Rand Paul, the libertarian Republican Senator from Kentucky, has spent the past several hours, with the help of a few GOP colleagues, leading an unexpected Republican filibuster of John Brennan’s nomination to be CIA director. Paul beef isn’t really with Brennan himself. It’s over an issue he’s talked about for weeks: whether President Obama believes he has the legal authority to kill, via drone strike, a U.S. citizen on American soil. “I rise today for the principle,” Paul declared as he kicked off his talkathon. “That Americans could be killed in a cafe in San Francisco, or in a restaurant in Houston or at their home in Bowling Green, Kentucky, is an abomination.”
Could they? Is it? In recent weeks Paul and others have asked Brennan, the Obama White House, and, most recently, Attorney General Eric Holder whether the president thinks he’d be allowed to do such a thing. No one has exactly ruled it out. In a letter to Paul on Tuesday, and in Senate testimony Wednesday, Holder gave the most detailed answers to date. While allowing that Obama has “no intention” to blow up an American within the 50 states, he could “conceivably have no choice” but to do so in an extreme emergency, akin to the September 11 or Pearl Harbor attacks.
That’s not good enough for Paul, who among other things is fixated on the idea that the president might strike a suspected terrorist who, unlike the aggressors on those two days of infamy, is not in the middle of a warlike act. A person sitting at “a cafe in San Francisco,” for instance.
In fact, the cafe scenario came up during Holder’s mostly unrelated Senate testimony earlier today, when Republican Ted Cruz asked Holder whether it would be legal to drone an American “sitting at a cafe.” Holder’s answer: “No.”
But that’s still not good enough for Paul, who just before 5pm conceded that Holder’s response to Cruz had come close to satisfying his concern. But Paul then added that he wants a “comprehensive” statement from Holder flatly declaring that “the drone program will not kill americans who are not involved in combat.”
He might get it, but it seems unlikely. In the post-9/11 legal framework that presidents of both parties have now maintained, notions like combat, combatant and imminent threat have taken on new meanings. You can imagine Holder and other Obama officials wanting to reserve the right to drone a suspect who might not be about to fire a bazooka, but about to remotely detonate a bomb, or send a code that will hack into a nuclear power plant’s cooling system.
Of course, the odds of that scenario are tiny. If the terrorist is nursing a cappuccino at a cafe, he can almost certainly be grabbed and arrested without violence. More likely, he’d be in a remote area like a mountain or forest, in which case a drone might actually be the most practical way to find and zap him quickly.
But it’s worth remembering how narrow, and perhaps even academic this issue is. Only one American–the now-deceased Anwar al-Awlaki–has been targeted for drone execution. Three others have been what they call “collateral damage” in attacks on other targets. None of those actions occurred on American soil. Rand Paul has every right to press this question. But it’s almost an academic exercise when compared to the more relevant questions of how reliant we should be on drone strikes against non-U.S. citizens in foreign countries. And it has very little do with John Brennan’s ability to run the CIA, an agency that is quite clearly barred from operating within the United States.
Update 7:06 am
Paul yielded the Senate floor around 12:40 am, and left the chamber to cheers, according to the New York Times. The filibuster had stretched on for nearly 13 hours. After Paul stepped down, Sen. Dick Durbin (D-IL) filed a cloture motion to cut off debate on Brennan’s nomination, setting up a vote for later this week.