'' conduct such surveillance--and keep the data
for months afterwards while they figure out what to do with
it.
The material they collect without a warrant, as scholar
Steven Aftergood revealed, could then be used to open an
investigation.
The Posse Comitatus Act prohibits the U.S. military from
operating on American soil . . .
So once again, if we go back to asking the President this question:
Can you do military strikes on Americans on American soil, you know an
easy answer is, I will obey the law. The law says he cannot do it. Yet
he indicates that he is going to have different rules inside America
than outside America for his drone strikes, which implies that he
thinks he can do it.
The Posse Comitatus Act expressly forbids the military from operating
in the United States. So if he is going to kill Americans in America,
it will either be in defiance of the Posse Comitatus Act or he is going
to have to arm the FBI with drones to kill people.
[[Page S1202]]
The problem is that I think once he gets into the FBI, the ludicrous
nature of what he is asserting will really be paramount. I cannot
imagine that he can argue at that point that we are not going to obey
the Bill of Rights with the FBI because we already do with the FBI.
So many of the answers are pretty simple here and pretty easy, and I
just cannot imagine why he is resisting doing this.
This new map comes out almost two months after the
Electronic Frontier Foundation revealed another one, this
time of public agencies--including police departments and
universities--that have a permit issued by the Federal
Aviation Agency to use [drones] in American airspace.
``It goes to show you how entrenched drones already are,'' said
Trevor Timm, an EFF activist, when asked about the new map. ``It's
clear that the drone industry is expanding rapidly and this map is just
another example of that. And if people are worried about military
technology coming back and being sold in the US, this is just another
example [of] how drone technology is probably going to proliferate in
the US very soon.''
This is another article from February of 2013.
This is in Wired. It is called ``Domestic-Drone Industry Prepares for
Big Battle with Regulators.''
For a day, a sandy-haired Virginian named Jeremy Novara was
the hero of the nascent domestic drone industry.
Novara went to the microphone at a ballroom in a Ritz-
Carlton outside Washington, D.C. . . . and did something many
in his business want to do: tenaciously challenge the drone
regulators at the Federal Aviation Administration to loosen
restrictions on unmanned planes over the United States.
Judging from the reaction he received, and from the stated
intentions of the drone advocates who convened the forum, the
domestic-drone industry expects to do a lot more of that in
the coming months.
There's been a lot of hype around unmanned drones becoming
a fixture over U.S. airspace. . . .
You may have seen just 2 days ago, I think, a pilot coming into New
York City saw one on the way down. And I saw the report, I think
yesterday, saying they are still asking whose drone it was. You would
think certainly we would have found out in 24 hours. I would think for
certain it probably would be a government drone. But it is a little
worrisome that they are seeing drones, that they do not know who is
flying them or where they are as far as getting in the way of our
commercial airliners.
There's been a lot of hype around unmanned drones becoming
a fixture over U.S. airspace, both for law enforcement use
and for operations by businesses as varied as farmers and
filmmakers.
It sort of leads to another point--that it is not the technology that
we are opposed to. There are going to be all kinds of private uses for
drones. There have to be some rules for where they are flown so they do
not get in the way of airplanes. But I would think farmers and ranchers
might want to use drones to, I don't know, count their cattle or their
sheep. I do not know if you do that. But there are going to be private
uses for these drones that will not be objectionable.
All have big implications for traditional conceptions of
privacy, as unmanned planes can loiter over people's
backyards and snap pictures for far longer than piloted
aircraft.
The government is anticipating that drone makers could
generate a windfall of cash as drones move from a military to
a civilian role. Jim Williams of the Federal Aviation
Administration told [a conclave of the drone manufacturers
conference] that the potential market for government and
commercial drones could generate ``nearly $90 billion in
economic activity . . . ''
But there's an obstacle: the Federal Aviation
Administration.
The FAA has been reluctant to grant licenses out of fear that the
drones, which maneuver poorly, have an alarming crash rate, and are
spoofible, don't have the sensing capacity to spot approaching
aircraft, which could complicate and endanger U.S. airspace.
The FAA has been criticized some by--there is a group
called the Electronic Frontier Foundation--for not being
transparent about its licenses. And they have filed Freedom
of Information Act because they would like to know whether
the intentions of those putting the drones up is benign or
whether it involves some kind of surveillance.
We talk a lot about the government spying on us, but I think there is
great potential for your competitors, your enemies, and other people to
spy on you with drones, particularly as they become cheaper. Those
issues will be complicated. I think one way to sort of rectify or give
an answer to those is to say your property from where it starts on the
ground up is yours. People can fly over it, but I do not think they
should be able to snoop and look down in it--I think probably private
or public looking down on your property. That will be something,
though, that the courts will continue to have to work out.
There was a push last year by Congress and the Obama administration
directing the FAA to fully integrate unmanned aircraft into American
skies. It has not been nearly enough for the drone makers. The FAA is
months late in designating six test sites for drones around the
country. The question is when the test site selection will begin. ``I'm
sure that's what all of you are asking now,'' says Williams, the head
of the FAA's drone division.
Drone makers are also frustrated by the logic of existing
FAA regulations. Currently, a drone weighing under 55 pounds,
flying below 400 feet within an operator's line of sight and
away from an airport is considered a model airplane and
cleared to fly without a license. That is, if it is not
engaging in any for-profit activity--sort of. ``A farmer
can be a modeller if they operate their aircraft as a
hobby or for recreational purposes.''
Enter Novara, a 31-year-old who owns a small drone business
in Falls Church, Va. called Vanilla Aircraft. ``If a farmer,
who hopefully is profit-minded, can fly as a hobbyist an
unmanned aircraft,'' Novara challenged Williams, ``why can't
I, as the owner of an unmanned aircraft company, fly as a
hobbyist my own unmanned aircraft over property that I own?
The guidelines before this were that any commercial intent is
prohibited, but . . . ''
The bottom line is that there is going to be a lot of things we are
going to enter into with private drones. But opposition to the
technology, either for military purposes or for private purposes, is
not something we are going after. What we are talking about is whether
your privacy will be respected and whether your constitutional rights
will be protected.
This is a new article from today by Conor Friedersdorf. It is called
``Killing Americans on U.S. Soil: Eric Holder's Evasive, Manipulative
Letter.''
On December 7, 1941, Japanese warplanes bombed the U.S.
naval base at Pearl Harbor, Hawaii. Six decades later, al-
Qaeda terrorists flew hijacked airplanes into the World Trade
Center and the Pentagon. Neither President Roosevelt nor
President . . . Bush targeted and killed Americans on U.S.
soil in the aftermath of those attacks. Doing so wouldn't
have made any sense.
How strange, then, that Attorney General Eric Holder
invoked those very attacks in a letter confirming that
President Obama believes there are circumstances in which he
could order Americans targeted and killed on U.S. soil.
It is kind of strange. The things that he gives as justification are
things in which we did not kill Americans.
It's possible, I suppose, to imagine--
These are Eric Holder's words now.
It's possible, I suppose, to imagine an extraordinary
circumstance in which it would be necessary and appropriate
under the Constitution and applicable laws for the President
to authorize the military to use lethal force within the
territory of the United States. For example, the President
could conceivably have no choice but to authorize the
military to use force if necessary to protect the homeland in
the circumstances of a catastrophic attack like what happened
in 1941 and again on 9/11. This very scenario to be guarded
against is a President using the pretext of a terrorist
attack to seize extraordinary powers. Isn't that among the
most likely scenarios for the United States turning into an
authoritarian security state?
To be sure, if Americans are at the controls of fighter jets en route
to Hawaii, of course Obama could order that they be fired upon. If
Americans hijacked a plane, of course it would be permissible to kill
them before they could crash it into a building. But those are not the
sorts of targeted killings we are talking about. What we are talking
about is killing people not engaged in combat because you suspect them
of being a terrorist.
If you read to the end of Holder's letter, to the passage
where he said--
This is Friedersdorf again.
If you read to the end of Holder's letter, to the passage
where he says, ``Were such an emergency to arise, I would
examine the particular facts and circumstances before
advising the president on the scope of his authority,'' it
becomes clear that, despite invoking Pearl Harbor and 9/11,
even he isn't envisioning a response to an attack in process,
which would have to happen immediately. So what does he
envision? If he can see that a
[[Page S1203]]
``for example'' is necessary to explain, he ought to give us
a clarifying example rather than a nonsensical one that seems
to name-check events for their emotional resonance more than
for their aptness to the issue.
Elsewhere in his letter, Holder writes that ``the US
government has not carried out drone strikes in the United
States and has no intention of doing so. As a policy matter
moreover, we reject the use of military force where well-
established law enforcement authorities in the country
provide the best means for incapacitating a terrorist
threat.'' Interesting they reject it ``as a policy matter,''
but aren't willing to reject military force in the United
States as a legal matter--
That is a good distinction--
even in instances where law enforcement would better
incapacitate the threat. For the Obama Administration,
conceding that the executive branch is legally forbidden to
do certain things is verboten,--
So it is kind of interesting. When they are willing to admit to any
kind of limitations on their power they say: ``Policywise'' they might
be limited, but they are not willing to say ``legally'' they are
limited. This is a problem of not just this administration, but the
previous one of thinking that any kind of inch that they give to
another branch of government, that they will be losing some of their
power and they are unwilling to do it.
Friedersdorf goes on to say that:
For the Obama administration, conceding that the executive
branch is legally forbidden to do certain things is verboten,
despite the fact that an unchecked executive is much more
dangerous than the possibility of a future President failing
to do enough to fight back against an actual attack on our
homeland.
Any thinking person can see that Holder's letter is non-
responsive, evasive, and deliberately manipulative in its sly
reassurances, right down to the rhetorically powerful but
substantively nonsensical invocation of 9/11. (Being more
subtle about it than Rudy Giuliani doesn't make it right.) To
credulously accept this sort of response on an issue as
important as this one is behavior unfit for any citizen of a
free country, where safeguarding the rule of law is a civic
responsibility. The time to discuss the appropriate scope of
the president's authority is now.
I know many would rather defer this, they would rather do this at
another time. But the thing is, it is now. We brought the issue up. We
have spent a lot of time on this issue. Why not have a discussion,
instead of putting me off and saying: Oh, we will have a committee
hearing on it. Sorry you are not on that committee, but we are going to
have a committee hearing on this at a later date. It will never be
discussed. Nothing ever happens around here. I mean, they promise you
stuff. They say: We are going to take care of it. But it never happens.
I think it never will.
The time to discuss the appropriate scope of the
president's authority--
This is Friedersdorf again.
The time to discuss the appropriate scope of the
president's authority is now, not in the aftermath of a
catastrophic attack on the nation, as Holder suggests. The
fact that he disagrees speaks volumes about team Obama's
reckless shortsightedness.
This is another article from Wired. This is from today. This is by
Spencer Ackerman.
The Obama administration calls it ``targeted killing.''
Steven Segal would call it getting marked for death. It's the
practice of singling out an individual linked to a terrorist
group, for killing, and it's been played out hundreds of
times in the 9/11 era--including more recently against U.S.
citizens like al-Qaida's YouTube preacher Anwar al-Awlaki.
The Obama team has said next to nothing about how it works or
what laws restrict it. Until Monday.
Attorney General Eric Holder explained the administration's
reasoning for killing American citizens overseas--and only
overseas--with drone strikes and other means during a Monday
speech at Northwestern University. Holder claimed that the
government can kill ``a U.S. citizen who is a senior
operational leader of al-Qaida or associated forces''
provided the government--unilaterally--determines that
citizen poses ``an imminent threat of violent attack''--
Once again, a little bit of a problem on the imminent doctrine is
that ``imminent'' does not have to mean ``immediate.''
--he can't be captured; and ``law of war principles,'' like
the use of proportional force and the minimization of
collateral damage, apply.''
The reason why some of this is important--even though he is talking
about overseas now and not what we are trying to talk about here is
that since we have not been given sort of the parameters for how they
will kill Americans in America, we can only assume that they will work
with the parameters they have overseas. The whole idea that an imminent
threat is not immediate is problematic no matter where that doctrine is
used.
The idea that the law-of-war principles--I think proportional force
is a good idea as far as trying to restrain how much force we use. But
there are other things within the law of war that we need to be
concerned about; things that happen in war are not quite the same kind
of standard that we would have in the United States.
Ackerman goes on and he says:
This is an indicator of our times.
This is actually Holder.
This is an indicator of our times, not a departure from our
laws and our values. The debate over killing Awlaki, whom
Holder barely discussed, began long before a Hellfire missile
fired from a drone killed him and fellow propagandist Samir
Kahn in September. Awlaki's father sued the Obama
administration in 2010 to compel it to reveal its legal
rationale for the long-telegraphed strike. The administration
refused, with a judge's support.
For months after Awlaki's killing, the government never
disclosed any evidence supporting its decision that Awlaki
posed an imminent danger to Americans beyond his rhetoric of
incitement. But during the February sentencing of the
``Underwear Bomber,'' the government put forward a court
filing claiming that Awlaki worked intimately with convicted
would-be bomber Umar Farouk Abdulmutallab--
Who was the Underwear Bomber.
--to blow up Northwest Airlines. Holder referred to that
connection in his speech.
Several legal scholars have wondered why the United States
did not have to provide Awlaki with due process of law before
killing him, as stipulated under the fifth amendment. Holder
contended that the United States actually did, even if no
judge ever heard the case.
Well, this is sort of an interesting point. I am not making an
opinion on whether the fifth amendment applies to al-Awlaki overseas. I
think a lot of that is complicated and not necessarily certain whether
you can apply the Constitution to people outside the United States, or
whether an entity within the United States should obey the Constitution
on people outside the United States.
The bottom line is, in war you are not going to get due process. You
are not going to get Miranda rights if you are fighting in battle. It
is a little more debatable when you are not. The point is, though, that
they are saying they are applying the fifth amendment sort of in
private to al-Awlaki.
The question is, if this is the standard that is going to be used in
the United States, it is not going to be the actual use of the fifth
amendment, which means a court and a jury, it is going to be the
pretend use that is done behind closed doors. I am not so sure you can
have the fifth amendment that does not involve a courtroom. I just do
not understand a grand jury indictment, due process, not to be deprived
of life and liberty. I do not how it happens in private.
But that is the way they are administering the fifth amendment in
private. They are using their discretion as to when to administer the
fifth amendment. I do not know how that is going to work. I also do not
think that is appropriate for U.S. citizens. So other than the
President asking and answering a question as to whether noncombatants
will be killed in America, we need to ask whether he is going to--
before he kills them, is he going to use the fifth amendment in private
in the Oval Office, or is the fifth amendment going to be public? If it
is public, I do not know how you kill someone. If you are going to get
some kind of due process, you would have to get tried in a court. I am
not sure how this would go forward.
This is an additional quote from Holder from the same speech:
The Constitution's guarantee of due process is ironclad,
and it is essential--but, as a recent court decision makes
clear, ``it does not require judicial approval before the
president may use force abroad against a senior operational
leader of a foreign terrorist organization with which the
United States is at war, even if that individual happens to
be a U.S. citizen.''
Well, that is kind of confusing. If that is going to be the standard
here, I would be quite concerned. The standard over there--I think
there are arguments on both sides of it. But the standard over here, I
cannot imagine that this is the standard we are going to use. Because
basically he is saying the Constitution applies unless we think it does
not apply, and then decide it does not apply.
But then he says, as long as we are at war. Well, who are we at war
with? We are at war basically with anybody who
[[Page S1204]]
does not like us around the world. I am not sure if there is ever an
end to that. I think there are problems overseas. But particularly the
problem is--I think the problem at hand that we are trying to get to
the root of is, is this the standard? If you are using this standard
overseas, are you going to use the standard here that basically the
fifth amendment applies when we think it applies, and it does not apply
when we do not think it applies?
This is Ackerman, at this point, from Wired again.
Holder did not explain why Awlaki's 16-year-old son, whom a
missile strike killed two weeks after his father's death, was
a lawful target. Holder did not explain how a missile strike
represents due process, or what the standards for due process
the government must meet when killing a U.S. citizen abroad.
Holder did not explain why the government can only target
U.S. citizens suspected of terrorism for death overseas and
not necessarily domestically.
As I said, a lot of these things overseas you can debate and try to
decide whether this is a war zone or not a war zone. But they obviously
do not apply in the United States. The most troubling thing about the
killing of the 16-year-old son of Awlaki is the President's spokesman's
response to this. You know, the flippant nature of it and the
irresponsible nature for him to have said: Well, he should have chosen
more responsible parents. If that is the standard we are going to have
for killing Americans on American soil, that we are going to kill
people who do not have responsible parents, we have set the bar pretty
low for our killing program.
I think al-Awlaki was killed--I don't know. I have not seen the
classified information. I think the son was killed probably when they
either targeted someone else or they did what they call these signature
strikes where they don't know whom they are killing necessarily. They
just think they are bad people, they came from a meeting of other bad
people:
The decision to kill an American, Holder said, is ``among
the gravest that government leaders can face.'' Targeted
killing is not assassination, he argued, because
``assassinations are unlawful killings.'' Among the few
external limitations on the government's war power that
Holder mentioned were the approval of a local government
where the strikes occur--which must have pleased reluctant,
unsteady U.S. Allies in Pakistan and Yemen.
He is saying an interesting thing, and probably Pakistan has approved
of most of the killings. However, Pakistan wants to come in and wants
to convince and say: No, we haven't. They are doing it against our
will, but my guess is they have been told.
Some Members of Congress don't consider that a sufficient
safeguard.
``The government should explain exactly how much evidence
the president needs in order to decide that a particular
American is part of a terrorist group,'' says Sen. Ron Wyden,
an Oregon Democrat who sits on the Senate's Intelligence
Committee. ``It is also unclear to me whether individual
Americans must be given the opportunity to surrender before
lethal force is used against them. And I'm particularly
concerned that the geographic boundaries of this authority
have not been clearly laid out.''
The point on the geographic boundaries is a pretty important point
because this is one of the concerning items about what they maintain.
They say there are no geographic limitations. They say they get the
authority for war everywhere around the world, as well as war here,
because they say there were no geographic limitations to the use of
authorization of force when we went to war in Afghanistan.
I think people who voted for that--and I would have voted to go to
war in Afghanistan--thought we were going to Afghanistan to fight the
people who got us on 9/11.
I don't think they thought, when they voted for that resolution, it
meant we could have war in the United States under that resolution and
that the standard would be one of the laws of war or one of martial law
within the United States. I don't think anybody voting on it had that
conclusion. That is a real problem. Those people are saying, including
the administration is saying, no geographic limitations and,
essentially, there are no temporal limitations. We have a perpetual war
without any geographic limitations, which now they want to apply war
principles to killing in the United States.
Ackerman continues quoting Senator Wyden:
``And based on what I've heard so far, I can't tell whether
or not the Justice Department's legal arguments would allow
the President to order intelligence agencies to kill an
American inside the United States.''
He is unclear about it, and he has seen a lot more information than I
have because he is on the Intelligence Committee and sees secure and
classified information. He is unsure of it.
This makes me think nobody in the Senate or the Congress knows
whether they are asserting whether they can kill Americans on American
soil.
Mary Ellen O'Connell, the vice president of the American
Society of International Law, found Holder's legal rationale
flimsy, stating:
``First, [Holder] restates the renamed global war on
terror, which Obama himself condemned. Then he tries the
United Nations Charter Article 51 but does not include the
whole article: It says member states of the U.N. have an
`inherent right of self-defense' if an armed attack occurs.
Article 51 does not provide a legal green light for targeted
killing,'' O'Connell said in an e-mail. ``Finally, he adds
the argument that the U.S. may use force against States that
are `unable or unwilling' to act. This argument has no basis
in international law. It simply does not exist. So regardless
of how carefully you target under the law of armed conflict,
there is no right in the first instance to target at all.''
Without yielding the floor, I would like to entertain a question from
the Senator from Utah.
Mr. LEE. Senator Paul recently sent a letter requesting some
information from the Obama administration relating to drone strikes.
It is significant that on March 4, 2013, just a couple days ago,
Senator Paul received back from the administration a letter signed by
Eric H. Holder, Jr., which reads as follows:
Dear Senator Paul:
On February 20, 2013, you wrote to John Brennan requesting
additional information concerning the Administration's views
about whether ``the President has the power to authorize
lethal force, such as a drone strike, against a U.S. citizen
on U.S. soil, and without trial.''
As Members of this Administration have previously
indicated, the U.S. government has not carried out drone
strikes in the United States and has no intention of doing
so. As a policy matter, moreover, we reject the use of
military force where well-established law enforcement
authorities in this country provide the best means for
incapacitating a terrorist threat. We have a long history of
using the criminal justice system to incapacitate individuals
located in our country who pose a threat to the United States
and its interests abroad. Hundreds of individuals have been
arrested and convicted of terrorism-related offenses in our
Federal courts.
