Rand Paul filibustering over drones | Hacker News Reader

Rand Paul filibustering over drones

washingtonexaminer.com

220 pointsstfu198 comments

So let me see if I understand this.

One guy is filibustering the CIA nominee based on an incomplete and vague set of questions and answers -- which one side says is nothing new and the other side says changes the game. The filibuster has no chance of succeeding, and all the little political wonks are coming out of the woodwork and taking sides based on the party of the senator involved.

More dysfunctional Washington? A man standing up for his morals? A pointless charade? Just bluster and theater in preparation for the next presidential race?

I don't care. Drones are bad news, especially armed drones in the hands of governments watching over their own citizens. For the next few hours, I could care less which party Rand Paul is from. I stand with him. We can all tear him down tomorrow. There's plenty of time for that later.

> Drones are bad news, especially armed drones in the hands of governments watching over their own citizens.

What I don't understand, is why when John McClane was shot at by an F-22 Raptor in Live Free or Die Hard, why there wasn't a big outcry at that time. There were no complaints, no HN threads that I remember, and certainly no filibusters in Congress.

None of the reviews talked about some "dystopian future America", they said that shit blew up and it was otherwise an action movie.

Why is it OK for the American military to use an F-22 Raptor on one of their own citizens but drones are no good?

Mind, I understand completely why people are concerned about why the military could or could not be employed domestically; I just don't understand why people are fixated on drones as opposed to black helicopters, rocket launchers, bazookas, motorized anti-aircraft weaponry, bum-standard rifles and carbines, etc.

It's just another weapon that the government has now. When the government gets more powerful, the citizens get less powerful than their government. Most citizens fear being totally helpless against their government's power. So small incremental increases in government power, like drones, usually spell bad news for the citizens.

Do people fear increase in government power because it's actually bad for them, or because they've been told that government is bad in general?

I've been beginning to think it's not only the TSA types who employ the "state of fear" philosophy to drum up support for their cause.

In any case drones aren't even a tenth as destructive as helicopters. I don't even care what rule people pick at this point but it would really help my own blood pressure if we could at least just choose to be consistent for once.

Why don't you ask an adult black male about the ever increasing power of the government and whether or not he should be afraid:

According to the US Bureau of Justice Statistics (BJS) non-Hispanic blacks accounted for 39.4% of the total prison and jail population in 2009.[43][not in citation given] According to the 2010 census of the US Census Bureau blacks (including Hispanic blacks) comprised 13.6% of the US population.[44][45][46]

Or the fact that 1 in 10 people in the U.S. are currently incarcerated in the prison system.

https://en.wikipedia.org/wiki/Incarceration_in_the_United_St... http://www.americanprogress.org/issues/race/news/2012/03/13/...

Can I ask that same adult black male whether they'd want to be alive in America in 1963, 1943, 1893, and 1863?

It's true though, that stupid gub'mint is getting so intrusive. Why, I'll bet pretty soon they'll be putting up propaganda posters telling us to save animal fats from our dinner, or actually (gasp!) rationing food like we were a bunch of Commies!

"Can I ask that same adult black male whether they'd want to be alive in America in 1963, 1943, 1893, and 1863?"

Do you honestly think this is valid reasoning? "You might be in prison for a victimless crime, but at least you're not a slave"?

The reasoning is based on your own description of the "increasing power of government" being the problem. I was pointing out that the opposite trend is in many ways what's actually going on.

That's either because government is not the major factor in the oppression of black males, or because government isn't strong enough.

That's no justification for government abuses where they occur, but I was never claiming that was OK.

How about asking the adult black male whether it is legal for the army to fire on enemy soldiers during a war, the question which is the subject of this discussion. Let's stay on topic.

Actually it's more like whether it is legal for the army to fire on enemy sympathizers.

The incarceration rates (disregarding racial issues for now) aren't only to blame on the government, but iirc mainly on the privatization of the prison business; there was a huge spike in incarceration rates and length of prison terms when that came about in the 90's (I believe), good graph about that out there somewhere.

While those numbers are distressing, one has to ask if government is their biggest threat. More black males are killed by other black males yearly than the entirety of what the KKK did.

Go look at Chicago for example, it may actually be safer to be in jail. I am not sure which statistic is actually worse.

The TSA announced earlier this week that they were going to allow people to take small folding knives and similar onto planes in carry-on baggage as of next April. Strangely, this has provoked almost zero response from people who like to complain about the TSA. I'm inclined to conclude that a lot of people like having something to complain about more than they like having their complaints acted upon.

http://www.youtube.com/watch?v=XiSiHRNQlQo

You just compared the reaction of viewers of a theatrical event in a fictional action movie to reality.

We still have people who argue over whether Han shot first, whether Kirk or Picard would win in a fight, or whether they'd be on Team Edward or Team Jacob.

In such a world, I'd like to think that something as absolutely chilling as the military using deadly force against an American citizen without trial, based just on some assholes's say-so, would at least have warranted a comment. But I'm willing to bet most hackers who saw the movie were much more annoyed by the inaccurate "hacking" scenes than they were by the F-22.

Analogies generally compare specific similarities in two otherwise unlike things.

http://en.wikipedia.org/wiki/Argument_from_Analogy

First, it was an F-35.

Second, the faked CGI jet had a pilot.

Third, since we're going to admit fairy stories as evidence, Once upon a time csallen was wrong. the end.

The second point really drives home the fallacy, but accepting tall tales as evidence is super dangerous. you should never do that. ever.

Finally, argument from analogy is always a very weak. There is always a more direct argument to be made. If analogy is the best argument you can muster, you need to reevaluate your position.

I'm not arguing his argument was flawless. I'm pointing out that an analogy is not invalid simply because there are differences in the two situations. Thus, "First, it was an F-35." and "Second, the faked CGI jet had a pilot." are irrelevant criticisms. Neither one answers the question that mpyne was asking via his analogy, and which he also explicitly stated at the bottom of his post:

>> "...why people are fixated on drones as opposed to black helicopters[, etc?]"

Let's completely ignore the ridiculous Die Hard reference for a second.

I don't know how I feel about drones, but it seems a large part of the opposition is the unmanned part. I have two problems with this argument:

(1) They're not unmanned. Somebody is actively controlling them.

(2) Why does a pilot make a difference? Pilot's don't get a choice in their targets. This isn't a movie where pilots can decline to fire on a target. They'd certainly get a court martial, their career would be ruined, their life would be ruined with a dishonorable discharge, and depending on the circumstances they very well could go to prison.

So, I guess the reason I feel somewhat indifferent to drones is that I don't really get the main point of opposition. What makes a drone so much different than planes?

Piloted aircraft and pilots are expensive. Drones have no pilots, and are thus much less expensive. It is not economically feasible to monitor vast swaths of land with vast numbers of piloted airplanes. It is economically feasible to monitor vast swaths of land with vast numbers of drones.

But that's not an argument against drones, that's an argument against large-scale government surveillance.

Ignoring whether or not you think government surveillance is a positive, negative, or neutral, the fact that a piece of technology makes it easier doesn't mean that technology is bad.

Edit: I'm not an expert in either field, but I imagine a similar argument could be made against satellites. That doesn't mean we should have a filibuster against GPS and Sirius.

Drones are actually on par for cost with F-15-generation fighter craft (i.e. pre-F-22). Drone pilots (yes, they have pilots) are required to go through the same training as the other pilots (in the USAF at least, who operates most of them), they draw much of the same special incentive pay, etc.

So I'm not even sure that drones are really that much cheaper, except perhaps if it's feasible to remotely pilot a large number of drones with just a single drone pilot.

But either way, even a cheap drone is more expensive than a soldier with a rifle.

It's obvious that the training process for drone pilots is much less rigorous than that for normal pilots.

I haven't dug into the numbers, but I guarantee you that all else being equal, a drone is much, much less expensive than a piloted plane of similar capabilities. That much is also obvious.

Is this reddit or hackernews?

There is another argument about due process ...but what's the difference btwn a drone and an officer on the ground when confronted with a suspect. Say there is a suspect. The FBI could send in a drone or could send in officers on the ground. Drone or officers could find the suspect dangerous and have to take him out. In either case there is no due process procedure. I think this line of argument is a dead end. Actually, as noted elsewhere, you probably have more chance at surviving this confrontation with a drone than with people --people, if they feel threatened could find it justifiable to shoot more quickly than a remote pilot.

This is pedantic but an F-22 can't hover. That was an F-35B.

That was a movie, and this is real life.

Did this question really need to be asked?

