Rand Paul spent nearly 13 hours engaged in a pre-1970s filibuster of the nomination of John Brennan to become CIA Director. His reason was the lack of clarity from the Obama Administration regarding the authority to conduct lethal drone attacks on American citizens on U.S. soil. By the time he finished, he was a Twitter sensation, a hero to civil libertarians, and (most importantly) successful in convincing his fellow Kentuckian (Minority Leader Mitch McConnell) to oppose cloture (making it at least somewhat more likely that Brennan’s nomination won’t come to a vote until Paul’s concerns are addressed). Meanwhile, according to AP via US News and World Report, they may have been addressed already: “The White House says President Barack Obama does not have the authority to use a drone to kill a U.S. citizen on American soil if the citizen is not engaged in combat.”
What struck me in all of this, however, was an irony most have missed in this discussion: Obama’s “War President” predecessor would have been able to alleviate Paul’s concerns in a matter of minutes, and with far greater standing.
Near the end of Andrew Johnson’s live blog post on the filibuster, the reason becomes clear:
Minutes earlier, Paul worried that we’re “going to have the standard that we’re going to kill noncombatants in America,” and asked the president to be clear if that’s his intention for the drone-strike program. He criticized the president for dancing around the issue by pointing to the military’s responsibility to repel invasions, when Paul has said his focus is on noncombatants and not those who have taken up arms.
It was the term “noncombatants” that struck me. President George W. Bush repeatedly made clear that, in his mind, he could do anything he wanted against enemy combatants, but noncombatants were another story. This was in following with traditional executive power during war for centuries (lest we forget, Abraham Lincoln – who killed more American citizens than any American president before or since – never put out a hit on Clement Vallindingham). More to the point, enemy combatants were defined by law, under the Military Commissions Act of 2006. Since Bush signed it himself in October of that year, he was clearly OK with the Act’s definition.
Yet when the Obama Administration came in, it chose not to use the term “enemy combatant” anymore. Instead, it created its own definition for those it could detain (and later, kill without bothering to detain). Now, in practical terms (and in 2009), that seemed a distinction without a difference. Now, however, we see that the Administration’s preference to demilitarize what was once called the War on Terror as much as possible shorned the president’s policies from wartime powers or the aforementioned Act of Congress. Thus, whereas Bush’s authority to kill (including killing American citizens) was limited explicitly by the Military Commissions Act, Obama’s is limited only implicitly by the Constitution (which is far more flexible to the executive branch than many realize) and by his own words.
So, as we consider the very serious question of whom the president can and will kill, let us at least give some respect to the fact that George W. Bush – who believed himself at war – recognized the rules of war, rules whose surprising restrictions may not be noticed until an executive not interested in being at war effectively liberates himself from those rules.