The question you have posed is therefore entirely
hypothetical, unlikely to occur, and one we hope no President
will ever have to confront. It is possible, I suppose, to
imagine an extraordinary circumstance in which it would be
necessary and appropriate under the Constitution and
applicable laws of the United States for the President to
authorize the military to use lethal force within the
territory of the United States. For example, the President
could conceivably have no choice but to authorize the
military to use such force if necessary to protect the
homeland in the circumstances of a catastrophic attack like
the ones suffered on December 7, 1941, and September 11,
2001.
Were such an emergency to arise, I would examine the
particular facts and circumstances before advising the
President on the scope of his authority.
Sincerely, Eric H. Holder, Jr., Attorney General.
It is good to have this letter as a response to Senator Paul's
inquiry. I believe the inquiry Senator Paul raised is a legitimate one.
It is also essential we have some clarity with regard to the
administration's position on this type of an attack. It is important
for us to remember every time government acts, it does so at the
expense of the liberty of individual Americans.
This doesn't mean government action is bad. This simply means
government action always has to be weighed. It always has to be
counterbalanced against the impact it has on the citizenry. It is very
important we approach these things delicately. Nowhere is this
balancing act more necessary than where we have circumstances in which
our government action threatens not just the liberty but also the
property or, most important, the life of an individual American. Where
life is threatened, the concerns of the Constitution are at their
highest where life is threatened as a result of government action.
Government owes it to the citizens to undertake all its activities
with utmost caution. It owes it to its citizens never to deprive human
beings of their lives, particularly American citizens,
[[Page S1205]]
unless it has done so through operation of law with what we call due
process of law.
It is on this concept, due process of law, that the 5th and 14th
amendments of our Constitution focus so intently. Due process of law is
a familiar phrase to many Americans. We have heard this phrase over and
over. We understand on some level what it means, but I would like to
talk for a few minutes in response to Senator Paul's question about the
fact that in order to have due process of law, you need to have a
familiar legal standard or at least a legal standard. You have to have
a law that is capable of being applied in a way that American citizens
can understand.
They can read the law. They can review it. They can understand what
the law requires of them. They can understand what it is that the law
demands and what it is that the law authorizes the government to do. In
the absence of such a law, a law that can be applied, a law that can be
understood in advance of its application, you run a very real risk of
arbitrary and capricious government action, where government action is
arbitrary, capricious and where it threatens to underline life, liberty
or property but especially life. There is the greatest level of
concerns where the greatest level of detail must be examined with
regard to what the government wants to do.
In this circumstance, where the question relates to under what
circumstances, to what extent the government may take an American life,
the government may snuff out the life of an individual American
citizen, the government has an obligation to see to it and to assure
its citizens that it will not ever undertake such an action without due
process of law. To have due process of law, you need to have a
discernible legal standard. A discernible legal standard is not
entirely evident on the face of this letter. That is understandable. It
is just a brief response to Senator Paul's inquiry.
It is, however, a little troubling Eric Holder doesn't do more to
assure Senator Paul in this response to his letter that these kinds of
actions wouldn't be necessary to undertake on American soil, that these
kinds of actions would be fraught with constitutional problems when
undertaken on American soil.
It is difficult to understand why the Attorney General wouldn't just
say we will not do this. This would be fraught with constitutional
problems. This is not something we would do.
Also troubling is the related point that the Attorney General has
apparently relied on some legal analysis provided by the chief advisory
body within the U.S. Department of Justice. The U.S. Department of
Justice is something one might loosely describe as the largest law firm
in the United States. It is the law firm of the Federal Government.
Within any law firm you have lawyers who do different things. There
are lawyers who specialize primarily in litigation, lawyers who
specialize primarily in attracting agreements or in giving advice to
people.
The Office of Legal Counsel within the U.S. Department of Justice is
the chief advisory office within DOJ. It was the Office of Legal
Counsel which drafted one or more memos outlining the circumstances in
which the Obama administration might consider undertaking actions
involving lethal force against American citizens.
Sadly, most of us in the Senate have been unable to review those. The
American people generally have been unable to review them, but it is
particularly frustrating those of us who are members of the Senate
Judiciary Committee and, therefore, have an oversight responsibility
over the U.S. Department of Justice, have not been fortunate enough to
review the memoranda upon which the Obama administration has apparently
relied in undertaking this legal analysis.
I had the opportunity to question and did question this morning Eric
Holder with regard to these memoranda. I explained to him the great
need we have to be able to review these memoranda, particularly as
members of the Senate Judiciary Committee. I explained to him this is
part of our oversight responsibilities. This is our duty. It is our
right to see such documents, and it is very frustrating we have not
been allowed to see such documents.
I added to that my concern what we do have is a different document,
not the Office of Legal Counsel memorandum but something simply
captioned as the ``Department of Justice White Paper.'' I always
thought that was an interesting phrase, ``white paper.'' I don't know
why they feel the need to call it that, why they don't just call it a
paper. Normally, we don't have legal analyses or other important
documents which are written on green paper, orange paper or any other
color of paper. Nonetheless they call it a white paper.
This paper was leaked by the Obama administration to the news media.
This particular paper purported to contain some analysis, perhaps in
summary form, the same type of analysis of what was used in the still
secret Department of Justice Office of Legal Counsel memorandum.
There were a couple things I found very disturbing about the contents
of the white paper. First, the white paper focused on the fact that the
U.S. Government may use lethal force to kill an American citizen only
where there is an imminent threat of some sort. Where the other
conditions outlined in the memorandum are satisfied, there still has to
be an imminent threat of some sort. There needs to be an imminent
threat that the use of lethal force by the government on the U.S.
citizen in question is designed to confront.
That is a somewhat familiar legal term. It is used in other context
to identify a circumstance in which one thing has to occur in order to
prevent something else even worse from happening.
(Mr. SCHATZ assumed the Chair.)
An individual, for example, when confronted with an imminent threat
to his or her own life, is entitled to use lethal force in defending
him or herself in order to avoid that attack--in order to avoid death.
But it does have to be an imminent threat. There are other examples.
When a person argues that a certain action was undertaken under duress,
there does have to be some degree of imminence. And it is appropriate
in this circumstance, where we are talking about authorizing the
Federal Government of the United States of America to use lethal force
on an American citizen, that there ought to be some sort of imminent
threat to American national security that necessitates and fully
justifies that action.
The strange thing about the white paper, this white paper that was
leaked by the Obama administration to the news media, is that it
redefined ``imminence.'' It redefined it completely. It defined it to
be something else, something that bears no resemblance to what you or I
would call an imminent threat. It seemed to suggest that an imminent
threat may occur even when there is nothing that is about to occur on
an immediate basis that would involve a loss of American life or an
attack on an American compound or installation or any kind of a loss or
a deprivation to American national security.
This is a problem because, as we discussed just a few minutes ago, in
order to have due process of law, you have to have law operating, and
you have to have law operating as something other than a tool to
justify arbitrary and capricious behavior by government. You have to
have a discernible, judicially manageable legal standard. Even if it is
something that is never going to go through a court, it needs to be a
legal standard that means something, that has teeth to it, that doesn't
just say government officials may undertake action X, Y, or Z if the
government official in question feels moved upon to take such action.
There needs to be something that has the capacity to restrain
government action, and it needs to be--and the basis of and by
operation of generally applicable standards--generally applicable rules
of law. That is what we mean when we say due process.
Again, due process and the restrictions that accompany it are at
their highest when government wants to take an action that is designed
to or could lead to the ending of a human life. The sanctity of human
life requires nothing less than that.
Now, there was another part of the memo that was also a little bit
disturbing. The other part of the memo suggested it would, of course,
be necessary in order to carry out an action involving lethal force
against an American citizen; that efforts to capture
[[Page S1206]]
that individual would somehow prove to be futile; that those efforts
wouldn't work. But there, again, the definition supplied by the white
paper suggested something else. The language of the white paper
suggested almost that the government official in question, in charge of
this decision to end an American citizen's life, could be made somewhat
arbitrarily, somewhat capriciously. This is a problem.
You don't want someone sitting there one day having the authority to
say so-and-so is a troublemaker, so-and-so shouldn't be there, so-and-
so has been involved with some very bad actors. So-and-so may in fact
be a bad individual, may in fact be associated with people who want to
harm the interests of the United States or may even have been involved
in the planning of attacks on the United States, but you don't want the
government official in question to be able to end that American
citizen's life just on the basis of flimsy analysis, on a toothless
legal standard. You want the American people to continue to be able to
live under the rule of law and with an understanding that actions of
government, particularly those actions designed to bring an end to a
human being's life, won't be undertaken lightly.
That is what it means to live in a society that operates under a rule
of law as opposed to the rule of individual human beings. It is that we
have standards and we reduce those standards to writing. Those
standards are rules that are generally accepted and generally
applicable, that govern the conduct of individuals in society, and both
the governors and the governed will themselves determine the behavior
of those involved in our society.
So our law of laws, our rule of rules, our most fundamental law, is
the U.S. Constitution--this 225-year-old document that I happen to
believe was written by the hands of wise men raised up by their Creator
for that very purpose. These were wise men who understood human nature,
wise men who understood that whenever you put an individual in charge
of a lot of other individuals, there are risks--risks that are inherent
in human nature, risks that can be managed if you put certain checks
and balances in place, and those checks and balances will ensure that
no one person, no one group of people, will become so powerful as to
become a law unto themselves.
You see, that is what this document, our Constitution, the
Constitution of the United States, was designed to ensure; that we, as
Americans, would live free, and we would live free because our laws
would govern us, not the whims or the caprice of individuals.
Now, I do have another letter that I would like to share. This is a
letter that was sent to my friend, Senator Paul, from Mr. John Brennan,
currently serving as Assistant to the President for Homeland Security
and Counterterrorism. This letter is dated from just earlier this week.
In fact, it is dated March 5, 2013, and here is what it says:
Dear Senator Paul:
Thank you for your February 20, 2013, letter regarding the
power to authorize lethal force, such as a drone strike,
against a U.S. citizen on U.S. soil, and without trial.
The Department of Justice will address your legal question
regarding the President's authorities under separate cover. I
can, however, state unequivocally that the agency I have been
nominated to lead, the CIA, does not conduct lethal
operations inside the United States--nor does it have any
authority to do so. Thus, if I am fortunate enough to be
confirmed as CIA Director, I would have no power to authorize
such operations.
In addition, I have asked the CIA to respond to your
letters of January 25 and February 12, 2013, which raise a
number of important questions regarding issues pertaining to
the advancement of America's strategic priorities around the
globe.
Sincerely, John O. Brennan.
This is helpful. This is a helpful indication from a government
official who has been nominated to head the Central Intelligence
Agency, and who acknowledges if he is confirmed to this position, he
would have no authority as Director of the CIA to order lethal drone
strikes within the United States. So that is helpful.
It is still significant that we be allowed to ask from time to time
what the CIA might do with regard to other persons--other persons
including U.S. citizens outside the United States--and under what
circumstances a lethal drone strike or a different type of lethal force
might be appropriate when directed toward an American citizen outside
the United States.
I notice one phrase he uses in his letter, when he says: `` . . .
such as a drone strike against a U.S. citizen on U.S. soil, and without
a trial.'' Whenever we are talking about any person within our
jurisdiction, whenever we are talking about an American citizen,
regardless of where that American citizen might be found, it seems to
me we do owe that person certain responsibilities. We owe that person a
duty of following the law, of following our most fundamental law--the
U.S. Constitution--and following other statutory authorities we have in
place specifically to protect the rights and the interests, the life
and the liberty and the property of the American people.
We are told those things cannot be taken by the government without
due process of law. Now, normally, when we take away someone's life or
their liberty or their property, we entitle that person to a trial.
This is where our constitutional protections overlap a little bit and
they complement each other. We have in the fifth amendment this
protection that says that no person shall be deprived of life, liberty,
or property without due process of law. There, again, at a bare
minimum, that entails the operation of these generally applicable laws
that actually have some standards to them. It typically also involves,
quite necessarily, an opportunity on the part of the person being acted
upon by government to have a trial.
We have elsewhere in the Constitution other protections that
guarantee this. We have protections indicating that if a person is
charged with a crime by our government, under the sixth amendment they
have a right to a jury trial, and they have a right to counsel in
connection with that trial. They have a right even to counsel paid for
by the government if they can't afford an attorney in connection with
that. The seventh amendment, likewise, protects the right to a trial in
the context of civil disputes.
So these and other protections overlap to guarantee that Americans
will have due process. Frequently, what due process entails, among
other things, is the privation of a jury trial. You see, juries do
perform an important function. Juries are there to help protect our
rights. When we have a jury of our peers deciding critical questions
with regard to our interests in life, in liberty, in property, we see
to it that a panel of lay persons, a panel of nongovernment officials,
a panel of citizens who have sworn an oath to do justice will do
precisely that, and they will not shrink from the obligation to enforce
the demands of the Constitution. They will not shrink to enforce the
demands of the law. They will not shrink from their duties, and they
will not see themselves as part of a government establishment.
This is how our constitution protects us and insulates us from the
government because we are the people; and we, the people, control the
government. We, the people, have the right to a jury trial. And when we
actually get a jury trial, we are able to see our rights protected.
So, in response to the Senator's question, I do think there are some
problems that we confront as a society. I think the security of the
United States is, of course, of paramount importance. We need to
protect American national security. We need to protect Americans. As we
do so, we also need to protect the inalienable rights of individual
Americans to the due process guarantees that are hundreds of years old,
that extend at least as far back as the drafting and ratification of
our constitution, and are, of course, much older than that. They are
centuries, indeed, they are millennia old. We must continue to honor
them.
Mr. PAUL. Mr. President, I would like to thank the Senator from Utah
for his expert constitutional analysis, and I rely on his advice and
analysis of legislation and want to thank him very much for being part
of this debate.
We are in contact with the White House, and we have told the White
House we will allow debate on Brennan as soon as they will give a
clarification of what their opinion is on drone strikes in America.
I think after Holder's cross-examination, his opinion may not be too
far off from what we are asking for. But we want it clarified and in
writing because we think this is an important battle
[[Page S1207]]
for the American public and an important battle for the Constitution.
So if the President or the Attorney General will promise to give us
something, even give us something by morning, we are more than willing
to go ahead with the vote in the morning with that information.
At this time, without yielding the floor, I wish to entertain a
question from the Senator from Wyoming.
The PRESIDING OFFICER (Ms. Heitkamp). The Senator from Wyoming.
Mr. BARRASSO. Madam President, I come to the floor of the Senate in
great admiration for the Senator from Kentucky, for what he is doing to
try to get information. All we are asked to do is to give advice and
consent to the President on this very important nominee to be the head
of the Central Intelligence Agency, the key to central intelligence in
this Nation. I come to the floor this evening to thank my colleague
from Kentucky for the leadership he has continued to show by asking
questions which are not just questions of his, they are questions of
the American people.
I was traveling around the State of Wyoming last week, talking to
folks. I went to 13 different counties in our State of 23 counties.
There were many questions being asked about drones, not just their
accuracy but their intent and what this administration's policy is
related to drones and how they can be used. People in my home State of
Wyoming are concerned about drones being used in the United States, not
just specifically for attacks against American citizens but also the
concept in observation, in surveillance. What about our rights as
citizens to privacy? Those are the questions that come up as I travel
around the State.
I had a telephone townhall meeting the other evening with many people
from all around Wyoming on the line. They admire the questioning from
the Senator from Kentucky. They have concerns: Is Big Brother watching?
What is happening and what role has government in observing and
surveillance and looking into the lives of the American people?
It was not until Senator Paul asked the question would there be
strikes on American citizens in America that I think things became very
focused at home and all around the country. Then we got more e-mails,
more concerns, because the specific question that Senator Paul is
asking is a question that is on the minds of all Americans. I believe
Senator Paul deserves an answer. The American people deserve an answer.
So it is not just Senator Paul who deserves an answer, it is an answer
to all of the people of this country. But I appreciate Senator Paul's
leadership in asking the specific question.
The Intelligence Committee, the Select Committee on Intelligence met,
they had hearings, they had debates, discussions, deliberations, and
actually they voted. That is why we are here on the floor tonight, to
ask finally from the White House and from the nominee what the specific
position and policy of this administration happens to be on drones. I
know we have a unanimous consent request from Senator Paul and in a
second I am going to ask him to explain and maybe reiterate his
unanimous consent request, explain the resolution he wishes to vote on.
I think the Senator deserves a vote. We want to make sure the public
understands what we are discussing here. That is why I appreciate the
leadership of Senator Lee who has come here as a constitutional scholar
to address some of these concerns.
I think before many Senators are able to make the final decision of
how to vote, how to give advice and consent to the White House, we need
more information. We need to hear from the White House. We need to hear
from the administration because the people all around the country want
those same questions answered.
We do have a situation where the Senator from Kentucky said he is
willing to have a vote. He is willing to allow a vote on this nominee
on the floor of the Senate as soon as his question is answered. He
would be happy to proceed with that vote as early as tomorrow morning.
The American people deserve better than they are getting right now
from this administration in so many ways. This is but one. That is why
I think all of us try to go home every weekend to learn what is on the
minds of folks in our home States, in our home communities. This is
clearly what I have been hearing about, traveling around Wyoming, a
State of vast open spaces, a State of great majesty and beauty, but a
State where people are concerned with their own privacy, with overhead
surveillance and of course not just their own personal privacy but
their security.
What are the rights and responsibilities of a national government
when new technology exists, as we have seen with drones? I had the
privilege of visiting our soldiers overseas in Afghanistan with a
number of Senators in January. We have seen up close, through detailed
video, the capabilities of drones, capabilities that were not there
that many years ago. Questions such as this would have never arisen a
number of years ago because the technology was not there. But now the
technology is there. With that given technology, that raises new
questions. That is why I think so many Americans are appreciative of
the work by Senator Paul to specifically ask questions that have never
been asked before because the technology was not there before. Now we
have the technology, we have the know-how, and the question continues
to be asked.
I ask my friend and colleague from Kentucky if he could explain
perhaps his unanimous consent request, what vote he is asking for, why
it is so important, and what it means to all of us as free citizens in
this great Nation.
Mr. PAUL. Madam President, I thank the Senator from Wyoming for
coming to the floor and helping to advance this debate. One of the
points that was made toward the end is about our soldiers he visited
and that he saw the capacity of the drones. The one thing that should
not be lost here is that we are not arguing about the use of drones,
particularly in defense of our military. When people are shooting at
our soldiers I want the best equipment in the world that we have to
defend them and to win our battles. That is something I think we should
all want.
But I think our American soldiers would be disappointed in us here at
home if they felt, which I think many of them do, that they are
fighting for our Bill of Rights, they are fighting for our
Constitution, they are fighting for our conception of freedom--in doing
so, I think they would be disappointed if they felt the drones that
were being used against the enemy in the mountains of Afghanistan and
Pakistan were going to be used against Americans in America without any
kind of due process, because the whole idea of the Constitution is what
they are fighting for. That is what the President has pledged to uphold
and preserve. So it is such an important battle.
The unanimous consent that we put forward, which we had hoped they
would let us vote on in the morning also but they have disagreed with,
basically says the use of drones to execute or target American citizens
on American soil who pose no imminent threat clearly violates the
constitutional due process rights of citizens.
The point we are trying to get at, which I think for the
administration ought to be an easy question--we are not talking about
someone attacking the Twin Towers. We are in agreement that the
military can repulse attacks by American citizens in planes. Some of
the hijackers--I think some of them--I don't know if any of them were
citizens or not but--yes, some of them were citizens, I think. The
point is, no matter who you are, if you attack the United States you
can be repelled and that lethal force can be used.
The point is we are concerned that some of the drone strikes overseas
are of people not involved in combat at the time, and that is another
question, but here at home I don't think we want to have a standard
where someone who we think might be a terrorist, who we think might be
engaged in something, who is in a restaurant eating dinner, would be
killed. I think we want more protections for Americans. We want, if you
are accused of a crime, to have the ability to defend yourself in a
court of law.
I, without relinquishing the floor, would be happy to entertain any
other questions.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. BARRASSO. Madam President, I come and ask my colleague if this is
[[Page S1208]]
something he may have heard about at home as well, because this is
something clearly on the mind of the people of Wyoming. Of course, just
like Kentucky--and I will tell you when I was overseas in Afghanistan I
ran not just into soldiers from Wyoming--I met eight of them in four
different locations that I went to throughout Afghanistan. I met
soldiers from Kentucky in each of those locations. So we are both from
States with a significant commitment to our military. People over the
centuries have continued to fight and defend our freedoms. But today in
Afghanistan we have soldiers from my home State and your home State
doing what they do to keep us free, defending the Bill of Rights,
defending the Constitution.
When we talk about the Bill of Rights, let's think about what Ronald
Reagan said. The Bill of Rights was not established to protect the
government from the people, it was established to protect the people
from the government. Search and seizure, freedom of press, freedom of
speech, freedom of religion, our second amendment rights to own and
bear arms--those are the constitutional rights, individual rights that
people are fighting for every day in Afghanistan. They want to know
when they get home what sort of freedoms are there going to be in this
country? Where is the role of liberty and freedom in our society?
That is why there is no better time, I would say, than this evening,
before voting on the nominee to be the Director of the Central
Intelligence Agency--the head of the CIA for the country--what better
time to have this debate than during that nomination process about
where is that line between freedom of individual citizens and the
rights of a government which now has a technology which has not
previously been there up until most recently.