To quote Lessig from his Twitter today (which is how I found out about the filibuster and started watching at work):

There is plenty to disagree with Rand Paul about. But this filibuster is not. Thank you, sir.

http://twitter.com/lessig/status/309415470879100928

The Pauls are not neoconservatives, that is for sure. They are traditional paleoconservatives.

There are few politicians we'll agree on everything with. I think that political parties are just dangerous hiveminds. Republican, Democrat, Libertarian, Green, ALL parties are inundated with dogma.

My votes go to politicians who are sincere, honest, and intelligent. Not to republicans or democrats.

I agree, I think that there shouldn't be parties. Representatives should be individuals serving their people.

However if you do away with parties, you are not that far removed from China's one party system. Which isn't heralded as a utopian government by any stretch.

The problem is not that there shouldn't be parties, but rather there should be LOTS of parties, all with an equal say and equal potential to gain office. Power brokering should happen not by party, but by the issues. There should be no majority whip or minority whip. If you need an example of how extreme the parties power goes, try to remember who was NOT invited to any of the presidential debates. (Hint: there were more than two presidential candidates)

The sad thing is drones probably could be used in a way which helps individual rights vs. the government.

In an arrest scenario (even for the most trivial of crimes), if someone resists an individual officer, it can easily turn into a justifiable self-defense shooting by the officer. If you struggle, grab for the officer's weapon, or if he even thinks that is happening, training and prudence is that he should end the threat as quickly as possible.

OTOH, if someone resists a robot, I'm fine with the robot being destroyed; just send two more to effect the arrest. Only in a situation where someone would be escaping and immediately harming other human life would it be justifiable for the drone to use lethal force.

I have zero faith that our government would restrict its use of drones in that way, though.

"if someone resists an individual officer, it can easily turn into a justifiable self-defense shooting by the officer."

That reminds me of that robocop scene where a robot enters the room and starts shooting everything heh.

> So let me see if I understand this.

> One guy is filibustering the CIA nominee

Yes.

> based on an incomplete and vague set of questions

No. See [1]

> [vague set of] answers

Yes. See [2]

> The filibuster has no chance of succeeding

No. They can go ad infinitum. Already others are joining in so the debate doesn't die. Eventually if we want a CIA head, we'll get a new nominee. Also, Paul is repeatedly saying that with firm answers, he'll end the filibuster.

The rest of your post is spot-on. Makes me finally proud of or political process for the first time in a few years.

[1] http://paul.senate.gov/files/documents/Brennan1.pdf http://paul.senate.gov/files/documents/Brennan2.pdf http://paul.senate.gov/files/documents/Brennan3.pdf

[2] http://paul.senate.gov/files/documents/BrennanPaul.pdf http://paul.senate.gov/files/documents/BrennanHolderResponse...

They cannot go ad infinitum. The longest is 28 hours and Paul ended his around 13 hours. This is because if Paul himself leaves, the filibuster he started ends. He can let others speak but he must stay the entire time.

He didn't use the bathroom for 13 hours, and as some pointed out: a long filibuster is less a contest between a speaker and a Congress and more about a man versus his bladder.

Well, truckers and video game players solved this problem long ago. If he doesn't think this is serious enough to use some sort of collection system to "go" then he must not be very serious.

I watched on C-SPAN and a Democrat named Ron Wyden participated and in the process implied he had multiple discussions with Paul about the morality and constitutionality of drone strikes. Perhaps I'm naive, but I believe he was standing up for his morals and that it was a sign of Washington actually functioning.

As Ron Paul's son, I would expect nothing less from Rand.

"It turns out this isn’t just a fleeting alliance. For some time now, Wyden and Paul—along with two other senators, Republican Mike Lee of Utah and Democrat Mark Udall of Colorado—have been working together to try to curb the broad authorities the Obama administration has asserted in the war on terror. The advent of this group, which calls itself the Checks and Balances Caucus, is certainly not the first time in political history that the libertarian right has allied with the civil-liberties-minded left. Yet at a moment when inter-party cooperation is almost nonexistent in Washington, any bipartisan alliance—especially one that includes some of DC’s most committed ideological opposites—is both unusual and noteworthy."

http://www.thedailybeast.com/articles/2013/02/26/rand-paul-a...

If the filibuster prompts further public discourse and a closer look at the use of lethal force without due process of law, it's positive. The real question will be if all of the other Senators vote for cloture just to get the issue swept back under the carpet.

Impediments on the power of government aren't particularly popular to those who wield the power of government, regardless of the branch they occupy.

Yeah, I've been wondering if it will amount to anything as well. My gut tells me that it won't.

That said, I've had it running for around and hour and have found it interesting for no other reason than understanding how filibusters actually work. From what I can tell, he has just been spending time reading articles critical of drone strikes or reading other documents while providing commentary on them as he goes.

He's even been taking time to eat a snack which provides comedic pauses in the listening experiences.

Rand also gets small breaks from others who come forward to ask questions - most of which seem to be staged to help him cover additional points, reiterate his already made points, or just generally use up more clock.

Based on the view behind him, it appears that all other senators need not be present while he speaks. Is that true and has this always been the case? I'd imagine that the tactic might be more compelling and useful if everyone had to sit there and listen.

I'm unfamiliar with the specific rules of Senate decorum, but no, I don't think any other Senators except whoever's presiding are required to be present.

Senators would get very little done if they had to sit in the Senate Chamber any time any one of them had something he or she wanted to say. They're all pretty garrulous.

This is true. The Senate assumes a quorum is present unless someone suggests the absence of a quorum, so as long as there's a designated president, they're good to go. There are several YouTube videos of pro forma sessions where just the presiding senator and staff are present.

Lawrence Lessig provides a great description of how our representatives "rush in" in time to vote and then rush out immediately to make more phone calls to solicit contributions.

http://www.amazon.com/Republic-Lost-Money-Corrupts-Congress/...

The important thing to understanding filibusters is that they're a dirty, dirty hack. They were never really intended to be part of the legislative process, they're just some enterprising senators noticing and exploiting some loopholes in the senate's debate rules.

While the House puts some limits on debates, to move things along, the Senate is a more deliberative body (by design) and therefore doesn't vote on an issue until it has been completely debated. There is no strict definition of "completely debated" beyond "someone still has something to say." As any half-awake hacker no doubt will notice, this means that you can prevent a law from getting voted on, and therefore passing, by simply not ending the debate. This is what a filibuster is.

There are technically some restrictions around debate, and the band-aid fix that a supermajority vote can stop debate and bring a vote, but that's about the only thing stopping it in practice.

The main technical restriction is that, if the Senate doesn't have anything else to do, any one Senator only gets one monologue. They can't stop one day, and then filibuster again the next day. This rule can be stretched, but not broken. Hence, the content of most filibusters tend to be long space-fillers, which is what you're seeing. There's also a rule that the debate must be 'on topic,' but that's too vaguely defined to be worth anything. Famously, one Senator said something to the effect of "this law is not in the interests of my constituents, who are as follows:" and then proceed to literally read the phone book for a few hours.

It's funny that you mention the space-fillers because Senator Ted Cruz is currently reading tweets that are supportive of Rand's filibuster.

I seemed to recall someone reading a cookbook as part of his filibuster, but a phonebook seems 10x more likely. Thanks for the info!

That was on The West Wing.

Based on Sen. Al D'Amato's 1986 23.5 hour filibuster of a military bill. Another of his filibusters in 1992 involved him singing 'South of the Border.' EDIT: typos.

That is fantastic.

My favorite so far was Marco Rubio quoting a line in the godfather:

"... 'A lawyer with his briefcase can steal more than a hundred men with guns.' Now, I don't know how the hell that relates to this argument, but I thought it was a good quote."

Filibuster the way it's used today is a dirty hack. But Sen. Paul is actually using it legitimately by standing and debating/speaking instead of just declaring 'I filibuster' and going home (implying that he would speak forever but doesn't need to since it's merely a formality). It's actually the most refreshing political action I've seen in a while. They're talking through the night, live now: http://www.c-span.org/Live-Video/C-SPAN2/

He vows to speak as long as he's physically able.

the use of lethal force without due process of law

This canard has been debunked so many times on HN that I've lost count, but carry on as if the constitutional, legislative, ethical and historical justification for drone strikes had not been repeatedly explained in copious detail. It's much easier to pretend there's a conspiracy of silence and that nobody has ever stepped up to present an argument for the administration's position.

Constitutional justification for drone strikes? Interesting claim. Any links?

http://news.ycombinator.com/item?id=5168711 and about 500 other threads.

http://lmgtfy.com/?q=site%3Anews.ycombinator.com+constitutio...

