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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

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.

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...

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 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.

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.

> †† "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.

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

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

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

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

Yes, I agree.