So I ask my friend and colleague--No. 1, I congratulate him and thank
him for remarkable leadership. I hear that all around my home State and
I know he hears it at home as well. He hears it all around the country.
But is this a concern on the minds of people? Is there a reason we are
here to bring this out, not just because a couple of Senators are on
the floor debating it? This is a crucial issue for this Nation.
Mr. PAUL. Madam President, one of the things I hear at home, similar
to what the Senator from Wyoming is talking about, is that we hear
people worried about the erosion of their rights. They worry about
statements from the President when the President says he intends to
protect the Constitution--except for maybe when it is infeasible or
when it is inconvenient. I think that worries people.
One of the other things about drones, which is not particularly
related to this, necessarily, but I know in Wyoming I bet they have the
same concerns, is our farmers are not too happy about the government
flying drones over their property. That is something on which we had an
interesting vote last year. We had a vote on whether the EPA could
continue these without explaining to us. Once again, it was sort of
similar to this fight in the sense that we wanted to stop the drone
flights over farms. It was a pretty simple request, an easy request
until we got the government to explain what kind of criteria, what kind
of rules they were using for flying over farms.
We got 56 Senators to vote to ban these drone flights until we got
more information. But it is like a lot of other things in the Senate,
it took 60 votes, so we didn't actually quite win even though we had a
majority.
With regard to what we are trying to accomplish through this, the
main thing we want is a public acknowledgment from the President or
from the Attorney General, saying that their policy is not to kill
noncombatants in America. Many of the drone strikes overseas have been
noncombatants--at least at the time they are killed they were not
involved in combat. I don't think it is too much to ask the President
to clarify that what he means is the United States can repel invasion,
the United States can repel attacks, whether they are American citizens
or not. We don't have a dispute with that. Our concern is when you look
at the drone program overseas, a lot of people are sitting around
eating, walking, sleeping in their house--that that is not the sort of
a program I can imagine using in the United States. I cannot imagine we
are going to have drone strikes on people while they are asleep in
their home or when they are out eating in a cafe or eating in a
restaurant. I cannot imagine that is the standard we are going to use.
Maybe it is just a misunderstanding. Maybe the President can clear this
up.
When Attorney General Holder was there this morning, the Senator from
Texas asked him this question and under pointed questioning it seemed
as if he was backing toward an answer that might be acceptable. He said
it was not appropriate, but what we are looking for from the lead legal
officer of the President, from the President, is something a little
more precise than ``I don't intend to,'' or a little more precise than
``it is not appropriate.'' We would like him to say that they don't
have a legal authority to kill Americans on American soil. We just
don't believe they do. Targeted drone strikes in America, I don't think
they have the legal authority nor the constitutional prerogative to do
this, and they need to admit to that. It has been like pulling teeth
trying to get information or get them to acknowledge anything. Our goal
is to try to get the President to acknowledge something publicly, more
so than any kind of legislation.
We do have some legislation that we are interested in. We are not
demanding that it pass in order to let this nomination go forward. What
we are asking for is we will let them have a vote any time they want if
they will at least give us a little more of a clear understanding that
they are going to obey the law. It took a month and a half for us to
get the response from them that the CIA doesn't operate in the United
States; that just is the law. It has been the law since 1947.
One would not think it would be that hard to get them to acknowledge
they are going to obey the law. The posse comitatus law has been here
since the 1860s, and it says the military doesn't operate in the United
States. How hard is it for the administration to say we are going to
adhere to the posse comitatus law and that we are not going to use the
military in the United States? That clarifies quite a few things
because if they think they are going to kill Americans with the FBI, at
least we already know the FBI works under the rules of the
Constitution. I would think at that point we are getting somewhere or
at least moving in the right direction.
We are not looking for something where we permanently stop the
President from getting his political appointees. I have mentioned
previously I voted for three of the President's political appointees.
My point in being here doesn't have so much to do with the CIA Director
as it has to do with the policy of the administration on drones. He
just happens to have been in charge of that policy on drones and the
CIA has something to do with drones overseas. At least Brennan has been
forthright and finally came forward with a letter that says the CIA
doesn't operate in the United States.
Unfortunately, Attorney General Holder's response has been somewhat
muddled in the sense that he kind of says we have not yet, we don't
intend to, but we might. Now he says there is an extraordinary
circumstance, but his extraordinary circumstance doesn't quite make any
sense because it is 9/11 or Pearl Harbor. Well, in both of those
instances we would react immediately to stop somebody, but they would
not be targeted drone strikes. I cannot imagine that we would know the
person's name and who they are when they are flying a plane into a
building. We would respond to them, but it would not have anything to
do with the targeted drone strikes. It is sort of answering a question
that wasn't asked.
At this time, Madam President, and without yielding the time, I wish
to entertain a question from the Senator from Wyoming.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. BARRASSO. Madam President, I have been able to put my hand on the
letter Senator Paul has written to John Brennan on February 20. This is
something that I believe brought in focus the key piece of what has
been on the minds of the people in my home State with regard to their
support for the question that Senator Paul is asking. Since I don't
serve on that committee and was not part of the hearings, I wish to
review this letter so I
[[Page S1209]]
can specifically ask Senator Paul about the response he has received to
this. Perhaps then we can share that with the American people as to why
so many folks who have been focused on this believe it is of key
importance.
The letter from Senator Paul says:
Dear Mr. Brennan, In consideration of your nomination to be
Director of the Central Intelligence Agency, (CIA), I have
repeatedly requested that you provide answers to several
questions clarifying your role in the approval of lethal
force against terrorism suspects, particularly those who are
U.S. citizens.
It goes on to say:
Your past actions in this regard, as well as your view of
the limitations to which you were subject, are of critical
importance in assessing your qualifications to lead the CIA.
That is what we are doing. We are here in our role to advise-and-
consent the President on a nomination he has made.
The letter goes on:
If it is not clear that you will honor the limits placed
upon the Executive Branch by the Constitution, then the
Senate should not confirm you to lead the CIA.
The people of Wyoming carry their Constitutions in their breast
pockets. We have them with us just as Senator Bob Byrd used to do right
here on the Senate floor, and many Members of the Senate do. We need to
make sure the limits placed upon the executive branch by the
Constitution are still upheld; otherwise, the Senate should not confirm
Mr. Brennan to lead the CIA.
So the letter from Senator Paul goes on to say:
During your confirmation process in the Senate Select
Committee on Intelligence, committee members have quite
appropriately made requests similar to questions I have
raised in my previous letter to you.
I agree. Members of the committee did make appropriate requests and
wanted to have those same questions answered that Senator Paul has been
offering, and they are that you expound on your views, Mr. Brennan, on
the limits of executive power in using lethal force against U.S.
citizens. This is against U.S. citizens, especially when operating on
U.S. soil.
That is among the fundamental questions I have been asked during
telephone townhall meetings when I travel the State of Wyoming. It
comes down to the use of lethal force against U.S. citizens, especially
when operating on U.S. soil.
The letter from Senator Paul goes on and says:
In fact, the Chairman of the SSCI, Sen. Feinstein,
specifically asked you in post-hearing questions for the
record whether the Administration could carry out drone
strikes inside the United States.
We are now getting to the crux of the matter: drone strikes inside
the United States.
Senator Paul goes on:
In your response, you emphasized that the Administration
``has not carried out'' such strikes and ``has no intention
of doing so.''
So has not done it, doesn't intend to do it, but it doesn't answer
the question that Senator Paul, the people of his home State, the
people of my home State, and the people all across this country are
asking.
Senator Paul goes on in his letter to Mr. Brennan:
I do not find this response sufficient.
As people are following what the Senator from Kentucky is doing here,
more and more people are asking and focusing on this specific question.
The question I and many others have asked is not whether the
administration has or intends to carry out drone strikes inside the
United States, but whether they believe they have the authority to do
so. The question is about whether it has the authority to do so. The
question is not whether they have carried them out, not whether they
intend to, but do they have the authority to do so. This is an
important distinction that should not and, I would add, cannot be
ignored.
Well, the letter goes on:
Just last week, President Obama also avoided this question
. . .
So the President has avoided the question when posed to him directly.
Instead of addressing the question of whether the Administration could
kill a U.S. citizen on American soil, he used a similar line, that
``There has never been a drone used on an American citizen on American
soil.''
Well, we believe that. We know that to be the case. We know that is
the President's belief. We know that is the testimony of the nominee to
be the CIA Director, but it evades the question. That is actually what
Senator Paul says in his letter.
The evasive replies from the Administration to this valid
question have only confused the issue further without getting
us any closer to the actual answer.
So it is not whether they have intent or whether they have done it
before, but do they have the authority to do so. This is the
distinction which Senator Paul is trying to get at, as are many
Americans all around the country who are tuning in to this important
debate.
Senator Paul goes on to say in his letter to John Brennan:
For that reason, I once again request you answer the
following question: Do you believe that the President has the
power to authorize lethal force, such as a drone strike,
against a U.S. citizen on U.S. soil, and without trial?
Let me repeat:
For that reason, I once again request you answer the
following question: Do you believe that the President has the
power to authorize lethal force, such as a drone strike,
against a U.S. citizen on U.S. soil, and without trial?
Senator Paul goes on to say:
I believe the only acceptable answer to this is no.
And that is what the American people believe as well.
Senator Paul concludes:
Until you directly and clearly answer, I plan to use every
procedural option at my disposal to delay your confirmation
and bring added scrutiny to this issue and the
Administration's policies of the use of lethal force.
He says:
The American people are rightly concerned, and they deserve
a frank and open discussion of these policies.
So I come to the Senate floor tonight in support of my colleague and
agree with what he is writing to John Brennan because the fundamental
question is: Do you believe the President has the power to authorize
lethal force, such as a drone strike, against a U.S. citizen on U.S.
soil and without trial.
Senator Paul goes on:
I believe the only acceptable answer to this is no.
So I would ask Senator Paul, through the Chair, if he could perhaps
add a little light to this matter. This letter was sent to Mr. Brennan
on February 20. It is now March 6. I know there has been some give-and-
take and back-and-forth, but the fundamental question is one that has
been on the minds of the people in my home State of Wyoming, as I
traveled the State over the last few weeks.
Mr. PAUL. Madam President, we sent our last letter to John Brennan, I
believe, in the latter part of January. We got no response. We then
sent him a second letter in the first or second week of February and
got no response. We then sent our third letter, which I believe is the
letter the Senator was reading from, and that was a couple of weeks
ago. We got no response to any of these letters.
However, when the committee--both Republicans and Democrats--was
holding up his nomination last week and the chairman of the committee
asked for a response, all of a sudden we got a response. The response
from Brennan was actually encouraging. The response, I believe, was
this morning or yesterday. The day has kind of run together. That
response was basically that the CIA doesn't have the authority to
operate in the United States and that is the rule. It has been the law
since the 1947 National Security Act.
Our concern is that the Attorney General's response has been a little
more vague. Basically they have not done any killings in the United
States yet. They don't have any intention to, but they might. The
problem with the ``they might'' part is they left it kind of vague.
They said it would have to be extraordinary, but they point out two
occurrences in which they would not have targeted drone strikes. They
point out Pearl Harbor and 9/11.
In both of those instances, I think it is appropriate to respond
militarily, but they would not have targeted drone strikes. They might
use drones, but they would not have targeted drone strikes because they
would be responding immediately to someone attacking us. I think we all
agree that we can respond to lethal force at any point in time.
I think the problem is the drone program around the world often
targets
[[Page S1210]]
people who are not in combat. It is hard for me to imagine that we
would have people who--I don't know if they are conspiring or what they
are doing--are talking to an individual or someone in a restaurant or
cafe, that we wouldn't arrest them.
The ranking member on the Intelligence Committee made a good point.
He said: Particularly if they are in a noncombat area in the United
States, wouldn't you want to arrest them to get some information from
them to see if they might be a threat? One reason would be to see if
they are innocent or guilty. If they are truly guilty, you would
probably be able to get some information from them by interrogating
them.
The Senator asked the question about the limitations. That is
ultimately what we are asking Brennan, Eric Holder, the Attorney
General, and the President. What limitations do you cede to your
authority? The President takes an oath that he is going to preserve,
protect, and defend the Constitution. He says he will do that, but the
oath doesn't say: I intend to do that. It says: I will preserve,
protect, and defend the Constitution.
The problem we have is that when John Brennan has been asked what are
the limitations to your authority, his response has been that we have
no geographic limitations. He says he gets that from the use of
authorization of force to go to war in Afghanistan. The problem with
that is I don't think people who voted for that intended that there
would be no limitations and that we could have war anywhere.
Then the question is: Is there a limitation at the U.S. border?
Well, there is a law--a posse comitatus law--from after the Civil War
which says the military doesn't operate here. It is not because we
think the military are bad people, we just have different rules for the
military. Our soldiers are not used to dealing with due process, and we
don't make them. On a battlefield when they are shooting, they don't
give people their Miranda rights. They don't get to have a jury trial.
There is none of that going on on the battlefield so soldiers don't
have to deal with that, but policemen in our country have different
rules of engagement. They are required to deal with that, and we want
that because we want there to be a process because we have always been
concerned in our country--we broke away from the mother country in
England because we were concerned about too much power. We wanted that
power to be reined in.
So our biggest problem is that when they say they have no geographic
limitations, that could include America. So that was our next question.
Senator Wyden asked Brennan in the committee: Do you have the authority
to do strikes in America? John Brennan's answer was--this was the first
answer before we got the second answer: Well, we want to optimize
transparency and we want to optimize secrecy, and that was his
conclusion. It was like, what does that mean? So that is when we got
more and more involved with asking this question and asking it
repeatedly.
But I think there are limitations. Ultimately, there is a limitation
of the Constitution, but also there is a big debate that needs to go on
about what are the limitations of what we voted on when we went to war.
I was all in favor of doing everything possible to those who attacked
us on 9/11, of going to Afghanistan. We need to figure out how and what
the completion of that mission is, and whether that use or
authorization of force is open-ended, forever, or whether we are ever
going to vote on that again, which I think means when we vote on that
again, we retain that power to bring it back to the Senate, to the
Congress. It doesn't mean we would not do it again, but we should have
that debate and a vote again if we are going to have another war.
At this time I would be happy to entertain another question from the
Senator from Wyoming.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. BARRASSO. What I just heard from the Senator from Kentucky is
that these questions were asked in a bipartisan way. This was not
partisan at all. I heard Senator Wyden from Oregon had similar
questions. So this is a request for information.
Now, I have been able to find a copy for the first time of that
January 25 letter that Senator Paul referenced to John Brennan, sent to
him in his capacity as Assistant to the President for Homeland Security
and Counterterrorism, and I just wanted to go through some of that and
perhaps ask Senator Paul some specific questions related to it because
it is my understanding that he has not gotten any kind of response to
that.
The Senator mentioned three specific letters: First, the January 25
letter, then the letter of February 14, and then the letter of February
20 which, asks, really, the ultimate question: Do you believe the
President has the power to authorize lethal force such as a drone
strike against a U.S. citizen on U.S. soil and without trial?
So now I have all three of those letters sent by Senator Paul to Mr.
Brennan in his capacity currently as the Assistant to the President for
Homeland Security and now the nominee to be the head of the Central
Intelligence Agency.
So the letter goes:
As the Senate moves forward with its consideration of your
nomination to be the next director of the Central
Intelligence Agency, it will be necessary to examine not only
your qualifications and record, but also to determine whether
you will provide the necessary leadership as the head of an
agency that operates under unique rules for transparency and
that quietly holds significant influence over the advancement
of America's strategic priorities around the globe.
No other agency is like the CIA--unique rules for transparency. So
Senator Paul goes on:
After reviewing your record as well as the record of
President Obama to whom you have provided a great deal of
advice and direction on issues of national security and
terrorism, I must ask several questions to help inform my
decision on your nomination.
That is what a responsible Senator does, a Senator who has taken
quite seriously his role in providing advice and consent to the
President on a nominee--a key nominee of a specific agency that
operates under unique rules for transparency.
So I think it is absolutely appropriate that Senator Paul would write
such a letter, and the questions raised are appropriate, many of which
have been raised in a bipartisan way.
So question No. 1: Do you agree with the argument put forth on
numerous occasions by the executive branch that it is legal to order
the killing of American citizens and that it is not compelled to
explain its reasoning in reaching that conclusion? Do you believe this
is a good precedent for the government to set?
What better, clearer question to ask than that? He goes on:
Congress has been denied access to legal opinions and
interpretations authorizing placement of U.S. citizens
believed to be engaged in terrorism on targeting notices,
thus denying Congress the ability to perform important
oversight.
Oversight is a key role of this Congress. Oversight is a key,
critical role of this branch of government, of Congress.
Senator Paul goes on:
Will you provide access to those opinions as well as future
opinions?
Very reasonable question.
The Senator said:
Would it not be appropriate to require a judge or a court
to review every case before the individual in question is
added to a targeting list?
Legitimate question.
Please describe the due process requirements in place for
those individuals being considered for an addition to a
targeting list.
Would you agree that it is paradoxical that the Federal
Government would need to go before a judge to authorize a
wiretap of a U.S. citizen overseas, but possibly not to order
a lethal drone strike against the same individual?
I want to go back to this question when I am visiting with Senator
Paul, but this is the kind of thing I get asked in Wyoming, and I am
sure the Senator from Kentucky is hearing the same thing: Would you
agree that it is paradoxical that the Federal Government would need to
go before a judge to authorize a wiretap on a U.S. citizen overseas,
but possibly not to order a lethal drone strike against the same
individual?
So what you have to do if you wanted to perform a wiretap would be
more than you would have to do if you wanted to do a drone strike. I
think it is a very legitimate question because if not, Senator Paul
goes on to ask:
Please explain why you believe something similar to the
FISA standards should not be applied in regards to illegal
action against
[[Page S1211]]
U.S. citizens. Is it still your intent to codify and
normalize the so-called disposition matrix, a targeting list
that you helped to establish--
This would be Homeland Security Counterterrorism Assistant Brennan--
to direct counterterrorism operations in future
administrations as well as the targeted killing procedures
you have outlined in your playbook?
Then Senator Paul goes on and asks:
Aside from the President, how many people have access to
the full disposition matrix? Of those, how many participate
in the process to add individuals to the targeting list, and
how many have the authority to veto an individual's
inclusion?
This is a very thoughtful letter from Senator Paul to Mr. Brennan
dated January 25, 2013. I want to continue to share with the American
people the questions that have been asked by Senator Paul because I
think they are so telling and so appropriate:
How many times have you specifically objected to an
individual's inclusion on a targeting list? How many times
have you recommended to the President against including an
individual on the targeting list?
These are questions people want to know the answers to:
How often are the criteria used for determining whether an
individual should be included on a targeting list amended?
Not simply reviewed; he is not asking about a review but an
amendment.
How many government officials and which agencies
participate in establishing these criteria? Does the National
Counterterrorism Center have final say over all criteria?
Anybody who watches this issue closely has asked these questions and
wants to know the answers.
Of those individuals who have been but are no longer
included in the disposition matrix or other target list, how
many have already been killed? How many have been removed
from the list by other means? How many individuals remain in
the disposition matrix or other targeting list today? And how
does the number compare to the number in prior years? Is the
number growing? Is the number shrinking? Is the number
static? What is happening to those numbers?
How many U.S. citizens have been added to this disposition
matrix or other targeting list? How many remain on the list?
How many U.S. citizens have been intentionally killed by U.S.
drone strikes since 2008? How many have been unintentionally
killed by U.S. drone strikes during that same period of time?
In how many countries has the United States executed a
drone strike against a presumed terrorist?
In each of the countries where the United States has
executed a drone strike in the past 4 years, please provide a
year-to-year estimate of those who self-identify or otherwise
associate with al-Qaida within that country.
I come to read this as somebody who has just come to see the capacity
of the drones. I see the junior Senator from Texas has been on the
Senate floor as well. He and I traveled together to Afghanistan. We
have been able to see directly video from drone strikes. We know the
capacity. We know their ability to target precisely. These are
questions that in previous wars were not asked because the technology
was not there, but now these are questions that are asked, that are
being asked, which is why I am so grateful for the leadership of
Senator Paul in asking these questions.
The letter goes on:
You have indicated that no credible evidence exists to
support recent claims that civilian casualties resulted from
U.S. drone strikes.
Again, this is the letter from Senator Paul to John Brennan. He asks:
Please indicate how you define credible evidence and what
process is in place to evaluate the legitimacy of alleged
civilian casualties.
Which countries have publicly stated their support for U.S.
drone strikes within their territory? Have any publicly
indicated support for U.S. drone strikes in the long term?
In this letter:
How relevant is the opinion of the public in the countries
where U.S. drone strikes are ongoing? In those countries, how
would you characterize public opinion toward U.S. drone
strikes?
In light of civilian casualties caused by the extensive use
of drone strikes under your guidance, do you continue to
stand by your remark that ``sometimes you have to take life
to save lives?''
