Text and Video of Sen. Rand Paul’s Filibuster, Hour 1 to 7

This video and unofficial transcript were provided by Sen. Paul’s office. Follow YAL’s live coverage of this historic filibuster on Facebook and Twitter.

Hour 1

I rise today to begin to filibuster John Brennan’s nomination for the CIA I will speak until I can no longer speak. I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court. That Americans could be killed in a cafe in San Francisco or in a restaurant in Houston or at their home in bowling green, Kentucky, is an abomination. It is something that should not and cannot be tolerated in our country. I don’t rise to oppose John Brennan’s nomination simply for the person. I rise today for the principle. The principle is one that as Americans we have fought long and hard for and to give up on that principle, to give up on the bill of rights, to give up on the Fifth Amendment protection that says that no person shall be held without due process, that no person shall be held for a capital offense without being indicted. This is a precious American tradition and something we should not give up on easily. They say Lewis Carroll is fiction. Alice never fell down a rabbit hole and the White Queen’s caustic judgments are not really a threat to your security. Or has America the beautiful become Alice’s wonderland? ‘No, no, said the queen. Sentence first; verdict afterwards. Stuff and nonsense, Alice said widely – loudly. The idea of having the sentence first? ‘Hold your tongue, said the queen, turning purple. I won’t, said Alice. Release the drones, said the Queen, as she shouted at the top of her voice.


Lewis Carroll is fiction, right? When I asked the President, can you kill an American on American soil, it should have been an easy answer. It’s an easy question. It should have been a resounding and unequivocal, “no.” The President’s response? He hasn’t killed anyone yet. We’re supposed to be comforted by that.

The President says, I haven’t killed anyone yet. He goes on to say, and I have no intention of killing Americans. But I might. Is that enough? Are we satisfied by that? Are we so complacent with our rights that we would allow a President to say he might kill Americans? But he will judge the circumstances, he will be the sole arbiter, he will be the sole decider, he will be the executioner in chief if he sees fit. Now, some would say he would never do this. Many people give the President the – you know, they give him consideration, they say he’s a good man. I’m not arguing he’s not. What I’m arguing is that the law is there and set in place for the day when angels don’t rule government. Madison said that the restraint on government was because government will not always be run by angels. This has nothing, absolutely nothing to do with whether the President is a Democrat or a Republican. Were this a Republican President, I’d be here saying exactly the same thing. No one person, no one politician should be allowed to judge the guilt, to charge an individual, to judge the guilt of an individual and to execute an individual. It goes against everything that we fundamentally believe in our country.

This isn’t even new to our country. There’s 800 years of English law that we found our tradition upon. We founded it upon the Magna Carta from 1215. We founded it upon Morgan from Glamorgan and 725 A.D. We founded upon the Greeks and Romans who had juries. It is not enough to charge someone to say that they are guilty.

Now, some might come to this floor and they might say, “Well, what if we’re being attacked on 9/11? What if there are planes flying at the Twin Towers?” Obviously, we repel them. We repel any attack on our country.

If there’s a gentleman or a woman with a grenade launcher attacking our buildings or our Capitol, we use lethal force. You don’t get due process if you’re involved with actively attacking us, our soldiers or our government. You don’t get due process if you’re overseas in a battle shooting at our soldiers. But that’s not what we’re talking about. The Wall Street Journal reported and said that the bulk of the drone attacks are signature attacks. They don’t even know the name of the person. A line or a caravan is going from a place where we think there are bad people to a place where we think they might commit harm and we kill the caravan, not the person. Is that the standard that we will now use in America? Will we use a standard for killing Americans to be that we thought – killing Americans to be that we thought you were bad, we thought you were coming from a meeting of bad people and you were in a line of traffic and so, therefore, you were fine for the killing? That is the standard we’re using overseas. Is that the standard we’re going to use here? 

I will speak today until the President responds and says no, we won’t kill Americans in cafes; no, we won’t kill you at home in your bed at night; no, we won’t drop bombs on restaurants. Is that so hard? It’s amazing that the President will not respond. I’ve been asking this question for a month. It’s like pulling teeth to get the President to respond to anything. And I get no answer.

The President says he hasn’t done it yet and I’m to be comforted, you are to be comforted in your home, you are to be comforted in your restaurant, you are to be comforted on-line communicating in your e-mail that the President hasn’t killed an American yet on the homeland. He says he hasn’t done it yet. He says he has no intention to do so. Hayek said that nothing distinguishes arbitrary government from a government that is run by the whims of the people than the rule of law. The law’s an amazingly important thing, an amazingly important protection. And for us to give up on it so easily really doesn’t speak well of what our founding fathers fought for, what generation after generation of American soldiers have fought for, what soldiers are fighting for today when they go overseas to fight wars for us. It doesn’t speak well of what we’re doing here to protect the freedom at home when our soldiers are abroad fighting for us, that we say that our freedom’s not precious enough for one person to come down and say, enough’s enough, Mr. President. Come clean, come forward and say you will not kill Americans on American soil. The oath of office of the President says that he will, to the best of his ability, preserve, protect, and defend the Constitution. He raises his hand, his right hand, puts his left hand on the bible, and he says, “i will.” The President doesn’t say, “I intend to if it’s convenient.” “I intend to, unless circumstances dictate otherwise.” The President says, “I will defend the Constitution, I will protect the Constitution.” There isn’t room for equivocation here, Mr. President. This is something that is so important, so fundamental to our country that he needs to come forward. When Brennan, whose nomination I am opposing today, was asked directly, “is there any limit to your killing? Is there any geographic limitation to your drone strike program?” Brennan responded and said, no, there is no limitation. So the obvious question would be, if there’s no limitation to whom you can kill and where you can kill and there’s no due process upon whom you will kill, does that mean you will do it in America? So the Senator from Oregon asked him that question directly in committee. And this so-called champion of transparency, this so-called advocate of some kind of process responded to the senator from Oregon by saying, “I plan to optimize secrecy and optimize transparency.” Gobbledygook.

