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UNOFFICIAL TRANSCRIPT: Hour 4 – Sen. Rand Paul Filibuster of Brennan Nomination
Source: Paul.Senate.gov, 3-5-13
Today, Sen. Rand Paul took to the Senate floor to participate in an active filibuster of President Obama’s nominee for director of the Central Intelligence Agency, John Brennan. Sen. Paul’s remarks began at 11:47 a.m. ET, and as of this release, he is still participating in the filibuster. Below is video and an unofficial transcript of his remarks between approximately 2:47 p.m.-3:47 p.m. Click HERE, HERE, and HERE for video and transcript of hours 1, 2, and 3.
CLICK HERE TO WATCH HOUR 4 OF SEN. PAUL’S FILIBUSTER
TRANSCRIPT:
SEN. LEE: I would point out that this condition of imminence is described as follows. It says, “the condition that an operational leader, an operational leader of a group presenting a threat to the united states, the condition that an operational leader presents an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. Persons and interests will take place in the immediate future.”
Now, Senator Paul, wouldn’t it be your understanding that if something is imminent, that it would need to be something occurring immediately?
SEN. PAUL: Well, yeah, and I think there’s really no question about using lethal force against an imminent attack. And I think that’s why we need to make the question that we’re asking the President very clear, and the question is if planes are attacking the world trade center, we do believe in an imminent response. We do believe in an imminent defense for that. The problem is that if we’re talking about noncombatants who might someday be involved, if they are in America, I see no reason why they shouldn’t be arrested.
SEN. LEE: And so if we’re dealing with something that is imminent, we are talking about something that’s about to occur, it’s urgent, and that typically is the standard. Any time government officials in other contexts, law enforcement, for example, sometimes regrettably and tragically law enforcement officers have to make a spur of the moment judgment call in order to protect human life. Sometimes in doing that, they have to do something that they wouldn’t ordinarily do. This always turns on some kind of an imminent standard. It always turns on some kind of an emergent threat, something that is about to occur that is occurring at the moment. And yet we’re told in black and white right here in this white paper that this condition, that of imminence, does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future. That begs the question, what then is the standard? Who then makes this determination? Presumably it’s the President of the United States. Perhaps it’s others. Reporting up in the chain of command to the President of the United States. But if actual imminence isn’t required as part of this ostensibly imminent standard, what then is the standard? Is there any at all? And if there is a standard, why is it so broad that you could give a 747 right through it? And if that’s the case, how is that compatible with time-horned notions of due process, those notions deeply embedded in our founding documents, those notions that we understand come from god and cannot be revoked by any government.
I wish I could say that the imminence standard problem in the department of justice white paper is the only problem. It’s not. We look to the very next page, the page dealing with the feasibility of capture. One of the other standards outlined in the Department of Justice white paper, outlining the certificates in which the government of the united states may take a human life using a drone in a case involving a United States citizen, is that the capture has to be infeasible, and the United States has to be continuing to monitor whether capture becomes feasible at some point. As to this standard, on page 8 of the department of justice white paper, it says that as to the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact specific and potentially time-sensitive inquiry. In other words, they are saying that it has to be – it has to be something that could not be physically effectuated during a relevant window. But what’s the relevant window? The white paper makes absolutely no effort whatsoever to define what the relevant window is. Who then makes this determination? And according to what factors is that determination made? Here yet again we have a standard-less standard. We have a standard that is so broad, that is so malleable, that is so easily subject to so many varying interpretations, no one can reasonably look into this and decide who the government may kill with a drone and who the government may not kill with a drone. That’s a problem and that it seems to me, Senator Paul, is fundamentally incompatible with time-horned notions of due process. Would you not agree with that assessment?
SEN. PAUL: Absolutely, and I think the crux comes down to this, you know, talking about having an imminent standard, and this is part of the problem in the sense that he doesn’t want to talk about it, and if we’re going to do something so dramatic as to no longer have the fifth amendment apply in the United States, to have no accusation, to have no rest, no jury trials for folks that are to be killed in the United states, it’s such a dramatic change that you would think we would want to have a full airing of a debate over this.
SEN. LEE: Would the Senator from Kentucky yield for a question?
SEN. PAUL: I yield – I will not yield the floor but I will allow you to make comments.
SEN. LEE: If you will yield for a question, I would just ask whether you are aware of an exchange that some members of the Senate judiciary committee had with attorney general holder this morning on this subject?
SEN. PAUL: Yes.
SEN. LEE: And were you aware of the fact that some of us asked attorney general holder for a more robust analysis, that provided in a series of memoranda authored by the office of legal counsel, the U.S. Department of Justice’s chief advisory body, and the fact that so far the department of justice has declined to make those available to members of the judiciary committee.
SEN. PAUL: Yes, I’m aware of that. In fact, I think we have the transcript of some of the conversation from this morning.
SEN. LEE: If I can supplement that question just by describing what I encountered in connection with that, I expressed frustration to the attorney general over the fact that members of the Senate judiciary committee who have significant oversight responsibilities with regard to the operation of the U.S. Department of Justice have not had access to that memorandum, and this is part of our oversight responsibilities. This is something we ought to be able to see. So far not something we have been able to see. I encourage the attorney general to make available to members of the Senate judiciary committee those very documents which he claimed add some additional insight and give us some additional analysis above and beyond what this white paper is saying. I thought that might be relevant to you in addressing my question.
SEN. PAUL: Absolutely. At this point – at this point, if we have – Mr. President, I will have some comments entertained from Senator Cruz, a question.
SEN. CRUZ: Would the Senator from Kentucky yield for a question?
SEN. PAUL: I don’t yield the floor but I will acknowledge a question to the chair.
