By Robert Romano — Sen. Rand Paul’s (R-KY) historic filibuster against the new Director of the Central Intelligence Agency (CIA) John Brennan has succeeded in its principal aim, which was not to defeat his nomination, but to answer a very specific question.
In a Feb. 20 letter to Brennan, Paul had asked, “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?”
Brennan’s answers to his inquiries had been to state that the U.S. “has not carried out” such strikes and “has no intention of doing so.”
Which was not Paul’s question. The question was could the executive kill a U.S. citizen on U.S. soil without trial under the Fifth Amendment’s iron-clad protection that “No person shall be deprived of life, liberty, or property without due process of law.”
Sen. Paul also got a response from Attorney General Eric Holder on March 5: “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.” He cited the attacks on Pearl Harbor and on Sept. 11, 2011 as examples.
That prompted Sen. Paul to mount his now legendary filibuster against Brennan. That answer he said, was unacceptable. “The U.S. Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening — it is an affront [to] the Constitutional due process rights of all Americans,” Paul declared in a statement.
And he was and is right. The Fifth Amendment’s due process protection brokers no exception in the text of the Constitution itself.
Such an exception can only be inferred, and then only in the context of an immediate threat to the homeland. Minus an active attack being engaged in, the Constitution would demand due process, and prosecution, and then only of crimes that have actually been committed to be tried by a jury of one’s peers.
Something that, after Paul’s filibuster, Attorney General Holder was seemingly forced to admit in another letter to Paul in which he wrote, “It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’”
He answered, “The answer to that question is no.”
That was after Republican Senators John McCain (R-AZ) and Lindsey Graham (R-SC) had taken to the floor to challenge Sen. Paul over his filibuster.
McCain called Paul’s concerns “unfounded” — even as he argued in the same breath that the use of military force against U.S. citizens on the homeland dubbed to be enemy combatants was in fact constitutional.
McCain quoted a Wall Street Journal editorial that stated “What [the government] can do under the laws of war is target an ‘enemy combatant’ anywhere at any time, including on U.S. soil.”
Let us pause to note, for a moment, that that was ultimately what Holder ended up saying, too. More on that later.
What the Wall Street Journal and McCain articulated was precisely Paul’s concern: That there are those in government and elsewhere who in fact believe that the lethal use of force can be used “anywhere at any time” against a U.S. citizen, including on U.S. soil. Since that was what Paul was objecting to, his concerns were not at all “unfounded.”
McCain stated he would like to ensure that “if someone is an enemy combatant, that enemy combatant has nowhere to hide. Not in a café. Not anywhere.” Including the homeland.
He went further to say that he did not believe Anwar al-Aulaqi, a U.S. citizen working with al Qaeda who was slain overseas in Yemen using a predator drone, “should have been protected anywhere.” Reasonable people would not disagree. The difference is that here at home, a threat, even one as grave as al-Aulaqi, should be arrested and tried.
Sen. Graham, for his part, declared that he did not “believe that [Paul’s] question deserves an answer.” He found the question to be “offensive.”
“Non-combatants under the law of war are protected, not subject to being killed,” Graham insisted, but went on to state that it is “a long-held concept in American jurisprudence that when an American citizen sides with the enemy of our nation, they can be held, captured, and treated as an enemy combatant.”
So who gets to decide when “an American citizen sides with the enemy of our nation” as combatants? The President of the United States. No judge. No jury. No due process. Just one person.
And how will he decide? Apparently, if he simply determines the citizen is “engaged in combat,” per Holder’s reply to Paul. But what constitutes being “engaged in combat,” or posing an “imminent threat” per the Department of Justice’s memo justifying the use of military force against U.S. citizens?
Graham answers. Once dubbed to be an enemy combatant by a president, “everywhere you go and everything you do presents a threat to the country.”
Therefore, once the Commander-in-Chief determines you are an enemy of the state (i.e. “engaged in combat”) without any due process, in Graham’s own words, “you’re a de facto imminent threat.”
So, for Graham, as well as Obama, Holder, and McCain, war powers may be exercised anywhere, any place, any time against U.S. citizens, including the homeland — without exception and without trial. And they apparently do not worry at all that such unlimited power could one day ever be abused.
Under that reading of the law of the land, the Fifth Amendment is no real protection to anyone. Nor is Graham’s or the White House’s so-called “imminent” threat doctrine.
In his filibuster, Paul reminded the American people that the use of force has been applied to combatants overseas who did not pose any immediate danger to U.S. forces.
Whether those same war powers could be applied to a U.S. citizen on the homeland was therefore a very important question. Paul’s scenario of a citizen non-combatant being wrongly dubbed a combatant and being subsequently targeted becomes a very real possibility — if only a remote one.
The point is that it is possible. And the White House is admitting it.
With drones already patrolling the skies of the U.S. — for our protection, the government assures us — this all becomes a legitimate question for how war powers ought to be exercised on the homeland.
Especially now that the White House has reaffirmed its license to kill. We’re right back to where we started.
Paul never challenged how the use of lethal military force is applied overseas per se. Nor was he even denying that military force could be used against a true imminent threat to national security on the homeland like an incoming missile or hostile aircraft. It is disingenuous to suggest that was his point.
Instead, he is pointing to a very real constitutional concern: Presidential war powers, when applied to the homeland, are irreconcilable with Fifth Amendment due process protections of life, liberty, and property.
It’s either one or the other. Either the Fifth Amendment applies under all circumstances to U.S. citizens on U.S. soil, or it may be voided by an executive who might one day abuse his power to declare enemies of the state. There is no middle ground to be staked out on an issue this fundamental to where the law ends and liberty begins.
Regardless of how the American people have dealt with these issues over the years, it is time we as a nation reexamine war powers and constitutional protections. Sen. Paul’s moment in the spotlight demands that each and every one of us do so.
As the War on Terror enters its twelfth year, it is time we once again question ourselves, and what sort of country we want to live in.
Do we want a police state? Or a liberty state?
Sen. Graham found Sen. Paul’s question to be “offensive,” and suggested that it did not deserve to be answered. What is truly offensive is to suggest that war powers, including the use of lethal force, ought to be allowed to be exercised on the homeland against U.S. citizens without question.
On the merits, I still do not believe the question has been adequately answered by the Obama Administration. Because the answer we are still getting from the Administration is yes, it can target a U.S. citizen on U.S. soil it deems to be an enemy combatant. How will the White House determine who is “engaged in combat”? The junior senator from Kentucky should not declare victory so quickly. For, the battle for liberty has just begun.
Robert Romano is the Senior Editor of Americans for Limited Government.