You wer will you kill Americans on American soil? Answer the question. Our laws forbid the CIA From doinghat. It should have been an easy question. The 1947 national security act says the CIA Doesn’t operate in our country. We have the FBI. We have rules. We have separated powers to protect your rights. That’s what government was organized to do. That’s what the Constitution was put in place to do. To protect your rights. So when asked, he says, no answer. He says, “I will evade your answer.” And by letting him come forward, we let him get away with it. So I have hounded and hounded and hounded, and finally yesterday I get a response from Mr. Brennan, who wishes to be the CIA Chief, and he finally says, I will obey the law. Well, hooray. Good for him. It took a month to get him to admit that he will obey the law. But it’s not so simple.

You see, the drone strike program is under the department of defense, so when the CIA Says they’re not going to kill you in America, they’re not saying the defense department won’t. So Eric Holder sent a response, the attorney general, and his response says, “haven’t killed anyone yet. I don’t intend to kill anyone but I might.” And he pulls out examples that really aren’t under consideration. There is the use of lethal force that can always be repelled. If our country is attacked, the President has the right to defend and protect the country. Nobody questions that. Nobody questions if planes are flying towards the Twin Towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled. They don’t get their day in court. But if you are sitting in a cafeteria in Dearborn, Mich., if you happen to be an Arab-American who has a relative in the Middle East and you communicate with them by e-mail and somebody says, oh, your relative is someone we suspect of being associated with terrorism, is that enough to kill you? For goodness sakes, wouldn’t we try to arrest and come to the truth by having a jury and a presentation of the facts on both sides of the issue? See, the real problem here, one of the things we did a long time ago is we separated the police power from the judicial power. This was an incredibly important first step. We also prevented the military from acting in our country because we didn’t want to have a police state. One of the things that we greatly objected to at the British was they were passing out what were called general writs or writs of assistance. These were warrants that allowed them to go into a house but allowed them to go into anyone’s house. And so what we did when we wrote our Constitution is we – we made the Constitution, we made the fourth amendment specific to the person and the place and the things to be looked for. We didn’t like the soldiers going willy-nilly into any house and looking for anything. So we made our Constitution much more specific.

I think this is something we shouldn’t give up on so easily. I think that the idea that we can deprive someone of their life without any kind of hearing, essentially allowing a politician. I’m not casting any aspersions on the President. I’m not saying he is a bad person at all, but he is not a judge. He’s a politician. He was elected by a majority, but the majority doesn’t get to decide who we execute. We have a process for deciding this. We have courts for deciding this, to allow one man to accuse you in secret, you never get notified you have been accused. Your notification is the buzz of the propellers on the drone as it flies overhead in the seconds before you’re killed. Is that what we really want from our government? Are we so afraid of terrorism, are we so afraid of terrorists that we’re willing to just throw out our rights and our freedoms, things that have been fought for and that we have gotten over the centuries. 

At least 800 years if not 1,000 years’ worth of protection. Originally, the protections were against a monarch. We feared a monarch. We didn’t like having a monarch. We came to this country, so when we set up our presidency, there was a great deal of alarm, there was a great deal of fear over having a king, and so we limited the executive branch. Madison wrote in the federalist papers, he said that the Constitution states what history demonstrates, that the executive branch is the branch most prone to war, most likely to go to war, and therefore we – we took that power to declare war and we vested it in the legislature. We broke up the powers. Montesquieu wrote about the checks and balances and the separation of powers. He was somebody who Jefferson looked towards. They separated the powers because there was a chance for abuse of power when power resides in one person. Montesquieu said there can be no liberty when you combine the executive and the legislative. I would say something similar. There can be no liberty when you combine the executive and the judiciary. That’s what we’re doing here. We’re allowing the President to be the accuser in secret and we’re allowing him to be the judge and we’re allowing him to be the jury. No man should have that power. We should fear that power. Not because we have to say oh, we fear the current President. It has nothing to do with who the President is. It has nothing to do with whether you’re a Republican or Democrat. It has to do with whether or not you fear the consolidation of power, were you – whether you fear power being given to one person, whether they are a Republican or a Democrat. This is not necessarily a right-left issue.