SEN. CRUZ: Thank you, Senator. I’d like to ask your reactions to the testimony that attorney general Eric Holder gave this morning in the Senate judiciary committee. I’d like to describe that testimony for you and then ask your reaction to that testimony. And I will begin by saying that Senator after Senator on the judiciary committee invoked your leadership on the issue of drones and asked attorney general Holder about the standards for drone strikes in the united states, and indeed although you do not serve on the judiciary committee, it was as if you were serving in absentia because the attorney general was forced over and over again to respond, and I would note that your standing here today like a modern Mr. Smith goes to Washington because surely be making Jimmy Stewart smile. And my only regret is that there are not 99 of your colleagues here today standing with you in defense of the most fundamental principles in our Declaration of Independence and our Constitution, namely that each of us is endowed with certain unalienable rights by our creator and that first among them is life, the rife to life and the right not to have life arbitrarily extinguished by our government without due process of law.
Now, at the hearing this morning, Attorney General Holder was asked about the letter he sent you in which you asked him whether the united states government could use a drone strike to kill a U.S. citizen on U.S. soil, and as you know, attorney general Holder responded in writing that he could imagine a circumstance where that would be permissible and the two examples he gave were number one pearl harbor and number two the tragic countries on this country on September 11, 2001. And in the course of the hearing, attorney general holder was asked for more specifics on that and in particular both of those were military strikes on our country with imminent and indeed grievous loss of life that flowed from it, and few, if any, disagree that the united states government may act and act swiftly to prevent a military attack that would take immediate loss of life.
The question that attorney general holder was asked three different times was whether the united states government could take a U.S. citizen who was suspected of being a terrorist on U.S. soil who was not engaged in any imminent threat to life and bodily harm, who was simply sitting at a cafe, could the united states government use a drone strike to kill that U.S. citizen on U.S. soil. Three times when asked that direct question, attorney general holder responded that in his judgment that was not – quote – “appropriate.” Now, the first question – and if I may, I’d like to ask a series of questions. The first question, does it surprise you that the attorney general would speak in vague, amorphous terms of appropriateness and prosecutorial discretion rather than the bright lines of what the Constitution protects, namely the right of every American to have our life protected by the Constitution.
SEN. PAUL: Mr. President, I am quite surprised, although I guess I shouldn’t be, that we don’t get direct responses. You know, it’s a pretty direct question. It’s the question I have been asking all morning. It’s the question I have been asking for a month and a half because I am really talking about situations where you have a noncombatant, someone not posing an imminent threat who they think may someday pose an imminent threat because that’s what we are doing overseas. If that’s the standard overseas, I am asking is that going to be the standard here, so it amazes me, and part of the reason we are here today in the midst of a filibuster is because they won’t answer the question directly. So I – I applaud the attempts to try to get a more specific question. I guess I’m not terribly surprised that we have had trouble getting a direct answer.
SEN. CRUZ: Will the Senator yield for additional questions?
SEN. PAUL: As long as I don’t yield the floor.
SEN. CRUZ: After three times declining to answer a direct question would killing a U.S. citizen on U.S. soil with a drone strike, when that U.S. citizen did not present an imminent threat, would that be Constitutional, after three times simply saying it would not be appropriate, finally the fourth time, attorney general holder responded to vigorous questioning.
In particular, the course of the questioning, the point was made that attorney general holder is not an advice columnist giving advice on etiquette and appropriateness. The attorney general is the chief legal officer of the United States. And I will note that I observed it was more than a little astonishing that the chief legal officer of the united states could not give a simple one-word, one-syllable, two-letter answer to the question does the Constitution allow the federal government to kill with a drone strike a U.S. citizen on U.S. soil who is not posing an immediate threat. The proper answer, I suggested at that hearing, should be no, and that should be a very easy answer for the attorney general to give. Finally, the fourth time around, attorney general holder stated – quote – “let me be clear. Translate my appropriate to no. I thought I was saying no. All right? No.”
So finally after three times refusing to answer the question whether it would be Constitutional to do so, the fourth time, the attorney general asked that. So the question that I want to ask is your reaction to this exchange and in particular when attorney general holder on the fourth time finally stated his opinion and I assume the opinion of the department of justice that it is unconstitutional for the federal government to kill a U.S. citizen on U.S. soil that does not pose imminent threat, when he stated that, my response was that I wish he had simply said so in his letter to you to begin with.
I wish John Brennan in his questioning that you provided had said so to begin with, and indeed I then said that the Senator from Kentucky and I are intending to introduce legislation in this body to make clear that the united states government may not kill a U.S. citizen on U.S. soil if that individual does not pose an imminent threat of death or grievous bodily harm. And I observed that if the attorney general’s view was that it was unconstitutional for the U.S. Government to do so, that I assumed he would be supporting that legislation. I welcome the reaction to that exchange.
SEN. PAUL: Well, Mr. President, the – the response is a little bit troubling that it took so much work and so much effort of cross-examination to finally get an answer. I will note that in his final answer, I don’t ever see the words Constitutional or unconstitutional . He is responding to Senator Cruz’s words of Constitutional. He says let me be clear, translate my appropriate to no. I thought I was saying no. All right? No. Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he doesn’t believe killing people, not actively engaged in combat with drones in America on American soil is Constitutional. It sure would have short circuited and saved quite a bit of time. I will say, though, that I will believe a little more of the sincerity of the President and of the attorney general if we were to get a public endorsement of the bill that says drones can’t be used except for under imminent threat, and define that as a – an imminent threat where you actually have a lethal attack under way. And if we could get to that, I think this is something that really both parties ought to be united by. It’s such a basic principle that I couldn’t imagine we couldn’t unite by this. I think you have done a long way to trying to get these answers.
