Adam Serwer

John Yoo, the author of the Bush administration legal memos justifying the use of torture, thinks President Obama is really getting too much grief over targeted killing. And he wants Sen. Rand Paul (R-Ky.)—who filibustered Obama's nominee to head the CIA for 13 hours on Wednesday—to lay off.

"I admire libertarians but I think Rand Paul's filibuster in many ways is very much what libertarians do, they make these very symbolic gestures, standing for some extreme position," said Yoo, now a UC Berkeley law professor, who once suggested it was okay for the president to order a child's testicles be crushed. Referring to Paul's marathon filibuster, an attempt to force the Obama administration to clarify its views on the use of military force against terror suspects in the United States, Yoo said "It sort of reminds me of young kids when they first read The Fountainhead or Atlas Shrugged and they suddenly think that federal taxation equals slavery and they're not going to pay any federal taxes anymore." Yoo's statements were made on a conference call Thursday held by the Federalist Society, an influential conservative legal organization.

Paul's conservative colleagues also pushed back on him on Thursday: On the Senate floor, John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) mocked Paul's objections as "ridiculous."

Yoo said that he thought the administration's problems stemmed from its belief that it needed to provide "due process" to terror suspects abroad—or even in the United States, referring to a recently leaked white paper outlining the Obama administration's legal views on targeted killings of US citizen terror suspects. Indicative of how the debate over Obama's counterterrorism policies has scrambled the usual partisan divides, Yoo said he agreed with the conclusion reached in Attorney General Eric Holder's letter to Paul earlier in the week suggesting that the president could order the use of military force on US soil under certain extreme circumstances. "I think it's right if an American joins an enemy with which we are at war he is or she is a valid target as an enemy combatant. That's been the rule throughout our history," Yoo said. "People in the Civil War were all American citizens, but the ones who took up arms were members of the enemy."

In the event of an attack similar to the one that occurred in Mumbai, India in 2008, Yoo said, "we would expect that our government would respond to those attacks not just by sending out the police but by sending out the military if necessary. If you could use force in that situation you could use drones just like you could use snipers or combat troops."

Also on the conference call were American University School of Law professor Steve Vladeck and former federal prosecutor Andrew C. McCarthy, a writer for National Review.

Referring to an exchange between Attorney General Holder and Sen. Ted Cruz (R-Texas) over whether an American terror suspect "sitting in a cafe" in the United States could be targeted in a drone strike, McCarthy took Holder's side. Holder had said it would be "inappropriate" to use lethal force under such circumstances; pressed by Cruz Holder agreed it would be unconstitutional.

"I had sympathy for Attorney General Holder yesterday, particularly when he was being browbeaten by Senator Cruz," said McCarthy, who has alleged that the Obama administration is being controlled by the Muslim Brotherhood. "I understood why the attorney general was reluctant to use the label unconstitutional, and substitute it with something that was more equivocal."

Holder sent a brief letter to Paul Thursday afternoon designed to address the concerns Paul expressed during his filibuster. "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" Holder asked. "The answer is no."

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UPDATE: Senator Paul ended his filibuster after midnight on Thursday after nearly 13 hours. As Paul ended his filibuster, he said “I would go for another 12 hours to try to break Strom Thurmond’s record, but I’ve discovered that there are some limits to filibustering and I’m going to have to go take care of one of those in a few minutes here." In order to hold the Senate floor, Paul was not permitted to even sit down, let alone leave to go to the bathroom.

On Wednesday, Senator Rand Paul (R-Ky.) engaged in a marathon filibuster of John Brennan, Obama's nominee to head the CIA, protesting the administration's policy on the use of drones in lethal operations. Paul began speaking at noon and was still filibustering six hours later. 

"I will speak until I can no longer speak," Paul said. "I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court." Paul also criticized the administration's rationale for targeting American terror suspects overseas, as laid out in a recently leaked white paper.

Paul has been pressing the Obama administration for weeks to answer if it believes the president has the authority to order a drone strike on American soil. On Tuesday, Paul received a letter from Attorney General Eric Holder stating that, in certain "extraordinary circumstances," such as the attack on Pearl Harbor or the 9/11 attacks, military force could be used domestically. Sens. Mike Lee (R-Utah), Ted Cruz (R-Texas), Jon Cornyn (R-Texas), Marco Rubio (R-Fla.), Pat Toomey (R-Pa.), Jerry Moran (R-Kan.), Saxby Chambliss (R-Ga.), and Ron Wyden (D-Ore.) joined Paul's filibuster, although Wyden reiterated his intention to vote for Brennan's confirmation. The administration recently agreed to allow senators on the intelligence committee access to the legal memos justifying the use of lethal force against American terror suspects. 

"That Americans could be killed in a café in San Francisco, or in a restaurant in Houston, or at their home in Bowling Green, Kentucky, is an abomination," Paul said. "It is something that should not and can not be tolerated in our country…Has America the beautiful become Alice's Wonderland?" Paul also criticized the use of signature strikes—lethal operations targeted at anonymous individuals abroad who are believed to be terrorists based on a "pattern of behavior."

During a Senate judiciary committee hearing held earlier Wednesday, Sen. Ted Cruz (R-Texas) asked Holder whether he believed that it would be constitutional for the president to order a drone strike on an American citizen suspected of terrorism in the United States who was "sitting quietly at a café." After a lengthy back and forth, during which Holder said that he did not think it would be "appropriate" to use lethal force in such a circumstance, and Cruz pressed him on whether that meant "unconstitutional," Holder acknowledged that he did not think it would be constitutional. "Translate my 'appropriate' to 'no,'" Holder said. "No." Holder said he didn't believe the letter he had sent to Paul was inconsistent with that answer. 

Later on during the oversight hearing, Sen. Lindsey Graham (R-S.C.) asked Holder if it would be constitutional for the US military to fire on a hijacked civilian plane that was aimed at the White House. Holder said yes. "When we say Congress gave every administration the authorization to use military force against Al Qaeda, we didn't exempt the homeland, did we?" Graham asked.

"No I don't think we did," Holder said. "In the letter that I sent to Sen. Paul, that's one of the reasons I mentioned September the 11th," Holder said, referring to an order given by then-Vice President Dick Cheney to shoot down passenger planes that were reportedly headed for the Capitol. The order was never carried out because it was received too late. 

"What I worry about are the people who say America is a battlefield," Paul said during his filibuster. "They're saying they want the laws of war to apply here." 

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