March 7, 2013

Rand Paul's Concerns are Valid -- But His Position Should Let Him Do More than Just Filibuster About Them

Carroll Andrew Morse

1. The idea of the executive branch of the United States government creating a kill list, or a capture or kill list, is not a question of whether the President can order the Armed Forces to respond to organized threats that cross into the United States. Targeting a foreign facility or foreign forces operationally engaged in violent conflict against the US where an American citizen may be may be working with enemy belligerents is a different problem from deciding to put individual names on a list of people to be killed, wherever the opportunity presents itself. It is the blurring of this distinction that makes reasonable Senator Paul's questions about the Obama administration's drone policy.

2. The kill or capture list further blurs a second distinction, the distinction between war and covert operations. They differ in significant ways. Anyone engaged in military operations against the people of the United States is subject to having hell rained down upon them. But once they surrender, individual identities don't matter, whether generals or privates are involved. Once they give up, names aren't checked against a list to determine who is to be summarily executed on the orders of the Commander-in-Chief. What the Obama administration has done by focusing on the killing of specific individuals is more like a covert operation than a military operation.

3. Covert operations present their own unique set of ethical challenges -- which is why they are supposed to follow at least one hard and fast rule; they are not to be carried out within the borders of the United States. Again, Senator Paul is reasonable in asking if the Obama administration believes, in effect, that the 2001 Authorization to Use Military Force allows the extension of covert operations to non-imminent threats within the United States.

4. Even outside of the borders of the United States, justifying putting an American citizen's name onto a kill list is challenging. Americans plotting to kill other Americans in collaboration with a foreign enemy (whether inside or outside of US borders) are guilty of treason. Treason is a serious charge, which is why it is the one crime defined at the Constitutional level in the US (Article III, section 3)...

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The intention of defining a particular crime at the Constitutional level was to make it very difficult for anyone in government to change or bend the rules for dealing with that crime. Skipping past the part about obtaining testimony by two witness to the same overt act in open court and moving right to placing an American citizen's name on a kill list definitely bends the rules for dealing with treason.

5. As a national body politic, we have to give some thought to what it means when our government appears to be more comfortable with killing American citizens by executive order than it is with actually prosecuting treason. Somehow, we've found ourselves with a political elite less worried about the ramifications, substantive and symbolic, of killing its own citizens without due process, than they are about having to make an argument that American citizenship means something -- and that its betrayal should carry a high price. (This is a long term problem not unique to the Obama administration; consider that such traitors as Aldrich Ames and Robert Hanssen weren't charged with treason either).

6. However, it's not quite kosher for Senator Paul, or any other member of Congress to blame the current state of affairs on an uncheckable assertion of Presidential authority. The President is acting according to a Congressional mandate, the 2001 Authorization to Use Military Force...

(a) IN GENERAL.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
It is Congress that gave the President a very open-ended grant of power to use military force against "persons" who aided the September 11 attacks, including a mandate "to prevent any future acts of international terrorism against the United States" without any territorial restrictions. If Congress doesn't like how the President is executing this mandate, they should commence the process of amending it. Andrew McCarthy, who is about as hawkish as you can get on this subject, has several ideas for a more narrowly-tailored AUMF...
[A]fter a dozen years, the AUMF’s definition of the enemy needs overhaul. So, similarly, does its explanation of what force Congress is authorizing. Again, lawmakers need not address all the hypothetical situations in which it might be proper to target American citizens. But nothing prevents Congress from amending the AUMF to provide explicit protections for Americans suspected of colluding with this unique enemy. Congress could, for example, instruct that in the absence of an attack or a truly imminent threat, the president is not authorized to use lethal force in the United States against Americans suspected of being enemy combatants. Congress could also define what it means by “imminent” so it is clear that lawmakers do not endorse the Obama administration’s preposterous interpretation of that term.
Ultimately, the question that must be answered is whether we are going to live with an anti-terrorist AUMF forever, or whether it should be repealed at some time in the foreseeable future.

7. Finally, representative government has its origins in people assembling for an airing of grievances against the executive authority. Senator Paul's filibuster fits perfectly into this tradition, and he did get an answer from Attorney General Eric Holder on the question of drone strikes within the United States...

"It has come to my attention 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."
Senators John McCain and Lindsay Graham, on the other hand, in their particular criticisms of the filibuster, have chosen different a role for themselves, one that bears more resemblance to noblemen who see their station as closer to the executive than it does to representatives of the people who elected them.

Comments, although monitored, are not necessarily representative of the views Anchor Rising's contributors or approved by them. We reserve the right to delete or modify comments for any reason.

1. The "kill list" is a measure necessitated by Al Qaeda's method of waging war. Al Qaeda's fighters don't wear uniforms or operate within a publicly acknowledged chain of command. In order to fight the war Congress has authorized through the AUMF, the military needs to know who is an enemy combatant and thus a legitimate target. As commander in chief the president is ultimately responsible to make this determination.