But I guess what still disappoints me about the whole thing is that it takes so much work to get people to say they’re going to obey the law. It takes so much work to get the administration to admit that they will adhere to the Constitution. It should be a much simpler process, but I commend the Senator from Texas for not letting go and for trying to get this information. I would welcome any more comments that he has.
SEN. CRUZ: If the Senator would yield for one final question? Is the Senator from Kentucky aware of any precedent, any supreme court case, any lower court case, the decision of any President of the united states beginning with George Washington up to the present, the stated views of any member of this united states Senate beginning with the very first congress up to the Senate, up to the present. Is the Senator from Kentucky aware of any precedent whatsoever for the proposition that this administration seems unwilling to embrace or at least embrace explicitly and emphatically? Namely, that the Constitution somehow permits or at least does not foreclose the united states government killing a U.S. citizen on U.S. soil who is not flying a plane into a building, who is not robbing a bank, who is not pointing a bazooka at the pentagon but who is simply sitting quietly at a cafe, peaceably enjoying breakfast, is the Senator from Kentucky aware of any precedent whatsoever for what I consider to be the really remarkable proposition that the united states government, without indicting him, without bringing him before a jury, without any due process whatsoever, can simply send a drone to kill that united states citizen on U.S. soil?
SEN. PAUL: Mr. President, I’m aware of no legal precedent for taking the life of an American without the Fifth Amendment or due process. What is troubling, though, is that Attorney General Eric Holder is on record as actually arguing that the Fifth Amendment right to due process is to be determined and is to be applicable when determined solely by the executive branch. Now, I would appreciate the comments and opinion from the Senator from Texas on the – the idea that the executive branch gets to determine when the bill of rights applies.
SEN. CRUZ: If I may continue my questioning and give my – my views on that question and ask your response to my views on – on whether the executive may determine its own limitations, I would suggest the genesis of our Constitution is found in the notion that the President is not a king, that we are not ruled by a monarchy, and that no man or woman is above the law. And accordingly, no man or woman may determine the applicability to himself or herself. For that reason, the framers of our Constitution won not one but two revolutions. The first revolution they won was a bloody battle for our independence from King George. And a great many of them gave the ultimate sacrifice so that we might enjoy the freedom we do today.
But the far more important war they won was the war of ideas, where for millennia, men and women had been told that rights come from kings and queens and are given by grace to be taken away at the whim of the monarch. And what our framers concluded instead is that our rights don’t come from any king or queen or President, they come from god almighty and sovereignty does not originate from the monarch or the President, it originates from we the people. And accordingly, the Constitution served, as Thomas Jefferson put it, as chains to bind the mischief of government. And I would suggest that any time power is arrogated in one place, in the executive, that liberty is threatened. And that should be a view that receives support not just from republicans, not just from democrats or independents or libertarians, that should be a view that receives support from everybody, that none of us should want to live in a country where the President or the executive asserts the authority to take the life of a united states citizen on U.S. soil without due process of law and absent any imminent threat of harm. I would suggest the idea that we should simply trust the attorney general, trust the director of the CIA, Trust the President to exercise an astonishing power to take of life of any U.S. citizen, that trust, in my judgment, is fundamentally inconsistent with the bill of rights. And I would ask the Senator from Kentucky’s reaction if you share my understanding that our rights are protected not at the whim or grace of the executive but they are protected by a Constitution and ultimately they are rights that each us was given by our creator and we are obliged to protect the natural rights to life, liberty and property that every man and woman in America enjoys.
SEN. PAUL: Well, Mr. President, this is what makes it this debate so important. This debate is about fundamental rights that we – that most of us or many of us believe that we derive from our creator and it’s important we not give up on these, that we not allow a majority vote or one branch of the government to say we’ve now decided you don’t get all of these rights anymore. Our founders really wanted to make it difficult to change things, to take away our rights. And so this is an important battle and one in which I think we should engage because the President needs to be more forthcoming. The President needs to let us know what his plans are. If he’s going to overrule the Fifth Amendment and if the attorney general’s going to decide when the Fifth Amendment applies, that’s a pretty important distinction and change from the history of our country. Mr. President, at this time, I’d like to ask for any comments, without yielding the floor, but ask for any comments or questions from the Senator from Utah.
SEN. LEE: In response to your – your question, I – I would like to add to your remarks and those of the junior from Texas the fact that in the concluding paragraph of the department of justice white paper on this issue, the department concludes as follows. “In sum, an operation in the circumstances and under the constraints described above would not result in a violation of any due process rights.” It’s a rather interesting conclusion in light of the fact that two out of the three analytical points outlined above in the memorandum in the white paper are themselves so broad as to be arguably meaningless or, at a minimum, capable of being interpreted in such a way as to subject American citizens to the arbitrary deprivation of their own right to live.
First, as I mentioned earlier, by proposing an imminence standard that leaves out anything imminent – in other words, it’s not just peanut butter without the jelly; it’s peanut butter without the peanut butter – there is no “there” there. They define out of existence the very imminence standard that they purport to create and follow. That is not due process. It’s the opposite of process.
Secondly, they outline a set of circumstances in which this attack may occur where capture is infeasible and then they define an understanding of feasibility that is so broad as to render it virtually meaningless. So at the conclusion of the memo, when the memo says, “In sum, an operation of the circumstances and under the constraints described above would not result in a violation of any due process rights,” its describing constraints that are not really constraints. And that is a problem. That amounts to a deprivation of due process. In light of these circumstances, I think it really is imperative that the American people and, at a minimum, those who serve in this body, or, at a minimum, those who serve on the Senate judiciary committee, that – that we be given an opportunity to review the wholesale legal analysis identified by the attorney general today that have been prepared by the Department of Justice’s office of legal counsel. This is the chief advisory body within the U.S. Department of Justice. It is the job of the fine lawyers in the office of legal counsel to render this advice and we ought to have the benefit of that. At a minimum, we ought to have the benefit of that within the Senate Judiciary Committee. So when I asked the attorney general this morning whether he’d make those available, I was surprised and a little bit frustrated when he declined to offer them immediately. He said that he would check in with those that he needed to consult with. I reminded him that he is, in fact, the attorney general. He does, in fact, supervise those who work in the department of justice. I hope that’s satisfactory and responsive to your question.
