Rand Paul's Filibuster, Due Process, and Democratic Cowardice

I've never been a big Ron or Rand Paul fan. The elder's refusal to take responsibility for his racist fundraising emails in the 1980s is an inexcusable disgrace. Rand has publicly distanced himself from the "L-word," and proudly asserts his conservative bona fides. I am not anti-Pauls, but I'm not about to put a "Paul 2016" sign up in my window either.

But what Rand Paul did yesterday was remarkable and one of the greatest political moments of my life. For thirteen hours, Rand Paul held a basic--though imperfect--civics lesson, citing simple truths and fundamental rights that the Obama administration blithely asserts they can ignore. Only one Democrat, Sen. Ron Wyden, had the courage to quite literally stand up for what is right.

I say "imperfect" because, not only did he get some constitutional doctrine wrong, Paul became too distracted by "drones," the weapon with which the United States carries out much of its targeted killing program. Easily lost in his many hours of talk about drones and Hellfire missiles, Paul was making an extensive and coherent defense of Due Process and the fundamental rights every American has against his government. In the criminal realm, these rights include, but are not exclusive to:

• Right to habeas corpus (the government has to present just cause for imprisoning you)
• Right to counsel
• Right to face your accuser
• Right to trial by jury
• And, in the case of an accusation of treason Article III  § 3 of the Constitution is quite specific:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Two witnesses. Overt acts.  Open court. For all the ambiguity in the Constitution, the requirements placed on the government to pursue charges of treason against a citizen are about as unambiguous as the document gets.

Yet, there isn't one of these rights and protections that isn't violated in its entirety by President Obama's "Kill list."

Since the birth of government thousands of years ago, rulers and despots have been ordering enemies killed for both just and unjust causes. It is the most brutal use of state power and it has been used and abused throughout the history of civilization.

But for almost 800 years, Western legal tradition has forbidden its use against its citizens. The rights listed above aren't some product of a bleeding heart ACLU lawyer, they have been formed by our  understanding of the rights of man since 1215. For reference, Genghis Khan was pillaging China when England decided, "Hey, maybe we should put in some safeguards to protect people from being indiscriminately killed by our leaders."

There is nothing that changed on 9/11 that should upend the wisdom learned over the greater part of a millennium.  The brilliance and beauty of our 224 year old system of government is that, at great cost and over time, it has continued to expand, not restrict, these protections that once were given only to "free men." The ancient right to Due Process was crafted over centuries, ultimately codified in our Constitution, to protect citizens from the unilateral actions of a government entity.

And yet, we have an administration that claims the power of assassination by executive decree, with no geographical boundary, and no reasonable understanding of "imminent threat"--the standard used to self-justify their secret decisionmaking.

When directly questioned by the Senate Judiciary Committee yesterday, whether the government had this power to order the domestic killing of an American citizen away from any cognizable battlefield, Attorney General Eric Holder essentially admitted as much, though he said it was highly unlikely they'd use it. Holder half-assed his answers, obfuscating as much as he could, in order to not say outright that the government can kill you without oversight or due process at its whim, dismissing the question because it was "hypothetical."

Yet, for another hypothetical, Holder didn't back down from specifics. This is the exchange Holder had with Sen. Grassley:

GRASSLEY: Once again, thank you for coming up here. I want to follow up on your response to Senator Cruz. And I think he talked about introducing a bill. Do you believe that Congress has a constitutional authority to pass a law prohibiting the president's ability to use drone aircrafts, to use lethal force against American citizens on U.S. soil? And if not, why not?

HOLDER: Do I think the Congress has the ability to pass such a bill?

GRASSLEY: No, whether the legislation -- well, yes, Congress has the constitutional authority to pass a law prohibiting the president's ability to use drone aircraft, to use lethal force against American citizens on U.S. soil.

HOLDER: I'm not sure that such a bill would be constitutional. I think that might run counter to the Article II powers that the president has. I'd have to look at, obviously, the legislation, but I would have that concern.

GRASSLEY: OK. But your basis is -- the why not, it'd be because of Article II?

HOLDER: I believe so, yes.

The  Attorney General of the United States's first reaction to a hypothetical bill to ban domestic drone strikes is to "have concern" that the President's power may be limited. Yet, the hypothetical nature of a question whether the government could summarily kill a citizen on American soil prevents him from unambiguously supporting 800 years of common law and the explicit text of the Bill of Rights.

I have a hypothetical for the administration:

A train is bombed by terrorists, killing over 100 people. A fingerprint pulled from the reconstructed device comes up with a match in the government's database. The fingerprint belongs to a Muslim American citizen living in Oregon. The United States has tangible evidence that he is responsible for over 100 deaths of innocents. Can the government kill him?

These facts aren't really hypothetical. In the wake of the Madrid train bombing, Oregon attorney Brandon Mayfield was taken into custody and held weeks without charge for a misidentified fingerprint. He was guilty of no crime, but government agents threw him in a cell and denied him his constitutional rights for weeks. Due Process should have protected him, but because he was thought to be a Muslim terrorist, his rights were ignored. Presented with tangible evidence in the wake of a mass casualty attack, in a world in which American terror suspects are routinely targeted abroad, it doesn't take a slippery slope to reach the point where a presidential hit is put on an American citizen in the United States. It just takes one step and a call to clandestine operations.

So when a U.S. Senator took to the floor to bring this bold assertion to the forefront of the public eye, only one person from the party that prides itself on its civil rights bona fides stood up to even question the claim. One.

I do not believe for one moment that most of the Republican senators, or even all of the Republicans who raised questions last night, agrees with Paul. They used his filibuster as a political tool to attack Obama. Under a Republican administration--which not a few of them imagine themselves to be someday leading--many would have no qualms whatsoever with this power. But this was an opportunity for the Democrats to stand up for what they claim to believe in, at no conceivable political cost from their constituents, yet all but one sat on their hands. They said nothing. They'll get no such support against executive overreach from Republicans during a Republican administration, and they know it, yet they just sat idly by as one man spent 13 arduous hours explaining the fundamental importance of Due Process and how assassination by executive decree, with no oversight or recourse, is anathema to a functioning republic.

Their silence was cowardice. They should be ashamed of themselves.

bellum medicamenti delenda est

UPDATE:   Adam Serwer reports that Holder has answered Paul:

"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?" Holder wrote. "The answer to that question is no."

Sigh. The drone issue continues to obscure the fact Americans have no legal recourse against a secret executive order to kill them, whether at home or abroad.