Though foes of drones on the right and left cheered Sen. Rand Paul’s filibuster this week, with the tea partier delaying confirmation of CIA director John Brennan for a day, Paul’s rant targeted a nonexistent dispute: whether or not Obama administration officials believed they could use drones (or other weapons) to kill American citizens within the borders of the United States without due process. Take away all Paul’s hyped-up hysteria—watch out, Jane Fonda!—and he didn’t truly disagree with the administration’s position that in an extraordinary circumstance, such as an ongoing terrorist attack, the US government can deploy lethal force against evildoers who happen to be American citizens. So why did Paul go ballistic? Here’s a clue: The day after he ended one of the longest filibusters in US history, he tried to cash in on his stunt by zapping out a fundamentally inaccurate fundraising email for his 2016 reelection campaign.
The note begins:
My 13-hour filibuster yesterday is being called one of the longest in U.S. history.
I had been trying for more than a week to get a straight answer on whether or not the Obama administration believed it had the authority to use drones to target and kill American citizens on American soil – without due process.
And after receiving a letter from Attorney General Eric Holder claiming they DO have that authority, I could no longer sit silently at my desk in the U.S. Senate.
So I stood for thirteen-straight hours to send a message to the Obama administration, I will do everything in my power to fight their attempts to ignore the Constitution!
Millions of Americans chose to stand with me and put President Obama, Attorney General Holder, and Congress in the spotlight…
And the good news is, it worked!
Just hours ago, I received a letter from Attorney General Holder declaring the President DOES NOT have the authority to use drones to kill Americans on U.S. soil.
Patriot, this shows what we can do when stand together and fight.
So won’t you help me continue the fight to protect our Constitutional liberties today?
This is a false account. In his first letter to Paul, Holder noted the obvious: If the United States were under attack from within, the president might have to order the use of lethal military force within the territory of the United States. This is how Holder put it:
[T]he US government has not carried out drone strikes in the United States and has no intention of doing so. As a policy matter moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat…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 like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.
Consider a Mumbai-style attack on Washington, DC; as the assault is under way perhaps military force—with or without drones—might be used against the perpetrators, which could include terrorists holding American citizenship. In fact, during his filibuster, Paul conceded the point: “Nobody questions if planes are flying towards the Twin Towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled.”
So just as he did on the Senate floor, in this email, Paul is ginning up a quarrel that did not exist. Then the give-me-money note goes on to claim that due to Paul’s heroic filibuster, Holder wrote a second note to the senator stating the president cannot use drones to kill Americans on US soil. That’s wrong.
On Thursday, Holder sent Paul a curt two-sentence letter:
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?” The answer to that question is no.
Paul thoroughly mischaracterized Holder’s statement for his money-shaking email. The attorney general limited his no-drones declaration to Americans “not engaged in combat.” An American participating in a terrorist attack that constitutes an extraordinary circumstance could still end up on the wrong end of a Hellfire missile (with Paul supporting such a development).
Paul did not force a change in Obama administration policy or even a clarification of policy. What Holder said in the second letter was a reiteration of what he said in the first letter that Paul essentially endorsed while filibustering.
There are real controversies and disputes regarding the administration’s drone policy. The White House has declined to show the public the legal justification for its drone strikes overseas against suspected terrorists who are American citizens, and it has been reluctant to share legal memos on this matter with members of Congress and their staff, thus impeding oversight of these constitutionally dicey assaults. The White House has not answered questions on its general use of lethal drones in Afghanistan, Pakistan, and elsewhere. But decrying the administration for possible drone assaults against noncombatant American citizens within the United States is a phony issue, a modern-day equivalent of black-helicopter-phobia. In an unsurprising, it’s-really-about-politics move, Paul distracted from the real concerns, and the quickly written email pushing his Stand With Rand money bomb shows this senator as a crass operator untethered from the truth who’s eager to exploit his own grandstanding.