Do you condone the CIA's practice of counting certain
civilians killed by U.S. drone strikes as militants simply
because they were of military age and within close proximity
of a target? Do you believe such accounting provides an
accurate picture of our drone program?
These are key questions to be asked for a nominee to the Central
Intelligence Agency and they deserve answers before anyone makes a vote
yes or no.
What changes to the CIA review process will you put in
place or have you attempted to put in place in your previous
role to prevent further unintentional killings of U.S.
dissidents? What role did you play in approving the drone
strike that led to the death of the under-aged U.S. citizen,
son of al-Awlaki? Unlike his father, he had not renounced his
U.S. citizenship. Was this young man the intended target
of the U.S. drone strike which took his life? Further, do
you reject the subsequent claim apparently originating
from anonymous U.S. Government sources--
Always a concern when you hear anonymous U.S. Government sources--
that the young man had actually been a military age male of
20 years or more of age, something that was later proven
false by the release of his birth certificate.
Senator Paul goes on in the letter:
Do you believe that the inadvertent killing of civilians
and the resulting anger from local populations should cause
us to limit rather than expand the drone program?
Key question:
The CIA has and will reportedly continue to have
authorization to carry out lethal drone strikes in Pakistan,
autonomously and without approval from the President. Will
you seek to reduce or eliminate this practice or keep it in
place? Will you hold to the discussed 1 or 2 year phaseout of
this authority or work to expedite the phaseout?
I could go on and on because these are key questions Senator Paul
asked, and it all gets back to the fundamental question of: Do you
believe the President has the power to authorize lethal force, such as
a drone strike against a U.S. citizen on U.S. soil and without trial?
So as I look at this letter of January 25 and look at the questions
being asked:
Do you believe the lethal drone strikes constitute
hostilities as defined by the War Powers Act?
On what legal basis does the administration derive
authorization to conduct such strikes?
Then the President's own words:
The President has stated that al-Qaida has been decimated.
Do you believe this assertion is correct and, if so, what is
it that we are now targeting if not al-Qaida?
That is a fundamental question that came up in the hearings with
then-Secretary of State Hillary Clinton. When she came to the Senate,
to the Foreign Relations Committee, they changed their tune and said:
No, it was core al-Qaida; not just al-Qaida but core al-Qaida in
Afghanistan, but, fundamentally, the tune has changed.
Senator Paul goes on:
Is the U.S. drone strike strategy exclusively focused on
targeting al-Qaida or is it also conducting counterinsurgency
operations against militants seeking to further undermine
their governments such as in Yemen? Would you support
expansion of the CIA's drone program in Mali to provide
support to counterterrorism operations?
We all know what happened there and the impact in Benghazi and the
concern that those who weren't captured or tried in Benghazi for the
atrocities there went then to Mali. So, again, a key question.
The Senator goes on:
Do you believe a long-term, sustained drone strike program
can eliminate all threats to the American people or
completely eliminate al-Qaida as you have indicated in your
intent? If not, how would we eventually wind down the drone
program? At what point do you believe drone strikes will
reach the point of diminishing returns? If so, can it be done
on the scale the drone program operates on now or would it
have to be expanded?
I was going to specifically ask Senator Paul to discuss this
question:
Do you support the Attorney General's 2012 guidance to the
NCTC that it may deliberately collect, store and continually
assess massive amounts of data on all U.S. citizens for
potential correlations to terrorism, even if the U.S.
citizens targeted have no known ties to terrorists?
That gets into the whole thing we started on earlier today. Where is
the role of individual freedoms, the right to trial, the right to be
heard, the right to present their case? What about the fundamental
rights in the Bill of Rights?
The final question here to Mr. Brennan is this:
Please describe in detail the steps you have taken as
assistant to the President as well as transparency measures
you would support as Director of the CIA to improve the
transparency of the administration's counterterrorism policy.
Mr. President, I would just say that they are extremely well-thought-
out
[[Page S1212]]
questions by a very thoughtful Senator and questions to which the
American people would like to have answers.
There is more to the letter, but I would like to take a second to ask
Senator Paul if he feels those have been adequately addressed and if he
feels he has gotten closer to the solution to the question of, do you
believe the President has the power to authorize lethal force such as a
drone strike against a U.S. citizen on U.S. soil and without trial?
That would be my question to Senator Paul.
(Mr. SCHATZ assumed the chair.)
Mr. PAUL. Mr. President, we have sent three different letters over
the last month and a half or so, and we really have not gotten a
detailed response to any of the letters.
We finally had one question answered from John Brennan, and that
question was answered by him by saying the CIA does not operate within
the United States, which is a reassertion of the law, which we at least
appreciated. But they have not responded by saying they will follow the
law. We have not gotten an adequate answer yet, although we are getting
closer to it.
Maybe the Senator from Texas can give us a little more insight into
this in the sense that the question now really is not just Brennan.
Brennan has answered that the CIA cannot operate in the United States.
But there is a question: Can the military operate in the United States?
And this question was asked, I think very poignantly, by the Senator
from Texas today, trying to get an answer from the Attorney General on
this question: Can you kill Americans on American soil who are not
involved in combat? The answer has been evasive because he has brought
up basically a red herring: Pearl Harbor or the Twin Towers, which none
of us are disputing that the military can respond to a lethal attack
with lethal force.
So what I would like to do without relinquishing the floor is see if
the Senator from Texas would like to respond as to his interpretation
of what he was hearing from Attorney General Holder and whether the
comments he was hearing--if Attorney General Holder were willing to
sort of try to complete that conversation in a letter to us--whether
actually we might get close to actually being on the same page.
Mr. CRUZ. I thank the Senator from Kentucky for allowing me to ask
him a series of questions and to address both what the Attorney General
said and the substantive issue.
I wish to begin my questioning, though, with simply an observation. I
would like to take a moment to thank the Senator from Kentucky. I have
had the privilege of serving in this body 9 weeks, and today is the
first day I have ever had the extraordinary privilege of speaking on
the floor of the Senate. On my first time to speak on the floor of the
Senate, I found myself being given the chance to read from Travis's
letter from the Alamo. As I observed walking off the floor of the
Senate, as they say in the beer commercial, it don't get no better than
this. So I thank the Senator from Kentucky for giving me the
opportunity to be welcomed to the floor of the Senate and having a
chance to stand with him fighting for liberty.
There are a number of things I would like to address and ask the
views of the Senator from Kentucky. I will begin by observing, as I did
the last time the Senator from Kentucky and I had a colloquy, that
Twitter never sleeps, and we heard from a number of tweets across the
country. But those have not ceased. So since the Senator from Kentucky
is still prohibited from looking at his cell phone, I wanted to prevent
him from going into technology shock and withdrawal and provide an in-
person feed for him.
This is about The Constitution. Stand with Rand. Get it
together GOP.
Stand with Rand. Rand praising Dem OR Sen Ron Wyden for
raising the same questions and concerns he has. Where are all
the other Dems?
Sad day when killing Americans is up for debate. Sad day
that every Senator is not up there with him. Stand with Rand.
We are watching you guys.
I don't know how Sen Rand Paul does it . . . I'm tired just
from WATCHING him. . . . a tip of the cap to you, sir. Thank
you. Stand with Rand.
Sen Rand Paul is extemporaneously giving a better human
rights speech than Barack Obama ever has. Stand with Rand.
And I am pretty certain that for the record I can confirm that no
teleprompter was in front of the desk of the Senator from Kentucky.
Sen Rand Paul, Jimmy Stewart would be proud, sir.
Sen Rand Paul, look what's trending. Stand with Rand.
It's been awhile since I could say I am a proud American.
Thank you, Rand Paul. Stand with Rand.
Rand Paul might be waiting a long time for an answer from
The White House. Stand with Rand.
I would note that it has been 10 hours, so that would indeed be a
correct observation of fact.
Democrats--Why not just agree that the POTUS cannot use
drones to summarily kill US citizens on US soil? Stand with
Rand.
Sen. Rand Paul crosses 8 hr threshold of filibuster. Stand
with Rand.
Stand with Rand, please.
Sen Rand Paul did not filibuster for the right or the left,
he did it for every person in this country. Stand with Rand.
Once you give up your rights, you will not get them back.
Believe that. Stand with Rand.
We should all go to the U.S. Capitol and Stand with Rand.
I would note that quite a few Members of the House of Representatives
have crossed over the Capitol and joined us precisely to stand with
Rand, as have the men and women in the gallery who have been here
throughout this long and historic stand.
Finally able to sit and watch the Rand Paul filibuster.
Just epic. Stand with Rand.
Read the constitution and explain why each sentence is
relevant to today. Not worthless and outdated.
7 hours and counting for Sen Rand Paul in the filibuster.
This can end, Brennan, just say u won't unilaterally kill us.
Stand with Rand.
America is watching. Stand with Rand.
I get the feeling that a more libertarian stance is the
only thing which can bring about a fresh start for the GOP.
Stand with Rand.
I stand with Rand in his 9th hr awaiting the President
saying he doesn't have the power to kill Americans at will.
``I haven't killed anyone yet and I have no intention of
killing Americans, but I might''--Barack Obama. Stand with
Rand.
The federal government was closed today. Yet Sen Rand Paul
working overtime. YouDaMan.
D-a-M-a-n is the precise spelling of that.
Sen Rand Paul, 100% support you. Keep going. Stand with
Rand.
This isn't a filibuster. This is a line in the sand drawn
with a quill pen that penned the constitution.
I think that one is particularly cool.
Do you agree with your colleague, Rep Justin Amash? Stand
with Rand.
Almost always the answer to that one should be yes.
Do you stand with Sen Rand Paul and demand an answer from
the WH on extra-judicial assassinations of Americans?
There is a word we do not hear too often within our own borders--
assassinations. Yet that is exactly what we are talking about here
tonight.
Don't think I've ever been quite so proud to say I'm from
Kentucky. Stand with Rand.
Sen Rand Paul getting to the heart of issues. Not partisan
politics, but a question of due process.
He's just about 8 hours away from having the 5th longest
filibuster.
I apologize to the Senator from Kentucky if that is less than
encouraging.
Stand with Rand.
I have a renewed sense of hope for our leaders in
Washington today. Thank you, Sen Rand Paul, for standing by
We The People. Stand with Rand.
I am a strong liberal supporter and two time Obama voter. I
Stand with Rand.
Dr. Rand Paul, Excellent, excellent work today. We stand
with Rand, too.
I hope Sen Rand Paul Can keep them up all night. There
hasn't been a real filibuster on the Senate floor in years.
Stand with Rand.
And I would note, as I was walking in, that this is certainly the
least well-shaven I have been on the Senate floor. And it is
particularly ironic that the desk at which I am standing, in addition
to having been the former desk of a great hero of mine, Senator Barry
Goldwater, was also the former desk of Senator Richard Nixon. So
perhaps that spirit is animating the 5 o'clock shadow that I find
myself at 10 o'clock at night sporting.
Stand with u I do. Stand with Rand.
I wonder if that one was from Dr. Seuss.
Stand with Rand because you have the freedom to do so.
Obama is going to have to address the points raised by
Paul. Stand with Rand.
I stand with Rand . . . best line of the filiblizzard thus
far. RT--
Yet another of Senator Rand Paul's miraculous tweets that
he did from the floor of the Senate, a tweet of Senator Rand
Paul--
``They shouldn't just drop a hellfire missile on your cafe
experience.''
[[Page S1213]]
I would suggest to the Senator from Kentucky that at the end of what
I am sure will be a long and very distinguished career in politics,
fighting for every American, that with statements such as that, a
subsequent career at Starbucks may indeed be promising.
The fight for liberty has a real hero. May the spirits of
past patriots fuel you.
Until you get an answer, Rand, keep on going. Let's take it
into tomorrow.
Is suspicion enough? Obviously not. Sen Rand Paul.
If you have family or friends in the Middle East, you might
be a terrorist. Stand with Rand.
For the first time since November, I feel like I see a
light at the end of the tunnel. It is a long tunnel. Stand
with Rand.
Sen Rand Paul: If you have no bounds, you have an unlimited
imperial presidency. So true.
Sen Rand Paul, eight hours, and still going strong. Thanks
for standing for the Constitution. God bless you. Stand with
Rand.
Thank you, Rand Paul, for standing up for our Constitution.
We are behind you. Stand with Rand.
Go get 'em, Rand Paul. Great way to end my birthday. Stand
with Rand.
I hope we do not make it to that individual's next birthday.
Best TV I've seen in a while. Stand with Rand.
Sen Rand Paul, I'm superproud of my Senator today. I have
always been proud of him, but today I'm more proud than ever.
STAND WITH RAND.
My kids--watching Rand Paul give a lesson to the country--
on their own, without me telling them to. Stand with Rand.
Thank you, Sen Rand Paul.
Why won't Obama say that he won't use drones to kill
noncombatant U.S. citizens on U.S. soil? Seems a simple
question. Stand with Rand.
Senator Rand Paul, thank you. Be encouraged and stay
strong. Would stand there with you if we could. We are no
longer free. Thank you for standing up for freedom.
``Stand with Rand'' is trending worldwide. That is pretty darn cool.
Rand Paul goes into his 9th hour of filibuster over drones.
Watch it here.
I will not read the link to C-SPAN.
Senator Rand Paul, I am so proud of you. Way to stand tall.
Stand with Rand.
Senator Rand Paul, your loyalty and dedication to we the
people are not going unnoticed. Stand with Rand.
If you give back your rights, don't ever expect to get them
back. Stand with Rand.
Call the White House. 202-456-1111. Take a stand.
For some reason, I feel compelled to read that tweet a second time.
Call the White House. 202-456-1111.
Rand Paul, standing for liberty and freedom. God bless you.
Stand with Rand.
Rand Paul, the 21st century version of Washington,
Jefferson and Madison.
No matter how you fall politically, you have to admire Rand
Paul's absolute conviction.
I cannot stop watching Senator Rand Paul filibuster.
Greatness. Stand with Rand.
Are you going to retweet Stand with Rand all night? I am.
Liberty. Rand Paul.
And the final one.
Senator Rand Paul, I am a grandma who just learned how to
Twitter tonight so that I could stand with Rand and the
Constitution.
The first question I will ask of the Senator from Kentucky--and I
have several more--is simply: What would you say to these millions of
Americans and people worldwide who are coming together to stand with
Rand?
Mr. PAUL. Mr. President, I thank the Senator from Texas for coming to
the floor. I am overwhelmed with all the responses. What I would say is
that I think there are things that are more important than
personalities, more important than party, and they are the things our
country was founded upon.
These are the things that bring people together who want us to stand
and say these protections will exist. The interesting thing about our
Constitution is it protects people who are--those who are defenseless
often, those who can be falsely accused of crimes is what the
Constitution is there for. I think there are people from all walks of
life who say my brother was falsely accused or my brother was put in
jail for 5 years or something, either they did not do it or it was an
inappropriate sentence.
I think people understand the idea of wanting to be protected from
false accusation, not only for something where you might be put in
prison but for something, in this case, you might be killed for. We all
understand. All you have to do is get online to read comments to any
kind of story online to know people make all kinds of wild accusations
and wild comments online. Do we want to have that be one of the
indications for whether you might be targeted for surveillance or
whether you might be targeted for a drone strike, that anything such as
this could happen without you having your due process, that the fifth
amendment somehow would be optional, that the executive branch would
decide when they are going to apply the fifth amendment.
I am overwhelmed with the responses. I think it is something that
unifies people. It has brought together both people from the Democratic
side of the aisle as well as the Republican side of the aisle because,
to me, this is not about whether the President is a Republican or
Democrat. I have supported several of his nominees. I have supported
people because I think he has the right to make political nominations,
even though I do not agree with much of any of the nominees or the
politics of the administration.
This is different. There is a constitutional principle. We are here
today to filibuster against or for a constitutional principle not
necessarily an individual. But it is something I think a lot of
Americans believe strongly in. I thank Senator Cruz very much for the
comments I have gotten from the Senator and I would entertain any other
questions.
Mr. CRUZ. Mr. President, I thank the Senator from Kentucky. I do
indeed have additional questions. The heart of what the Senator is
standing for, what some of the other Senators tonight are standing for,
is liberty. I think that has always been the foundational value in the
United States of America.
Our country was founded by Framers who understood that concentrated
power is always inimical to liberty, that any time great power is
undivided the freedom of the people is at jeopardy. As Lord Acton
observed: Power tends to corrupt, and absolute power corrupts
absolutely. It is for that reason that the Framers of our Constitution
did what the Supreme Court has described as splitting the atom of
sovereignty, taking what used to be one discrete indispensable concept
of power and sovereignty and breaking it up, breaking it up between the
three branches of the Federal Government and breaking it up between the
Federal Government and the 50 States and the local government as well.
The purpose of doing all that is to prevent what James Madison in
Federalist No. 10 described as factions. Today we would call them
special interests that might take control of one branch of government.
If all power were concentrated in the Executive, and one faction, one
special interest was to gain influence in that Executive, then the
liberty of the people would be at peril.
In Federalist 10, Madison explained the factions are never going to
go away. Human nature is such that we will divide into factions with
different interests. The genius of the Framers was not to imagine human
nature was somehow different than it was but to recognize that it was.
As the Federalist Papers explained: If men were angels, no government
would be necessary. The great challenge in forming a government is to
enable the governed to do what it must. Yet at the same time oblige it
to govern itself.
For that reason, splitting the atom of sovereignty, separating power
prevents any one branch of government from acquiring unchecked power.
It is, indeed, the responsibility of this body to do what we are doing
now. If a President of the United States decrees the power to take the
lives of U.S. citizens on U.S. soil without due process of law, I would
suggest it is integral to the oath of office of every Member of the
Senate and every Member of the House of Representatives to stand and
say: Mr. President, respectfully, no, you may not. The Constitution
gives you no such power. Each of us on entering office--in my case just
a few weeks ago standing on those steps, the Vice President asked me to
raise my hand and take an oath to honor and defend the Constitution.
Every Member of this body took that oath.
It is our responsibility, especially when one branch of the
government is overreaching, is usurping power that the Constitution
forbids him and that is threatening to the liberty of the people, it is
the responsibility of all of us to stand and resist that.
One of my alltime heroes, Ayn Rand in ``Atlas Shrugged,'' described
how the
[[Page S1214]]
parasitical class would put into place arbitrary power, standardless
rules precisely so the productive citizens in the private sector would
have to come on bended knee to those in government seeking special
dispensation, seeking special favors, because that arbitrary and
standardless rule empowers the political class and disempowers the
people.
I could not help but think about Ayn Rand's observation this morning
as I heard the Attorney General over and over refuse to say it would be
unconstitutional for the Federal Government to kill a U.S. citizen on
U.S. soil. He would say it would be inappropriate. He said that three
times in response to direct questioning. It would be inappropriate and
we should trust him. The Federal Government would not do so.
I found myself thinking of those arbitrary standards Ayn Rand talked
about; that if the only protection we the people have against the
Federal Government choosing to take the life of a U.S. citizen on U.S.
soil is our trust that they would refrain from doing what is
inappropriate rather than the protections of the Constitution, then I
would suggest our liberty is fragile indeed.
Indeed, when we think about the concentration of power, no judicial
opinion is more important than Justice Robert Jackson's concurring
opinion in the Youngstown Steel seizure case. Justice Jackson, as the
Senator from Kentucky knows, was a giant on the U.S. Supreme Court. My
former boss, Chief Justice William Rhenquist, served as a law clerk to
Justice Robert Jackson.
Indeed, Justice Jackson took time off from serving on the U.S.
Supreme Court to serve as the chief prosecutor at the Nuremberg trials,
during which he made the powerful observation following World War II,
when the United States brought to trial the horrific war criminals in
the Nazi regime.
Justice Jackson observed at Nuremberg that four great nations,
flushed with victory and stunned with injury, stay the hand of
vengeance and voluntarily submit their captive enemies to the judgment
of the law, is one of the most significant tributes that power has ever
paid to reason.
I would suggest to the Senator from Kentucky, and I feel confident he
would agree, that what we are talking about right now is the tribute
that power must and should pay to reason and that unchecked power is
always a threat to liberty.
As Justice Jackson opined in Youngstown Steel seizure ``that
comprehensive and undefined Presidential powers hold both practical
advantages and grave dangers for the country will impress anyone who
has served as a legal adviser to a President in a time of transition
and public anxiety.''
Those words could have been written as easily tonight as they were
half a century ago. Justice Jackson continued:
While the Constitution diffuses power to better secure
liberty, it also contemplates that practice will integrate
the dispersed power into a workable government. It enjoins
upon its branches separateness but interdependence, autonomy
but reciprocity. Presidential powers are not fixed but
fluctuate, depending on their disjunction or conjunction with
those of Congress.
When a President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum,
for it includes all that he possesses in his own right plus
all that Congress can delegate.
Justice Jackson explains:
No. 2: When the President acts in absence of either a
congressional branch or denial of authority, he can only rely
upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent
authority, or in which the distribution is uncertain.
Therefore, congressional inertia, indifference or quiescence
may sometimes, at least, as a practical matter, enable, if
not invite, measures on independent Presidential
responsibility. In this area, any actual test of power is
likely to depend upon the imperatives of events and
contemporary imponderables, rather than on abstract theories
of law.