SEN. PAUL: Yes. Mr. President, I agree with the comment from the Senator from Utah. The – the whole problem is, is that if the President says, “my plan has due process,” that would be sort of like me saying, “I passed my law and I think it’s Constitutional.” Well, the same branch of government doesn’t get to judge whether it’s Constitutional. That’s the whole idea of the checks and balances. We pass a law in the Senate and the Supreme Court can rule on whether it’s Constitutional. So the President gets to decide that will he’s going to abrogate the fifth amendment or abbreviate the fifth amendment or do certain things and then he says, oh, I’m really not because the way I interpret it is, I am applying the fifth amendment to my process. Well, you can’t do that. You can’t be judge, jury, and executioner and Supreme Court all rolled into one. That is an arrogation of power that we cannot allow. Mr. President, at this time, I’d like to entertain comments from the Senator from Kansas without yielding the floor, if I can. For a question.
SEN. MORAN: Mr. President, thank you. I’d like to address the Senator from Kentucky with a series of several questions.
The presiding officer: The Senator from Kansas.
SEN. MORAN: Mr. President, thank you. First of all, let me outline a thought in listening to this conversation and ask a question about it. We have seen our President, his actions to be determined to be unconstitutional in a recent case in the court of appeals here in the District of Columbia in which the President made the determination that he could determine the definition of recess of the Senate. And we now have a court who has declared the President’s conclusion in that regard to be unconstitutional . And I don’t know that we want to get into the magnitude or evaluating what Constitutional violations are most damaging to the American people or to our rights and liberties, but I would ask you to compare the consequences of the President being wrong once again in regard to the Constitutionality of utilizing a drone strike to end the life of an American citizen. And, again, trying to suggest that we have seen precedent where the President acts unconstitutionally, and fortunately the legal process is there to make certain that that is – a determination is made as to the Constitutionality of that act. In this case, what would be the consequences of a drone strike as compared to a court appointment – oh, I’m sorry, an appointment to a body under the recess clause is Constitutional?
SEN. PAUL: Mr. President, I think the analogy is apt. The difference in the recess appointments is you get to make your appeal to a court while still living, which makes a big difference. In the case of the recess appointments, the President decided that he could determine when the legislative branch was in session or out of session. So you have this same sort of conflict again. The President has a sphere and we have a sphere but now he’s saying that he controls our sphere also, that he can tell us when we’re in session or out of session, and he can basically do what he wishes. And the supreme court rebuked him pretty sternly, and so I agree with the Senator from Kansas, – there’s a great deal of similarity between the two because it’s once again the executive branch or the President acting as if the checks and balances between the legislature and between the executive branch don’t exist, that he basically has made the decision for us that he’s decided we were in recess. But you’re correct, the court gave him a pretty stern rebuke on it and said that would be unconstitutional .
SEN. MORAN: Mr. President, if I could ask another question. The presiding officer: The Senator from Kansas.
SEN. MORAN: To the Senator from Kentucky, what’s the logical extension of a decision that it is Constitutional to utilize a drone by our military to strike at the life of an American citizen here in the united states, and I would think that – I would see if you would agree with me, most Americans would find it repulsive, unconstitutional, a terrible violation of public duty if a military officer on the streets of Wichita, Kansas, pulled a gun and shot an American citizen. And really is that not the logical extension of the idea that a drone strike from above results in the death of a U.S. citizen without due process, is that any different than the ability to kill somebody in any other manner that I think most Americans would recognize today as prohibited without d process of law by our Constitution?
SEN. PAUL: Mr. President, the analogy that the Senator from Kansas I think brings up is appropriate. We have had rules on the books since the civil war saying the military doesn’t act in our country. So it’s not just a drone. It’s any sort of law enforcement in the United States. We recognize that. We respect our soldiers. We’re proud of our soldiers, but we have limited their sphere to the sphere of war, and within the United States for our security. We have the police and we have the FBI It’s because the rules of engagement are different. It’s different being a soldier. It’s a tough job being a soldier.
It’s not the same on the streets of Wichita or the streets of Bowling Green, Kentucky. So we have different rules and we have made it different. But you’re right, I think people would understand that it would be wrong for a military officer to shoot someone on the streets in America. It’s prohibited for a good reason, not because their soldiers are bad people but because it’s different rules for soldiers. But that’s what’s most troubling about many of these people saying Wichita is the battlefield. And if it is the battlefield, they don’t understand why the military can’t act in Wichita or Houston or Bowling Green, Kentucky, so it does delve into the problem that we have to debate. Is there a limitation to where the battlefield is, and if the Senator has another question, I will yield for a question without yielding the floor.
SEN. MORAN: Mr. President, I have an additional question and I believe it’s my final question. I would ask the Senator from Kentucky through the President that we’re really here at this point in time in the juncture of the Senate with the issue of whether or not to confirm a particular individual to a particular office, an administrative appointment. And I would ask the Senator from he doesn’t believe that the issue of the due process rights of American citizens is of such a magnitude that the real issue that ought to be before the Senate is not the confirmation of an individual but we ought to resolve the issue of whether or not the Senate believes that it is Constitutional for the due process rights of an American citizen to be taken by a drone strike here in the united states, and the opportunity now presents itself, it would be a reason not to grant cloture – let me ask it as a question. Would not it be a reason not to grant cloture on this nomination until we resolve this issue?
