Rand Paul's Filibuster - Great But Wrong-Headed Political Theater

Sen. Rand Paul's filibustering of the vote of Charles Brennan for CIA Directer has been great political theater. It is the type of emotion laden act of, in this case, formal outrage, that the right desperately needs to internalize across the entire spectrum of political argument (see the Horowitz essay below).

The basis for Paul's angst - a question he put to the DOJ, whether the President could unilaterally order the murder of an American citizen on U.S. soil with a drone strike. Eric Holder that the President could, assuming a set of circumstances similar to 9-11 or 7 Dec. 1941. Looking strictly at Constitutional rules of due process, Paul is absolutely right that this response is dangerously wrong.

But as Jon Yoo points out, (h/t Powerline), Eric Holder is ultimately right, but for the wrong reasons. Holder is trying to shoehorn war into criminal law standards. It is both a dangerous and ill fit, rightly raising the hackles of Sen. Paul. But under rules of war, Holder's position is right:

Holder’s first mistake is that he thinks that the use of force by drones, no matter where or against whom, is governed by due process. Recall the Justice Department white paper on drones, which asserted that lethal force could not be used against al-Qaeda members unless they could not be captured, harm to the United States was imminent, and due process allows the attack — concepts that govern law-enforcement officers who might need to shoot an attacking criminal, but have never governed the use of force by the military in wartime. Drones don’t change this equation — the same rules should govern snipers, artillery, aerial, and missile attack, which all also attack the enemy from a distance and often by surprise. But since Holder has made the claim that the drone attacks abroad somehow meet law-enforcement standards, it is an easy step for him to say that those same diluted, weakened standards don’t pose much barrier to the use of drones at home.

Instead, what Holder should have said is that the U.S. would only be able to use drones on U.S. soil under the same conditions it might use military force domestically — to stop an invasion by a foreign country or an attack. And it is not because due process somehow allows it, but because the nation is entitled to use military force against foreign attack. So it is not just December 7 or September 11 that uniquely call for military force because the U.S. is responding to an attack on the nation. What about an invasion, as in the War of 1812, or the Civil War, or, on a smaller scale, a situation like the Mumbai terrorist attacks where groups of heavily armed terrorists attacked high-profile, civilian targets not with airliners, but with light arms? If the federal government can use military force, such as troops or helicopters to stop those kinds of attacks, surely it can use drones. But where Holder and this administration are causing fear is because, if they believe the use of drones now, abroad, meet law-enforcement standards, then they believe they could use drones in similar situations domestically to enforce the laws, not to respond to attack. And that is manifestly wrong as a legal matter as well as mistaken as a matter of policy.

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