Now, perhaps, prior to 11:45 today, Eric Holder and John Brennan
would have argued they fall into this second category, a category where
Congress has been silent and, accordingly, they might presume some
Presidential power. But as of 11:45 today, they can no longer claim
that.
Justice Jackson explained the third category of Presidential powers.
When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of
Congress over the matter. Courts can sustain executive
presidential control in such a case only by disabling the
Congress from acting upon the subject. Presidential claim to
a power at once so conclusive and preclusive must be
scrutinized with caution, for what is at stake is the
equilibrium established by our constitutional system.
As we stand here tonight, later than the typical hour for the Senate
being in session, indeed, later than many Members of this body had
anticipated being in Washington, DC--many Members of this body had
envisioned being on planes and returning home by now--it occurs to me
that those Senators who have heeded the encouragement of the twitterers
to stand with Rand, those Senators who have come here today, I am
reminded of Henry the Fifth, as Shakespeare observed:
What's he that wishes so?
My cousin Westmoreland? No, my fair cousin;
If we are mark'd to die, we are enow
To do our country loss; and if to live,
The fewer men, the greater share of honour.
God's will. I pray thee, wish not one man more.
By Jove, I am not covetous for gold,
Nor care I who doth feed upon my cost;
It yearns me not if men my garments wear;
Such outward things dwell not in my desires.
But if it be a sin to covet honor,
I am the most offending soul alive.
No, faith, my coz, wish not a man from England.
God's peace. I would not lose so great an honour
As one man more methinks would share from me
For the best hope I have. O, do not wish one more.
Rather proclaim it, Westmoreland, through my host,
That he which hath no stomach to this fight,
Let him depart; his passport shall be made,
And crowns for convoy put into his purse.
We would not die in that man's company
That fears his fellowship to die with us.
This day is call'd the feast of Crispian.
He that outlives this day, and comes safe home,
Will stand a tip-toe when this day is nam'd,
And rouse him at the name of Crispian.
He that shall live this day, and see old age,
Will yearly on the vigil feast his neighbours,
And say ``To-morrow is Saint Crispian.''
Then he will strip his sleeve and show his scars,
And say ``These wounds I had on Crispian's day.''
Old men forget; yet all shall be forgot,
But he'll remember, with advantages,
What feats he did that day. Then shall our names,
Familiar in his mouth as household words--
Harry the King, Bedford and Exeter,
Warwick and Talbot, Salisbury and Gloucester--
Be in their flowing cups freshly remembered.
This story shall the good man teach his son;
And Crispin Crispian shall ne'er go by,
From this day to the ending of the world,
But we in it shall be remembered--
We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne'er so vile,
This day shall gentle his condition.
And gentlemen in England now-a-bed
Shall think themselves accurs'd they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon St. Crispin's day.
I would observe to the Senator from Kentucky that those glorious
sentiments expressed centuries ago are precisely applicable to the
stand here tonight because it is a stand against, indeed it is a stand
against an administration that refuses to acknowledge limits on its
power. It is a stand for the same purpose, for liberty.
There is a frustration across this country, a frustration not with
Democrats or Republicans, not with one party or another, a frustration
with entrenched politicians in Washington who don't seem to work for
anybody.
I am convinced there is something credible happening in this country
when the people are standing and reminding the men and women of this
body that every one of us works for ``we the people.'' It is our
principal task to stand and defend liberty, especially when liberty is
threatened.
Indeed, that St. Crispin's Day speech had a saying--and even in some
ways a different manifestation. In one of the greatest movies of all
time, Patton, the opening scene of Patton, I will confess to the
Senator of Kentucky I have more than once in preparation for an oral
argument in court simply watched George C. Scott marching out in front
of a flag the size of North Dakota. Standing in front of the flag,
General Patton observed in a tribute to that very same speech I just
read--I am going to modify it slightly to make it PG.
[[Page S1215]]
I want you to remember that no ``fellow'' ever won a war by
dying for his country. He won it by making the other poor
``fellow'' die for his country.
Men, all this stuff you've heard about America not wanting
to fight, wanting to stay out of the war is a lot of horse
dung. Americans traditionally love to fight. All real
Americans love the sting of battle.
When you were kids you all admired the champion marble
shooter, the fastest runner, big-league ball players, the
toughest boxers.
Americans love a winner and will not tolerate a loser.
Americans play to win all the time. I wouldn't give a hoot
in hell for a man who lost and laughed. That's why Americans
have never lost and will never lose a war because the very
thought of losing is hateful to Americans.
George C. Scott continues as Patton:
Now there's another thing I want you to remember. I don't
want to get any messages saying we are ``holding our
position.'' We're not ``holding'' anything. Let the Hun do
that. We're advancing constantly. We're not interested in
holding on to anything except the enemy. We're going to hold
on to him by the nose and kick him in the ``posterior.''
We're going to kick the ``heck'' out of him all the time and
we're going to go through him like crap through a goose.
Thirty years from now when you're sitting around your
fireside with your grandson on your knee and he asks you,
``What did you do in the great World War II?'' You won't have
to say, ``Well, I shoveled 'manure' in Louisiana.''
That same sentiment, the same sentiment in St. Crispin's Day speech,
talked about a tradition that has been a tradition in America for
centuries, of men and women rallying against hard odds, rallying
against challenging obstacles.
(Ms. HEITKAMP assumed the chair.)
I would observe that fight should not be a partisan fight. This is
not a question of Republican or Democrat, liberty, the right to life of
every American citizen. Arbitrary taking at the hands of the Federal
Government should not simply be a value that one side or another of
this Chamber embraces.
Indeed, I would note during the hearings this morning with Eric
Holder, some of the most enthusiastic audience participants in that
hearing were self-identified members of Code Pink, who I would suggest
are not ordinarily individuals who would be described as card-carrying
members of the Republican Party.
But liberty does not have a partisan affiliation. Indeed, to the
Senator from Kentucky, I think it is an interesting question what the
reaction in this Chamber and outside would be if the very same
statements that have been made were made by a President who happened to
be Republican. I think there is little doubt the outcry would be
deafening, and rightly so. I will say to the Senator from Kentucky, if
a President made the identical representations and happened to have an
``R'' behind his or her name, I have not one shadow of a doubt that the
Senator from Kentucky would be standing here 10 hours protesting the
arbitrary assertion of power by a President regardless of whether we
share his party or not.
Indeed, I would note to the Senator from Kentucky this is a scenario
which is not entirely hypothetical. Prior to serving in this body, I
had the great privilege of serving my home State of Texas as the
solicitor general of Texas. During that time, we faced a tragic and
epic battle in a case called Medellin v. Texas.
Medellin began with a crime that shocked the conscience. Two little
girls were horrifically abused and murdered by a gang in Houston. They
were apprehended, confessed, and they were convicted by a jury of their
peers, quite rightly.
At that point, the case took a very strange turn because the World
Court, which is the judicial arm of the United Nations, issued an order
to the United States to reopen the convictions of 51 murderers across
this country, including one of the murderers in this case, Jose Ernesto
Medellin.
I will tell you, Jose Medellin wrote a four-page handwritten
confession in that case. It is one of the most chilling documents I
ever had the displeasure of reading. In it he bragged about hearing
those little girls beg for their lives. A tiny detail he included in
those letters was in many ways the most haunting, and I know it will
remain with me for the rest of my life. He described how the youngest
of those girls was wearing a Mickey Mouse watch and how he kept it as a
trophy of that night because he was so proud of the atrocities they had
committed. It is truly sickening what those young boys did that
evening. And yet the World Court asserted a power that heretofore has
never been asserted. It was the first time in history a foreign court
has ever tried to bind the U.S. justice system. The World Court claimed
the authority to reopen those convictions, so Texas stood up and fought
the World Court.
I had the honor of arguing this case twice in front of the U.S.
Supreme Court. On the other side, 90 foreign nations came in against
the State of Texas--90 nations came in and argued the U.S. justice
system should be completely subject to the authority of the World Court
and the United Nations.
Also on the other side, most disturbingly, was the President of the
United States. The President signed a two-paragraph order that
attempted to order the State courts to obey the World Court. Again,
that order, like the World Court's order, was unprecedented. It was the
first time in history any President had ever attempted to order the
State courts to do anything.
Unfortunately, the President at issue in that case was a Republican.
It was President George W. Bush, a man for whom I worked, a man who, in
many respects, I respect. Yet in that case, he asserted a power that
could be found nowhere in the Constitution. And in consultation with my
boss at the time, Attorney General Greg Abbott, I went before the U.S.
Supreme Court and argued on behalf of the State of Texas that the
President of the United States has no authority to give away U.S.
sovereignty.
That was done notwithstanding the fact that he was a Republican,
notwithstanding the fact the President was the former Governor of my
home State of Texas. Because at the end of the day, defending liberty,
defending sovereignty, defending the Constitution is not a partisan
choice. It is not a game of dodge ball with shirts and skins; that if
your team happens to have the ball, you stick together. Every one of us
has taken an oath of office and we have an obligation to stand up.
So I stood before the U.S. Supreme Court representing the State of
Texas and arguing that no President of the United States, be he
Republican or Democrat, has the authority to give up U.S. sovereignty
and make the State courts subject to the World Court.
I would note in that case the State of Texas had support from a
number of unlikely sources. Indeed, we had a wide range of amicae--
friends of the court--who came in and supported us. One brief was filed
on behalf of law professors. It was joined by several law professors,
one of whom, John Yoo, is widely considered the law professor with the
most expansive view of Presidential authority. And, indeed, he was an
individual who served in the Justice Department and had advocated under
President Bush an expansive view of Presidential authority.
That very same brief was joined by Erwin Chemerinsky, the dean of the
University of California at Irvine School of Law. Dean Chemerinsky is a
very well-known and proud liberal academic. I suspect it may well be
right that this is the only time ever that John Yoo and Erwin
Chemerinsky joined a single brief before the U.S. Supreme Court. And
both agreed, despite the fact they come from very different places in
the legal academy, that unchecked power in the hand of the executive is
fundamentally a threat to liberty.
Indeed, I would note for the Senator from Kentucky, in talking to
both of them and asking for their support in Medellin, I made the point
to each to imagine a President from the other side who might have the
power that was being asserted.
To the friends of mine on the right, I suggested that if a President
had the power to set aside State laws on grounds of international
comity, which was the basis that was being asserted in that case--
without any sanction from Congress, without any sanction from another
branch of the Federal Government, but simply on his own unilateral
authority--an activist President on the left could use that power to
assert, for example, that in his or her judgment the marriage laws of
all 50 States should be set aside.
It may well be that all 50 States will choose to set their marriage
laws aside. That is a judgment right now that has
[[Page S1216]]
been in the hands of the voters in each State. But regardless of what
the 50 States decide--and I suspect they will not decide the same
thing--it seems to me clear that no President has the authority
unilaterally, with the flick of a finger, to remove laws from the State
books of all 50 States.
Likewise, to my friends on the left, I asked them to envision their
nightmare of a rightwing President. They each had slightly different
incarnations, but they all managed to do that. And I said: If this
assertion of power is correct, that any President can set aside any
State law if he or she deems it inconsistent with international comity,
even though no treaty requires this--and, indeed, in Medellin the
Justice Department maintained no treaty required this, this was simply
a power that was being asserted to further comity, to further our
relationships with foreign nations--I suggested if the President has
that power, what is to stop a President on the right from saying: I am
setting aside the punitive damages laws in all 50 States? It upsets
comity when foreign companies are subject to punitive damages awards;
therefore, tort reform shall be the law of all 50 States.
And for that matter, there are States such as California that persist
in putting in place incredibly restrictive environmental laws. If the
President has the authority to flick aside State laws, what would
prevent a President on the right from saying those environmental laws
are no more?
I would note for the Senator from Kentucky that my view on all those
questions was very clear and very straightforward. No President may do
so, whether he or she is of the right or of the left. If the Federal
Government is to set aside a State law, it may do so only through
exercise of the supremacy clause. The Framers required that in order to
set aside a State law that had been adopted by the democratically
elected legislature in the State, that two branches had to work
together in concert, either through legislation that passes the House
of Representatives, passes the U.S. Senate and is signed into law by
the President or through the form of a treaty that is signed by the
President and ratified by two-thirds of the U.S. Senate. But in both
instances the Framers required two branches to work together.
Why? The same reason we discussed before. The reason from Federalist
10, that you do not want power unified in one branch of government,
where a faction, a special interest, may seize control of it. You want
it divided.
I will note that it was an unusual position for the State of Texas to
appear before the U.S. Supreme Court and argue that an action by a
Republican President and former Governor of the State of Texas was
unconstitutional. Yes, I can tell you I was very proud to have the
opportunity to do just that, and I was even more proud when the Supreme
Court of the United States ruled by a vote of 6 to 3 in favor of the
State of Texas, concluding, No. 1, that the World Court has no
authority whatsoever to bind the U.S. justice system; and No. 2, the
President has no authority under the Constitution to give away our
sovereignty.
I would suggest that is the way our system is supposed to work; that
all of us, regardless of party, should be standing together for
liberty. And when I think of standing for liberty, some of the
frustration people have across this country is they feel it doesn't do
any good. It doesn't make a difference who they vote for. Whoever they
vote for, they go to Washington and keep spending money, and spending
more money, and more money, and more money, and the debt goes up and up
and up, and the Federal laws get bigger and bigger and bigger and
bigger, and the Federal regulations get more and more and more, and
nothing seems to change. And I understand that frustration. It is a
real frustration. It is a frustration I share, and I know it is a
frustration the Senator from Kentucky shares.
I would suggest that part of the import of tonight is that the
Senator from Kentucky is standing with millions of Americans who are
frustrated by politicians in Washington who are unwilling to rock the
boat, who are unwilling to stand for change. I am reminded that change
can sometimes seem hopeless. Indeed, I mentioned that the desk I am
standing at was previously occupied by Barry Goldwater. I have yet to
acquire, but I intend to acquire, a leather-bound copy of ``Conscience
of a Conservative,'' which I intend to keep in this desk.
When Barry Goldwater became a national leader, it was thought
impossible for his views to receive a wide audience. The views that
were in the ascendancy were the views of the left; that government
control of the economy, of our lives, was the proper and right
direction for our Nation.
I am reminded of someone else, as the Senator from Kentucky knows,
who gave a speech on October 27, 1964. He said the following:
I have spent most of my life as a Democrat. I recently have
seen fit to follow another course. I believe that the issues
confronting us cross party lines. Now, one side in this
campaign--
And here he is referring to the campaign in 1964 for President.
--has been telling us that the issues of this election are
the maintenance of peace and prosperity. The line has been
used, ``We've never had it so good.''
But I have an uncomfortable feeling that this prosperity
isn't something on which we can base our hopes for the
future. No nation in history has ever survived a tax burden
that reached a third of its national income. Today, 37 cents
out of every dollar earned in this country is the tax
collector's share,
Ah, those were the days.
and yet our government continues to spend $17 million a day
more than the government takes in.
Would that we could say today the government spends only $17 million
a day more than it takes in.
We haven't balanced our budget in 28 out of the last 34
years. We've raised our debt limit three times in the last 12
months,
I will remind you this speech was given in 1964, not last week.
and now our national debt is one and a half times bigger
than all the combined debts of all the nations of the world.
We have $15 billion in gold in our treasury; we don't own an
ounce. Foreign dollar claims are $27.3 billion. And we've
just announced that the dollar of 1939 will now purchase 45
cents of its total value.
Again, a scenario with which we are quite familiar.
As for the peace that we would preserve, I wonder who among
us would like to approach the wife or mother whose husband or
son has died in South Vietnam and ask them if they think this
is a peace that should be maintained indefinitely. Do they
mean peace or do they mean we just want to be left in peace?
There can be no real peace while one American is dying
someplace in the world for the rest of us. We're at war with
the most dangerous enemy that has ever faced mankind in his
long climb from the swamp to the stars, and it's been said if
we lose that war, and in doing so lose this way of freedom of
ours, history will record with the greatest astonishment that
those who had the most to lose did the least to prevent its
happening. Well, I think it's time we ask ourselves if we
still know the freedoms that were intended for us by the
Founding Fathers.
This next section is a section particularly dear to my heart. It was
given before I was born.
Not too long ago, two friends of mine were talking to a
Cuban refugee, a businessman who had escaped from Castro, and
in the midst of his story one of my friends turned to the
other and said, ``We don't know how lucky we are.'' And the
Cuban stopped and said, ``How lucky you are? I had someplace
to escape to.'' And in that sentence he told us the entire
story.
Turning and seeing the junior Senator from Florida, I know he and I
both know, as I hope every Member of this body knows, just how precious
and fragile the freedom is that we enjoy in this country.
As President Reagan continued in that speech:
If we lose freedom here, there's no place to escape to.
This is the last stand on Earth.
This idea that government is beholden to the people, that it has no
other source of power except the sovereign people, is still the newest
and most unique idea in all the long history of man's relation to man.
This is the issue of this election: whether we believe in our capacity
for self-government or whether we abandon the American revolution and
confess that a little intellectual elite in a far distant capitol can
plan our lives for us better than we can plan them ourselves.
You and I are increasingly told that we have to choose
between a left or right. I would like to suggest there is no
such thing as left or right. There is only up or down--[Up]
man's old-age dream, the ultimate in individual freedom
consistent with law and order, or down, to the ant heap of
totalitarianism. Regardless of their sincerity, their
humanitarian motives, those who would trade freedom for
security have embarked on this downward course.
[[Page S1217]]
Given the topic of this discussion, the asserted power of the
President to take the life of a U.S. citizen on U.S. soil without due
process of law, that last portion bears reading again. ``Those who
would trade our freedom for security have embarked on this downward
course to the ant heap of totalitarianism.''
In this vote-harvesting time, they use terms like the ``Great
Society,'' or as we were told a few days ago by the President, we must
accept a greater government activity in the affairs of the people. But
they've been a little more explicit in the past and among themselves;
and all of the things I now will quote have appeared in print. These
are not Republican accusations. For example, they have voices that say,
``The cold war will end through our acceptance of a not undemocratic
socialism.'' Another voice says, ``The profit motive has become
outmoded. It must be replaced by the incentives of the welfare state.''
Or, ``Our traditional system of individual freedom is incapable of
solving the complex problems of the 20th century.'' Senator Fullbright
has said at Stanford University that the Constitution is outmoded. He
referred to the President as ``our moral teacher and our leader,'' and
he says he is ``hobbled in his task by the restrictions of power
imposed on him by this antiquated document.'' He must ``be freed,'' so
that he ``can do for us'' what he knows ``is best.'' And Senator Clark
of Pennsylvania, another articulate spokesman, defines liberalism as
``meeting the material needs of the masses through the full power of
centralized government.''
Well, I, for one, resent it when a representative of the people
refers to you and me, the free men and women of this country, as ``the
masses.'' This is a term we haven't applied to ourselves in America.
But beyond that, ``the full power of centralized government''--this was
the very thing the Founding Fathers sought to minimize. They knew that
governments don't control things. A government can't control the
economy without controlling people. And they know when a government
sets out to do that, it must use force and coercion to achieve its
purpose. They also knew, those Founding Fathers, that outside of its
legitimate functions, government does nothing as well or as
economically as the private sector of the economy.
Now, we have no better example of this than government's involvement
in the farm economy over the last 30 years. Since 1955, the cost of
this program has nearly doubled. One-fourth of farming in America is
responsible for 85 percent of the farm surplus. Three-fourths of
farming is out on the free market and has known a 21 percent increase
in the per capita consumption of all its produce.
I am going to skip further along, to the end of the speech which, I
will confess, not unlike the speeches given on this floor, was not a
short speech. I will move to the end where President Reagan continued
and said:
Those who would trade our freedom for the soup kitchen of
the welfare state have told us they have a utopian solution
of peace without victory. They call their policy
``accommodation.'' And they say if we will only avoid any
direct confrontation with the enemy, he will forget his evil
ways and learn to love us. . . . We cannot buy our security,
our freedom from the threat of the bomb by committing an
immorality so great as saying to a billion human beings now
enslaved behind the Iron Curtain, ``Give up your dreams of
freedom because to save your skins we are making a deal with
your slave masters.'' Alexander Hamilton said, ``A nation
which can prefer disgrace to danger is prepared for a master,
and deserves one.'' Let's set the record straight. There is
no argument over the choice between peace and war, but there
is only one guaranteed way you can have peace--and you can
have it in the next second--surrender.
Admittedly there's a risk in any course we follow other
than this, but every lesson of history tells us the greater
risk lies in appeasement, and this is the specter that we
face. You and I know and do not believe that life is so dear
and peace so sweet as to be purchased at the price of chains
and slavery. If nothing in life is worth dying for, when did
this begin?
You and I have the courage to say to our enemies. ``There
is a price we will not pay. There is a point beyond which
they must not advance.'' And this, this is the meaning in the
phrase of Barry Goldwater's ``peace through strength.''
Winston Churchill said, ``The destiny of man is not
measured by material computations. When great forces are on
the move in the world we learn we are spirits--not animals.
