Now that my Rand Paul-induced swoon through Mr. Smith Goes to Washington-tinted glasses has been flushed from my body, I’m just depressed. We still live in a world where Americans believe making war on abstract nouns and anyone or anything that says, “Boo!” or seems strange is a reasonable argument and a prudent policy. And, “[n]ot only did Paul stage a pointless piece of political theater, he managed to obfuscate and mischaracterize the debate while simultaneously helping to worsen public perceptions in a misleading way.” (via Erik Loomis)
First, let’s review Paul’s actual question. Regardless of how people want to interpret the question as being solely about targeted killing policy regarding the war on terror, Holder clearly interpreted it as whether or not there is a legal right for the President to employ lethal force within the United States in SOME circumstances. As Holder makes clear in his letter, he views the scenarios where such a use of force would be authorized and legal to be highly unlikely and illustrates the hypothetical with situations that are quite out of the ordinary.
While one might quibble about his use of Pearl Harbor as an example (as it was a foreign enemy) the 9/11 example is apt, because that was a situation where lethal force against American citizens could have been deployed without trial. How is this, you ask? Specifically we’re talking about the possibility of the Executive Branch authorizing the shoot down of hijacked airliners. While the hijackers weren’t citizens, each airliner had scores of American citizens, who, if shot down by an F-16 would have been killed without due process or trial. Does this really seem like an outlandish use of force? And let’s remember that Holder is saying that it would take that sort of extreme scenario for the contemplation of that authority to even be invoked.
Matt Binder and Michael Brooks talk about Paul’s filibuster, the cast of Republican clowns, and Matt’s refusal to kill Americans under any circumstances (~41 minutes).
Second, let’s look at where the most common cause of due-process less lethal force tends to be used on American soil. It’s not the CIA. It’s not even the FBI or ATF. It’s the dozens and dozens of instances where law enforcement decides to use lethal force in lieu of arrest. Just recently we had the LAPD essentially burn a cornered suspect to death rather than arrest him. Yes, Dorner was a villain. But he was “killed without being convicted of a crime.” Did Rand Paul filibuster for him? Has the issue of everything from no-knock searches and what amounts to SWAT raids ever been brought up by the honorable junior senator from Kentucky? Nope.
Third, this is political theater. The Senate has been AWOL when it comes to proposing actual changes to the law. They balk at attempts to close GITMO, they’ve yet to establish a workable situation for trying terror suspects, hell they haven’t even revised the AUMF. Of course fixing the detainee situation, clarifying what the AUMF says, setting up a national security court, all of these things are politically unpopular. Filibustering a CIA director nominee? Not so much. Now perhaps political theater is better than nothing. But Paul’s actually put legislative effort into say, attaching Fetal Personhood to bills about flood insurance. One might hope that this would be a situation where he’d be offering more than just words.
Look, there are important questions that need to be answered on the increasing abbreviation of the Fourth Amendment. The Supreme Court has helped to chip away at the Fourth Amendment, through things like warrant requirements for searches incident to traffic stops (Florence v. Board of Chosen Free Holders), refusing to grant standing for reviewing FISA expansion and in general being far too deferential to the Executive. We see neglect, even encouraging of police militarizing on state and municipal levels. We also see attempts to arm more people to take action and be exempted from consequences through “Stand your ground” laws.
There are plenty of Americans who are killed without due process.
They don’t die in outlandish hypothetical cases where a drone blows them up sitting at a cafe. They die from overreaches of law enforcement or abuses in state and local authorities. There are reasonable questions to ask about lethal force being used without due-process. But crazy hypotheticals are not a particularly useful staging ground, and worse help obscure the source of most of these abuses.
Worse still, senators, like John McCain and Lindsay Graham, actually responded with defenses based on unlimited war. John Yoo adds his own mocking criticisms and executive worship. I’m heartened conservative Republicans can set aside the adolescent criticisms of President Barack H. Obama and the executive branch in general, but I know Congressional leaders like Mitch McConnell only showed up, because Paul was making the Senate – and Republicans – look good. Conservative Republicans like Yoo and McCain would give any president more power against the Congress even if it required using the Defense department. Lindsay Graham is all about getting himself re-elected.
The U.S. Attorney General and Kentucky’s junior senator had a debate in a way that did incite some discussion beyond Washington. It was not a great debate, because many Americans can still say “war on ‘terror'” with a straight face, and avoid the implications of both its domestic and foreign policy decisions without discussing strategic issues. Ted Cruz, Marco Rubio, et al. are only pathetic because Americans are expedient to the point of often worshipping any monster who promises the stars and comically HUMAN, which means we believe first, ask questions later and maximize our own individual interests first.
Rand Paul in 12 hours just represented America. Very inefficient!