Wednesday, March 6, 2013

President Reserves Right to Kill Americans on American Soil Without Trial

The whole filibuster was live-tweeted here--there's some pretty interesting commentaryA very important debate, one long overdue.
11 Years Later, Senate Wakes Up to War on Terror’s ‘Battlefield America’

Sen. Rand Paul’s filibuster on Wednesday started out to block John Brennan’s CIA directorship. It became a rare Senate indictment of the war on terrorism.

Sen. Rand Paul’s filibuster will inevitably fail at its immediate objective: derailing John Brennan’s nomination to run the CIA. But as it stretches into its sixth hour, it’s already accomplished something far more significant: raising political alarm over the extraordinary breadth of the legal claims that undergird the boundless, 11-plus-year
“war on terrorism.”

The Kentucky Republican’s delaying tactic started over one rather narrow slice of that war: the Obama administration’s equivocation on whether it believes it has the legal authority to order a drone strike on an American citizen, in the United States. Paul recognized outright that he would ultimately lose his fight to block Brennan, the White House counterterrorism chief and architect of much of the administration’s targeted-killing efforts.

But as his time on the Senate floor went on, Paul went much further. He called into question aspects of the war on terrorism that a typically bellicose Congress rarely questions, and most often defends, often demagogically so. More astonishingly, Paul’s filibuster became such a spectacle that he got hawkish senators to join him.

“When people talk about a ‘battlefield America’,” Paul said, around hour four, Americans should “realize they’re telling you your Bill of Rights don’t apply.” That is a consequence of the September 2001 Authorization to Use Military Force that did not bound a war against al-Qaida to specific areas of the planet. “We can’t have perpetual
war. We can’t have a war with no temporal limits,” Paul said.

This is actually something of a radical proposition. When House Republicans attempted to revisit the far-reaching authorization in 2011, chief Pentagon attorney Jeh Johnson conveyed the Obama administration’s objections. Of course, many, many Republicans have been content with what the Bush administration used to call a “Long War” with no foreseeable or obvious end. And shortly before leaving office in December, Johnson himself objected to a perpetual war, but did so gingerly, and only after arguing that the government had the power to hold detainees from that war even after that war someday ends.

Paul sometimes seemed to object to the specific platform of drones used against Americans more than it did the platform-independent subject of targeted killing. But Paul actually centered his long monologue on the expansive legal claims implied by targeting Americans for due-process-free execution: “If you get on a kill list, it’s kind
of hard to complain…. If you’re accused of a crime, I guess that’s it…. I don’t want a politician deciding my innocence or guilt.” Paul threw in criticisms of other aspects of the war on terrorism beyond targeted killing, from widespread surveillance of Americans to the abuses of state/Homeland Security intelligence “fusion centers.”...
From ABC News:
"“When I asked the president, ‘Can you kill an American on American soil?’ it should have been an easy answer. It’s an easy question. It should have been a resounding and unequivocal, ‘No.’ The president’s response? He hasn’t killed anyone yet. We’re 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. Now, some would say he would never do this. Many people give the president the — you know, they give him consideration. They say he’s a good man. I’m not arguing he’s not. What I’m arguing is that the law is there and set in place for the day when angels don’t rule government.”"--Rand Paul, Filibuster Speech, 3/6/2013
The Holder letter which helped prompt the fillibuster:
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 Pearl Harbor or 9/11.

Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of this authority.
 And a summary comment:
...Bottom line: the U.S. Attorney General says it's okay for the President to kill American citizens without trial or due process under some undefined "extraordinary circumstance." But it's all just hypothetical, so no need to worry.

Well, that's reassuring. Er, not...
A further roundup of commentary, stories, and reactions:
The filibuster begins at 2:17:43 below.

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