Kevin Gosztola who writes at FireDogLake, writes the mere fact that the President’s answer to this question, whether you can kill an American on American soil, that the President’s answer was yes is outrageous. However, it fits the framework for fighting a permanent global war on terrorism without any geographic limitations, which the present administration, President Obama’s administration has maintained that it has the authority to waive. What’s important here is that we’re talking about a war without geographic limitations, but we’re also talking about a war without temporal limitations. There is no limit, no limit in time to this war. When will this war end? It’s a war that has, I think, an infinite timeline. So if you’re going to suspend your rights, if there is going to be no geographic limits to killing, which really means we’re not at war in Afghanistan, we’re at war everywhere and everybody that pops up is called al-Qaida now, whether they have ever heard of al-Qaida or not, whether they have any communication with some kind of network of al-Qaida, everybody is al-Qaida, but there is a new war or an ongoing war everywhere in the world, there is no limitations.

Glenn Greenwald has written also about this subject, and he was speaking at the freedom to connect conference, and he says there is a theoretical framework being built that posits that the U.S. Government has unlimited power. Some caw this inherent power. Inherent means it isn’t – it hasn’t been defined anywhere, it hasn’t been expressly given to the government. They have just decided this is their power, they are going to grab it and take what they can get. This isn’t new. The Bush Administration did some of this, too. When the Bush Administration tried to grab power, though on the left and some of us on the right were critical. When they tried to wiretap phones without a warrant, we raised a ruckus. Many on the right and many on the left. There was a loud outcry against President Bush for usurping, going across due process, not allowing due process, not obeying the restraints of warrants. Where is that outcry now? Glenn Greenwald writes – “there is a theoretical framework being built that posits that the U.S. Government has unlimited power. When it comes to any kind of threats it perceives, it makes the judgment to take whatever action against them that it warrants without any constraints or limitations of any kind.” As Greenwald suggests – this is going back to Gosztola words, as Greenwald suggests, answering yes to the question that you can kill Americans on American soil illustrates the real radicalism that the government has embraced in terms of how it uses its own power. To think that we were opposed to them listening to your conversations without a warrant but no one’s going to stand up and say they can kill you without a warrant, a judge’s review or a jury, no one’s going to object to that, where is the cacophony that stood up and said how can you tap my phone without going to a judge first? I ask how can you kill someone without going to a judge or a jury?

Are we going to give up our rights to politicians, to any politician of any stripe, are we going to give up the right to decide who lives and who dies? Gosztola goes on to say that the reason the administration didn’t want to answer yes or no to this question of can you kill Americans on American soil is because he says that a no answer would jeopardize the critical theoretical foundation that they have very carefully constructed that says there are no cognizable constraints on how U.S. Government power can be asserted.

Civil libertarians once expected more from the President. In fact, it was one of the things that I liked about the President. I’m a Republican. I didn’t vote or support the President either time, but I admired him, particularly in 2007 when he ran. I admired his ability to stand up and say we won’t torture people, that’s not what America does. How does the President’s mind work, though? The President that seemed so honorable, seemed so concerned with our rights, seemed so concerned with the right not to have your phone be tapped now says he’s not concerned with whether you can be killed without a trial. The leap of logic is so fantastic as to boggle the mind. Where is the Barack Obama of 2007? Has the presidency so transformed him that he has forgotten his moorings, forgotten what he stood for? Civilian libertarians once expected more from the President. Ask any civil libertarian whether or not the President should have the right to arbitrarily kill Americans on American soil and the answer is easy. Of course, no President should have the right or that power under the Constitution.

Now, Brennan has responded in committee that the CIA Now does not have the right to do it on American soil. The problem is that this program is under the department of defense, so it’s once again an evasive answer, not answering the true question will the government of America kill Americans on American soil? Gosztola from FireDogLake writes there may never be a targeted killing of a U.S. citizen on U.S. soil and the question of whether a U.S. citizen could be targeted and killed on U.S. soil may remain a hypothetical question for some time, but the fact that the Obama Administration has told a U.S. Senator that there is a circumstance where the government could target and kill an American citizen on American soil without charge or without trial is a stark example of an imperial presidency. This is what our Founding Fathers wanted to fight against. They wanted to limit the role and the power of the President. They wanted to check the President’s power with the power of the Senate, with the power of the house, with the power of the judiciary. Three co-equal branches. Not one of them should be able to run roughshod on the other.

The problem has become is that we have allowed this to happen. Not me personally but Congress in general has allowed the President to usurp this power. If there were an ounce of courage in this body, I would be joined by many other senators saying that they will not tolerate this, that we will come together today in bipartisan fashion and tell the President, tell any President that no President will ever have the authority to kill Americans without a trial. Now, when the President says he doesn’t intend to do so, you really have to think that through.

The President a year ago lined up – signed a law that says that you can be detained indefinitely, that you can be sent from America to Guantanamo Bay without a trial, and he wants us to be comforted, he wants us to remember and think good of him because he says I don’t intend to do so. It’s not enough. I mean, would you tolerate a Republican who stood up and said well, I like the First Amendment, I’m quite fond of the First Amendment, and I don’t intend to break the First Amendment but I might. Would conservatives tolerate someone who said I like the Second Amendment? I think it’s important and I am for gun ownership and I don’t intend to violate the Second Amendment, but I might. Would we tolerate that he doesn’t intend to do so as a standard? We have to think about the standards being used overseas. The President finally admitted they interviewed him at Google not too long ago, they interviewed him and asked him can you kill Americans at home and he was evasive and he said but if there are rules, he said the rules would be different outside than inside. Well, I certainly hope so. Outside the United States, the rules for killing are you can kill someone through a signature strike. We don’t have to know what your name is, who you are, who you’re with. If you’re in a line of traffic and we think you’re going from talking to bad people to talking to other bad people, we’ll kill you. I mean, is that going to be the standard in America? Now, when they are questioned about ‘have you killed civilians in your drone strikes?’, they say no, but they don’t count you as a civilian if you’re a male or if you’re between the ages of 16 and 50, you’re a potential and a probable combatant if that’s your age range.