And he said, ``There is something going on in time and space,
and beyond time and space which, whether we like it or not,
spells duty.''
You and I have a rendezvous with destiny.
We will preserve for our children this, the last best hope
of man on Earth or we will sentence them to take the last
step into 1000 years of darkness.
We will keep in mind and remember that Barry Goldwater has
faith in us, he has faith that you and I have the ability and
the dignity and the right to make our own decisions and to
determine our own destiny.
That path, the path of standing and fighting for freedom,
even when it seems daunting, even when it seems the gestalt
of the moment is on the other side, is a path with many
honorable forebears.
I can tell you, speaking and echoing the sentiment of the millions on
twitter, of the people following this stand for principle tonight, if
the 100 Senators in this body stand together and say regardless of
party, liberty will always prevail; regardless of party, the
Constitution is the governing body, the governing document in this
Nation, then we will be doing our jobs.
I commend Senator Paul for a lonely stand that, as the night has worn
on, has not proven quite so lonely. Indeed, were he the only Senator
standing at his desk this evening, it would not be lonely in that
circumstance either because he would be standing shoulder to shoulder
with millions of Americans who do not wish the Federal Government to
assert arbitrary power over our lives, over our liberty, over our
property, but who, instead, want a government that remains a limited
government of enumerated powers that protects the God-given rights each
of us is blessed to have.
The question I ask: What in the Senator's judgment is America without
liberty? Who are we, if we are not a free people?
Mr. PAUL. Mr. President, I thank the Senator from Texas for his
remarks. I think he has hit it exactly on the head. The question is a
very pertinent question. The question is really where do we go from
here.
I see this as a struggle. I see that we are engaged in an epic
struggle, but it is not a struggle between Republicans and Democrats;
it is a struggle between the President and the Constitution.
The question is, Does the President have the power and the
prerogative to have his way regardless of the Constitution?
The question is, Does the Attorney General get to say that he will
adhere to the fifth amendment when he chooses to? Is there a choice for
American citizens on American soil that they either get the fifth
amendment protections or they don't get the fifth amendment
protections? This really is a struggle not only between the President
and the Constitution but between the Senate and the Congress and the
President, to say whether the President gets to determine this policy
or whether this is a policy that should come from Congress.
I think we should be asking not just for the President to give his
memos on drones, we should be giving him our memos on drones. We need
to be dictating the law to the President and not acquiescing and giving
the President this authority. This should be a battle between the
executive and the legislative. It should involve Republicans and
Democrats trying to restrain the President from saying that he has the
ability to decide when you get fifth amendment protections and when you
do not.
At this time, I, without yielding the floor, would like to entertain
a question from the Senator from Florida.
The PRESIDING OFFICER (Mr. Schatz). The Senator from Florida.
Mr. RUBIO. Mr. President, let me congratulate the junior Senator from
Texas on a fantastic question. In that question he used Shakespeare
references; he used references to the movie ``Patton.'' I didn't bring
my Shakespeare book, so let me just begin by quoting a modern-day poet.
His name is Wiz Khalifa, called ``Work Hard Play Hard.'' That is how it
starts.
If you look at time, I think it is a time when many of our colleagues
also expected to be back in the home State playing hard, but we are
happy we are still here working hard on this issue. It is actually
pretty stunning. If you watch from home you hear the audience of people
watching on the news or whatever, what is going on here. I think it is
important to explain what exactly is happening here. What is happening
is pretty straightforward.
[[Page S1218]]
The Senator from Kentucky has asked a question of the administration.
It is a pretty straightforward question. Is it constitutional for the
Federal Government to kill a noncombatant citizen in the United States?
We all have strong feelings about that program. We all have
strong feelings about the war on terror. These are all legitimate
issues, but this is a very direct question that has been asked.
What would have resolved this hours ago, from my understanding--and
if I am incorrect the Senator from Kentucky will correct me in a
moment--my understanding is he has offered two ways to bring this to a
resolution. One is just a clear, unequivocal statement from the White
House that says, of course, it is unconstitutional. That is not going
to happen. Unconstitutional. Just a straightforward statement of that
magnitude.
I have been watching on television the last few hours. I saw the
Senator from Kentucky say they have reached out to the White House.
They have been, I believe, unable to get a direct response.
The other is I heard he made a motion to have a resolution heard that
made it clear that was the sense of this body. The sense of this body
would be that this is unconstitutional. Again, pretty straightforward.
Let's just say there are those among us who believe this is
important. I don't know anybody in this body who believes a
noncombatant U.S. citizen in the United States who is not doing
anything of imminent danger should somehow be killed by the U.S.
Government, nor do people at home believe that either. It was the sense
of the Senate that this was the case, and in exchange for that vote, of
course the vote on Mr. Brennan would move forward, and that has been
rejected. This doesn't make a lot of sense to me.
I actually went to a movie--one of the great American movies, ``The
Godfather''--and there was a quote in that movie. I don't have the
Patton quote, but I have ``The Godfather'' quote, and this is the best
known one, ``I'll make him an offer he can't refuse.'' To me these are
straightforward offers they can't refuse. Yet they have been refused. I
think that is stunning.
The third thing I wish to say--I want you to imagine what this
conversation would be like tonight if the President was George W. Bush
and if this issue was about George W. Bush. Just imagine that for a
moment now--if he had been asked this direct question and refused to
answer--what this Chamber would look like and what the arguments being
made would look like tonight. Imagine that for a moment.
That takes me back to another modern day poet by the name of Jay-Z
from one of the songs he wrote: It's funny what seven days can change,
it was all good just a week ago. I don't know if it was all good a week
ago, but I can tell everyone that things have changed.
If the President was George W. Bush and this was the question asked
of him and the response was the silence we have gotten, we would have a
very different scenario tonight except I actually believe the Senator
from Kentucky would make the exact same arguments he is now making on
the floor.
I want everyone who is watching to clearly understand--and if I am
wrong, the Senator from Kentucky is going to correct me--that what he
is asking is a simple, straightforward response or, if we cannot get
that, a simple and straightforward response from the Members of this
body in a sense of the Senate resolution vote. Both have been rejected.
The last observation I would have tonight is that there have been
pretty phenomenal legal analyses on the floor. That reminds me of the
most famous quote from ``The Godfather'' that was never actually used
in the movie. I don't know how that happened. Maybe they cut it out.
Here is the quote: ``A lawyer with his briefcase can steal more than a
hundred men with guns.'' I don't know how that is relevant to this, but
I thought it was a very good quote. I thought I would bring it up
because I went to law school. I am a lawyer. I was a land use and
zoning attorney, which meant if I wound up in the courtroom, something
went horribly wrong with the land use and zoning application.
The point is we have had good arguments on the constitutional issues
with regard to this, and I think those are important to discuss. I am
glad so much time has been spent on those. It is important for the
people at home to fully understand the legal arguments here because I
think they are important. They go to the heart of our Constitution.
They go to the heart of our civil liberties. They go to the heart of
the things that distinguish our Nation.
I think what is stunning to me--clearly the constitutional issue is
important--is how simple and straightforward this issue is and how
easily it could have been resolved. I don't know how many hours we are
into this now--I think it is about 11 hours and 15 minutes--but we
cannot get a straightforward answer. The Members of this body deserve
that. The Members of this body deserve an answer. It doesn't matter
what party you or the President is in. This is an important question
that is being asked.
All of this could be over if we get a straightforward answer. I think
that is something every Member of this body should care about. It is
not a Republican question. It is not a conservative question. It is a
constitutional question, a relevant question, and one that should be
easy to answer.
They are refusing to answer it for some reason. I don't know if it is
because of pride or it is beneath them or they have something else
going on or the answer department was shut down. Either way I don't
understand how they cannot answer this very straightforward question.
It reminds me of another line from ``The Godfather'' when Michael
turns to Fredo and says: Fredo, you are my older brother, and I love
you but don't ever take sides with anyone against the family again.
That is kind of what is happening here. As an institution--as the
Senate--we have a right to those answers. It doesn't matter who the
President is. We have a job to do that we are held responsible for and
that we are held accountable.
Thirty years from now, forty years from now, twenty years from now,
ten years from now, these sorts of decisions will have ramifications
long after we are gone. All of us here will be gone and there will be
other people in these chairs. Maybe it will be our children,
grandchildren or great-grandchildren who will visit this building, and
they will read about the time we served here. If we make mistakes,
history will record those mistakes and hold us accountable for those
mistakes. If things are happening today that set the groundwork for
future administrations--because that is the other thing we need to
remember. No matter how anyone feels about the current President, he is
not going to be President forever. The precedence he sets could very
well guide what future Presidents do.
So the point is, if we are laying the groundwork and making mistakes
by not asking certain questions, history will hold us accountable for
that and that is all of us. It is not one of us, not five of us, not
the Republican part of the Senate but all of us. We have a right to ask
these questions and to get these questions answered. That is not being
an obstructionist, that is not being partisan, that is being a Senator.
I have only been here 2 years, but I know enough of this process
already to know that when the majority changes or when a new President
is elected, at some point every single one of us is going to want to
have an answer from the administration or some other branch of
government and they are going to hold us off. They are going to give us
the Heisman and stiff-arm us and not answer the question. I would sure
hope at that moment--whether you agree with that person or not--that
you would stand and defend their prerogative and right as a
representative of their State to get legitimate questions answered in a
straightforward way.
As I said earlier today when I came to the floor, this issue is about
this institution as much as anything else. It is about the right of
every single Member of this body to be able to ask legitimate questions
of the administration or other branches of government and to get a
straightforward answer.
I guess the question I have for the junior Senator from Kentucky is--
just to clarify my understanding--that this issue could have been
brought to a resolution quite a long time ago if the White House had
made their feelings well known in a statement. They could
[[Page S1219]]
just put that out in a 30-second statement, and it would be done. Just
come out and say it, that it is unconstitutional to kill U.S. citizens
that are noncombatants who are in the United States. That is one route.
The other thing that could have ended this is the unanimous consent
motion he made to have this body vote on the sense of the Senate, and
that would have brought it to a vote. Is that accurate? Are those the
options before us?
Mr. PAUL. Mr. President, that is exactly the sequence of things. We
have been in contact with the White House throughout the night. We have
made several phone calls to the White House. We told them we are
willing to allow a vote on the Brennan nomination. All we ask in return
is that we get a clear implication of whether they believe they have
the authority under the Constitution to target Americans on American
soil. I think it is a question that is fair to ask, and we have been
willing to let them have the vote at any time either earlier tonight,
obviously, as well as in the morning. All we ask in return from the
White House is a clarification.
The last report I got from the White House is that they were done
talking tonight. I hope that doesn't mean they are done talking
tomorrow. I think this struggle is an important struggle, and I think
there needs to be clarification from the White House before this goes
forward. This is a point in time when the question has been raised. I
think it is important for them to answer the question, and the fifth
amendment is not optional. They don't get to choose to adhere to the
fifth amendment. This applies to U.S. citizens on U.S. soil, and there
are no exceptions to that.
Without yielding time, I would like to entertain a question from the
Senator from South Dakota.
The PRESIDING OFFICER (Ms. Heitkamp). The Senator from South Dakota.
Mr. THUNE. Madam President, I thank the Senator from Kentucky for
yielding for a question. I appreciate his diligence in continuing at
this late hour to get an answer to some very important questions.
I think many of us when we got up and came in this morning were
preparing and getting ready for the big blizzard of 2013 which, of
course, never materialized here in Washington, DC. Evidently, there
were a lot of agencies of government that were not here today. Perhaps
when they get back, maybe the Senator from Kentucky will get an answer
to his question. I think it is a straightforward question.
I am someone this evening who has supported the use of drones in
fighting the war on terror. I think they have been very effective in
killing terrorists, people who want to do harm to the people of this
country. But I think the question that has been raised by the Senator
from Kentucky--and the reason we are here this evening--has to do with
a straightforward issue. He has a sense of the Senate on which he is
prepared to have the Senate go on record, and it is very simple and
very straightforward. It says: Resolved that it is the sense of the
Senate that, No. 1, the use of drones to execute or target American
citizens on American soil who pose no imminent threat clearly violates
the constitutional due process rights of citizens.
No. 2, the American people deserve a clear, concise, and unequivocal
public statement from the President of the United States that contains
detailed legal reasoning including, but not limited to, the balance
between national security and due process, limits of Executive power,
and distinction between treatment of citizens and noncitizens within
and outside the borders of the United States, the use of lethal force
against American citizens, and the use of drones and the application of
lethal force within the United States territory.
It is a very straightforward resolution, a sense of the Senate, and
all that the Senator from Kentucky is simply doing is trying to get a
response and get a vote on that and make that the statement of the
Senate. He obviously wants to get the President of the United States,
the White House, and Mr. Brennan--whose nomination is pending before
us--to make a clarification on that point.
It is not like this issue popped up overnight. The Senator from
Kentucky has been trying for some time to get an answer to this
question. He has submitted numerous letters addressed to Mr. Brennan.
This is a letter from February 12 where he poses numerous questions,
one of which is: Do you believe that the President has the power to
authorize lethal force, such as a drone strike, against a U.S. citizen
on U.S. soil? What about the use of lethal force against a non-U.S.
person on U.S. soil? These are straightforward questions to which the
Senator from Kentucky deserves an answer, and this is a perfectly
fitting and appropriate time in which to try and get that answer.
The nomination of the CIA Director is an incredibly important and
strategic position in this country, and under the Constitution of the
United States, article II, section 2, the President has the power by
and with the advice and consent of the Senate to make treaties provided
two-thirds of the Senators concur. ``He shall nominate, and with the
advice of the Senate, shall appoint ambassadors, other public
ministers, counsels, judges of the Supreme Court, and other officers of
the United States.''
It is the advise and consent power that the Senate has under the
Constitution that the Senator from Kentucky is exercising on this
nomination.
Again, it has been pointed out many times on the floor of the Senate
today this is not something that is a partisan issue. It is not a
Democratic or Republican issue. This is something that has
ramifications. It is a constitutional question. It has to do with due
process under the law. It has to do with the advise and consent power
of the Senate under the Constitution. So when the Senator from Kentucky
continues to press the administration for a straightforward answer, he
continues to get sort of these vague, ambiguous answers, if you will.
Again, these are questions that did not just pop up overnight. Back on
January 25 of this year, 2013, the Senator from Kentucky posed to Mr.
Brennan a series of questions at that time. The follow-on letter, which
I quoted from earlier, was from February 12. He put forward questions,
such as:
Do you agree with the argument put forth on numerous
occasions by the executive branch that it is legal to order
the killing of American citizens and it is not compelled to
explain its reasoning in reaching this conclusion? Do you
believe this is a good precedent for the government to set?
He goes on to ask another question:
Would it not be appropriate to require a judge or court to
review every case before the individual in question is added
to a targeting list? Please describe the due process
requirements in place for those individuals being considered
for addition to a targeting list. Would you agree it is
paradoxical that the Federal Government would need to go
before a judge to authorize a wiretap on U.S. citizens
overseas but possibly not to order a lethal drone strike
against the same individual? If not, please explain why you
believe something similar to the FISA standard should not be
applied in regard to lethal actions against citizens of the
United States.
These are straightforward questions. These are questions to which I
believe the Senator from Kentucky deserves an answer. Many of us this
evening, at this late hour, are here to support him in that endeavor
and his attempt at least to try--as this nomination moves through the
process--to get the answers to the questions that would allow him to
perform the advise and consent function that is in the U.S.
Constitution as it applies to nominations and as it has been
implemented here by the Senators in history.
I want to say to the Senator from Kentucky--and I have a question for
him in a moment--that it is remarkable to see this process unfold. In
my time here--and I came in the 2004 election; started my service in
the U.S. Senate in January of 2005--I have not seen a time where we had
a Senator who as a matter of principle stood down here for the number
of hours he has today and insisted on getting some answers. I give him
great credit for the job he has done in pressing this issue.
He has not been given that answer yet. It sounds as though it has
kind of come up to the line a couple of times. It is very simple. They
could put this thing to rest. All they have to do is come forward and
answer that very simple question about the legal authority to target
American citizens on American soil with drone attacks. It doesn't seem
to me, at least, that it would be that hard of a question to answer.
They say as a matter of policy
[[Page S1220]]
they have not done that and they don't have any intention of doing it
in the future. Why don't we put this issue to rest once and for all,
and the Senator from Kentucky will allow the process to go forward and
Mr. Brennan can get his vote.
In the time I have been here, at least, it certainly is remarkable to
me to see the amount of effort the Senator from Kentucky has put
forward in trying to get an answer to a very straightforward question.
I give him great credit for that, because a principled stand is
something we don't see enough of around here. So to stand here and use
his powers as a Senator in a way that is very fitting with the
tradition and history of this great institution--we look at the U.S.
Senate and those who have come before, the place of great characters of
our history, including Calhoun and others who have graced the U.S.
Senate and some of the great debates that have occurred in the past. It
is nice to see a discussion and debate about a major constitutional
issue, a major constitutional question.
I, as do many of my colleagues who are here this evening, support the
Senator from Kentucky in his quest to get answers. I think it is
certainly appropriate. I think it certainly should be expected that the
administration respond to what are very straightforward questions with
regard to the issue that has been raised by the Senator and I hope that
answer will be forthcoming. If it is not, it is entirely possible, I
suppose, that this could continue for some time into the future.
But in any event, I ask the Senator from Kentucky what it will take
in terms of some sort of affirmation, some sort of answer, some sort of
response from the White House, from the nominee, the Director of the
CIA, to satisfy the question he has raised. It seems to me, at least as
a Senator from South Dakota, that the question he poses is a
straightforward and simple one and merely requires a very simple
answer.
Mr. PAUL. Madam President, I thank the Senator from South Dakota for
his remarks and would make the comment that I, as has he, have seen
what drones can do to protect our soldiers and no one is arguing
against that. No one is arguing against drones or any other kinds of
force to defend the country against any kind of an attack. What we are
arguing for is that noncombatants--people not engaged in combat in our
country--are due fifth amendment protections, and that the White House
should acknowledge this. This is important because the drone strikes
overseas, when looking at the category and looking at the way they are
being done and under what standards, there are some of those standards
that we don't think are appropriate for U.S. citizens on U.S. soil. So
we are asking for a clarification. We think Attorney General Holder got
close to that today, under the duress of cross-examination. We wish to
see him do it voluntarily in a nice, concise statement and we would be
happy to vote on the Brennan nomination as early as tomorrow morning.
I wish to yield time to the minority leader.
Mr. McCONNELL. I thank my colleague from Kentucky. First let me say I
think our mutual constituents will certainly learn----
Mr. DURBIN. Madam President, was there a unanimous consent request?
Mr. McCONNELL. Would the Senator from Kentucky yield for a question?
Mr. PAUL. Yes.
Mr. McCONNELL. First let me thank my friend from Kentucky for his
courage and conviction. Having been here a while in the Senate, we have
only rarely, as Senator Thune pointed out, had extended debate on any
matter. A body that came into existence for the purpose of lengthy
discussions of weighty issues has, in recent years, had very little
lengthy discussion of weighty issues.
If I understand the issue the Senator from Kentucky feels so
passionately about, it is that the administration should answer a
question that is pretty easily stated, as I understand it, as follows:
Does the administration take the view that a drone strike against a
U.S. citizen on U.S. soil would be an appropriate use of that weapon?
Am I correct that is the question the Senator from Kentucky hopes to
get an answer to from the administration?
Mr. PAUL. Yes.
Mr. McCONNELL. And I assume the Senator from Kentucky shares my view
that it is a pretty easily understood question. It strikes me that the
question again is pretty easily understood and has to be something the
administration has given some thought to, given the development of this
new weapon.
I heard Senator Barrasso earlier today talking about how this
technology has changed--we would never have thought of this a few years
ago--this technology has actually changed warfare in a very dramatic
way. So as I understand it, what the Senator from Kentucky is looking
for is how this dramatic new weapon applies to the U.S. Constitution--
how the use of it applies to the U.S. Constitution on American soil.
So I think it is entirely appropriate that the Senator from Kentucky
engage in an extended debate with the support of his colleagues to get
the answer to this question. I wanted to congratulate him for his
tenacity, for his conviction, and for being able to rally the support
of a great many people, as well as people who have come over from the
House of Representatives who feel also, I gather, that this is a
legitimate question the administration ought to be answering.
I might say, at whatever point we get to a cloture vote to extend
debate on the nomination of Brennan, it is my view cloture should not
be invoked. This is a controversial nominee. Should cloture be invoked,
I intend to oppose the nomination.
I congratulate my colleague from Kentucky for this extraordinary
effort.
Mr. PAUL. Madam President, I wish to thank the minority leader for
his remarks and for his insightful questions. The question about
whether the President has actually gotten involved with what the rules
will be has actually been somewhat broached. He was asked at Google
about whether this could occur and he said, Well, the rules would have
to be different outside than inside. So it implies they have thought
about what the rules should be outside, but to my knowledge no one in
the Intelligence Committee has been informed what the rules are inside.