SEN. PAUL: Mr. President, I think it’s very reasonable and it is more important than just the nomination of one individual. When we’re talking about whether or not the Bill of Rights is going to be changed, when we’re talking about whether or not you will have a the due process to be tried in a court or whether you could be killed, summarily executed without a trial, that’s an important change in the history of our country.
But the Senator’s response also made me think of something else. Another way to resolve this where we could conclude this debate and get on with the nomination would be for the majority party to come forward with a resolution that says you know what? We aren’t going to kill noncombatants in America with drone strikes. We’re not going to use the military.
We will reaffirm the law, so there is a resolution that both parties could come forward and it would be a wonderful resolution to this process, would be to say the Senate goes on record in bipartisan fashion as saying we’re not going to overturn the Fifth Amendment, that if you’re an American and you live in America, you will not be killed without being accused of a crime, tried by a jury and convicted by a jury. And that would be, I think, a reasonable resolution to this, and I would entertain it if the other side were interested.
SEN. MORAN: I thank the Senator from Kentucky for responding to my questions. Mr. President, thank you. A Senator: Would the Senator from Kentucky yield for a question?
SEN. PAUL: Yes, without relinquishing the floor, I will yield for a question from the Senator from Texas.
SEN. CRUZ: I would ask the Senator his reactions as to the possible justifications for the administration’s repeated reluctance to answer what should be a very straightforward question. I find myself genuinely puzzled that both Mr. Brennan and Attorney General Holder, when asked whether the United States government may kill a United States citizen on U.S. soil with a drone strike, absent an imminent threat of harm to life or grievous bodily injury, I find it quite puzzling that both of them did not simply respond of course not, of course we can’t. We never have in the history of this country, and we never will. The Constitution forbids it.
In my understanding of the Constitution, that was not a difficult question that you asked, and I find it quite remarkable that they treated it as a difficult question. And to be clear, there is no dispute or at least no serious dispute that if an individual poses an imminent threat of harm, if an individual is robbing a bank, there is no dispute that law enforcement, a SWAT team, can use deadly force to prevent the imminent threat to life or limb. What this issue is about is an individual who is not posing an imminent threat, a U.S. citizen on U.S. soil, and the administration’s continued reluctance to say the Constitution forbids killing that U.S. citizen without due process of law.
So what I want to ask you about is efficacy. Let us take a hypothetical individual whom the U.S. Government believes to be a terrorist, who is sitting at a cafe enjoying a cup of coffee, not posing an imminent threat to anybody. And the question I would ask about efficacy, and if I might, I’d like to ask a couple of questions. Number one, if it turns out the intelligence is incorrect, that this individual the U.S. Government suspects of being a terrorist is not in fact a terrorist, that they have the wrong guy, and if a drone strike is used and that individual is killed, is there any effective remedy to correct that tragic mistake?
SEN. PAUL: Mr. President, I think the question is well put. And the first aspect of the question is what is the President thinking, how could the President why would the President not respond to us, why would the President not answer a pretty easy question and say that noncombatants in the United States won’t be killed with drones? I think the reason is complicated, and his conjecture because I can’t get it in his mind, I would say it is sort of a contagion or an infection that affects republicans and democrats when they get into the white house.
They see the power that the presidency has, it’s enormous, they see themselves as good people, and they say I can’t give up any power because I’m going to do good with that power. The problem they don’t see is that the power itself is intoxicating and that the power someday may be in the hands of someone else who is less inclined to use it in a good way, and I think that’s why the power grows and grows and grows because everybody believes themselves to be doing the right thing.
With regard to exactly what would happen in a situation where there is not an imminent threat, it boggles the mind that we can’t answer that question. And I don’t have a good understanding as to why exactly that we can’t get a response. And I would yield for a response from the Senator from Texas.
SEN. CRUZ: If I could ask a second question. In the instance where the intelligence was wrong and a U.S. citizen was killed by his or her government without due process of law, that there obviously would be no remedy, but I would ask you about the alternate scenario. If it were the case that this individual was in fact a terrorist, was involved in a plot to threaten the lives, threaten the safety of other Americans, if this U.S. citizen sitting in a cafe is killed with a drone strike, focusing on efficacy once he is killed, am I correct that you can’t interrogate him further, you can’t find out who else was in the terrorist plot with him, you can’t find out what methods he had put in place, you can’t find out if there is an imminent threat planned that he may know of, but if a drone from the sky simply kills him, that knowledge perishes with him at that cafe, and so undermines the legitimate efforts of our government to protect the safety and security of all Americans.
SEN. PAUL: Mr. President, I think it’s an excellent question and really kind of gets to the root of the whole problem we’re talking about here because we’re talking about people that may not all be good people. They may be bad people and they may be plotting to do something bad to America and they may be in a cafe, so there may be all kinds of reasons to arrest them, punish them, but there may be all kinds of reasons to try to get more information from them, particularly if they are not involved in combat, it’s hard to imagine why you would want to kill them if they are not involved in combat, why not capture them and try to get some useful information out of them?
So it is a little bit difficult to understand why the President wouldn’t say what is obvious, why would we want to kill noncombatants in America? But the reason we keep asking the question is of the drone strikes overseas, which were not privy to all the details because some of it is classified, but the details that have been in the press is that a lot of these people being killed overseas are not in combat. So the real question is if you’re going to take this drone strike overseas and it has no geographic limitations, you’re bringing it home to America, does the President not think it’s incumbent upon him to say ‘Well, yeah, we’re bringing it home but we’re not going to kill noncombatants.’ What an important question. I think you have raised it appropriately, and I would anticipate or respect any other response that you would like to give.