So my question is if you’re not a civilian, if you’re in proximity to bad people, is that the standard we’re going to use in the United States? So if we’re going to kill Americans on American soil and the standard is going to be signature strikes that you’re close to bad people or that you’re in the same proximity as bad people, would that be enough? Are we happy with that standard? Are we hap that we have no jury, no trial, no charges, nothing done publicly? In Eric Holder’s response, the attorney general’s response to me, they maintain they’re not going to do this, just trust them. It’s not really about them, know. It is about the law. The law restrains everyone equally, regardless of your party, whether you’re Republican or Democrat. The law is out there for the time when somebody inadvertently elects a really bad person.

You know, when World War II ended, the currency was being destroyed in Germany in 1923, the paper money became so worthless that people wheeled it in wheelbarrows. They burned it for fuel. It became virtually worthless overnight. The beginning of September 1923, the paper, I think it was like 10, 15 marks for a loaf of bread. September 14, it was a thousand marks. September 30, it was 100,000 marks. October 15, it was a couple of million marks for a loaf of bread.

It was a chaotic situation. Out of that chaos, Hitler was elected, Democratically. They elected him out of this chaos. The point isn’t that anybody in our country is Hitler. I am not accusing anybody of being that evil. It is a misused anology. In a democracy you could someday elect someone who is very evil. That’s why we don’t give the power to the government. And it’s not an accusation of this President or anybody in this body. It’s a point to be made historically that occasionally even a democracy gets it wrong. So when a democracy gets it wrong, you want the law to be there in place. You want this rule of law.

As I mentioned, Hayek said this is what distinguishes us. Heritage has an author who has written some about the oath of office. His name is Kesavin. He writes that the location and the phrasing of the oath of office for the President – this is something I explained earlier – that the President says he will protect and defend and preserve the Constitution. The oath is – you know, words are important. The oath doesn’t say, “i intend to preserve, protect, and defend.” It says “I will.” Kesavin writes that the location and phrasing of the oath of office strongly suggests that it is not empowering but limiting. So the President doesn’t take an oath of office that says, “I intend to preserve, protect, and defend the Constitution, but I also feel that I have inherent powers that were never mentioned by anybody that I will be the sole arbiter of interpreting what those powers are.” That sounds more like a king. That’s not what we wanted. We did not want a imperial presidency. What Kesavin suggests is that the oath of office is not empowering but that it is limiting, that the clause limits the President and how the President can execute or how the executive power can be exercised. One unanswered word in that Constitution includes the Fifth Amendment to the Constitution. What does the Fifth Amendment say? The Fifth Amendment says that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. It is pretty explicit.

The Fifth Amendment protects you, it protects from you a king placing you in the tower, but it also should protect from you a President that might kill you with a drone. We were granted due process. It’s not always easy to sort out the details of who is a threat to the country and who’s not a threat to the country. If it were people with grenade launchers on their shoulder, that’s easy. And in fact I agree completely … You don’t get due process if you’re actively attacking America. But you have to realize that there have been reports that over half of the drone strikes overseas are not even directed towards an individual; they are directed towards a caravan of unnamed individuals. You also have to realize that overseas I have no problems if people are shooting at American soldiers, by all means, they get no due process. But you also have to realize that many – we don’t know because they won’t tell us the number – but many of the drone strikes overseas are done when you’re walking – I don’t know where you are a walking … To church, you’re walking along the road – they’re done when you’re in a car driving, they’re done when you’re in a house eating. They’re done when you’re at a restaurant eating. They’re done when you’re in a house sleeping. I am saying that they’re not actively involved in something that’s an imminent threat and if they were in America, they would be arrested.

If we think you are a terrorist in America we should arrest you. But here’s the question: You who is a terrorist? That’s why I’ve been so concerned about a lot around here who say that if you’re associated with terrorism that your government has already put out things that I think are of questionable nature. The Bureau of Justice put out a bulletin within the last year describing people who you need to be worried about. These are the people that you’re supposed to say something. If you say something, you’re supposed to say something. Who are these terrorists that live among you? 

People who might be missing fingers on one hand, people who might have stains on their clothing, people who might have changed the color of their hair, people who like to pay in cash, people who own more than one gun, people who own weatherized ammunition, people who have seven days of food in their house. These are people that you should be afraid of and that you should report to your government. So says your government. Are they going to be on the drone strike list? I think we need to get an answer from the President.

If you’re going to kill people in America, we need rules, and we need to know what your rules are. Because I certainly don’t want to have seven days of food in my house if that’s on the list to terrorism. Interestingly, on government websites there are some government websites that advise you to have it in your house. If you live in a hurricane-prone area you’re supposed to keep some area food around. Who is going to decide when it’s okay to have food in your house and when it’s not?