All I see here is the President granting himself and his administration powers to assassinate US citizens. This is NOT Constitutional in any shape or form. Never has been, no matter how many lists of exceptions there are. I can't find anything in the Constitution that allows him to do so, hence my question.

The administration's position is, frankly, bullshit. It amounts to little more than the executive branch reserving for itself the ability to call any location outside of US territory a battlefield and to designate anyone they wish a threat worthy of summary execution.

Now, all of this is couched in the most justifiable of terminology and is crafted to follow the broad outlines of judicial procedure but the fact remains that the administration has given themselves this authority and retain whatever oversight, if any, is involved with it.

This is utterly antithetical to the principles set forth in our constitution and if any of the founding fathers were alive today I'm quite certain they would vomit at the idea.

the administration has given themselves this authority

Congress gave the administration the authority. You may dispute the wisdom of this, you may think it should rescind that authority, you may think the scope of that authority should be more narrowly defined - all entirely reasonable points of view. But when you claim the administration is being autocratic, you are simply, factually wrong.

http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ...

This law has been in place for almost 12 years, and you are surely aware the US is still at war and that this war is not expected to conclude until next year. We have discussed this issue before and you know perfectly well that the US has been at war for over a decade. It's disingenuous of you to argue as if you weren't aware of this.

Indeed, the administration has given themselves the authority in context of congress declaring war against al qaeda. Which means that congress could end the declaration of war and end the administration's new power. So perhaps I should have said that congress has in effect given the executive branch enough leeway to create this power, but in the end the power is still there.

Congress hasn't done it 'in effect', it did so very explicitly:

Now, therefore, be it resolved by [Congress]:

[Section 1 is the title of the act]

Section 2 - Authorization For Use of United States Armed Forces

(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's not the case that Congress declared war and the executive branch granted itself authority by extension. The phrase 'be it resolved ... [t]hat the President is authorized...' is the grant of authority.

A lot of people think this is so broad as to amount to a blank check, and I agree. But neither the Bush nor Obama administrations have have had to perform any legal conjuring tricks to derive this authority. Congress gave the President the authority in very clear terms. The President's authority to determine who is or is not a target under this legislation is absolute; it's not subject to qualifications or review by other branches. The language of the legislation is about as plain as it gets.

To piggyback on, the AUMF also explicitly mentions that it is the Act required in accordance with the earlier War Powers Act. They really leave it crystal-clear that the AUMF is very much intended to give the President the "Commander-in-Chief for a declared war" powers that Congress is able to grant.

It's horribly over-broad and open-ended, but Congress has only themselves to blame (and they can rein in the Act if they wish as well, or at least make the President try to veto it).

"Anybody"?

The 2001 AUMF is specific: force is authorized against nations, persons, and organizations involved in 9/11, so long as that force is used to prevent future attacks.

The administration cannot use this construction to declare Wikileaks a terrorist organization and drone strike them.

I am interested in which principle of the Constitution you find this situation antithetical to.

the ratchet clicks.

The only oversight in the use of lethal force in furtherance of either identifying or killing senior al qaeda leaders lies with the administration itself.

What is the legal process for being declared an al qaeda leader? What is the legal process for anywhere outside of the US being declared a battlefield? What is the legal process for summary execution of someone who the administration has decided is an al qaeda leader? In each case the answer is: it is entirely up to the administration.

Yes, as a matter of constitutional law it is certainly possible for congress to declare war on a transnational entity and effectively designate the entire world outside the borders of the US as a potential war zone, under the discretion of the president, but I would say that rather twists the spirit of the constitution rather too far.

What does "oversight" mean? We killed 25,000 innocent people in Dresden in WW2. Predator drones will never kill as many civilians as we did in Tokyo. What judicial opinion can I go look up to justify that?

If you want to come back and tell me that the problem is that we declared war on an ideology or a label, I will ABSOLUTELY sign that petition. Just be aware that a majority of Americans probably won't be signing it with us.

The 25,000 people in Dresden knew they were in a war, they were citizens of a country the US had declared war against. And calling them innocent is a stretch. They were complicit in the actions of their country (just as we are in the actions of our own). They made the ammunition and grew the food that fed the German war machine. Whether they did so of their own volition or were substantially coerced into doing so is somewhat academic when it comes to war. The folks building V2s were slaves, but was it unjustified to bomb those facilities and kill them to stop the V2s from being built?

Anyway, that's neither here nor there. Today we have a situation where the entire world could be a battlefield and we haven't the slightest clue how to deal with the troubling problems that entails. So far our best efforts have been for the administration to draw up a secret internal white paper on how to make sure they only execute the right people and for everyone else to rely mostly on hope. This is not a situation our existing laws are remotely up to tackling, and yet it will surely become more and more the norm over the next few decades. We need something more than "well, the administration thinks they killed the right guy".

Here I exercise my option not to debate the ethics of warfare with someone who thinks the mass incineration of children is less fraught than the targeted killing of individual suspected terrorists.

I think your reply misses the point. The children weren't targeted (although everyone knew they would be hit), while the terrorist might be targeted by the drone, but everyone knows they regularly hit non-combatants (weddings, kids etc) and will continue to do so for the foreseeable future. At least everyone agrees WW2 was a war, how many places that drones operate in have actually got a declared war in progress?

I feel rather the same way about anyone who's comfortable just assuming the opposite; viz, that the mass incineration of children during at least semi-procedural wartime bombing is more fraught than obscure peacetime military action carried out for reasons that are themselves highly obscure to non-specialists. Said non-specialists who are at least theoretically supposed to have some involvement in the decision process in question. So, there you are.

I'm not even opposed to the idea of military drones, really. I just think you have a bad habit of responding to people who disagree with you by telling them that they're too stupid for you to talk to. Pity.

Does it make you feel morally superior to reduce warfare to such facile terms? Maybe you should become a pacifist.

You haven't answered the question on the morality of bombing Peenemunde (the V2 construction facilities), over 700 Polish civilians were killed in one bombing alone. Do you have an answer?

I refuse to shy away from the moral complexities of warfare, but that doesn't mean I refuse to acknowledge that there are moral issues in warfare. There very much are. And right now our country is installing legal and formal precedents which are sincerely disquieting in that regard.

In regards to your quip, the phrase "individual suspected terrorists" should have about 10 metric fuck-tons of asterisks after it. Because "suspected terrorists" are pretty much anyone the administration designates as such. And "individual" is pretty much defined as "anyone within the blast radius of a hellfire missile when a 'terrorist' is chosen to be executed". Not that drone attacks are even the entirety of the problem. Go read up on the war we've been fighting in Yemen and in the horn of Africa for the past several years.

> You haven't answered the question on the morality of bombing Peenemunde (the V2 construction facilities), over 700 Polish civilians were killed in one bombing alone. Do you have an answer?

Was that ever a question? He was replying to your points.

The implication that I was drawing from the line of argumentation is that if you can find it moral to carpet bomb whole cities during WWII then you should be able to find a moral justification to bomb specific aggressors in 2013, especially given the insanely higher risk of collateral damage during WWII.

The converse would then apply: If you can't find it moral to ever have collateral damage occur in 2013 then you shouldn't be able to find it moral to have been done in WWII, as the atrocities during WWII were of horrifyingly higher orders of magnitude.

So the question wasn't for him; it was for you.

Even if "suspected terrorists" had the 10 metric fuck-tons of asterisks that you say should be there, there would still have been much more accurate planning going into each military operation in 2013 than there was in 1941-1945 (and probably by an order of magnitude). I'm presuming that you found at least most of those WWII bombing attacks could be justified as the grim price of war; what is the difference now? That would help better clarify your position.

We need something more than "well, the administration thinks they killed the right guy".

Then lobby for the repeal or amendment of the AUMF by Congress. The executive Branch is currently authorized by law to make those sorts of decisions.

The only oversight in the use of lethal force in furtherance of either identifying or killing senior al qaeda leaders lies with the administration itself.

This is not true. Both the Senate and House Intelligence committees have the right to see everything the President and the intelligence community see. If they aren't happy with how the decisions are being made on drone strikes, they can change the law that ultimately dictates how those decisions are made.

And that is the real problem with what Rand Paul is doing. If he has a problem with how drone strikes are being conducted, then he should be pushing to change the law that governs drone strikes. He should not be holding up a Presidential nomination.

Hypothetical: Congress declares war on drugs. Force is authorized against nations, persons and organizations involved in drug trafficking, so long as that force is used to prevent future drug-related fatalities.