SEN. CRUZ: One final question for the Senator from Kentucky. I am aware the Senator from Kentucky is originally from the great state of Texas, and as the Senator is no doubt aware, today is the 177th anniversary of the fall of the Alamo. 182 men were stationed at the Alamo. After 13 days of a bitter siege, fighting an army of thousands, those patriots gave their lives for freedom. They put everything on the line to stand against tyranny and to stand for the fundamental right of every man and woman to breathe freely, to control our own lives, our own autonomy, to make decisions about what our future would be.
And if I may presume to speak on behalf of 26 million Texans, I will say that I have no doubt that Texans are proud to see the distinguished Senator from Kentucky as a native-born Texan fighting so valiantly for liberty, serving as such a clarion voice for liberty at a time when sometimes liberty has few champions, and indeed I would suggest if those brave patriots of the Alamo were here, that William Barrett Travis and Davy Crockett and Jim Bowie and each of the others who gave their lives for freedom would be standing side by side with you and would be proud to call you brother.
Sen. President, I’d like to say that I appreciate the remarks of the Senator from Texas, and if the filibuster goes on long enough, we would like to hear a recitation of William Barrett Travis’ last words at the Alamo. We had to memorize that as a kid and I’m afraid my memory’s gone a little dusty but you are younger and may still remember that for us. The issue at hand is really an issue that goes beyond party politics, it goes beyond nominations.
It goes beyond, you know, the President’s a Democrat, I’m a Republican. I voted for three of the President’s nominations, much to the chagrin and much to the criticism of some on my side. But I’ve done so because I think the President does get some progressive. That’s just my personal viewpoint on choose, political appointees. Now, this is a political appointee but I don’t consider this debate to be about the appointee.
I think this debate is more about a Constitutional issue and I think it rises to a level, it rises to a level above the individual and it’s something that we need to draw attention to, we need to have a good, healthy discussion in our country. And I don’t think it has to be a bitter partisan battle. I’ve met the President personally. I’ve flown on Air Force One with him. I respect him. I respect the office. And I think he and I could have a reasonable conversation on this.
In fact, I think if he were here today, he might actually agree with much of what I’m saying. What I’m disappointed in, and I don’t know if it’s the muddle of a large government and not getting a message forward, but what I’m disappointed in is it’s been so hard to get him to agree with what I think he should already and probably already agrees with. But when we’re talking about doing something so different, when we’re talking about changing the way that we adjudicate guilt, changing the way we decide someone’s life or death, it’s too important just to say, oh, Mr. President, go ahead and do it and as long as you tell me you have no intent of breaking the law or no intent of killing Americans, that’s enough. It just simply isn’t enough.
You know, it’s not enough to say I haven’t done it yet, I don’t intend to kill anybody but I might. And he came up with some circumstances where he might use the drone strikes in America, and then in Senator Cruz’ cross-examination in the committee, we’ve gotten them to admit under duress I think but to admit that they’re not talking about people in a cafe. And some might say, well, he’s never mentioned people in a cafe. The reason it comes up of people not involved in combat is that a lot of the people who have been the victims or have been killed by these drone strikes have not been involved in combat when they’ve been killed. They’ve been riding in cars, walking down the street, traveling in caravans. And I’m not saying they’re good people. I’m just saying the standard for who we kill overseas, we have to ask the question, and I don’t think we’re doing our job if we don’t ask the President, are you going to use the same criteria for how you kill people overseas, is that the same criteria here? And it shouldn’t be, well, I’ll tell you later. It shouldn’t be, I don’t intend to do it and I probably won’t, but I might. I mean, that’s just not enough.
I mean, we are talking about basic protections that we fought our revolution over and really in a way when I see the wars that we’ve gone to and not every war’s been the has been perfectly justified or that we should do. But the thing is, when our soldiers fight, I see them as fighting for the Bill of Rights and I think they see that too. No matter where they are around the world, I see them fighting for the Bill of Rights and our Constitution. But if we’re giving that up, if we’re not going to adhere to the Fifth Amendment, I find it takes the wind out of the sails. You know, the wind out of the sails.
And can you imagine being a soldier in Afghanistan or Iraq or far-flung places around the world and you’re being told, well, you were fighting for the Bill of Rights minus the Fifth Amendment? Or when we say we’re going to indefinitely detain people, we’re going to fight for the Bill of Rights minus the Sixth Amendment. You know, it’s pretty important. These things are what we’re fighting for so we really should at least have a robust debate over, you know, the magnitude of these changes, over how these will be set up, over exactly what will happen, how this process is going to work. And just say I’m not intending to do so is not enough. Mr. President, I’d like to, without yielding the floor, allow a question from the Senator from Texas.
SEN. CRUZ: If the Senator from Kentucky would allow this question, I would like to respond to his very gracious invitation and ask if the following letter gives the Senator from Kentucky encouragement and sustenance as he stands and fights liberty. This letter was written February 24, 1836, and it begins as follows.
“To the people of Texas and all Americans in the world. I am besieged by a thousand or more. I have sustained a continual bombardment and cannonade for 24 hours and have not lost a man. The enemy has demanded a surrender at discretion. Otherwise, the garrison are to be put to the sword if the fort is taken. I have answered the demand with a cannon shot and our flag still waives proudly from the walls. I shall never surrender or retreat. Then I call on you in the name of liberty, of patriotism and of everything dear to the American character, to come to our aid with all dispatch. If this call is neglected, I am determined to sustain myself as long as possible and die like a soldier who never forgets what is due to his own honor and that of his country. Victory or death. Signed, William Barrett Travis.”
My question is, does that glorious letter give you an encouragement and sustenance on this 177th anniversary of the Alamo?