There’s something called fusion centers, something that are supposed to coordinate between the federal government, the local government to find terrorists. The one in Missouri a couple years ago came up with a list and they sent this to every policemen in Missouri. The people on the list might be me. The people on the list from the fusion center in Missouri that you need to be worried about, that policemen should stop, are people that have bumper stick theirs might be pro-life, who have bumper stickers that might be for more border security, people who support third-party candidates, people who might be in the Constitution party. Oooh, isn’t there some irony there.

You believe in the Constitution so much, you might be a terrorist – you believe in the Constitution so much, you might be a terrorist. We need to be concerned about this. Things are not so black and white. If someone is shooting at us, a canon, a missile, a rocket, a plane, it is pretty easy to know what lethal attacks are. We’re talking about people in their homes, at a restaurant, or a cafe that someone is making an accusation. If the accusation is based on how many fingers you have on your hand, I have got a problem with that standard. If the standard to be used for killing Americans is whether you pay in cash, I’ve got a problem with that. If the standard to be used in America is being close to someone who is bad or the government thinks is bad is enough for you to be killed and not even account you as an accidental kill, to count you as combatant because you were near them – see, here’s the problem, and this is no passing problem; this is an important problem.

There was a man named al-Awlaki. He was a bad guy, by all evidence available to the public that I’ve read, he was treasonous. I have no sympathy for his death. I still would have tried him in a federal court for treason and I think you could have been executed. But his son was 16 years old, had missed his dad, gone for two years. His son sneaks out of the house and goes to Yemen. His son is then killed by a drone strike. They won’t tell us if he was targeted. Suspect, since there were other people in the group, about 20 people killed, that they were targeting someone else. I don’t know that. I don’t have inside information on that. But I suspect that.

But here’s the real problem: When the President’s spokesman was asked about al-Awlaki’s son, you know what his response was? This I find particularly callous and particularly troubling. The President’s response to the killing of al-Awlaki’s son, he said he should have chosen more responsible father.

You know, it’s kind of hard to choose who your parents are. That’s sort of like saying to someone whose father is a thief or a murderer or a rapist, which is obviously a bad thing, but does that mean it’s okay to kill their children think of the standard we would have if our standard for killing people overseas is, you should have chosen a more responsible parent.

It just boggles the mind and really affects me to think that that would be our standard. There’s absolutely no excuse for the President not to come forward on this. I’ve been asking for a month for an answer. It’s like pulling teeth to get any answer from the President. Why is that? Because he doesn’t want to answer the question the way he should, as a good and moral and upstanding and someone who believes in the Constitution should; that absolutely no – no American should ever be killed in America who’s I thinking in a cafe. No American should ever be killed in their house without a warrant and some kind of aggressive behavior by them. To be bombed in your sleep? There’s nothing American about that. There’s nothing Constitutional about that. But he says trust him. He says he hasn’t done it yet. He says he doesn’t intend to do so, but he might. Mr. President, that’s not just good enough. That’s not enough – it’s not enough for me to be placated. It’s not enough for me to be quiet.

So I have a come here today to speak for as long as I can – I won’t be able to speak forever. But I’m going to speak as long as I can to draw attention to something that I find really disturbing. People ask about this nomination process, because I’ve actually voted for a couple of the President’s nominees, some of whom I’ve objected to coming of whom I’ve had personal as well as political differences. This is not about partisanship. I voted for the Secretary of State, John Kerry. I’ve almost nothing in common with him politically. I have disagreed with him repeatedly on the floor. But gave the President the prerogative of choosing his secretary of state, because I think the President won the election. He deserves to get to make some choices on who is in his cabinet. I voted for the very controversial Secretary of Defense Chuck Hagel. There were things liked about him, things I disliked about him. I filibustered him twice before I voted to let him go forward. And people in my party given me a hard time, conservatives from my party have blasted me for doing that. But I gave the President that prerogative. So I’m not standing down here as a Republican who will never vote for a Democrat. I voted for the first two – I voted for the first three nominees by the President. This is not about partisanship. I have allowed the President to pick his political appointees, but I will not sit quietly and let him shred the Constitution. I cannot sit at my desk quietly and let the President say he will kill Americans on American soil who are not actively attacking the country.

The answer should be so easy. I cannot imagine that he will not expressly come forward and say, no, I will not kill Americans on American soil.

The Fifth Amendment says that no person shall be held for a capital or otherwise infamous crime unless on the presentment or indictment of a grand jury. It goes on to say that no person will be deprived of life, liberty, or property without due process. Now, some hear “due process” – and if you’re not a lawyer, I am not a lawyer – when you first hear that you think, what does that mean? What does it mean to have due process? What it means is you’re protected. You get protections. Is our justice system perfect? No.

Sometimes you go all the way through due process in our country. We’ve actually convicted people innocent. Fortunately it’s very rare, but think about that. We’ve actually convicted people who are innocent.

