Sen. Rand Paul (R-Ky.) is facing widespread criticism over his foreign policy views and his zigzagging between eccentric libertarianism and a more mainstream center-right outlook. Yesterday he worsened his predicament with an attack on a judicial nominee, thereby emphasizing his objection to well-accepted constitutional principles and to mainstream views about the war against radical jihadism.
David Barron, the author of a memo setting restrictions on use of drones, was nominated to the U.S. Court of Appeals for the First Circuit. The Obama administration recently acceded to pressure to share Barron’s analysis with senators as part of his confirmation process. Left-wing senators and groups including the American Civil Liberties Union vehemently oppose Barron because they believe that use of drones overseas against Americans who have joined the war on terror is somehow unconstitutional. Once again, Paul has thrown his lot in with the far left, issuing a statement that read:
I’ve read David Barron’s memos concerning the legal justification for killing an American citizen overseas without a trial or legal representation, and I am not satisfied. While the President forbids me from discussing what is in the memos, I can tell you what is not in the memos.
There is no valid legal precedent to justify the killing of an American citizen not engaged in combat. In fact, one can surmise as much because the legal question at hand has never been adjudicated. Therefore, I shall not only oppose the nomination of David Barron, but will filibuster.
Paul misunderstands the Constitution, which affords the executive branch replete powers in the foreign policy realm. Indeed many conservatives questioned the need for the Barron memo, explaining that it unwisely narrowed the powers afforded to the commander in chief. Former Justice Department lawyer John Yoo, one of many critics, explained in a February op-ed:
The real story revealed by the memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism. . . . U.S. citizenship doesn’t create a legal force field around Americans who treasonously join the enemy. During the Civil War, every Confederate soldier remained a U.S. citizen. In World War II, Americans joined the Axis. As the Supreme Court reaffirmed in Hamdi v. Rumsfeld (2004), “Citizens who associate themselves with the military arm of the enemy government . . . are enemy belligerents.”
The notion that war is like crime-fighting, with search warrants, restrictions on cruel and unusual punishment and due process for overseas enemies, would eviscerate our war on terror, which is precisely the outcome libertarians and the far left desire. Yoo noted, “This approach sets a concerning precedent regarding the government’s respect for due process in future cases involving American citizens and legal residents who actually deserve the right. By including terrorists among those afforded constitutional protections, the president’s policy risks stretching those protections a mile wide and an inch deep—weakening them for all Americans.”
Paul’s objection put him to the left of the administration, which at least maintained the executive branch’s power to use drones, while proceeding to erect a list of restrictions on itself. In any case, his blithe statement that “there is no legal precedent” is flat-out wrong (as a raft of Supreme Court decisions on the geographical reach of the Bill of Rights attest) and once more has generated scorn from a range of moderate and conservative experts on the law of war.
Ben Wittes of the Brookings Institution, who has defended the National Security Agency surveillance program, tells Right Turn, “Sen. Paul suggests that Barron is unfit for service as a judge for the latter’s belief that the president — under certain highly-limited circumstances — has the power to target with lethal force an operational leader of a terrorist group that is covered by a congressional authorization for the use of force and who is actively planning attacks on the United States. Paul’s legal views are eccentric and wrong. And the notion that this disagreement justifies a filibuster of a well-qualified nominee is absurd.”
Even Paul’s political allies on other topics are disturbed. A former Office of Legal Counsel attorney and separation of powers scholar who is aligned with Paul on most issues e-mails me:
Senator Paul’s anti-government instincts are sound and usually lead him in the right direction, but the Framers rightly distinguished between the rights of Americans facing domestic criminal prosecution and those leading fighters in a war with America. Senator Paul seems to concede that those engaged in “combat” may be killed in battle, without an indictment and trial no less. But Sen. Paul’s focus on “combat” is misplaced. The relevant distinction is between those engaged in war, not combat per se, whether they are Americans or not. George Washington rallied the cause of the American Revolution with surprise attacks on enemy forces in Trenton and Princeton. Most of his targets in that campaign were foreign mercenaries, but a few were born in America, and some of them probably carried a fife instead of a musket when they were killed. Our war with al Qaeda is murkier still, but the principles are same.
The memo also undermines Paul’s claim at the time of his 21-hour filibuster that he was concerned merely with domestic drone use. That was obviously misleading. His objection is far wider, based on a fringe interpretation of the Constitution that suggests the Bill of Rights applies to those on the battlefield who are killing Americans.
The argument is not an esoteric one. MSM reporters who slough Paul’s fights off with foreign policy hawks don’t grasp the political problem Paul has. His views are so extreme that most voters in the GOP are likely to object (hence his effort to claim he is Reaganesque in foreign policy). Polls show that Republican voters continue to support a robust approach to the war on terror. This is especially true of evangelical Christians who are among the most determined to bolster the West’s efforts against radical jihadism. Paul has already tangled with them, lashing out at unnamed Christians as “war mongers” (he later backpedaled). His determination to adopt an ACLU view of the war on terror is likely to rattle already skeptical evangelical Christians.
Paul’s timing is also poor. While Russian President Vladimir Putin is invading his neighbor, Iran is on the verge of going nuclear, 5,000 jihadis have made Syria a new terrorist hot spot and the Benghazi select committee will be probing the cost of underestimating al-Qaeda, the GOP has regained its footing as the pro-defense party. It is hard to imagine that primary voters (in which evangelical Christians play an outsize role) will reverse course and accept a presidential candidate who finds the Obama administration too bold in the war on terror.