2, 3. Combatants who surrender are absolutely not subject to summary execution no matter who they are. But those who have been targeted for drone strikes were not prisoners. They were enemy combatants pursuing acts of war against the United States. Drone strikes may look like covert operations but they really aren't. Like the "kill list" they are a response to the way Al Qaeda has chosen to prosecute its war. Al Qaeda forces don't maneuver in large formations. They operate as individuals or small groups dispersed among civilian populations. So a military operation directed against Al Qaeda will look a lot different than those that have characterized past wars.

4. American citizens who levy war against the United States are liable to prosecution for treason once captured. But treason prosecution is not an exclusive remedy and while such traitors remain in the field, so to speak, they are as much a legitimate military target as any other combatant.

5. President Obama's seems to prefer drone strikes because dead enemies present less of a political headache than live prisoners. Obama has taken flak because he hasn't been able to make good on his ill-considered pledge to close the Guantanamo Bay detention facility. From his perspective it's bad enough that he hasn't found someplace to put the remaining prisoners (due to bipartisan opposition to relocating them to the United States); he doesn't want to have to swallow his pride by increasing the Gitmo population with more captives. It's far easier just to kill them. This is not a legal issue as there is no obligation to give an enemy the opportunity to surrender before attacking. It is a political problem for Obama as well as an operational problem in that the administration is depriving itself of potentially valuable intelligence by killing Al Qaeda leaders instead of capturing and interrogating them. (As a side note, in 2006 Adam Yahiye Gadan was indicted for treason for appearing in Al Qaeda propaganda videos. He hasn't been tried yet because he's still at large. I don't think that Ames or Hanssen could have been charged with treason because we weren't at war with the Soviets.)

6. I agree completely. To be fair, both Congress and the Executive were confronted with a new type of war in 2001 and I think the AUMF was an effort to meet the challenge by giving the military the flexibility needed to combat an enemy that operates in the shadows and that, moreover, is able to mutate and spread almost like a virus. We now have over eleven years of experience with this type of conflict and it seems high time for Congress to revisit the issue and perhaps revise the scope of the President's authority. There will be no surrender ceremony on the deck of the U.S.S. Missouri so Congress needs to figure out how to determine the conditions that will signal the end of this open ended grant of authority.

7. Holder's letter seems to allow some wiggle room since the term "engaged in combat" is subject to interpretation.

In general I'd say that Obama has been less than helpful in formulating an anti-terror policy that can command broad public support. His penchant for secrecy, his disingenuousness and his slash-and-burn style of political warfare make it hard for people to trust him, particularly when he holds the power to deal death like a bolt from the blue.

Of course, Obama is ultimately our fault. We the People elected him despite the fact that his personality defects were obvious to anyone who cared to look. While we wrestle with the best way to fight an enemy like Al Qaeda, we need to look at ourselves and figure out why so many could ignore the evidence and be seduced by Obama and his image-makers.

Posted by: David P at March 8, 2013 7:01 AM

The US , and the Republican party, need to return to its libertarian and isolationist roots to contrast with the globalist, semi-totalitarian marxism of the Democrat party.
Cut the damn military-industrial complex in half.
Or more.
Let the Dumbocrats be the globalist war party, as they were for the first half of the last century.
What to we care if one tribe of African pygmies wants to kill another tribe?
F*** 'em-let them all kill each other. Like they've been doing long before there was a USA.

"Go not abroad in search of monsters to slay"
JQ Adams

Posted by: Tommy Cranston at March 8, 2013 9:58 AM

"Somehow, we've found ourselves with a political elite less worried about the ramifications, substantive and symbolic, of killing its own citizens without due process, than they are about having to make an argument that American citizenship means something -- and that its betrayal should carry a high price."

Yes, indeed!

Add to this discussion the newly enacted (law? Exec Order?) that permits citizens to be picked up and held indefinitely without due process. Absolutely surreal and patently unconstitutional.

Posted by: Monique at March 8, 2013 2:21 PM

Hear, hear. Just wanted to chime in and remind everyone that the progressive (far) left and the libertarian right don't always disagree.

Posted by: Russ at March 8, 2013 2:50 PM


I am not ready for the tin foil hat society yet, but I would like a little more explanation of why
1. DHS has bought enough ammunition to fight the Afghan war for 30 years (5.5 million rounds a month at its peak)
2. Last week DHS bought 2700 armored vehicles.
3. The recent statutes and executive orders you mention.

Russ: "progressive (far) left and the libertarian right don't always disagree"

True, they both seek totalitarianism. They mostly disagree on what the mandates will be. I speak if the "far" right, you refer to libertarian right.

Posted by: Warrington Faust at March 8, 2013 2:58 PM

"Inter arma silent leges" was a Latin phrase much heard in the North during the Civil War. It translates roughly as, "during war, the laws are silent."