It troubles me that they think they have the authority to do targeted
drone strikes inside, particularly when there are examples of the Twin
Towers and 1941 Pearl Harbor. Those would be attacks we would repulse
no matter who we knew was coming in. There wouldn't be a targeted
strike on an individual at a designated time. We would repulse those
attacks militarily and they wouldn't even fall into the category of
what we are talking about here as targeted drone strikes. We might use
drones, but they wouldn't be what we are talking about. These are
questions we have been asking all day. So they have answered a
question, just not the question we asked.
Mr. McCONNELL. I thank my friend from Kentucky.
Mr. PAUL. Madam President, I wish to yield for a question to the
Senator from Pennsylvania.
Mr. TOOMEY. Madam President, I wish to spend a couple of moments here
revisiting the context in which this discussion occurred. I want to
commend the Senator from Kentucky for raising what I think is an
extremely important issue and forcing the attention of this body to
this issue at an appropriate time, which he has done, and, I might add,
at great personal inconvenience to himself.
This arose from a letter the Senator from Kentucky sent to Mr.
Brennan, the nominee for the Director of Central Intelligence, and the
response he got. These are short letters. I want to review this so it
is very clear exactly what was posed and what the response was and
where we are at the moment in this debate.
The letter from the Senator from Kentucky begins:
Dear Mr. Brennan: In consideration of your nomination to be
the director of the Central Intelligence Agency, I have
repeatedly requested that you provide answers to several
questions clarifying your role in the approval of lethal
force against terrorism suspects, particularly those who are
U.S. citizens. Your past actions in this regard as well as
your view of the limitations to which you are subject are of
critical importance in assessing your qualifications to lead
the CIA. If it is not clear that you will honor the limits
placed upon the executive branch by the Constitution, then
the Senate should not confirm you to lead the CIA.
Clearly, this is the idea that is under scrutiny this evening.
[[Page S1221]]
The letter goes on to say:
During your confirmation process in the Senate Select
Committee on Intelligence, committee members have quite
appropriately made a request similar to questions I have
raised in my previous letter to you, that you expound on your
views on the limits of executive power in using lethal force
against U.S. citizens, especially when operating on U.S.
soil. In fact, the chairman of the SSCI--
The Senate Select Committee on Intelligence
Senator Feinstein, specifically asked you in post-hearing
questions, for the record, whether the administration could
carry out drone strikes inside the United States. In your
response, you emphasize that the administration ``has not
carried out'' such strikes, and ``has no intention of doing
so.'' I do not find this response sufficient.
Let me just add editorially, I do not know how anyone could find that
sufficient. It clearly is an evasion of the question. That doesn't
answer the question that was posed by Senator Feinstein, just as we
haven't been able to get an answer to the question posed by the Senator
from Kentucky.
The letter goes on to say:
The question that I and many others have asked is not
whether the administration has or intends to carry out drone
strikes inside the United States, but whether it believes it
has the authority to do so. This is an important distinction
that should not be ignored.
And this, of course, goes to the heart of the question: Does this
administration believe it has the authority to carry out a lethal
strike by a drone against an American citizen on American soil.
The letter goes on to say:
Just last week, President Obama also avoided this question
when posed to him directly. Instead of addressing the
question of whether the administration could kill a U.S.
citizen on American soil, he used a similar line that ``there
has never been a drone used on an American citizen on
American soil.''
The evasive replies from the administration to this valid
question have only confused the issue further without getting
us any closer to an actual answer.
I would say that is--again, this is my editorial comment--I think
that is a generous assessment. When a direct question is asked and the
party to whom the question is directed repetitively evades the
question, it makes one seriously wonder what their intentions are.
The letter goes on to say:
For that reason, I, once again, request you answer the
following question: Do you believe that the President has the
power to authorize lethal force such as a drone strike
against a U.S. citizen on U.S. soil and without a trial? I
believe the only acceptable answer to this is no. Until you
directly and clearly answer, I plan to use every procedural
option at my disposal to delay your confirmation and bring
added scrutiny to this issue and the administration's
policies on the use of lethal force.
The American people are rightly concerned and they deserve
a frank and open discussion on these policies.
Sincerely, Rand Paul, M.D., United States Senator.
I have to say, this is a very straightforward and simple question. It
has been posed clearly. It has been posed repeatedly.
Now I want to share with my colleagues the answer, such as it is,
that we have received, the most recent answer that was directed to the
Senator from Kentucky which, again, I would suggest is not responsive
to the question.
A letter dated March 4, addressed to Senator Paul, says:
On February 20, 2013, you--
Referring to Senator Paul--
wrote to John Brennan requesting additional information
concerning the Administration's views about whether ``the
President has the power to authorize lethal force, such as a
drone strike, against a U.S. citizen on U.S. soil, and
without trial.''
The letter goes on to say:
As members of this Administration have previously
indicated, the U.S. government has not carried out drone
strikes in the United States and has no intention of doing
so. As a policy matter, moreover, we reject the use of
military force where well-established law enforcement
authorities in this country provide the best means for
incapacitating a terrorist threat. We have a long history of
using the criminal justice system to incapacitate individuals
located in our country who pose a threat to the United States
and its interests abroad. Hundreds of individuals have been
arrested and convicted of terrorism-related offenses in our
federal courts.
The question you have posed is therefore entirely
hypothetical, unlikely to occur, and one we hope no President
will ever have to confront. It is possible, I suppose, to
imagine an extraordinary circumstance in which it would be
necessary and appropriate under the Constitution and
applicable laws of the United States for the President to
authorize the military to use lethal force within the
territory of the United States. For example, the President
could conceivably have no choice but to authorize the
military to use such force if necessary to protect the
homeland in the circumstances of a catastrophic attack like
the ones suffered on December 7, 1941, and September 11,
2001.
Were such an emergency to arise, I would examine the
particular facts and circumstances before advising the
President on the scope of his authority.
Sincerely,
Eric H. Holder, Jr.
Attorney General
The reason I read the entire letter is because I did not want anyone
to think any part of this was taken out of context or anything was
being left out.
When you read the entire letter, in response to the entire letter
that was sent as a request, I think it is very clear. This
administration refuses to answer a simple and very important and very
legitimate question.
Our Attorney General suggests that under a certain set of
circumstances--which he will not specify any guiding principles or
rules that would allow us to understand those circumstances--he would
examine the facts and circumstances and then advise the President on
the scope of his authority.
There is no suggestion of what legal authority he has to do this.
There is no description of the constitutional authority. I find this
very disturbing. We have all observed the very new developments that we
are experiencing in national security. The minority leader alluded to
this in some respects.
As I mentioned earlier today, there is no question we have a
relatively new phenomenon in our national security challenges. It is
only in very recent times that we have come to understand the nature of
a whole new kind of enemy. It is not just a nation state anymore, which
has historically been the nature of military threats. But now there is
a very different kind of threat--dispersed, somewhat affiliated,
sometimes affiliated, hard to discern--a geographically widespread
network of terrorists. That is very different than the traditional
nation state. That is a different kind of threat, and we have spent a
lot of time trying to come to terms with how best to address this.
In an overlapping period of time, a new technology has emerged. We
have developed it. It is an amazing technology that gives us the
ability from vast distances away to send out a very sophisticated
unmanned aircraft that is quite lethal and quite capable of destroying
a target. I think most of us probably feel that there are many cases
where this is an appropriate tool under an appropriate set of
circumstances. But, frankly, I think it should be the subject of an
ongoing discussion: How would we use this? Under what circumstances?
Does the President have unlimited unilateral authority? That is a
discussion we ought to have about the use of this technology overseas
where I think, as I say, it has a very important, very useful, very
legitimate function.
But when we are talking about using this, the American Government
using this military asset to kill American citizens on American soil, I
am a little shocked that there is not an automatic presumption that
that is not permissible--certainly not legal. I cannot understand the
constitutional basis for this. I would certainly suggest that the
burden ought to be on those who would suggest that that is permissible.
So what the Senator from Kentucky has said is: Just tell us the
answer to this question. Do you believe you actually do have this
authority? And could you tell us that? If they believe they have this
authority--and since they will not answer unequivocally that they lack
the authority, it is hard to infer anything other than that perhaps
they think they do have this authority.
It obviously raises a whole lot of very important questions, such as
under what circumstances would you feel you have the authority to
exercise this power? And exactly who would be targeted? And how would
you decide whom to target? And in the event you are carrying out a
strike using lethal force of this magnitude on American soil against an
American citizen, what kind of criteria would govern your judgment
about the risks that would be imposed on innocent people who are in the
vicinity? And what about any judicial review at all? Would there be any
appropriate role for it because, of
[[Page S1222]]
course, we have a very long tradition of due process.
There are a lot of Americans who have serious reservations about the
idea of indefinite detention on American soil. Indefinite detention is
pretty tame compared to being destroyed by a drone.
So I would suggest the failure of the administration to answer this
basic question of whether they believe they have the authority to do
something that is completely unprecedented is a very fundamental and
important question and completely legitimate. And it is completely
appropriate for this body to insist on an answer to this question
before we would go ahead and confirm a person who would have enormous
power and authority over a variety of national security issues.
I want to commend the Senator from Kentucky for putting a bright
light on this issue. This is a very important issue, and, as I
mentioned earlier, he has done it at great personal inconvenience to
himself because he has a passionate commitment to the liberty of the
American citizens. He manifests that all the time in many ways, and
this is one of the ways he is doing it. I commend him for that.
I would conclude my question by addressing the Senator, through the
Presiding Officer. My question for the Senator is, has there been any
change in the status of the lack of response from the administration
since the last time we have heard from the administration?
Mr. PAUL. Madam President, we have been asking the question of the
White House all day, and we have said all along that we would allow the
vote to proceed, but we have not gotten any response from the White
House. The consideration of whether we will get a response tonight I
think is unlikely. We will still keep pressing the issue in the morning
as well.
But with regard to the Senator's remarks, I think one of the things I
hope will come out of this debate will be that we will reassert our
authority as a function of the separation of powers, where our body
will say to the President: We not only would like your drone memos on
how you think you can do this, but we should reassert our authority and
tell the President, this is how we think you should do it, and this is
the law that is going to dictate and circumscribe how you will do this.
That is an authority that I think has been long necessary and we have
been letting go by the side and I think we should reassert.
At this time, Madam President, I wish to yield to----
Mr. DURBIN. Madam President, will the Senator yield for a question?
Mr. PAUL. Without relinquishing the floor, I will yield for a
question.
Mr. DURBIN. I thank the Senator from Kentucky, and I apologize to my
friend from Wisconsin. I know he has been waiting. But the question
asked by the Senator from Pennsylvania prompted me to recall a specific
set of circumstances which I think address his concerns, our mutual
concerns, about the use of lethal force.
I know we are talking about this in the context of drones, but a
drone is a weapon, and there are other weapons by which our government
can use lethal force to kill people.
So I think, going to the question the Senator asked Mr. Brennan, in a
more generic sense, the question is, When can our government use lethal
force in the United States against perhaps U.S. citizens? I think it is
a legitimate question.
I was not misleading the Senator earlier when I said there is a
scheduled hearing--the only scheduled hearing--on this question coming
up before the Judiciary Subcommittee on the Constitution, which I
chair. And the ranking member is Senator Cruz of Texas who was here
earlier.
So I think it is important, and it is an important constitutional
question, but, while my colleague from Pennsylvania is here, I wish to
recount a set of circumstances for him, and then pose a question to the
Senator.
The circumstances were September 11, 2001. Some of us were in this
Capitol Building, in fact, just outside this door. As we came to work,
we heard that some plane had crashed into the World Trade Center in New
York. As we were watching on television, a few minutes after 9, a
second plane crashed into the World Trade Center--the adjoining
building. We all know what happened following that.
As we were in our meeting here, just a few feet away, we started
seeing black, billowy smoke coming across the Mall right outside our
window here. A third plane, taken over by these terrorists, was
crashing into the Pentagon. What we did not know at the time was that
there was a fourth plane. But we evacuated the Capitol. All of us,
literally every one, raced out of this building to stand on the lawn
outside. It was not a safe place, but we did not know where to go--all
the tourists, all the staff, and all the rest.
It was not but a few minutes that we were out there, and we heard
something that sounded like a shot, a discharge of a weapon. In fact,
it was fighter planes that were being scrambled to protect the United
States Capitol. At that time, the order had gone out to all commercial
airplanes in the United States: Land immediately, so that we would know
who was in our airspace and not responding to that command.
It turns out there was a fourth plane involved, and that plane
crashed in Pennsylvania, we believe because of the heroism and bravery
of the passengers on board; that when they realized what was happening,
they tried to take control of that plane before it could be used as a
weapon.
Many people believe that plane was aimed for this building or for
someplace in Washington, DC. We had scrambled our military planes. And
had that plane not crashed into the countryside in Pennsylvania and
come within the airspace of this Capitol, I think we know what would
have happened. Our government would have used lethal force--military
lethal force--to shoot down a civilian airplane that was threatening,
we believed, the lives of innocent Americans. It would have been the
use of lethal force on our soil to stop a person or persons whom we
believed were terrorists about to kill innocent Americans.
So when I listened to the response from Attorney General Holder in
hypothetical and put it in the context of 9/11, I can imagine that
President Bush might have been called on in an instant to make a
decision as Commander in Chief to bring down the fourth plane before it
crashed into another building and killed innocent people.
That is a circumstance, I would say to the Senator from Pennsylvania
and the Senator from Kentucky, which I fully understand and expect the
Commander in Chief to respond to.
So I do not think this is such a clear and easy situation. It is
important that we have this hearing and explore the many
possibilities--the possibility of a terrorist overseas who threatens
our safety and the use of lethal force, drones or otherwise, the
possibility of a non-U.S. terrorist in the United States and use of
lethal force to deter them. And then obvious questions: What if it is a
U.S. citizen overseas? What if it is a U.S. citizen in the United
States?
I joined 10 other Senators asking for the same legal memos, which I
think the Senator would like to see as well, justifying whatever course
of action this administration has used. I think it is a legitimate
constitutional responsibility of the Senate and the House and this
Congress.
But I also understand, having lived through--as all of us did in some
respect--9/11, the complexity of those decisions that have to be made
in such a fashion.
So my question to the Senator--as I said before, we have to end with
a question mark--don't you consider the situation of 9/11 and the use
of lethal force, even military force, to shoot down a civilian plane--
if it had survived the passenger effort in Pennsylvania and was headed
for the U.S. Capitol--to be a legitimate exercise of a Commander in
Chief to protect the United States?
Mr. PAUL. Madam President, absolutely. My answer to the question the
Senator raised is absolutely. We have the right to defend ourselves. It
would have been a decision that has to be made imminently because a
lethal threat needs to have a lethal response immediately.
My whole problem with this whole debate is, none of us disagrees with
that, I do not think. We all agree that you can repel an imminent
attack. We all agree if someone is outside the Capitol with a rocket
launcher or grenade launcher, lethal force can be used
[[Page S1223]]
against them. None of us disagrees on that.
We are talking about a targeted drone program where we target
individuals. Overseas, the standard seems to include people who are not
actively engaged in combat who we think either might be in the future
or have been in the past. I do not think that standard can be used in
the United States. I think when you are in a battlefield, you do not
get due process. If you are shooting at Americans, drones can hit you
anytime, missiles can hit you. There is no due process in a battle.
This is a big debate because many have said the battlefield is here.
But if the battlefield is here, that would imply the fifth amendment
does not apply here. The President has said he will use the fifth
amendment in the process of deciding drone attacks overseas, but he
does not get the option to kind of use it privately. Using the fifth
amendment privately to me is not using the fifth amendment.
I will say, I have a great deal of respect for the Senator from
Illinois. We have often been on the same side on civil liberties
issues. I do not question that he and I may well see eye to eye on this
issue, that targeted killings of people in restaurants, in their house,
in a hotel, are not something we can or will tolerate. It contravenes
the Constitution. It is a simple question. The President should simply
answer that question. I think Attorney General Holder was coming in the
direction of that. But why is it so hard? Why is it like pulling teeth
to get them to admit they do not have this power? Presidents need to
more easily say: By golly, no, the Constitution says you cannot do
that. The fifth amendment does apply. There are no exceptions to the
fifth amendment for American citizens on American soil. That is all we
are asking.
But I think the 9/11 comparison and Pearl Harbor is a red herring in
the sense that none of us disagrees with repelling a lethal attack, an
imminent lethal attack, an ongoing lethal attack with lethal force. No
one disagrees with that.
Mr. DURBIN. Will the Senator yield further for a question?
The white paper that has been presented to us by the Justice
Department concludes that the right to national self-defense and the
2001 authorization to use military force gave the U.S. Government legal
authority to kill a U.S. citizen in a foreign country that is not an
area of active hostilities, if the target is a senior operational
leader of al-Qaida or an associated force. So it is qualified in that
regard.
The white paper argues, such an attack does not violate the
constitutional rights of a U.S. citizen in this circumstance, ``if he
poses an imminent threat of violent attack against the United States.''
Imminent threat. No. 2, ``his capture is not feasible,'' or the Justice
Department white paper goes on to say, ``and the operation complies
with the law of war principles, such as the need to minimize collateral
damage.''
I will say to the Senator, I stand with him. I want an answer to his
question. I think we should pursue it on a bipartisanship basis, as we
have many issues together in the past. I think it is a legitimate
question. But I would say that the white paper we have been given
relative to this U.S. citizen overseas has some fairly narrow
circumstances in terms of the use of force.
When it comes to the use of that force in the United States, I
believe the circumstances should be just as narrow, if not more. I
would say to the Senator, I am genuine in my concern for bringing these
issues out in a full hearing of our constitutional subcommittee. I
think I have answered the question. I hope he appreciates my sincerity.
Mr. PAUL. Madam President, in very quick response to that, one of the
few problems with that is they also go on to say that imminent does not
need to be immediate. You are also implying that you can kill this
American citizen in a noncombat situation, not an active battlefield. I
do not accept that standard for the United States. It is another debate
whether we accept the standard overseas. I think it is an important
debate. But the debate about whether that is a sufficient standard for
America, it is not. To kill someone not in combat--one, it is not wise.
You are not going to get any information. When someone is eating
dinner, why do you not send the police over and arrest them? To kill
someone who is in a noncombat situation in America is unacceptable in
America under any circumstances. I think we need to come to an
agreement on that.
I wish to yield for a question to the Senator from Wisconsin.
Mr. JOHNSON of Wisconsin. Madam President, all of us have come down
here to support a very legitimate request to have a legitimate question
answered. I think the Senator deserves those answers. If not an answer
from the White House, he at least deserves a vote.
I started watching here this morning. The Senator started about
11:57. It is now past midnight. I think my primary action is one of
just being puzzled. I have been here for 2 years. I have never served
in any kind of legislative body. I certainly came to the Senate
thinking this was the world's greatest deliberative body. What I found
is a body that is utterly dysfunctional. Even though this is actually
one of the best examples of how this body ought to work, it is also an
example of that dysfunction. I cannot believe this issue has not been
resolved within a half hour, within an hour. Just take a vote.
We have a number of our colleagues from the House coming here in
support of the Senator from Kentucky. The House is operating, I
believe, as our Founders intended. They are passing budgets. They are
debating issues. They are passing real pieces of legislation that,
unfortunately, are being dropped over here in the Senate, where those
good pieces of legislation die. That is a real shame.
For example, I serve on the Budget Committee of the Senate. I have
been on that Budget Committee for 2 years. We have not yet voted on a
budget in the Budget Committee. This is, by the way, when this Nation
is facing a fiscal crisis unlike anything we have ever faced in our
history. We have racked up 4 years now where our debt exceeds
$1 trillion. There is no end of that in sight. We have not passed or
even brought to the floor an appropriations bill all year long. How can
we function as a body if this is how it operates?
A number of Republican Senators joined the President at his gracious
invitation for dinner tonight. It was an excellent dinner. It was a
genuine, sincere, open discussion of the fiscal problems facing this
Nation. I was part of a group of 44 Senators a year and a half ago,
almost 2 years now, who also joined the President prior to the final
debate on the first debt ceiling in the summer of 2011. The President
of the United States leaving that meeting should have come away with a
very strong understanding that those 44 Republican Senators were
incredibly sincere in their desire to work with the President, to work
with our colleagues across the aisle, to solve these problems. I will
tell you, I am one Senator who ran for office not to become a Senator
but because we are losing this country. We are bankrupting it.
One of the things I do when I talk around the country, I make it a
point that fortunately I do not know of any parent who would willingly
max out their credit cards, get in debt way over their heads never
intending ever to pay it off, but fully intending to pass it off to the
children and the grandchildren. I do not know any parent that way,
fortunately. But as a society that is exactly what we are doing.
Frequently in this political town, Republicans are accused of waging
a war on women, waging a war on immigrants. None of that is true. What
Washington is doing is we are waging a war on our children. We are
mortgaging their future. It is absolutely immoral. Americans have got
to stop and consider what it is we are actually doing to future
generations.
So I felt good at the dinner with the President tonight--I think all
of my colleagues did. I hope the President did--with a pretty strong
sense, once again, that there is a great deal of sincerity, a great
deal of desire to roll up our shirt sleeves, put down partisan
bickering, put down partisan differences, work together to solve this
problem.