VERY BAD.

The late Christopher Stuntz made an argument in The Collapse of American Criminal Justice that one of the overlooked good things about alcohol prohibition is that it was instituted and later repealed by amendment of the Constitution, removing major legal ambiguities and allowing the polity to function as a Constitutional Republic.

For some reason or other we have become averse to amending the constitution since the 26th amendment took place in 1971. (There's a 27th amendment that occurred in 1992, but that's kind of an aberration because it was submitted to the States in 1789 and then almost forgotten about for 200 years; there was no deadline on the original submission.)

>For some reason or other we have become averse to amending the constitution since the 26th amendment took place in 1971.

The "for some reason" is obvious. Look at the amendments passed since prohibition was repealed in 1933.

22nd: Presidential term limits

23rd: D.C. gets to be part of the Electoral College

24th: Prohibits poll taxes

25th: Relating to Presidential succession

26th: Prohibits age discrimination in voting

Notice the trend? They're all related to elections. Because that's practically the only thing left that expansive readings of the commerce clause and other constitutional provisions and outright power grabs haven't given Congress and the Executive the power to do through normal legislation and executive action.

Why go through the trouble of amending the constitution when the courts allow you to just pass a law or issue an executive order?

As if the courts never struck anything down or ruled against the government. http://en.wikipedia.org/wiki/List_of_landmark_court_decision...

I'll just leave this here: http://www.wired.com/dangerroom/2013/03/friends-of-friends-q...

It's a shame that this was totally and completely unpredictable.

Rand Paul asked a stupid question†† of Eric Holder, one of the top lawyers in the USG, and received a predictably stupid answer. That question, distilled: "is there any conceivable situation in which drones could be used to attack US citizens on US soil'. How could the answer to that question be anything but yes? All you have to do is imagine a far-fetched scenario in which an al Qaeda terrorist who happens to be a US citizen is going to kill hundreds of Americans, imminently, but for an intervention that will only be effective via drone strike.

A simpler way to frame this that hundreds of people have now pointed out, which has the helpful property of extracting the scary alien new "drones"† from the equation: the authority Holder is claiming for the administration is the same as the one that would allow them to down a jetliner hurtling towards the Sears Tower: an intervention only available to the military.

There were good questions available to Rand Paul before he decided to prematurely declare victory over common sense. Two I can come up with:

* Does the administration claim the right to use military resources to attack US citizens on US soil if compelling evidence exists that they are al Qaeda terrorist when no specific evidence exists that such a person plans to imminently attack the US? Can the US use an airstrike against an al Qaeda terrorist who is a US citizen simply to keep them from "getting away"?

* Does the administration claim the right to use airstrikes against al Qaeda terrorists of any nationality when a reasonable person could infer a likelihood that such a strike would cause harm to Americans in the vicinity of the strike?

There are more good questions, I'm sure. "Could there ever be a case when..." is literally the "ticking time bomb" question; the dumbest of all questions.

† Scared kids in combat boots with M16s have done far more damage to innocent lives, both at home and abroad, than drones will ever do; drones are often a way of affecting concern for the lives of people 'like us' while ignoring the safety of civilians and servicemembers on the ground.

†† "What stupid question?" This one: http://news.ycombinator.com/item?id=5335285

Personally, even in your far-fetched scenario, I would prefer a 'no'. It would have to be much further far-fetched for the only answer to that threat to be a drone.

Should we arm some in air drones for such a scenario? All sorts of slippery slope. The answer should just be a no.

Holder himself says the scenario is far fetched. Which is why one wishes Rand Paul would ask better questions that don't admit to far-fetched answers.

But that aside: the irrational fear of drones is a little crazymaking. Not because armed drones are a good thing, but because conventional warfare is so awful. Soldiers deployed in theater are basically teenagers with combat rifles, and, not to put too fine a point on it, they routinely shoot and kill innocent people and there's practically nothing we can do about it because modern warfare is such a complete clusterfuck.

You know you're talking to someone who does not quite grok how bad war is in 2013 when they use words like "battlefield". What battlefield? Since at least 1914, your battlefield is my suburban hometown.

Have you been watching the filibuster? Because in the 20 minutes I have been watching it Rand Paul has explicitly claimed that his concern is not with using drones on a US citizen in the event of imminent harm no less than 5 times. He has given several examples of the exact nature of the military downing a hijacked aircraft. He has several times said all he wants is explicit clarification that drones will not be used against non-combatants, which people piloting a hijacked aircraft would clearly not be.

Given this, how do you reconcile his repeated public statements with your contention that this is his only concern?

Paul's own words prior to the filibuster, from his written question to John Brennan, to which Holder responded:

The question that I and many others have asked is not whether the Administration has or intends to carry out drone strikes inside the United States, but whether it believes it has the authority to do so. This is an important distinction that should not be ignored.

(Em. from original).

Right, this is explicitly why I referenced what he is currently saying. He has said multiple times in the now 40 minutes I have spent watching that all he wants is explicit clarification that drones will not be used on American soil against noncombatant US citizens. He has publicly said if he receives this he will end the filibuster.

I am discussing what he is saying right now, during the filibuster, in an article discussing the filibuster. Claiming his previous statements accurately reflect what he is currently filibustering over is incorrect.

What if they are used against combatant US citizens but there is collateral damage? Is that acceptable? If not, why do we accept it overseas?

What part of 'the Administration ... has no intention of doing so' does he (and do you) not understand? Is he asking Holder to make definitive statements about the future?

No. "No intention" does not imply "No constitutional right to". The issue is about due process. Leaving it up to the whims of leaders is not following the rule of law.

What do you think "due process" mean?

I'm not asking rhetorically. I am literally interested in what you've learned about the meaning of the term "due process".

In this context, I don't see why the answer would need to be any more detailed or nuanced than the first paragraph of the Wikipedia page.

Criminal prosecution is governed by law, and arbitrarily executing citizens (specifically, per Senator Paul's language over the course of the filibuster, those who are not actively engaged in combat) is a pretty direct abrogation of rights granted by said law.

What's the real question here?

You can be involved in military operations without being involved in actual combat. Even during WWII that described about 95% of the life of an infantryman (to say nothing of those who never went to the front lines).

And either way once you've put yourself in a military status in conflict with another power you've lost the right to have to agree about where the next battle starts; either party gets to decide until a later peace agreement/cease-fire/etc. is reached.

Paul's beef with the "we have no intention to " position is that by extension, if there was an intention to, lethal force against a non-imminent threat on an american citizen could be unilaterally carried out by the decree of a president. He disagrees with this position, that the president has this constitutional right. He wants the administration to state clearly that they do not have this right. He mentions the Posse Comitatus Act over and over which prohibits the military from using force on American soil unless war or an insurrection is declared. If the military cannot operate within the boundaries of the the US (except for imminent threats), then these issues are police matters. There is a legal process for this. Paul describes the clear distinctions that separate military and police power from judicial power. Clearly and unequivocally, the precedent needs to be stated and defined. I think, and from what I gather, Paul has stated that this is obvious and not very complicated and can easily be stated. But for some reason the message keeps getting muddled by the administration, and we get the repeated "no intention to" answer over and over...when the dispute comes down to "have no constitutional right to". That is the disagreement.

Not Paul, but an interesting video nonetheless. Why can't Holder just say, "No, it doesn't." And then move on to his expansive reply. He dithers and vacillates and it just seems unnecessary to me.

http://washington.cbslocal.com/2013/03/06/cruz-goes-after-ho...

Holder is not going to say 'no, it doesn't,' because it does. For one thing, the Coast Guard is explicitly excluded from the Posse Comitatus Act; for another, the National Defense Authorization Act of 2011 affirms the AUMF and identifies a class of persons against whom the Executive may act freely (members of Al Qaeda and suchlike); for a third, Posse Comitatus prohibits the use of the military (including the Coast Guard) to enforce the laws instead of the police, but (as you observe) this does not apply to situations of war or insurrection.

Ryan's letter to Brennan asked about whether the administration believes it 'has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?' It says nothing about a 'non-imminent threat,' and Paul himself seems to appreciate that emergent threats like a hijacked airliner being used as a weapon would not fall within the scope of his inquiry.

Right, so I didn't explicitly state that the dispute is over force against US citizens. Unilateral lethal force against US citizens who do not pose an immediate threat without due process. 5th ammendment stuff. So yes, the answer is NO.

That does not make any difference. A US citizen could be affiliated with Al Qaeda, for example.