What are the chances that the President going through PowerPoint slideshows and flash cards might make a mistake and innocent or guilty? I would say there is a chance. Even our judicial system, it goes through all of these processes with the judge reviewing the indictment, with a jury reviewing it, then with the sentencing phase, with all of that going forward, we sometimes make mistakes. What are the chances that one man, one politician, no matter what part they’re from, could make a mistake on this? I think there’s a real chance that that exists. That’s why we put these rules in place. Patrick Henry wrote that the Constitution wasn’t given or written or put down to restrain you. The Constitution was to restrain us. There’s always been, since the beginning of time, since we first had government, this desire to restrain the government, to try to keep the government from going too strong, to keep the government from taking your rights. It’s interesting when you look at the Constitution, the Constitution gave what are called enumerated powers to government, and Madison said that these enumerated powers few and defined. The liberties you were given, though, are numerous and enumerated. Unlimited. So it is about 17 powers given to government which we’ve now transformed into about a gazillion or at least a million new. We don’t pay much attention to the enumerated powers for the Constitution anymore. But the Constitution left your rights as unenumerated. Your rights are limitless. So when we get to the Ninth and Tenth Amendments, it says specifically that those rights not granted to your government are left to the states and the people respectively. It didn’t list what those rights are.

The 14th Amendment talks about privileges and immunities are left you to also. They’re to be protected. But I don’t think there is a person in America – that’s why I can’t understand the President’s unwillingness to say, he’s not going to kill noncombatants. Think about that. He’s unwilling to say publicly that he’s not going to kill noncombatants, because that’s what we’re talking about here. I’m not talking about someone with a bazooka a grenade launcher on their shoulder. Anyone committing lethal force can be repelled with lethal force. No one argues that point.

I’m talking about whether you can kill noncombatants, because many of the people being killed overseas are noncombatants. Are they potential combatants? Maybe. Maybe the standard can be a – less overseas than it is here for people involved in a battle, but it’s getting kind of murky overseas as well, but for goodness sakes in America, we can’t just sort of have this idea that we’re going to kill noncombatants. We’re talking about people eating in a cafe, at home, in a restaurant. I think we need to be a little more careful.

The power that was given by the Constitution to the Senate was that of advise and consent. This Constitutional provision provides us with the power to consent to nominations or withhold consent. It’s a check on the Executive Branch but it only works if we actually use it. I’m here today to speak for as long as I can hold up to try to rally support from people from both sides to say for goodness sakes, why don’t we use some advice and consent? Why don’t we advise the President that he should come forward and say he will not condone nor does he believe he has the authority to kill noncombatants? As a check on the Executive Branch, this power that’s granted is the right to withhold consent. The Constitution doesn’t provide Senators with the specifics or the criteria of why we withhold consent. That’s left to us to decide. I withhold my consent today because I’m deeply concerned that the executive branch has not provided an answer, that the President refuses to say that he won’t kill noncombatants. The President swore an oath to the Constitution. He said he will protect, defend and preserve the Constitution. He didn’t say I intend to when it’s convenient. He said I will defend the Constitution, and it’s inexcusable for him not to come forward.

There is an author that writes for The Atlantic who has written a lot about the drone program by the name of Connor Friedersdorf. He recounts the tale of al-Awlaki’s son who was killed, and he said when the President’s spokesman was asked about the strike that killed him, the President’s spokesman replied well, he would have been fine if he had had a more responsible father. If that’s our standard, we have sunk to a real low. Cornered by reporters after this, White House Press Secretary Robert Gibbs attempted to defend the kill list, which is secret, of course. You have to remember, if we’re going to kill noncombatants in America or people we think might someday be combatants, the list will be secret, so you won’t get a chance to protest hey, I’m not that bad. I might have said that one time, but I’m not that bad. All right. I have objected to big government, not all government. I don’t – I’m not fomenting revolution. I was critical at that meeting. I was at a tea party meeting and I was critical of the President, but I’m not a revolutionary. Please don’t kill me. 

Should we live in a country where you have to be worried about what you say? Should we live in a country where you have to worry about what you write? What kind of country would that be? Why is there not more moral outrage? Why is there not every senator coming down to say you’re exactly right, let’s go ahead and hold this nomination, and why don’t we hold it until we get more clarification from the President? Connor Friedersdorf of The Atlantic writes that it’s vital for the uninitiated to understand how team Obama misleads when it talks about the drone program. Ask how their kill list can be justified, Gibbs, the President’s spokesman replies, when there are people who are trying to harm us and have pledged to bring terror to these shores, we have taken the fight to them.

But since the kill list itself is secret, there is no way to offer a specific counterexample. It’s one thing to say yeah, these people are going to probably come and attack us, which to tell you the truth is probably not always true. There are people fighting a civil war in Yemen who probably have no conception of ever coming to America. Friedersdorf goes on to say we do know the U.S. drones are targeting people who have never pledged to carry out attacks in the United States, so we’re talking about noncombatants who have never pledged to carry out attacks are being attacked overseas. Think about it, if that’s going to be the standard at home, people who have never really truly been involved with combat against us. Take Pakistan where the CIA kills some people without even knowing their identities. This is more from Friedersdorf. As Obama nears the end of his term, officials said the kill list in Pakistan has slipped to fewer than ten al-Qaida targets, down from as many as two dozen, and yet we’re killing hundreds of people in Pakistan.

There is a quote that I think sort of brings this and makes this very poignant. There is a quote from an ex-CIA Agent, I think it’s Bruce Riedel, who says the drone strike program is sort of like a lawnmower. You can keep mowing them down, but as soon as the lawnmower stops, the grass grows again. Some people have gone one step further and said for every one you kill or maybe for every one you accidentally kill that you didn’t intend to kill, 10 more spring up.

