Rand Paul’s Misleading and Pointless Grandstanding….

In the midst of preparations for events during SXSW (more on that some other day) I noticed my twitter feed was alive with praise for Senator Rand Paul’s “stand” on civil liberties. Curious on what was going on, I decided to dig a bit further, and found myself shaking my head. Not 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.

First, let’s clarify what happened.

Rand Paul asked an exceedingly stupidly phrased question to CIA Director Nominee John Brennan. The question verbatim was:

“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?”

Brennan’s answer was understandably to state that as CIA director he wouldn’t have any authority on the matter and deferred to the Attorney General.

Attorney General Holder’s response was somewhat more nuanced. In essence however he laid out quite uncontroversial statements that worked out to the following:

1. As a policy matter the Administration believes military options are not to be used when law-enforcement authorities are capable of dealing with a terrorist threat.
2. That in some far-fetched hypothetical ticking time bomb scenario such as Pearl Harbor or 9/11 the President might need to authorize lethal force within the United States.

Now, there is something about the subject of drone-strikes and targeted killing that sends people into breathless and inaccurate coverage.

Doug Mataconis at OTB summarized it as “Obama White House thinks it can kill Americans in America”. Breathless coverage from the usual suspects of outrage over “progressive mockery” have stated that we’re in favor of due-process less killing of American citizens in America… Even our own Ethan Gach and Jason Kuznicki got in on the fun working on the #StandWithPaul stuff and approvingly retweeting PopeHat, Greenwald, et. al.

I get that targeted killing policy is unpopular with civil libertarians. I’ll even go a step further and say that the Obama Administration has not done a good job of articulating and clarifying its position. But frankly the reaction to Paul’s filibuster and the absurd reaction to Holder and Brennan’s letters is both based on misleading political theater and obscuring the actual debate of importance.

There is a discussion to be had about lethal force being used with insufficient due-process. But if we’re going to have this debate, it needs to be about reality and not the fever dreams of Rand Paul’s paranoid fantasies.

Jack Goldsmith summarized the actual “debate” quite well when he said:

In general Senator Paul and others falsely maintained that the Obama administration has implied that it has authority to use a drone to kill a U.S. citizen inside the United States who is not engaged in combat and does not present an imminent threat and who is simply (a hypo they keep using) “sitting quietly in a café peaceably enjoying breakfast.” Senator Paul also claims that the administration’s position on homeland use of force has no legal limits and amounts to martial law. Along the way, Senator Paul is painting a misleadingly very unattractive picture of the circumstances in which the United States uses drones abroad in words that will now be played around the world as credible statements of U.S. policy.

None of this, of course, actually furthers the debate, and instead is partisan point scoring and scare-mongering that fits right into the paranoid anti-government hysteria that’s been bubbling for the last four years among the far-right fringe.

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.

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.

Edit:
In perhaps an attempt to display how unserious they are, Ted Cruz has decided to introduce an utterly vacuous and pointless bill. Unless Paul steps in and tells Cruz the bill’s a meaningless publicity stunt (as noted by Bennett and Rozenshtein it does absolutely nothing to restrain actual power), I’m afraid we’re starting to see the real extent of concern for encroaching of military power….that is, none in any real sense.