Also, you keep adding 'US citizens who do not pose an immediate threat' even though that was not part of Rand Paul's question in the letters to John Brennan, and it is nothing more than a straw man. If the person does not present an imminent threat the the use of military force would not be necessary, by definition.

For persons who do present a colorable threat to the US in concert with Al Qaeda or its affiliates, regardless of their citizenship or situation within or without the boundaries of the US, the President's determination is the due process. If you don't like this (which I quite understand) then what you want is to amend the AUMF. Because it very clearly grants such broad authority to the President.

That's not answering the question. The question is, does the president have the constitutional right to use lethal force against someone who does not pose an imminent threat without due process either from the judicial or legislative branch, following some established law enforcement precedent .. intentions are irrelevant. And if anyone thinks this whole issue is asinine because the question is so silly, well that's because the answer is so obvious. "No." But that answer hasn't been stated. Paul says once it is, he will stop.

That's not the question Rand Paul put to Brennan, for one thing; for another, there is a large class of persons for whom the answer is 'yes.' You want the answer to be 'No,' but that doesn't mean it is.

His repeated statements are designed to mislead you, and they seem to be working. Holder told him the administration has no intention of doing the thing he says he's concerned about, so why is he still concerned about it?

A: I am concerned that you are going to do [something bad]. Are you?

B: What? No, I have never done that, I am certainly not going to do that.

A: WHY WON'T YOU GIVE ME A STRAIGHT ANSWER?

A: I'm concerned you have the power to do x. Do you have such a power?

B: Well, I haven't used it yet, and probably won't.

I responded to the question in the grandparent post. If Rand Paul is now asking Holder whether the has powers to deploy drones on American soil, then I'd say the answer is Yes, and Holder gave ample clarification of that.

"What? No, I have never done that, I am certainly not going to do that."

Holder said nothing of the kind.

As members of this Administration have previously indicated, 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.

...

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront.

"We reject the use...where...provide the best means".

That leaves the option to use drones if they decide they're the "best means" 100% open.

"The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront."

"Hopes" are as meaningless as "intentions" in this context.

He went beyond saying that they had no plans to use drones in the US to take a swipe at the hawk position that the military was the only appropriate vector with which to address terrorism; "terrorism is not a law enforcement problem" was practically the motto of the Cheney shadow Defense Department.

I'm choosing my words carefully there, by the way. I don't remember the actual wording, but that was literally one of Cheney's doctrines.

I think this is what you might be referring to: http://content.usatoday.com/communities/theoval/post/2011/10...

The former vice president, who is promoting his memoir, defended Obama against critics who challenge the legality of Friday's attack because al-Awlaki was an American citizen.

"I think the president ought to have that kind of authority to order that kind of strike, even when it involves an American citizen," Cheney said.

"It is different between a law enforcement action and a war," Cheney said. "And we are at war. We believe we are in war. We believe the war started when they killed 3,000 Americans on 9/11."

So, he 1) didn't answer the question 2) instead used it as an opportunity to campaign and 3) this some how makes it better from your point of view?

Oh yes he did.

No.

He didn't.

Yes he did. The President can't relinquish his duties as Commander-in-Chief in the event of an attack upon the United States. That role is constitutionally defined as a part of the Presidency, which the President is sworn to execute.

You will note the ancestor post above '[Rand Paul] has several times said all he wants is explicit clarification that drones will not be used against non-combatants, which people piloting a hijacked aircraft would clearly not be.'

And yes, Holder did say that the administration is not going to do that. If you think otherwise then I invite you to cite the specific statement you disagree with.

"And yes, Holder did say that the administration is not going to do that. If you think otherwise then I invite you to cite the specific statement you disagree with."

Why don't you cite the specific statement where he said that?

This: "We will not use drones for extrajudicial executions of U.S. citizens on U.S. soil." would qualify as such a statement.

"Intentions" and "hopes" do not.

I already did, as has tptacek: http://news.ycombinator.com/item?id=5335651 You're just playing word games at this point. 'Will' and 'intention' are synonymous in English.

>there's practically nothing we can do about it because modern warfare is such a complete clusterfuck.

One thing we could do is stop deploying soldiers...

What do you mean by "Scared kids"? These soldiers we send into combat are adults and trained professionals. If anything they should be better able to assess a situation in combat with boots on the ground, not flying above the area thousands of meters away firing missiles.

Additionally, there is nothing stupid about what Rand Paul is doing. The American government is based on a system of checks and balances. Rand Paul is doing the job he is paid to do.

Many of them are adults and trained professionals, but many of them are also literally teenagers.

As for Paul, reread what I wrote. I said something specific, and you generalized it to rebut something else that I did not say.

> What do you mean by "Scared kids"? These soldiers we send into combat are adults and trained professionals. If anything they should be better able to assess a situation in combat with boots on the ground, not flying above the area thousands of meters away firing missiles.

I believe we have some combat veterans among the HN crowd; you might ask them whether you've got a realistic view of the stress of a combat situation.

Can I just say real quick that when I said "scared kids" the thing in my head was Kent State? I have a generally high opinion of people who serve in the military. I couldn't have done it. I don't think they're all dumb kids.

For clarity, I wasn't responding to you, Thomas. The people I've known who have been in combat (including my dad) have uniformly said that of course they were scared, but they did their jobs anyway as best they could. And yes, most of them are basically kids.

Trained professional? All of them? Have you about the atrocities in Iraq and Afghanistan etc? They might be mostly professional, but that isn't good enough unfortunately.

Our attorney general isn't capable of handling a "stupid" question?

That's a primary qualification for the job, isn't it?

The question I would most like to see asked and debated (in Congress and here) is whether there is or should be any legal distinction between drones and more traditional weapons. Here's why.

It has long been established that the federal government (like state and local governments) may, in certain limited circumstances, kill a US citizen on US soil without any formal process. Some familiar examples: a gun-to-the-head hostage situation, a mass shooter, and a person opening fire on law enforcement. In these scenarios, the perpetrator would typically be killed by law enforcement.

There are also circumstances in which the US military may kill US citizens on US soil. The Civil War is perhaps the best example. The Confederacy was not deemed a sovereign nation. Its soldiers were deemed US citizens engaged in criminal activity. When the US armed forces killed Confederate soldiers, they were killing US citizens without trial. I say this without an ounce of condemnation. It is just the bleak historical reality.

So it is clear that both federal law enforcement and the military may at times kill US citizens on US soil. But in the examples I've given, drones were not used.

Which returns me to my original question: Should drones somehow be treated differently? What about manned aircraft? Artillery?

I think that's an entirely reasonable question.

Personally, I am less scared of drones than of conventional weapons, which tend to be deployed in the arms of mammals who get twitchy and fire them irrationally out of fear, excitement, or anger.

Trouble is, the same mammals operate drones, with the difference that there is no physical danger to them that would justify it.

Which consequently makes it impossible to use the doctrine of self-defense to try and justify homicide after-the-fact. What's worse for a potential murderer is that all of the evidence they had available for them to make a decision is also available to others afterwards, all of the movements they make are recorded, etc.

Physical danger is not the panacea you make it out to be. Physical danger is what allows trigger-happy pilots to be trigger-happy without consequence. You don't want these pilots to be in physical danger.

Since the Confederate states were dropped from the Union and later readmitted over time, that's not a crystal clear interpretation. There's a case to be made that the Confederacy seceded only to be reconquered by force.

I'm not sure what the process was for renouncing one's citizenship during that time, but the vast majority of the Confederate soldiers were born in the Union, making them citizens.

The political designation of where they were fighting is less significant, and actually makes this a better analogy for an American Citizen fighting in a foreign land against the American Govt.

I know you're trying to be a realist about this, but there's honestly no excuse for backing down on your morals.

We are not CONSTITUTIONALLY at war with any nation. In fact, we are not even in the process of congressionally (i.e. CONSTITUTIONALLY) authorized military engagements.

So, then. If we are proper citizens of this Earth and respect the rights of our fellow man, who we all believe to be equal, do we allow the use of pre-emptive force, even non-lethal, outside of our borders?

I honestly don't see any other answer than an emphatic "No". Any other answer leads down a slippery slope, no matter the incline (if you will). I don't plan on supporting any slippery slope that I'm standing at the bottom of.

I do not require an excuse to tell you what I think is actually going on in a public policy dispute.

Apologies, I don't seem to understand your response. I'm not asking for an excuse, I'm trying to state that your framing of the debate implies a tacit consent to the status quo. The fact that you are even advocating someone ask the questions you posted boils my blood (not that you're advocating it, that we live in a world where it's realistic to ask those questions of our leaders!).

