4:12 PM EST, March 7, 2013
Kentucky Sen. Rand Paul got a lot of attention Wednesday for mounting an honest-to-God filibuster of President Barack Obama's nominee for CIA director, John Brennan. The nation's political class marveled at his real-life Mr. Smith act, the funny stuff his fellow senators said as they took their turns in support — Sen. Marco Rubio, for example, referenced Jay-Z, Wiz Khalifa and "The Godfather" — and the reason he stopped 11 hours short of Strom Thurmond's filibuster record (it seems the late South Carolina senator was, if not stronger in his convictions, at least stronger in his bladder).
But it's worth taking a moment to consider the substance of Mr. Paul's objection. The libertarian and son of former presidential candidate Ron Paul has plenty of views that are far outside the mainstream, but in this case, he zeroed in on an issue all Americans should find uncomfortable: Would it be legal for the U.S. government to use a drone strike to kill an American citizen on American soil?
In the end, the Obama administration felt compelled to respond, and yesterday, Attorney General Eric Holder sent Mr. Paul a letter assuring him that the president does not "have the authority to use a weaponized drone to kill an American not engaged in combat on American soil." That was good enough for Mr. Paul to drop his objection to Mr. Brennan's nomination, which was approved by the Senate yesterday, but it still leaves open plenty of questions about the use of drones.
The efficacy, morality and legality of drone strikes on foreign soil as part of an ill-defined war on terror are troubling enough. The 2011 killing of an American citizen in Yemen, al-Qaida propagandist Anwar al-Awlaki, raised even thornier questions about due process. But what set Mr. Paul off was an earlier letter he received from Attorney General Eric Holder saying that under extraordinary circumstances, "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." Mr. Holder's statement yesterday clarifies his meaning somewhat but not entirely.
In the earlier letter, Mr. Holder made clear that what he meant by "extraordinary circumstances" was something like the Japanese attack on Pearl Harbor in 1941 or the Sept. 11, 2001, terrorist strikes on New York and the Pentagon. The Obama administration "has not carried out drone strikes in the United States and has no intention of doing so," Mr. Holder wrote, adding that the president rejects the use of military force "as a policy matter" where ordinary domestic law enforcement provides "the best means for incapacitating a terrorist threat."
To Mr. Paul, and to many others, including Democratic Sen. Ron Wyden of Oregon, who joined Mr. Paul on the Senate floor, that all sounded a little too subjective. How exactly would the administration going to decide whether law enforcement or the military provides the "best means" for taking out a terrorist? Does due process factor into the equation?
Mr. Paul did not dispute the government's authority to shoot down an airplane flying toward a skyscraper or "whether a terrorist with a rocket launcher or grenade launcher attacking us ... can be repelled." The question was whether the rather loose rules the Obama administration has followed for killing overseas apply here, and to that, Mr. Holder has still not given a fully satisfactory answer.
As it happened, Mr. Paul's 13-hour talkathon came on the same day that Republicans for a third time blocked an up-or-down vote on Caitlin Halligan, a nominee for the U.S. Court of Appeals in Washington, D.C. They have made vague complaints that she is too "activist" for such an important position, but they were unwilling, or more likely unable, to mount a substantive argument against her and instead relied on the more common kind of filibuster, in which the minority party simply announces its intention to oppose a motion to close debate. Rather than advancing the causes they believe in — whatever those may be in this case — they have simply managed to jam the gears of government.
By contrast, Mr. Paul showed the extraordinary power of the talking filibuster in the age of social media. It quickly became one of the most Tweeted and searched topics on the Internet and sparked far more discussion of the issue at hand than any other filibuster has in years. Mr. Paul didn't stop Mr. Brennan's confirmation — that wasn't really his intent — but he did succeed in shaping the debate.
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