Think about it. If it were your family member and they have been killed and they were innocent or you believe them to be innocent, it’s going to – is it going to make you more or less likely to become involved with attacking the United States?

I have written a couple letters to John Brennan who has been put up for the CIA nomination. It looks like the first letter was sent January 25. So here we are into March and I only got a response when he was threatened. So here’s a guy who the President promotes as being transparent and wanting to give a lot of information to the American people, he won’t respond to a U.S. Senator. How do they – they treat the U.S. Senate with disdain, basically. Won’t even respond to us much less the American people when I asked him these questions. He finally responded only when his nomination was threatened, so when it came to the committee, and it appeared as I had bipartisan support for slowing down his nomination if he didn’t answer his questions, then he answered his questions. It doesn’t give me a lot of confidence that in the future going forward, if he is approved, that he is going to be real forthcoming and real transparent about this. I don’t have a lot of anticipation or belief that we’re going to get more information after this nomination hearing.

Some are now saying, you know, you have gotten your pound of flesh. Let him go and we’ll keep working on this. The problem is once he’s gone, the discussion’s over. Others in my party have been trying to get information about what went horribly wrong in Benghazi and have gotten some of that information, but only by using it as leverage to try to get the President to do what is the honorable thing, and that is to be more transparent with his ways. In the first letter that I sent to Brennan, I asked him the question is it legal to order the killing of American citizens and that you would not be compelled to even give your reasoning, not even specific to the case but any of your reasoning? So finally as these questions came forward, some of the things were leaked out.

One of the most troubling things that came out is when Brennan and the President finally began to talk about the drone strike program, which according to the former press secretary they were to deny that it existed for years, when they finally came out, they told us a couple of things about their interpretation of it. One, that they have no geographic limit to their drone strikes. The second thing is they told us what they thought was imminent. And this is pretty important because a lot of Americans, myself included, believe that if we’re being attacked, you can respond with lethal force, but a lot of Americans think that you have to actually be engaged in that to respond with lethal force, but they told us that the way their lawyers interpret imminent is imminent doesn’t have to mean immediate. Well, only a bunch of lawyers could get together, government lawyers get together and say that imminent is not immediate. 

And you have to understand and what we should be asking the President is “is this your standard for America? If you are going to assert that you have the right to kill Americans on American soil, are you going to assert, are you going to assert that your standard is that an imminent threat doesn’t have to be immediate?”

I’m quite concerned when I hear this kind of evasiveness, that sort of nonresponse to questions. We also asked would it not be appropriate to require a judge or a court to review this? See, here’s the real interesting thing: We had a President who ran for office saying your phone shouldn’t n tapped without a warrant. – Shouldn’t be tapped without a warrant. I happen to agree with candidate Obama, but what happened to candidate Obama who wanted to protect your right to privacy of your phone who doesn’t care much about your right not to be killed by a drone without any kind of judicial proceeding? I think we should demand it.

The way things work around here, though, is people kind of say yes, we’ll demand it and maybe later on this year we’ll talk about a bill or talk about getting something. What they should do is just say no more, we’re not going to move forward until we get some justice. We’re not going to let the President, any President, Republican or Democrat, do this. One of the other questions I asked the President was it is paradoxical that the federal government would need to go before a judge to authorize a wiretap on U.S. citizens even overseas but possibly not have any kind of oversight of killing an American here in America. We have asked him how many citizens have been killed. We haven’t gotten an answer to that. They say not many, and hopefully it hasn’t been many, but I think it’s important to know. I think it would be important to know if we’re going to target Americans in America, if that list exists. I think it would be important to know if being close to someone is also justified. You know, just because you – what if you just happen to live in the neighborhood of somebody who is a suspected terrorist. Is it okay because you were close to them? What if you happened to go to dinner with a guy you didn’t know or a woman you didn’t know and the government says they’re a terrorist? Just because you’re having dinner with them and you are a male between the ages of 16 and 50, does that make you a combatant? We also asked the question do you condone the CIA’s practice of counting civilians killed by U.S. drone strikes as militants simply because they were of the same age? Like every other question, no answer. We asked him whether al-Awlaki’s son was a target. No answer. We asked how many people have been targeted. No answer. Part of the problem with this is that we are or Congress in general is sloppy about writing legislation in general. I will give you an example. When Obamacare legislation was written, it’s over 2,000 pages but it leaves up to the secretary of health I think 1,800 times the power to decide at a later date what the law or the rule would be. So since Obamacare of 2,000 pages has been written, there have been now 9,000 pages of regulations. Dodd-frank is kind of the same way. Dodd-Frank was a couple thousand pages. It’s now going to wind up with 8,000 or 9,000 pages of regulations.

We abdicate our responsibility by not really writing legislation. We write shells of legislation that are imprecise and don’t retain the power, and because of that, the executive branch and the bureaucracy, which is essentially the same thing, do whatever they want. This happened also with the use of authorization of force in Afghanistan. This happened over 10 years ago now, 12 years ago. I thought we were going to war against the people who attacked us, and I’m all for that. I would have voted for the war. I would have preferred it to have been a declaration of war.