A strong moral stand is required and, whatever the motivations or political machinations, someone is making a semblance of that stand. But you seem to dismiss it, calling Paul's question "stupid" (this filibuster is mainly based on that question). You then go on to assume the answer to that question is "yes"! Once you begin implying it's to be accepted that any answer besides "No" to the question "Would you target and kill someone outside of the U.S.'s legal borders without a Congressional affirmation of agression?" is acceptable we begin to fall down that slippery slope I mentioned.

Whoah! That line worked! I'm going to use it more often. :)

I have a problem with the status quo, but it is not the problem Rand Paul has today.

My problem is that we haven't found a way to rescind the 2001 AUMF against "any organization" involved in the 9/11 attacks, because the amorphous term "organization" has allowed us to declare war against a label.

Rand Paul's problem --- charitably (I think this has much more to do with partisan politics) --- is that he believes US citizenship should be a talisman exempting people from the war.

It is not a good idea, I think, to make long-term wars against labels more sustainable and less threatening to US citizens. So, we make it infinitesimally harder for a citizen terrorist to be stopped. Woopity-doo! That's cold comfort for the wedding party guests in Waziristan who are being incinerated by airstrikes against actual guns-and-explosives- carrying al Qaeda militants that happen to be attending.

I also think Paul's original stance defies common sense. But that's O.K., because I think he knows that too; he was just setting a trap.

Our thinking may be more in line than I believed, especially with the 2001 AUMF (So pleasant to discuss this with someone who knows what that is!).

However I think you're quick to dismiss Mr. Paul's actions. Even if it's 100% partisan politics (I'm more of the thought that this issue is at a nice intersection of convenience and personal belief for Paul) isn't any action better than no action? Since 2001 the stage has begun to be set for widespread drone and autonomous warfare, free of pesky human flesh and the laws that constrain it. Finally, we are getting some real, publicized (trending on twitter!) action to stem that tide. I say regardless of the motives, at this point support the cause as heartily as possible. We may not get another chance if this is swept under the rug (politics or otherwise).

If congress poops out a diamond I'm not going to turn my nose at the sight of a little shit, pardon my french.

If you reread the last two grafs of the comment you just replied to, I made a case for why fiddly restrictions on drone strikes are actually counterproductive (they forestall the fix to the real problem, which is that we have to stop being in a war with a brand).

I guess we simply disagree then. I am of the opinion any action is beneficial at this point, though I can see (but not agree with :) ) your point.

Thank you for not calling me a statist thug. :)

This is a perfect example of emoticons clarifying tone. Way to go people. :)

The thing is, he's asking the Executive Branch to do Congress' job for it. If he wants to see constraint's on the President's authority to take military action, then he should introduce legislation to either curb the use of drones or amend the AUMF, which currently grans the President extremely broad authority.

Since 2001 the stage has begun to be set for widespread drone and autonomous warfare, free of pesky human flesh and the laws that constrain it.

The civilian casualty rate from drone warfare is an awful lot lower than other kinds as far as I can see. It's a distinct improvement on aerial bombardment.

I disagree with the partisan politics part; I honestly think that he's thinking domestically.

Here's the problem. We have a group of Americans that may at some point be slaughtered by our government (more specifically, our president, as there is no other oversight). We also have intelligence services that answer only to the President.

This is a major problem. There are more important things than the security of all individuals. Unfortunately, not all share that opinion.

On Rand Paul: he's one of the least partisan politicians I've ever seen. I wouldn't have voted for him had I had such a right, but I am glad to see him in the Senate.

As a side note: I've done a lot of political campaigning and am fortunate enough to know a lot of people on the Hill. I've also worked and am friends with "DOD contractors."

> We are not CONSTITUTIONALLY at war with any nation.

You could quibble about North Korea, but either way we are at war with the military elements of the stateless group known as Al Qaeda. The relevant law (2001 Authorization for Use of Military Force [1]) does not say "The U.S. declares war against Al Qaeda", but it does specifically mention that the law implements the War Powers Act, which is one of the ways by which Congress has pre-determined how it will handle its right and responsibility to handle who the U.S. is at war with.

> do we allow the use of pre-emptive force, even non-lethal

Uh... yes? That's the only correct answer. Imagine if Churchill had been Prime Minister in 1938 and not Chamberlain.

Imagine if France had managed to bring down Hitler's government by rebuffing his action to remilitarize the Rhine basin?

Imagine if the Allies had refused to allow Czechoslovakia and its formidable defenses and military forces to be simply absorbed into the Reich.

Imagine if a military jet had been flying point behind the United 175 before it hit the South Tower of the World Trade Center. How many thousands of lives could have been saved by shooting down that airliner before impact? http://en.wikipedia.org/wiki/United_Airlines_Flight_175

Absolutely it can be appropriate to use pre-emptive force when there is a clear and present danger.

https://yourlogicalfallacyis.com/slippery-slope

Please point me to the Congress vote on the authorization of military force towards N. Korea. Also, the AUMF is an extreme case of executive overreach, and in a perfect world would be struck down, so using it as justification for your argument is suspect at best.

I fail to see where those examples you give involved pre-emptive force. A declared war was going on in each of them, isn't that exactly the situation where pre-emptive force is justified?

And the shooting down of Flight 175 would have happened within our border so I fail to see how that applies. The U.S. Government has the appropriate branches of government (Law Enforcement, and by extension, some parts of the Military) to deal with such situations perfectly legally without any AUMF or drones.

You can call a slippery slope a fallacy all the way down to the bottom. If I called it a slippery slope in 2001, and posted hypotheticals about us shooting missiles at U.S. citizens extra-judicially would it still be a fallacy?

The AUMF is an extreme case of executive overreach? It passed the House and Senate 1 vote shy of unanimously.

> Please point me to the Congress vote on the authorization of military force towards N. Korea.

That's why I said "quibble" :)

Congress eventually appropriated funds for North Korea and increased the size of the Army to match, but certainly got blindsided by the Truman Administration (who even tried to claim at first the Congress didn't need to approve at all).

It is at least certain that Congress has decided to treat it as a declared war (e.g. http://usmilitary.about.com/od/benefits/a/vetbenefits.htm where they talk about Veteran's Preference programs, they specifically list out the time during the Korean War).

> And the shooting down of Flight 175 would have happened within our border so I fail to see how that applies. The U.S. Government has the appropriate branches of government (Law Enforcement, and by extension, some parts of the Military) to deal with such situations perfectly legally without any AUMF or drones.

The military is very much not an extension of law enforcement, as that is illegal per the Posse Comitatus Act. (Edited to include the right law; I said ex Parte Milligan before because I've been up too long)

In fact the Navy's surface ships will take a US Coast Guard task force with them to handle law enforcement duties when they are involved in interdiction operations (since the DoD requires Navy to obey the provisions of Posse Comitatus even though it strictly speaking only applied to the Army).

There's no need to worry about shooting missiles at U.S. citizens after 2001 though. We've attacked American citizens on military grounds since the Whiskey Rebellion.

http://www.constitutionproject.org/wp-content/uploads/2012/0... is an excellent summary of the (lack of) legal basis for the Korean war.

A plain-text version: http://www.korean-war.com/Archives/2002/06/msg00262.html

or that was the exact kind of answer Rand Paul was looking for with that question.

Yes, I agree.

A instance of your first question by Ted Cruz: http://www.weeklystandard.com/blogs/holder-government-has-no...

I am a firm believer that we cannot shape law around worst case scenarios. This is how we legalize torture also, because what happens with the ticking time bomb?

The right answer is under horrible extreme circumstances, leaders will sometimes act outside the law, and these actions can be tacitly ignored by the rest of the political system, or used for impeachment/prosecution if the country disagrees with the actions.

What we must not do is imagine worst case hypotheticals in our heads and then unwrite the Constitution, handing absolute legal power over anyone's life and death to one man in the name of protecting ourselves from our nightmares.

I'm ok with categorically banning attacks with drones on US citizens in the US if those citizens do not pose an imminent threat. It's the same legal standard as for the police to take a shot at someone vs. arresting him. The question specifically mentioned "imminent threat". I mean, if someone poses an imminent (and unlawful, and extreme/lethal) threat to me, I'm legally ok to shoot him myself, as a private citizen.

Any competent attorney, particularly one representing the US Government, should have said exactly that and moved on.