SEN. PAUL: Mr. President, I think what Travis’ letter at the time Alamo talks about is that there are things bigger than the individual. At the time he wrote that, I don’t think they had much hope of surviving and he died at the Alamo as well as with other volunteers, some from my state of Kentucky. But there was an issue bigger to them at the time that they saw as bigger than the issue of the individual, and I think that’s what this debate is about. This isn’t really about the person of John Brennan. This really isn’t about the person of Barrack Obama. This is about the body of the Constitution. It’s about our respect for it. And it’s about whether or not we will hold these principles so dear and we will hole these principles so high that we’re willing to try to enjoin a debate to try to get both sides to talk about this and to try to admit because we don’t want people to be killed who are innocent in America. We want to have the process that has protected our freedoms for a couple hundred years now to remain in place, and we’re unwilling to diminish that simply because of fear.
You know, F.D.R. said you know, “there’s nothing to fear but fear itself.” I think we should also say it’s not that we should let fear be so great that we allow the loss of our freedoms. And I think that’s where we are, that sometimes, you know, terrorists are everywhere and they’re trying to attack us. Well, we need to remember that it’s our freedom that’s precious and we need to try to do everything we can to uphold that. And, Mr. President, at this time, I would entertain a question without yielding the floor from the Senator from Oregon.
SEN. WYDEN: Thank you very much, Mr. President. The issue of American security and American freedom really doesn’t get enough discussion here in the United States Senate and it’s my view that the Senator from Kentucky has made a number of important points this day. And I’d just like to take a few minutes to lay out my views on this issue and then pose a question to my colleague from Kentucky. We’ve talked often about these issues and I always learn a great deal. Of course the Senate will be voting on the nomination of John Brennan, the Deputy National Security Advisor, to be the Director of the Central Intelligence Agency.
I voted in favor of Mr. Brennan during Tuesday’s intelligence committee meeting and I intend to vote for Mr. Brennan on the floor. Virtually every member of the intelligence committee now in my view believes that Mr. Brennan has substantial national security expertise and experience and it’s certainly my hope that he will be a principled and effective leader that the CIA needs and deserves. And I think Senator Paul and I agree that this nomination also provides a very important opportunity for the United States Senate to consider the government’s rules and policies on the targeted killings of Americans and that, of course, has been a central pillar of our nation’s counter terror strategy. For several years now, Mr. President, I and colleagues, Senator Paul as well, have been seeking to get more information about the Executive Branch’s rules for conducting targeted killings of Americans, and I’m pleased that after considerable efforts, efforts really that should not have to have been taken to get documents that the intelligence committee has been entitled to for some time. The committee has now received those secret legal opinions.
Now, to be clear and this was a point that Senator Paul made in the course of discussion, targeted killings of enemy fighters, including targeted killings that involved the use of drones, can be a legitimate wartime tactic. And if an American citizen chooses to take up arms against the United States, there will absolutely be circumstances in which the President has the authority to use lethal force against that American. But I think it’s been our view, a view that I hold, I know Senator Paul holds, that the Executive Branch, should not be allowed to conduct such a serious and far-reaching program by themselves without any scrutiny, because that’s not how American democracy works. That’s not what our system is about. Our unique form of government is based on a system of checks and balances that will be here long after the current President and individual Senators are gone. And sometimes from time to time the Senator from Kentucky and I say we ought to have something that we call a checks and balances caucus, you know, here in the Senate and that those checks and balances depend on robust congressional oversight. And, frankly, they depend on bringing the public into this discussion as well, that there be public oversight.
We share the view that details about individual operations do need to be kept secret, but the congress and the public need to know what the rules for targeted killings are so that they can make sure, as Senator Paul has touched on in the course of this day, that American security and American values are both being protected. It’s almost as if we have a Constitutional teeter-totter. We want both our security and our liberty. And this is especially true when it comes to the rules for conducting targeted killings of Americans.
Mr. President, what it comes down to is every American has the right to know when their government believes that it is allowed to kill them. So now the Executive Branch has gradually provided congress with much of its analyses on this crucial topic, but I think more still needs to be done to ensure that we understand fully t implications of what these heretofore secret opinions contain, and we have a chance to discuss them as well. Now, in his capacity as deputy national security advisor, John Brennan has served the President’s top counterterrorism advisor and one of the administration’s chief spokesmen regarding targeted killings and the use of drones. He would continue to play a decisive roam in U.S. Counterterror efforts if he is confirmed as Director of the CIA. and the intelligence committee is charged with conducting vigilant oversight of these particular efforts. Now, a number of colleagues on the Senate intelligence committee of both political parties I think share a number of the views that Senator Paul and a number on this side of the aisle have been expressing today and the past few days.
I’d especially like to express my appreciation to the former chairman of the intelligence committee, Senator Rockefeller, there is no more committed to the principles the CIA. Stands for, there’s no individual more committed to the principles that the CIA. Stands for than Senator Rockefeller, and he feels that more needs to be done to ensure that congress has the power to do responsible oversight. Senator Udall and Senator Collins and Senator Heinrich are all ones that share that view as well. And in doing that, we recognize that we have a responsibility and that ultimately it’s up to American voters to decide whether congress is fulfilling its obligation to conduct vigorous oversight of the Executive Branch’s actions and activities.
So let me then turn to the question that has received most of the attention today and is really about what I’d like to explore for a moment or two with my colleague from Kentucky. The President has also said, and I was encouraged by a number of his comments, including the state of the union address, that with respect to counter terror efforts, no one should take his word for it, that the administration is doing things the right way. And as part of that, he said he was going to engage the American people in a discussion of these kinds of issues. And when it comes to continuing the public debate about the rules for conducting targeted killings, there are a number of questions that need to be explored and one that I will address to Senator Paul involves this question that he and I have been interested in for some time and that is the question of the geographic limitation with respect to the use of lethal authority. And Senator Paul and I and others have been asking for some time is what are the limits with respect to these lethal authorities, and in particular whether they can be used inside the United States. And having listened to a bit of comments made by Senator Paul with confirmation hearings tomorrow, we haven’t gotten all of them, but certainly the point that the Senator has made this afternoon is an issue that I and others have asked of the attorney general for some time, and we haven’t been able to get an answer. We haven’t been able to get an answer in recent weeks.
