On Tuesday, Sen. Rand Paul (R-Ky.) announced he planned to filibuster a judicial nominee today and released planned remarks, “I rise today to oppose the nomination of anyone who would argue that the President has the power to kill American citizens not involved in combat.” That addition of “involved in combat” is something new and raises even more difficult questions. (Does “involved in combat” include planning a bombing operation? Attending a jihadist training session?) Moreover, if there is a constitutional right to kill Americans “involved in combat” against the United States, where does Paul get the prohibition on killing those who have taken up arms but aren’t yet in combat? Simply put, he’s making it up.
He continued, “I rise today to say that there is no legal precedent for killing American citizens not directly involved in combat and that any nominee who rubber stamps and grants such power to a President is not worthy of being placed one step away from the Supreme Court.” He is wrong there on the facts. David Barron, whose nomination he says he will filibuster, in fact came up with a long list of restrictions on the president in the use of drones. The idea that Barron was recommending a free hand for the president is simply false.
Indeed, as we have argued before, Paul’s position has little support among lawyers from a wide ideological spectrum. Benjamin Wittes of the Brooking Institute, a centrist well-respected by Democrats and Republicans alike, along with Daniel Byman, has put out a useful legal analysis on this topic. Rand Paul and others should read it (including the footnotes) in its entirety, but this is especially on point:
The major advantage to killing suspected terrorists—to put the matter bloodlessly—is that it removes important, skilled operators from the ranks of the enemy when their capture may not be an option, and it does so without significant litigation risk. Just as important, the threat of force compels those on the run to play defense. Drone strikes rely on spies, on intercepted phone calls, and on other forms of intelligence to pinpoint their targets. To reduce exposure to drones, terrorists must trust fewer people, talk on the phone or use the internet less, and otherwise minimize their contact and communications. In so doing, however, they become less effective as terrorists. An [Anwar al-]Awlaki who cannot use a computer or phone cannot inspire others to join the jihad or instruct recruits on the best targets to strike.
Such strikes also free the United States from complete dependence on allies. . . . If the United States had sought to have [Awlaki] arrested, the Yemeni government would probably not have even bothered to try; and if it did try, it probably would have failed. In any event, Yemen lacks an extradition treaty with the United States, and its record of holding high-value detainees in its own prisons is poor. . . . For now, at least, the legal authority to use lethal force seems relatively secure, at least for those threats linked solidly to Al Qaeda, the Taliban, or groups the government can reasonably construe as “associated forces.” [Emphasis added.]
Now if Paul were to object to drone strikes on policy grounds (e.g. we should capture and interrogate terrorists instead) it would be one thing. But he asserts that droning Americans who have taken up arms against their country is unconstitutional, that the president lacks the power to do this. That is bad law, has never been accepted by other presidents (i.e. the power to strike at Americans overseas who’ve joined enemy forces) and suggests a deep misunderstanding of the Constitution. Moreover, the inclination to transfer one’s policy views into constitutional edicts is the antithesis of what “constitutional conservatives” claim to be.
There may be other reasons to object to Barron relating to his constitutional views on other matters, but asserting he is a “rubber stamp” on drones or that he condones unconstitutional conduct is patently false. It reflects on Paul and his extremist views, much more so than it does on Barron’s qualifications. In that regard Rand Paul’s planned talkathon should be illuminating, serving to reveal the mindset of a potential 2016 candidate. Republicans should not ape Paul for the sake of ingratiating themselves with far-right groups. (As last night’s election results show, their stamp of approval actually can be the kiss of political death.) Should some senators object to Barron on other grounds, they would do well to be clear they don’t agree with the drone demagogues; otherwise their opposition may reflect poorly on their character and intellectual honesty.
UPDATE: Paul spoke for a mere 30 minutes, perhaps a sign that he recognizes how perilous to his presidential ambitions are his constitutional distortions and his aversion to a reliable tool in the war against jihadists. (He also wants to close the detention center at Guantanamo Bay, Cuba.) His relative brevity won’t spare him; his views are out there for all to see. Look for them to pop up in anti-Paul ads should he run in 2016.