After Rand Paul’s filibuster ended, Attorney General Eric Holder responded to the senator’s actual point:
Attorney General Eric Holder said on Thursday that President Barack Obama would not have the authority to order a drone to kill an American citizen on U.S. soil who was “not engaged in combat.”
In a two-sentence letter to Kentucky Republican Senator Rand Paul, Holder said he had heard Paul wanted to know if the president could use a drone to kill an American outside of an emergency situation.
“The answer to that question is no,” Holder wrote.
But consider the whole letter:
The insinuation, here, is that Rand Paul had not asked the pertinent question. He had asked the more general question whether there were any circumstances when the U.S. federal government might use deadly force against civilians using drones. And, in moments of emergency, where the threat is clear and American citizens are in armed revolt or committing acts of terrorism, or acting as innocent shields to those using deadly force, the federal government clearly reserves the right of deadly force in defense and immediate retaliation. Holder’s earlier, evasive response — as well as the president’s comments that he had “no intention” of using drones on Americans on American soil — referenced this idea.
Which, during the filibuster, and after, Paul said he had never denied. Of Holder’s first letter, the Kentucky senator says “Attorney General Eric Holder answered a question we weren’t asking.”
While I understand Sen. Rand Paul’s intent, here — and I think it was always in evidence — his wording has not always been crystalline. Consider his second letter to Brennan:
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.
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 to this valid question from the Administration have only confused the issue further without getting us any closer to an actual answer.
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?
I believe the only acceptable answer to this is no.
Notice: Rand Paul does not here distinguish between drone strikes against actively insurrectionist Americans and those thought to be cooking up such apparent misdeeds. Most Americans probably want the federal government actively and forcefully opposing — perhaps with drone strikes — those engaging in revolt or terrorism, while many (certainly not all) of us would definitely not want drone strikes against suspects as they go about their daily and apparently peaceful routines.
So, it appears that some of the ambiguities in what Obama and Holder have said is the result of Rand Paul not being clear.
Does this make his filibuster a witless stunt, a mountain out of the proverbial molehill? Was Rand Paul merely harping a niggly point?
No. Rand Paul confessed on the Senate floor to not being a lawyer. He was sometimes very precise about what he was after, other times he was a tad obscure. Now, I take his question about targeting Americans on American soil as a term of art, asked in the context that he often established: that of strikes on foreign soil against people who were not doing anything, at the time, at all menacing. You know, sleeping in bedrooms or hanging about in cafes. And those drone strikes killed innocents in the process.
So, it was Eric Holder’s initial response that was witless. He passed up a chance to lecture a non-lawyer on the difference between clear and present danger, on the one hand, and those dangerous folk (suspects) believed to be plotting same, on the other. The former require violent and immediate response; the latter do not. The latter deserve — at least on American soil, and certainly in times of peace — the rights guaranteed in the Bill of Rights.
Why wouldn’t Holder perceive Rand Paul’s intent? Why was the filibuster necessary?
The answer strikes me as obvious: Because Holder is now a toady to an administration that uses drones against foreigners in an extravagantly unjust way, and has, therefore, lost the wit to discriminate between right and wrong without being forced to come clean by public pressure. He was only looking for ways to increase and defend presidential power. He forgot his oath of office, to uphold the Constitution, and thus couldn’t see the constitutional issue that was standing him square in the face.
Still, it would have been better had Rand Paul made himself crystal clear in every epistle and utterance, not just some of the time, as in his brilliant filibuster.
Finally, it is worth noting the truly niggly nature of his historic moment . . . in the context of present reality. The American government uses drone strikes against people in foreign countries that we are not officially at war with, such as Yemen and Pakistan. The government behaves as if it were “above the law” abroad, as an imperial power, not a putatively just state capable of diplomacy and intent on spreading good will. By doing this, and by killing many innocents — further, by squelching any consideration of innocence — the American Empire appears as all empires eventually do: as instantiations of great evil.
Rand Paul is not fighting this. I suspect he might like to. But he knows that the American people, while they might be nudged to appreciate their own rights, continue to care almost nothing about the rights of people in foreign countries. Not when the pretense of protecting rights can lead to systematic efforts to exert power and murder in the name of righteous “defense.”