What is clearly terrifying to people is the use of drones in a more expansive way than a simple replacement for a precision marksman -- persistent monitoring of a target, signature strikes, and personality strikes with the standard of "we'd probably detain him, but it's easier to Hellfire", which is what we do in Yemen and Pakistan due to dysfunctional local governments. If we start doing that in e.g. the Southwest because we don't have the funding for enough CBP agents, we're clearly in the wrong.

> †† "What stupid question?" This one: http://news.ycombinator.com/item?id=5335285

That's a nice way to frame your point, but it's not true:

http://blogs.wsj.com/washwire/2013/03/06/qa-rand-paul-drones... See the linked PDFs "one", "two", and "three" in the 4th paragraph there.

Do you have a government pension or something? Edit: that's just a joke, but you're very pro-establishment. Maybe you're a devil's advocate, maybe you're tempering our views, but you seem to approach the situation as defaulting to trusting the government, whereas I do not.

Filibustering is great and all, but how about introducing some legislation clarifying the issue that US citizens are off limits to drones? It would be too easy for Holder or Obama to say, "okay, we won't do it" and then go back on their word. Having the law on the books makes it a lot tougher for Obama and any future presidents to kill citizens without affording them their full right to trial.

I'm sure that will happen sooner rather than later, but Brennan's dog and pony show is a perfect place to make a nice point about the issue since he's one of the prime advocates for the drone movement.

Don't we have something more powerful than a law on the books now? The 5th Amendment is pretty clear on the subject: you must follow due process.

I honestly don't see how a strike on US soil against a US citizen could be seen as constitutional. But then, there have been a lot of things over the past 15 years that I've felt the same way about.

The 5th Amendment is great, but that doesn't mean that Congress can't pass something clarifying how drone strikes fit into that framework and settling the issue before someone gets blown up by a Hellfire missile. I don't see how anything like drone strikes on US soil could be constitutional either, regardless of what the memos and briefings from the Attorney General's office say. But I'd sure like this to be put to bed before someone dies from it, and I think that Congress should be the place to do it. It would be almost impossible to vote against such legislation and would probably help Congress' approval rating because they will be doing something worthwhile.

The standard process seems to be to violate the Constitution, then continue doing it until the Supreme Court tells you you've been very naughty.

And even that didn't stop Andrew Jackson.

And then claim that "due process" doesn't mean a court and actually means a bunch of securocrats sitting in a room with a list of names going kill? or not kill?

Well, there's this other stuff in the Constitution about Congress having powers to define the rules of war and Congress has exercised that power. You have to take the Constitution as a whole, not just the bits that suit your argument.

The letter of the law doesn't bring the dead back to life. And what's written in the constitution is irrelevant if 2 branches of government brazenly decide to ignore it, as has happened far too many times in the past.

Live right now on C-SPAN2: http://www.c-span.org/Live-Video/C-SPAN2/

It's most interesting to hear what he's talking about and how he can just keep talking and talking and talking. He'll repeat himself and then say it again in a third way, it's great.

I like the other senators helping him out by 'asking him to answer questions whithout relinquishing the floor'.

Zerohedge coverage here with some quotes: http://www.zerohedge.com/news/2013-03-06/rand-pauls-filibliz...

I don't really understand the argument against what Rand Paul is talking about. Even if you think he's being ridiculous, what's the problem with declaring due process applies to drone strikes on American soil?

Personally, I think this is exactly what I want from my political representatives.

The letter Eric Holder sent that caused this.

http://paul.senate.gov/files/documents/BrennanPaul.pdf

That's a letter from John Brennan, nominee for head of the CIA. This is the letter from Eric Holder: http://paul.senate.gov/files/documents/BrennanHolderResponse...

In my view it's entirely reasonable, and Rand Paul is full of shit. His filibuster is nothing other than pandering to a right-wing fringe that considers Obama to be the reincarnation of Josef Stalin.

Don't you think there should be legal limitations on the President's ability to order someone's death? Note that Holder's letter recognizes no such limitations.

There should and there are. These have been presented in detail before and no doubt will be again. If Holder were to submit a lengthy memo restating the administration's legal position in regards to military action within the borders of the US, people would complain that he was trying to bury the issue in obfuscatory language.

Let me offer you instead a rule of thumb by which to judge this situation. You are aware, no doubt, that there are many combat-ready planes and ships operated by our armed forces in the airspace and waters of the continental US; and you can surely conceive of situations where those planes and ships might be ordered to intercept or even fire upon targets in response to military or terroristic threats. The primary purpose of having armed forces, after all, is for a country to defend itself from attack. If tomorrow we were to find that hostile actors had control of a jet airliner and were flying it towards a city or similarly important target, nobody would be surprised or upset if the President were to order fighter jets scrambled in order to divert even destroy it if necessary. Indeed, the previous administration came in for quite a bit of criticism over its lack of preparedness to take such actions on September 11 2001.

If you are OK with this, and I would bet money that you are, because no government in its right mind would respond to military attack by filing suit in the Supreme Court or asking congress to legislate before doing anything, then you should be OK with drones being employed for the same purpose. On the off-chance that you are opposed to any military assets of any kind being deployed within or around the US during peacetime, and that the US should not maintain any sort of defensive capability, then we are doomed to disagree.

What you describe is not targeted assassination. Your scenario depicts incident response. For example, "neutralize the several people that have hijacked this plane." Targeted assassination is, as the name suggests, aimed at a specific person, not because they are currently engaged in firing guns, hijacking planes, taking hostages, and so on, but because "intelligence suggests" that this person has been or could be involved with threats at some point. While we most all of us can envision situations in which targeted assassination is an appropriate response to a threat, the problem is that there are currently no inter-branch checks on the process that determines who is a threat. While due process doesn't mandate a trial or situation-specific court review, it's hard to argue that it doesn't demand input from any other federal branch at all. The criteria are currently determined by executive fiat and are not subject to general review by the judiciary or to modification by legislature. It's not just a matter of "drones," though the use of drones makes these issues more salient. It's about the balance of power distributed throughout the federal government.

While due process doesn't mandate a trial or situation-specific court review, it's hard to argue that it doesn't demand input from any other federal branch at all.

I would entirely agree that the AUMF (which underpins the administration's policy on the use of drones) is overbroad and that Congress should either drastically narrow its scope or consider rescinding it completely after US troops are withdrawn from Afghanistan in 2014, after which we would arguably no longer be in a state of war.

Likewise, I think it's past time for Congress to develop legislation on the scope of military technology - not least because we are approaching or already at the point where we have technology capable of automatically identifying and firing on targets more quickly and accurately than any human. We don't have the technology for making ethical or legal determinations about the rightness of targeting someone; I'm talking purely about the physical capabilities of machines v. humans.

Only Congress can bind the Executive on such matters. The incumbent administration can eschew any intention of using drones domestically (as they have done) but can't bind future administrations.

>Only Congress can bind the Executive on such matters.

This is probably the root of your misconceptions. The Executive has enumerated powers, not enumerated limitations.

And Crongress has the (enumerated) power of declaring war, issuing letters of reprisal and so forth (A1,s8.11), and has lawfully granted the President broad powers to wage war under the AUMF. The fact that the President is constitutionally named as the Commander in Chief of the armed forces means that when a state of war obtains he has the privilege of commanding which military activity is to take place.

Would you please try discussing this in its proper context instead of pretending that the Executive pulled its military powers out of thin air?

Holder's letter doesn't concede any limitations from a non-military context. So you are the one pretending and puling things.

> Targeted assassination is, as the name suggests, aimed at a specific person, not because they are currently engaged in firing guns, hijacking planes, taking hostages, and so on, but because "intelligence suggests" that this person has been or could be involved with threats at some point.

Even that [targeted assassination] has previously been used in a purely military context though (lookup what happened to Admiral Yamamoto of the Imperial Japanese Navy, not to mention counter-sniper activities throughout the past hundred years).

I have to agree with anigbrown here, if Congress or the judiciary doesn't give direction to the contrary then the Article II powers of the Commander-in-Chief can give some extremely broad powers to him with only a little bit of imagination required.

If that's something that scares Congress then they need to clip the wings early instead of whining about interpretation of law (especially interpretation at the farthest reaches of plausibility).

You're spinning the issue.

No, no one would be surprised if a human-guided cruise missile (i.e, hijacked airliner) got shot down, nor would most people oppose it.

However, that's not drones are typically used. They're being used against targets who are not generally carrying out an active attack at that moment.

As long as they're used 'to prevent any future acts of international terrorism against the United States' by al Qaeda or its affiliates, they're being employed lawfully.

I'm not saying that that law is good or desirable. I'm just pointing out that that's how the law stands at present.