I think there has got to be a realization that neither side is going
away. If we are going to start solving these problems, we have got to
start working together. We have got to return the Senate into that
deliberative body that
[[Page S1224]]
our Founders intended it to be. We have got to be willing to be held
accountable. We have got to take votes. It should not be that hard. We
should not be afraid.
I would ask the Senator from Kentucky--as I understand it, this is
puzzling that we are here now after midnight. I applaud the Senator for
his resolve here. That is why he sees every Member coming down here and
providing the support. But I think all he wanted was either unanimous
consent or possibly a vote on this simple question:
Resolved, that it is the sense of the Senate that:
No. 1, the use of drones to execute or to target American
citizens on American soil who pose no imminent threat clearly
violates the Constitutional due process right of citizens.
That seems like a pretty simple question, seems like one most
Senators would want to express their opinion by taking a vote, or
allowing this resolution to pass by unanimous consent. So I guess my
only question is, is that all the Senator is looking for, either an
answer from the White House or a simple unanimous consent agreement or
a simple vote?
Mr. PAUL. Madam President, I thank the Senator from Wisconsin. Yes,
we had two simple requests tonight. The first was for a vote on a
nonbinding resolution to express our opinion that it is
unconstitutional to kill Americans on American soil. That was denied by
the majority party.
The second request we have had, in communication with the White
House, is for the White House to say or clarify their opinion that they
are not going to be doing targeted drone strikes on noncombatants in
America. We have not had much success with either one. We will continue
to ask that question.
I have told them I will remove myself from the blockage of John
Brennan's nomination as soon as we get some clarification from the
White House. I am still hopeful in the morning that they will do that,
and by doing that, we can move forward with it.
But I have been more than willing to compromise, because I do not
think it is so much about John Brennan as it is about a constitutional
principle, that I want the President to publicly acknowledge the fifth
amendment does apply to Americans in our country, and that we are not
going to cherry-pick when we apply the fifth amendment.
At this time, I wish to yield for a question from the Senator from
South Carolina.
Mr. SCOTT. The drone issue is not an issue. It is not a question
about Democrats versus Republicans or the DNC versus the GOP. It is not
a question about the executive branch versus the legislative branch. It
is not a question about conservatives versus liberals. It is a question
about the Constitution.
Another one of our friends said that this Nation, our great Nation,
needs to stand and recognize what Rand Paul is doing today for
Americans. All of our aspirations mean nothing, nothing at all without
our rights.
Another said you do not have to like our political party. You did not
even have to like Senator Rand Paul to stand with Rand. You only need
to be against the assassination of Americans without due process on
U.S. soil.
I will close with the question that we have heard many times already.
Why will this administration not simply state it is unconstitutional
and illegal--unconstitutional and illegal--for the government to kill
Americans in the United States on our soil or, as I think about it, it
is illegal on the soil of Greenville, SC, it is illegal in Oconee
County, SC.
It is illegal in Charleston, SC. It is illegal throughout the coast
of South Carolina, without due process, to kill an American citizen. Is
that what you are asking?
Mr. PAUL. Madam President, I think it is an easy question to have
answered, and it boggles my mind. I think the President in general,
though, and other Presidents in general, hang on to their power with a
tenacious grip, and they don't want to allow that there is any
possibility that by saying they don't have this power, they have given
up some power.
I think that is a mistake for Presidents. I think it goes against
what the candidate, Barack Obama, was for and the Senator, Barack
Obama. I hope in the morning when they wake up they will think about
what Candidate Barack Obama said in 2007 and what Senator Barack Obama
once stood for as a Senator; that is, the power of the Presidency is
limited and checked by the Constitution.
Madam President, at this time I would like to yield for a question
from the Senator from Arizona.
Mr. FLAKE. I thank the Senator for yielding, and I want to commend
the Senator for this 12-hour long quest.
I think it is now. It is an important topic. I recently traveled to
Afghanistan and received a briefing there about the drone program and
how it is working in Afghanistan. After seeing that briefing, seeing
examples of how it is being used, I have to tell you, I was awed by it.
I thought what a powerful weapon, what a great weapon, in this case, to
use against terrorists.
My second thought is what happens when that is in the hands of our
enemy. I can tell you, it is a sobering thought to think of what
happens when our enemies get this kind of technology. It is also
sobering to think of what could happen if we use this technology here
domestically. I think the question you have asked is totally right and
proper. Where does the President derive authority? Does he believe he
has the authority to use these weapons or any kind of weapon for lethal
means when there is no imminent threat?
I think the question the Senator is asking, if I understand that
question correctly, is right and proper. My understanding is all you
want to find out is does the President believe the administration has
the authority to use lethal means in this manner domestically; is that
correct?
Mr. PAUL. Madam President, that is correct. It is a simple question.
I think we are not asking for any heavy lifting here. We are asking the
President: Do you have the authority.
I think it is important that it is a legal question in the sense we
want to ask and get a legal, constitutional response. We are not
asking--we probably won't do it, we don't intend to do it, or it is not
appropriate, or it is not, as a policy matter we don't like doing it.
We want the constitutional answer: Do you really believe you have the
constitutional authority to do this.
Mr. FLAKE. I thank the Senator.
Mr. ROBERTS. Mr. President, I rise today, in support of Senator
Paul's filibuster on the nomination of John Owen Brennan, to be
Director of the Central Intelligence Agency. I have stated my
opposition to Brennan's nomination from the beginning.
During my time on the Intelligence Committee and as chairman, I
presided over hearings before which Mr. Brennan testified.
His inability to give a straight yes or no answer was greater than
any other witness I experienced. But his approach is exactly what we
see from the Obama administration today.
Senator Paul has asked a very simple question to which the President
refuses to give a direct answer. The appropriate question is: Will the
administration clarify any circumstance when it is acceptable to target
and kill American citizens on American soil?
Senator Paul is only asking for a clear, unwavering statement that
protects Americans' fifth Amendment rights as well as our national
security. All Americans await the answer.
The Senate's duty is to conduct oversight and ensure our government
is protecting its people and the Constitution. In that regard Senator
Paul's filibuster has been true to our oversight, obligations and
duties; and I congratulate him.
Mr. PAUL. Madam President, at this point I would like to recognize
for a question, without yielding the floor, the Senator from Utah.
Mr. LEE. A question I have with regard to an issue that was raised by
my friend a few minutes ago, my friend, my distinguished colleague, the
senior Senator from Illinois, touches upon an important point, upon a
principle of law which dates back centuries and has application in
myriad contexts, one that deals with the concept of imminence.
My friend from Illinois is certainly correct in pointing out the
white paper leaked by the Obama Department of Justice to the news media
recently does include some analysis that talks about imminence.
It is significant, however, to point out, on page 7 of that white
paper the
[[Page S1225]]
administration goes on to essentially eviscerate that concept of
imminence. In fact it makes clear that this condition, that is the
condition dealing with imminence, with the idea of protecting an
imminent threat of violent attack against the United States ``does not
require the United States to have clear evidence that a specific attack
on U.S. persons and interests will take place in the immediate
future.''
That is at the top of the first full paragraph on page 7 of the very
same white paper that my friend from Illinois was quoting.
In response to that question, it is important to point out that they
have taken the imminence out of imminent. There is no more imminence in
this standard. So if, in fact, we are to believe the white paper is the
correct assessment of the administration's position, it is no longer an
imminent standard. It is something else. It is something of a new
development. It is something that was created out of whole cloth by
this administration that has nothing to do with the traditional
imminent standard.
I ask my friend from Kentucky whether this is consistent with time-
honored notions of due process.
Mr. PAUL. Madam President, this is exactly what I understand. It is a
significant problem. I will be happy to yield if there is a question
from across the aisle or a question that is in the form of an
explanation as well on his understanding, if we understand this
incorrectly, this is a real problem. Because the idea of imminence that
people think of is someone leveling a weapon at you, you are in a
battlefield, and all of these things which none of us disagrees there
should be a response.
The problem is it really is. I am not an attorney, so it is easy for
me to disparage attorneys even though I am standing among two I
admire--more, probably. The whole point is that sounds like a bunch of
government attorneys got together and tried to write some gobbledygook
no one could understand and doesn't make sense; that imminence now
means something that is not immediate.
I would be happy to entertain a question without yielding the floor.
Mr. DURBIN. This is getting perilously close to a debate, and I am
sorry, for those observing, it looks like the Senate is actually in a
debate.
The obvious question is was bin Laden an imminent threat to the
United States when we took him out? I think he was.
Was he hatching a plot to cause harm to the United States in an
imminent manner? Probably not.
Mr. PAUL. Madam President, I would say touche, a good response, I
think well worth thinking about and difficult in the sense that I don't
think there are any of us who really were opposed to getting bin Laden.
There is a question, you are right, exactly whether there was imminence
involved.
I think, though, when we start talking about standards, whether we
have standards in battlefields, standards overseas, and standards at
home, I think the standard at home has to be incredibly high. I don't
believe we are involved in a battlefield here. I don't believe you have
given up due process here. I don't know that bin Laden had any due
process.
I yield for a question from the Senator from Texas.
Mr. CRUZ. I thank the Senator from Kentucky.
I would point out that the questions of imminence, I don't think, are
difficult as has been suggested. Indeed, I would like to thank the
senior Senator from Illinois for braving this long evening and for
expressing his equal and heartfelt concerns about the limitations on
the power of the executive to take the lives of U.S. citizens on U.S.
soil.
I would point out that at the hearing we had yesterday with the
Attorney General there was a series of questions exploring in further
depth what the position of this administration was because, in response
to the inquiry of the Senator from Kentucky, Attorney General Holder
put in writing that he could imagine circumstances in which it would be
permissible to take the lives of U.S. citizens on U.S. soil.
The two examples he gave were Pearl Harbor and 9/11. As the Senator
for Kentucky responded, and I think everyone here agrees, those
examples are unobjectionable. Both of those instances were instances of
grievous military attacks. I think nobody doubts that if Kamikazi
planes are coming down on our ships in Pearl Harbor, the United States
can use lethal force to take out those planes and to save the lives of
our service men and women. There is no question about that, legal or
otherwise.
Likewise, I think nobody doubts if terrorists have taken over an
airliner and are steering it into a building, that tragic a decision
would be as heartrending as the decision on 9/11 must have been for the
President to give the order to shoot down that fourth commercial
airline--if it began approaching yet another target where it could
inflict thousands of deaths--I think nobody disputes that stopping an
imminent, immediate, act of violence, and indeed, a military act of war
is fully within the authority of the Federal Government.
The question posed to the Attorney General was the question Senator
Paul had asked originally--not that question--rather, it was if there
is an individual, a U.S. citizen on U.S. soil who is suspected of being
a terrorist, and for whom we can say arguendo there is abundant
evidence to demonstrate this individual as a terrorist, and if this
individual is on U.S. soil and is not currently an imminent threat of
violence--if he or she is sitting in a cafe in rural Virginia having a
cup of coffee, the question I posed to the Attorney General is, in
those circumstances, would it be constitutional for the U.S. Government
to send a drone to kill that U.S. citizen on U.S. soil with no due
process of law if that individual did not pose an imminent threat?
In my judgment that was not a difficult question. I think the answer,
frankly, I expected was, of course not. Of course the Federal
Government cannot kill a U.S. citizen on U.S. soil who does not pose an
imminent threat. That has been the state of the law from the day our
Constitution came into effect and from before.
Instead, the first response of the Attorney General was it wouldn't
be appropriate to use lethal force there, and we wouldn't do so. I
pressed the question again on the Attorney General and said: With
respect, the question is not whether it is appropriate, it is not a
question of prosecutorial discretion. Do we trust you would not choose
to exercise lethal force in those circumstances? Rather, it is a
question would it be constitutional to kill a U.S. citizen on U.S. soil
with a drone if that individual did not pose an imminent threat?
The second time the Attorney General said: I don't believe it would
be appropriate. Yet a third time I asked the Attorney General: I am not
asking about appropriateness. As the Attorney General of the United
States, you are the chief legal officer for this Nation. Does the
Department of Justice have a legal opinion as to whether it is
constitutional for the U.S. Government to kill a U.S. citizen on U.S.
soil if he or she does not pose an imminent threat? Yet a third time
the answer was it wouldn't be appropriate.
Then, finally, when asked a fourth time, the Attorney General said:
When I say ``appropriate,'' I mean it wouldn't be unconstitutional.
Finally, after asking four times, the Attorney General agreed.
My response to that questioning was: General Holder, I am very glad
you have stated that position. I emphatically agree with that position.
I don't understand why it took such gymnastics to get to that position.
I wish you had simply said that in response to Senator Paul now 2 days
ago. It would have been a very straightforward and simple thing to say.
What I also said to the Attorney General is Senator Paul and I have
drafted legislation which will make explicitly clear the U.S.
Government may not kill a U.S. citizen on U.S. soil who does not pose
an imminent threat.
I hope, based on the Attorney General's representations, the
Department will support that legislation. That ought, in my judgment,
be legislation which should be bipartisan legislation that should pass
this body 100 to 0 because it is truly phrased with as unobjectionable
a legal truism as I could come up with.
I will admit I have been flabbergasted as these days have gone on why
John Brennan, when asked by Senator Paul this question, did not simply
say no. Why didn't Eric Holder, when
[[Page S1226]]
asked repeatedly, simply say no--at least not at the first. Why now,
over 12 hours since this filibuster has proceeded, the White House has
not put in writing the absolutely correct statement of constitutional
law the Federal Government cannot kill U.S. citizens on U.S. soil if
they do not pose imminent threats.
I would note, with the hypothetical that the Senator from Illinois
posed to Senator Paul, even in that situation, Osama bin Laden was a
horrible enemy of the United States who committed a grievous act of
terror and was the mastermind behind it. I am very glad that after a
decade-long manhunt, we were able to find him and we were able to, on a
military battlefield, take him out. I would suggest that if he were not
in Pakistan, if he were living in an apartment in the suburbs of
Chicago, and if he were asleep in bed--and even if he were Osama bin
Laden, a really, really, really bad guy--there is nothing in the
Constitution that gives the Federal Government the authority to fire a
missile at an apartment with a sleeping person in it in the United
States of America if that individual was a U.S. citizen. And if he was
in the United States, what we would do is what we would expect to do
with any other really, really, really bad guy, which is go in and
apprehend him.
Behind enemy lines, you can't always do that. There are things that
happen on the battlefield that we would never do at home. But I would
suggest that any argument that says someone sleeping at home in bed
presents an imminent threat is an argument that stretches the bounds of
the word ``imminence'' beyond where its natural meaning should lie.
If an individual is pointing a bazooka at the Pentagon or robbing a
bank or committing another crime of violence, there is no doubt that
force--and lethal force--can be used to stop that crime of violence.
But I think that there likewise should be no doubt that the Federal
Government lacks the authority to kill U.S. citizens on U.S. soil if
there is no imminent threat of death or grievous bodily harm.
So I am hopeful that the results of this extended discussion will be
several. I am hopeful, No. 1, it will prompt the White House to do what
the White House has heretofore refused to do, which is, in writing,
explicitly answer the question posed by Senator Paul now over a week
ago and expressly state as the position of the United States of America
that the Federal Government cannot kill a U.S. citizen on U.S. soil if
that individual does not pose an imminent threat of death or grievous
bodily harm.
I also hope that a consequence of this extended discussion is that we
will find widespread agreement in this body behind passing legislation
to make clear that the Constitution does not allow such killings. I am
hopeful that legislation will command wide support on the Republican
side of the aisle but likewise wide support on the Democratic side of
the aisle.
I would hope for and would certainly welcome the support of the
senior Senator from Illinois and, indeed, every Member of the
Democratic caucus. And should this body come together in a bipartisan
way or, even better, in a unanimous manner and clarify that the
Constitution prohibits killing U.S. citizens on U.S. soil absent an
immediate threat, I would suggest this debate will have accomplished a
great deal because it will have made clear the limits of the Executive
power, and it would be, indeed, carrying out the finest traditions of
this body--serving as a check on unchecked government power.
So I would ask the Senator from Kentucky, does he agree that if those
were the outcomes of these proceedings, this would have indeed been a
beneficial proceeding for helping focus the American people on these
issues and helping draw a line that the Executive cannot cross
consistent with the Constitution?
Mr. PAUL. Mr. President, I am hopeful that we have drawn attention to
this issue; that this issue won't fade away; that the President will
tomorrow come up with a response. I would like nothing more than to
facilitate the voting and the continuation of the debate tomorrow. I
hope the President will respond to us. We have tried repeatedly
throughout the day, and we will see what the outcome of that is.
I would like to thank my staff for being here for a long day, for
their help. I would like to thank fellow Senators for being supportive
of this cause. I would like to thank the Members of Congress who came
over to support this cause, as well as the clerks, the Capitol Police,
the staff of the Senate, the doorkeepers--who, apparently, I may have
gotten in trouble--and anybody else who came to support us, and even
the senior Senator from Illinois, for better or worse, for being here
to support the cause. The cause here is one that I think is important
enough to have gone through this procedure.
I sit at Henry Clay's desk, and they call Henry Clay the ``Great
Compromiser.'' When I came to Washington, one of my fellow Senators
said to me: Oh, I guess you will be the great compromiser. I kind of
smiled at him and laughed. I learned a little bit about Henry Clay and
his career.
People think some of us won't compromise, but there are many
compromises. There are many things on which I am willing to split the
difference. If the Democrats will ever come to us and say: We will fix
and we will save Social Security, what age we change it to, how fast we
do it--there are a lot of things on which we can split the difference.
But the issue we have had today is one on which we don't split the
difference. I think you don't get half of the fifth amendment. I don't
think you acknowledge that the President can obey the fifth amendment
when he chooses. I don't think you acknowledge that the fifth
amendment, due process, can somehow occur behind closed doors.
So while I am a fan of Henry Clay, I have often said I am a fan of
Cassius Clay. Cassius Clay's weapons of choice were said to be his pen
and his Bowie knife. He was said to be so good with the first, that he
often had recourse to the latter. He was a fierce abolitionist. He
didn't suffer fools, and he didn't compromise often.
But what I would say is that it is worth fighting for what you
believe in. I think the American people can tolerate a debate and a
discussion. There has been nothing mean-spirited about this debate for
12 hours. I think, in fact, more of it would be even better. I wish we
had more open and enjoined debate. The senior Senator from Illinois has
brought up good points, and I think there is much discussion. I just
hope that this won't be swept under the rug and that this isn't the end
of this but that it is the beginning of this.
I would go for another 12 hours to try to break Strom Thurmond's
record, but I have discovered there are some limits to filibustering,
and I am going to have to go take care of one of those in a few minutes
here. But I do appreciate the Senate's forbearance in this, and I hope
that if there are some on the other side of the aisle who have been
listening and feel they may agree on some of these issues, they will
use their ability to impact the President's decision and will, No. 1,
say the Senate should be trying to restrain the executive branch,
Republican or Democratic, and, No. 2, will use their influence to try
to tell the President to do what I think really is in his heart, and
that is to say: Absolutely, we are not going to be killing Americans
not in a combat situation. We will obey the fifth amendment; that the
constitution does apply to all Americans and there are no exceptions.
I thank you very much for your forbearance, and I yield the floor.
The PRESIDING OFFICER (Mr. Schatz). There will be order. Expressions
of approval or disapproval are not permitted in the Senate.
The Senator from Illinois.
Mr. DURBIN. Mr. President, let me first, on a personal note, thank
the Senator from Kentucky. He and I have agreed on many things and
worked together on many more, and there is much common agreement on
what we hope to achieve with this issue, as important as it is, and I
thank him for his spirited defense of his position today in these 12
hours. I want to excuse him from the floor whenever he wishes.
____________________
[Congressional Record Volume 159, Number 32 (Wednesday, March 6, 2013)]
[Senate]
[Pages S1226-S1227]
NOMINATION OF JOHN OWEN BRENNAN TO BE DIRECTOR OF THE CENTRAL
INTELLIGENCE AGENCY
Mr. DURBIN. Mr. President, I move to proceed to consideration of
Calendar No. 43.
The PRESIDING OFFICER. The question is on agreeing to the motion to
proceed.
[[Page S1227]]
The motion was agreed to.
The PRESIDING OFFICER. The clerk will report the nomination.
The legislative clerk read as follows:
Nomination: Central Intelligence Agency. John Owen Brennan,
of Virginia, to be Director of the Central Intelligence
Agency.
The PRESIDING OFFICER. The Senator from Illinois.
Cloture Motion
Mr. DURBIN. Mr. President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The motion having been presented under rule
XXII, the clerk will report the motion.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the nomination of
John Owen Brennan, of Virginia, to be Director of the Central
Intelligence Agency.
Harry Reid, Dianne Feinstein, John D. Rockefeller IV,
Debbie Stabenow, Sherrod Brown, Jack Reed, Benjamin L.
Cardin, Thomas R. Carper, Christopher A. Coons, Robert
P. Casey, Jr., Mark L. Pryor, Bill Nelson, Mark Begich,
Barbara A. Mikulski, Patty Murray, Carl Levin, Joe
Manchin III
____________________