Senator Paul has sent a number of letters on this topic. He’s received two responses, and he shared them with me. Now, I would just say for purposes of this question, I think the response from John Brennan, and he stated quite clearly his view on this, was quite constructive. He said the CIA Does not conduct lethal operations inside the United States, and most importantly, as per the conversations the Senator from Kentucky and I have had, Mr. Brennan said the CIA Does not have the authority, does not have the authority to conduct those operations. So he was unequivocal with respect to what would happen if he was confirmed as the head of the CIA That he would not have the authority to conduct those operations. So for purposes of if anybody’s kind of keeping score, I would just say that Mr. Brennan on the questions that the Senator from Kentucky and I have been interested in, he was clear and forthright, and I have been interested in this for some time. I’m glad the Senator from Kentucky has asked the question. We have now gotten an answer that is unequivocal from Mr. Brennan.
So that then brings us to the second response from Attorney General Holder. This letter, repeated statement that the U.S. Government has not carried out any drone strikes inside the United States and that the Obama administration has no intention of doing so. It goes on to say that the Obama administration rejects the use of military force where well-established law enforcement authorities in the country provide the best means for incapacitating a terrorist threat. I would certainly agree with this position. It’s clear to me that prosecutions in federal court provide a tough, effective means for dealing with terrorist suspects, which is why there are a great many terrorists who are now sitting in American prisons today locked behind bars, which is exactly where they belong. The Attorney General went on to state, and I quote here, it’s possible to imagine an extraordinary circumstance such as Pearl Harbor or the 9/11 attacks in which quote “it would be necessary and appropriate under the Constitution and laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.”
And this is what I’d like to unpack a little bit with my colleague from Kentucky. Having asked this question a number of times and thinking a lot about what the answer ought to be, on this particular issue, it seems to me that the Attorney General has certainly moved in the direction of what we wanted to hear. And I want to just kind of outline it, and I think we agree on most of it, and let’s have a chance to exchange some thoughts. One of the core principles of American democracy is that we do not ask our military to patrol our streets, and it was important to me to hear the Attorney General emphasize that principle. I know that there are some who believe that the military ought to be given more domestic counterterror responsibilities like capturing and detaining terror suspects inside the country.
I do not share that view and I know that the Senator from Kentucky does not share that view, and I am grateful that the Obama administration has now said they don’t share that view either. In fact, as I talked about it with a number of colleagues, I actually voted against the annual Defense Authorization Bill for the past two years because I was concerned that those two bills didn’t address adequately that particular principle. Now, the Attorney General then suggested what I think we would all consider an unlikely scenario. The Pearl Harbor, the 9/11 attacks in which it would be unlawful for the President to use military force inside the United States.
As I read that statement and this is the point of my question to my friend from Kentucky it sounds a lot like the language that is in Article 4 of the Constitution which directs the United States government to protect individual states from invasion. In my judgment, if the United States is being attacked by a foreign power, like the 1941 attack on Pearl Harbor, the President can indeed have the power to use military force to defend our country. So the reason that I have been asking this question and have been interested in exploring it with my colleague from Kentucky is that I think it’s extremely important to establish that unless you have an extraordinary situation, unless there is an exceptional situation like Pearl Harbor, the President should not go around ordering the military to use lethal force inside the United States. Our military, we’re very proud of them, plays a vital role in efforts to combat terrorism overseas, but here at home we rely on the FBI And other law enforcement agencies to track down the terrorists, and they do this job well.
So I thought it was helpful to see the Attorney General as part of what has been discussed here clarify and establish that the President can only use military force inside the United States in extraordinary circumstances like the Pearl Harbor attack. So I just in posing this question wanted to ask, I know that the Senator from Kentucky and I have had discussions over this, and I thought about it overnight and thought about our discussions, and my sense is that the Senator from Kentucky doesn’t believe that the Attorney General’s response was clear enough. And I very much respect his view on this point. And one of the reasons why I wanted to kind of walk through briefly a little bit of history is that I think there are some issues still to be debated on this issue. My colleague has certainly been correct in asking valid questions because the Attorney General has left open the possibility of using military force inside the United States outside of the extraordinary Pearl Harbor circumstance that I have mentioned.
So I say to the Senator, I think you are raising some important questions. In fact, some of the most important questions that we could be asking here on the floor of the Senate. It seems to me that the President the Attorney General has ruled out using military force inside the United States, except in cases of an actual attack by a foreign power, and I understand why my colleague from Kentucky would say that we ought to be engaging more with the administration and be asking for additional insight. So I want it understood that I have great respect for this effort to really ask these kinds of questions, force them to be debated on the floor, and Senator Paul has certainly been digging into these issues in great detail, and frankly on the question of how we balance American security and American liberty, we have worked together often and we’re certainly going to be working together often on these issues in the days ahead, and I think I would just like to allow the Senator from Kentucky to respond to my question, recognizing that while we might differ a bit on the aspect of the Attorney General’s response that I have cited this afternoon, that in an instance of an extraordinary threat to our country, the kind of exceptional threat to our country, I do see almost as part of what article 4 is about, the President’s ability to defend us in those kind of situations, my colleague from Kentucky may see it differently and frankly he is raising important issues, andI’d be interested in his thoughts this afternoon.
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President Barack Obama watches as Vice President Joe Biden administers the oath of office to incoming U.S. Secret Service Director Julia Pierson during a swearing-in ceremony in the Oval Office, March 27, 2013. (Official White House Photo by Pete Souza)
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Official White House Photo by Pete Souza
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