This isn't necessarily proof against what you're saying, but many articles I've been reading are chock full of commenters saying they dislike Rand Paul and usually disagree with him, but agree with him on this matter.

So from what I can tell, many people agree with him on the matter of drone attacks on US soil.

Would you say the same thing if there was a Republican in the White House touting the power to execute you without a trial?

False premise. That said, if I were engaged in some sort of military-style assault upon the US then of course I would expect to encounter armed opposition. Is it your view that when a country is attacked the executive is supposed to sit on its hands?

Call me cold-heart, but I think George W. Bush would have been better off ordering fighter jets into the air back in 2001 instead of listening to a story about a pet goat. (See http://en.wikipedia.org/wiki/The_Pet_Goat#George_W._Bush:_9.... for context).

EDIT: I forgot to add that the US has been employing drones since at least 2002. See http://en.wikipedia.org/wiki/Drone_attacks_in_Pakistan and http://www.time.com/time/printout/0,8816,1900248,00.html among other sources.

I thought it was wholly reasonable then and I think it's wholly reasonable now.

>>> if I were engaged in some sort of military-style assault upon the US then of course I would expect to encounter armed opposition.

The Senator is talking about preemptive drone attacks against non-combatant American citizens on American soil who are merely accused of some crime.

And Holder has told him that that's not going to happen, short of an obvious military emergency. The President is Commander-in-Chief of the armed forces and is responsible for the defense of the US in such situations.

If the Senator is so worried about pre-emptive drone attacks, why hasn't he crafted any legislation defining the scope of the executive's power to deploy military assets within the domestic boundaries of the United States? Or introduced a bill to rescind or amend the Authorization for Use of Military Force that is presently the law of the land? Why, in short, is he engaging in windy rhetoric but making no use of his legislative power?

Even if you trust the Obama administration implicitly, I do not believe you can trust every subsequent administration not to abuse the powers given them, or indeed in this case simply use them.

By the way, he's actually drafting such a bill, he said so an hour or so ago in his filibuster.

Then he should introduce the bill instead of filibustering an appointment. I don't trust every future administration not to abuse its powers, but likewise I recognize that the incumbent administration can't bind its successors. Only Congress or the Judicial Branch can do that, and so far neither have seen fit to restrain the Executive Branch on this issue.

It would be easier to buy the "we'll only use this new, extraordinary power to combat terrorists (or pedophiles, or drug dealers, or whatever the boogeyman of the day is)" excuse if it hadn't turned out to be a lie time, and time again.

Over and over, the government grabs more power for itself, then uses and abuses that power in whatever way it wishes.

What makes this particular case even more eggregious is that there's absolutely no oversight whatsoever. Obama (or whoever we're unlucky enough to be saddled with after him) can just designate anyone he wants a "terrorist", without anyone being able to question his judgement or even ask for justifications. It's assassination power on a whim.

How much more absolute power are you going to be willing to grant the government for the sake of security theater?

What is the oversight that was used when the administration decided to bomb Dresden, or to firebomb Tokyo? How does it differ from the oversight employed against "organizations involved in the attacks on 9/11"?

How many more innocent people were killed in those attacks than will ever be killed by drones? Have you ever watched "Fog Of War"? Tokyo was made of wood and paper.

More Japanese died in Tokyo from one night of firebombing attacks in March 1945 than died in either Dresden, Hiroshima, or Nagasaki.

It sadly really goes to show how right Stalin was when he made his jest about tragedies and statistics.

I encourage you to watch the filibuster then, because Rand Paul is explicitly claiming that he is not concerned with a person " engaged in some sort of military-style assault upon the US" being killed by drones. His concern is explicitly that there has been no clarification that drones will not be used to kill non-combatant citizens on American soil. He has directly said his concern is with non-combatants. Multiple times. How can there be any reasonable opposition to this?

His concern is explicitly that there has been no clarification that drones will not be used to kill non-combatant citizens on American soil.

'[T]he US Government has not carried out drone strikes within the United States and has no intention of doing so.'

That sounds pretty damn clear to me. That's why I say Senator Paul is pandering; he has had the clarification he asked for. Holder can't very well cite laws that Congress has not seen fit to write.

"Intentions" mean exactly squat.

My intentions change on a daily basis. Don't yours?

No, not really. Also, I invite you consider the second half of my comment above. As far as I know, there is no law limiting the Administration's use of drones pursuant to its lawful exercise of military force.

It's a complete and utter fallacy to say that the government doesn't have the authority to kill people without due process. The police and Federal law enforcement do it all the time. It's called justifiable homicide.

It's called justifiable homicide.

And it requires an actual incident, with some kind of "eminent harm".

That's a lot different than what Rand Paul is talking about, which is targeting someone who is just going about their day that the government would prefer to dispatch without going to trial.

(If you object to the "just going about their day" part, that's exactly how we do drone strikes outside the US.)

One of the problems I see with this is that a Republican is leading the charge on this rather than a Democrat. And because Rand Paul says a lot of stupid things, as do most Republicans, I think many people will dismiss this as partisan politics (which it probably is).

I think we need another president as bad or worse as Bush again (perhaps Romney or Palin) to put enough pressure on citizens to become actively engaged again and take to the streets.

>I think we need another president as bad or worse as Bush again (perhaps Romney or Palin) to put enough pressure on citizens to become actively engaged again and take to the streets.

You're all but saying that you don't think that people will take to the streets when a Democratic president is in power. I'd submit that Obama has been worse than Bush in a number of areas. In particular, he extended every major Bush-era power-grab, ranging from the Patriot act, to warrantless wiretapping. And then he piled more on top of that.

It might be more accurate to condemn both major US parties as loving power and war. If people won't condemn both, and prefer instead to remain tribalistic in their allegiance to one of the parties, then there's really not much hope for any change (not that I was ever optimistic about that).

Did anybody write the President after they heard about Holder's outrageous comments? If not please do.

if it wasn't drones it would've been something else. everything in the senate is filibustered by default, quite literally. there isn't anything special about this case except the drone issue itself

No this is different there are two different types of Filibuster. a Filibuster lite which is more or less a procedural trick. and then the full blown Mr. Smith Goes to washington keep talking until you drop filibuster. this is the full blown filibuster and it's actually quite rare.

Rand Paul, Justin Amash, Jason Chaffetz. Is some sanity creeping into our political system?

Did everyone here skip US History in high school and college? One of the main reasons for creating the Constitution was that the Articles of Confederation made it too difficult for the government to use military force against US citizens on US soil, e.g. Shays's Rebellion. The Constitution allows Congress to raise and use an army -- such as through an Authorization for the Use of Military Force -- and to destroy "Insurrections", i.e. US citizens on US soil. And when the President swears to defend the Constitution against "all enemies, foreign and domestic", what did you think "and domestic" means?

And no, you don't have a Fifth Amendment to not be shot at when you join the enemy during a war; and no, being a citizen does not give you rights, and the Constitution does not grant you rights. The Constitution grants the government powers and limits those powers. All people inherently have rights by virtue of being born. Read Blackstone's Commentaries; the Founding Fathers did. That was the standard law textbook in the colonies at the time of the Revolution.

Remember that this whole drone nontroversy arises from the killing of al-Qaeda's leader Anwar Awlaki and a few of his followers who all happen to have been US citizens and who had invaded Yemen and carved out their own country there. The drone question is not about hypothetical harm done to innocent Americans, it's about whether the army may use military force on al-Qaeda when there is a Congressional law explicitly directing that the army do so. Why is this even a question?

Yeah, did ya get the memo? http://usnews.nbcnews.com/_news/2013/02/06/16870230-4-key-qu...

This isn't about true war and combatant enemies. This is about worst-case-scenario 1984 happening soon by having a perpetual war with a nebulous enemy. Whether you think this is a legitimate worry or not is irrelevant. The President is claiming broad, never before used power. Maybe he can be trusted with this, but no president ever has, and there will be future ones. (He's challenging principles from the Magna Carta http://en.wikipedia.org/wiki/Magna_Carta which was the basis for various rights of due process in the Constitution)

Also, we drone struck Anwar Awlaki's 16-year-old son from Colorado while he was overseas looking for his father (whom was dead due to another drone strike). When asked about it, the administration (Robert Gibbs) commented, "I would suggest that you should have a far more responsible father". So we go after your family if you've ever been against the US and haven't since publicly renounced that stance. That's cool with you? If it is, keep in mind this is all hypothetical anyhow since nobody's getting a trial.

Good for him. Maybe more of the general public will actually start talking about it. Right now I think most of the populace is blissfully unaware of the program.

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