Rand Paul's marathon 'talking' filibuster wasn't just hot air

2013-03-09T00:00:00Z Rand Paul's marathon 'talking' filibuster wasn't just hot airEugene Robinson Washington Post Writers Group Arizona Daily Star

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and Paul was right. There, I said it. The Republican senator from Kentucky, whom I've ridiculed as an archconservative kook - because that's basically what he is - was right to call attention to the growing use of drone aircraft in "targeted killings" by staging a nearly 13-hour filibuster on the Senate floor.

Paul did it the old-fashioned way, by talking and talking until the call of nature compelled him to cease. There are easier ways for a senator to hold up a piece of business - in this case, the nomination of John Brennan as CIA director - and Paul knew a rare "talking" filibuster would be hard to ignore.

Was he trying to boost his national profile? Was he trying to embarrass President Obama? The answer is probably yes on both counts. But I cannot argue with the basic point Paul was making: There must be greater clarity about how and where our government believes it has the authority to use drones as instruments of assassination, especially when U.S. citizens are in the cross hairs.

Paul focused narrowly on the simple question of whether "the president has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial."

Paul asked this question in a letter to Brennan. Attorney General Eric Holder wrote the administration's reply, which was, essentially: Look, this isn't going to happen.

Holder wrote that "the U.S. government has not carried out drone strikes in the United States and has no intention of doing so. As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat."

But Holder added that there might be an "extraordinary circumstance" in which a president would "authorize the military to use lethal force within the territory of the United States."

Paul believed - and I had to agree - that this left the door ajar. Citizens are guaranteed the right to due process by the Fifth and Fourteenth Amendments. This doesn't mean that a police officer cannot shoot and kill a gun-wielding criminal who is in the act of robbing a bank. But it does mean that an officer, having learned of a planned bank robbery, cannot protect public safety by pre-emptively assassinating the suspects.

Imagine that drone technology had existed at the time of the 1995 Oklahoma City bombing. Imagine that the government somehow got wind of Timothy McVeigh's plans in advance and tracked him to the compound where he and Terry Nichols were building their bomb. Should the president have had the power to order a drone-fired missile strike, killing McVeigh, Nichols and whoever else might be in the vicinity?

Hours after Paul finished his filibuster, Holder finally closed that door. "It has come to my attention," he wrote Paul, "that you have now asked an additional question: 'Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?' The answer to that question is no."

So that's settled. But the overwhelming majority of drone attacks target foreign nationals in foreign countries, and this is where the moral calculus gets harder.

If U.S. intelligence services learn that certain individuals in, say, Yemen or Somalia are planning a credible terrorist attack against Americans, and also that these individuals will be meeting at a certain place on a certain date, what are the options? Send in the Navy SEALs? Mount a full-scale invasion? Or send up a drone, verify that the meeting in fact takes place, and blow the plotters to smithereens?

Any president is going to choose the drone. But the situation is rarely so clear-cut. The meeting might be at a house where family members are present. How many bystanders constitute "acceptable" collateral damage? What if the bystanders are children? What about neighbors?

The way we use drones as killing machines has to be consistent with our freedoms and our values. For grabbing us by the lapels, Rand Paul deserves praise. Yikes, I said it again.

Email Eugene Robinson at eugenerobinson@washpost.com

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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