Habeas corpus is another Latin phrase, meaning "(you should) have the person," and it's part of a longer phrase, habeas corpus ad subjiciendum, meaning "(you should) produce or have the person to be subjected to (examination)." These were the opening words of writs in 14th century English legal documents to require a person to be brought before a court or judge, especially to determine if that person is being legally detained.

Basically, habeas corpus represents the legal right that a person in a free society has to not be whisked from his or her home without reason or cause and to not be detained or punished by the authorities without getting a fair hearing in court and a chance of self-defense. William Rawle in 1829 called the writ, "the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors."

Article 1, section 9 of the Constitution, restricting powers of Congress, forbids the suspension of habeas corpus except, "when in Cases of Rebellion or Invasion the public safety may require it."

It seems the current administration wants to follow along with what Lincoln did, unfortunately.

Posted by: Mark at March 8, 2013 3:20 PM

Progressivism is society-based utilitarianism. Another way of stating this is "the ends always justify the means." There is no easily identifiable and egalitarian societal end goal to justify drone strikes on American soil, so progressives oppose it. But if there were such a progressive rationale, they would support the practice. Progressivism is fundamentally opposed to the philosophical principles of individual liberty, except where advancing such principles happens to coincide with the progressive agenda about what society should be and look like.

Posted by: Dan at March 8, 2013 3:27 PM


What can be done, will be done. I recall driving in my car, listening to the radio, during the "Waco Crisis". What I particuarly recall is the top FBI honcho on the spot (Louis Freeh?) being interviewed. What he said, just before the tank was sent in, was "the federal government cannot allow itself to be embarassed this way". I am sure that if he had killer drones, he would have used them. So why does DHS need 2,700 armored vehicles? Considerably more "armed" than a Bradley. In fact it looks like a trackless Bradly with the BUSK III kit.

Posted by: Warrington Faust at March 8, 2013 5:40 PM

Thanks for specifying the entire phrase which starts with habeas corpus, Mark. I was wondering about that.

But what basis does the current president have for suspending it? And it isn't a case of "unfortunately". If a single US citizen is taken and held that way, it is completely unacceptable and outrageous.

As Warrington notes, add in the purchase of 1.6 billion rounds of ammo and DHS' acquisition and retrofitting of 2,700 MRAP's for use in the United States. Has there been any sort of rational explanation for those items?

By the way, once again, a scary part of these developments (indefinite detention act, the silence of the administration about drone strikes in the US on Americans until Rand Paul did his filibuster and DHS' new acquistions) has been the compliance, silence and complete inconsistency of the mainstream media. If ANY of this, much less all of it, had happened during the administration of a Republican president, they would have been absolutely apoplectic, with resultant screaming headlines, lead stories in network national newscasts read by highly disapproving news anchors, editorials out the wazoo condemning this in the strongest terms and left wing commentators ("Tingles" Matthews, et al) having convulsions nightly on the air.

And they would have been correct. Why, oh why, does all of this (and more) become acceptable to them when a Democrat is in the White House???


Posted by: Monique at March 9, 2013 7:31 AM

The idea that the incarcerated can be "habed" is so ingrained in our society that we have forgotten it's purpose and result. It has so long protected us from indefinite incarceration that we have forgotten it. It has always been impossible for people tobe "disappeared" here.

As I think most know, only Abe Lincoln has ever chosen to formerly suspend habeas corpus. That was politically motivated and the persons arrested make an interesting list, including duly elected but unreliable politicans. It set a poor precedent. Constitutional scholars may correct me, but I believe it was decided that only the Congress can suspend Habeas Corpus.

Posted by: Warrington Faust at March 9, 2013 8:54 AM

"I would like a little more explanation of why
1. DHS has bought enough ammunition to fight the Afghan war for 30 years (5.5 million rounds a month at its peak)"

WF this is the elitist govts' (same one that brought you Fast & Furious) way of introducing a kindler, gentler form of gun control. The armored vehicles are for crowd control (think it can't happen here do you?). Their ultimate goal is to tame the masses (read white middle/upper producing class). They continue to buy ammunition to drive the supply down and the price up. They will soon do this with food. The end game is the usurping of freedom. Hussein Obama came to"change" Amerika. He is steadfast in his goal. He will level the playing field by destroying the stadium.

Posted by: ANTHONY at March 9, 2013 6:08 PM

"They continue to buy ammunition to drive the supply down and the price up."

If that's true, what a completely STUPID plan.

Manufacturers will just continue making this stuff.

Meanwhile, we the taxpayers, will have to pay for the federal govt to purchase and store (or dispose) of the ammunition. What a complete waste of our dollars.

And (attention, environmentalists), how much would the federal govt have contributed to pollution and the US's carbon footprint by pointlessly cranking up the demand for more manufacturing?

Wow, that would be really stupid on all fronts.

Posted by: Monique at March 10, 2013 9:30 AM
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