I think we were united in saying let’s get those people who attacked us on 9/11 and make sure it never happens again. The problem is as this war has drug on, they take that authorization of use of force to mean pretty much anything. And so they have now said that the war has no geographic limitations, so it’s really not a war in Afghanistan, it’s a war in Yemen, Somalia, Mali. It’s a war in unlimited places. Were we a body that cared about our prerogative to declare war, we would take that power back. But I’ll tell you how poor – and this is on both sides of the aisle – how poor is our understanding or belief in retaining that power here? About a year ago, I tried to end the Iraq war. You may say, well, I thought the Iraq war was already over. It is, but we still have an authorization of use of force that says we can go to war in Iraq any time.

And since they think the use of force in Afghanistan means limitless war anywhere, any time in the whole world, for goodness sakes, wouldn’t we try to take back a declaration of war, an authorization of force if the war is over? But here’s the sad part. I actually got a vote on it and I think I got less than 20 votes. You can’t end a war after it’s over up here. And it has repercussions, because these authorizations to use force are used for many other things. So the authorization of force says you can go after al-Qaida or associated terrorists. The problem is, is that when you allow the Executive Branch to sort of determine what is al-Qaida, you’ve got no idea. 

Hour 2

This video and unofficial transcript were provided by Sen. Paul’s office. Watch the first hour hereFollow YAL’s live coverage of this historic filibuster on Facebook and Twitter.

You know, or how much – if there’s an al-Qaida presence there trying to organize and come and attack us. Maybe there is. But maybe there’s also people who are just fighting their local government.

How about Mali? I’m not sure in Mali they’re probably worried more about trying to get the next day’s food than coming over here to attack us. But we have to ask these questions and we have to ask about limitations on force because essentially what we have now is a war without geographic boundaries and we have many on my side who come down here and they say, oh, the battlefield’s here in America.

Be worried. Be alarmed. Alarm bells should go off when people tell you that the battlefield’s in America. Why? Because when the battlefield’s in America, we don’t have due process. What they’re talking about is they want the laws of war. Another way of putting that, they call it the laws of war. Another way to put it is to call it martial law. That’s what they want in the United States when they say the battlefield is here.

One of them, in fact, said if you – if you – if they ask for a lawyer, you tell them to shut up. Well, if that’s the standard we’re going to have in America, I’m – I’m quite concerned that the battlefield would be here and that the Constitution wouldn’t apply. Because, to tell you the truth, if you are shooting at us in Afghanistan, the Constitution doesn’t apply over there. But I certainly want it to apply here. If you’re engaged in combat overseas, you don’t get due process. But when people say, oh, the battlefield’s come to America and the battlefield’s every, where the war is limitless in time and scope, be worried, because your rights will not exist if you call America a battlefield for all time. We’ve asked him whether the strikes are exclusively focused on al-Qaida and what is the definition of being part of al-Qaida.

In 1947, the National Security Act was passed and it said the CIA doesn’t operate in America. Most people, most laypeople know that. The CIA is supposed to be doing surveillance and otherwise outside the U.S. of foreign threats. The FBI works within the United States. They do some of the same thing but they’re different groups. The CIA operating in Iraq or Afghanistan doesn’t get a warrant before they do whatever they do to snoop on our enemies. The FBI in our country does. They operate under different rules, and for a reason. So we don’t want them to operate in the United States.

It’s not that we’re saying the CIA are bad people, we just don’t want them operating with no rules or the rules we allow them to operate with overseas. We don’t want them operating that way in our country. The disappointing thing is that a month ago when I asked John Brennan this question, as his nomination came forward, is that I couldn’t get an answer. He would not answer the question about the CIA operating in the United States. Only after yanking his chain, browbeating him in committee, threatening not to let him out of committee, does he final sale he’s going to obey – finally say he’s going to obey the law. We should be alarmed by that. Alarm bells should go off when we find that what we’re – what is going on here is that it takes that much for him to say he’s going to obey the law.

Now, the President has said, don’t worry because he’s not going to kill you with a drone unless it’s infeasible to catch you. Now, that would – sounds kind of comforting, but I guess if our – if our standard for whether we kill you or not is whether it’s practical or not, that – that – that does bother me a little bit. Just doesn’t sound quite strict enough. Because I’m kind of worried that, you know, maybe there’s a sequester and the President says we can’t have tours of the White House.

Maybe he’s not got enough people to go arrest you. He had policemen by him and he said he was going to lay off the policemen. Of course, he doesn’t have anything to do with the policemen so don’t worry about that. But he had the policemen by him and says he’s going to lay them off. So maybe he’s going to lay the policemen off because he’s going to kill you.

I know that sounds like a slippery slope beyond what we’ve asked for, but if the standard is it’s infeasible to capture you and that’s what you’re hanging your hat on, I would be a little concerned that that might not be enough protection for Americans on American soil. Now, there is a law called posse comitatus. It says the military doesn’t operate on U.S. soil unless there’s a declaration of an insurrection or civil war.

There has to be a procedure that Congress goes through. And we’ve had this law for a long time. And once again, the reason we do it is not because we think our military are bad people. I’m proud of our soldiers, I’m proud of our army, I’m proud of what they do for our country. But they operate under different rules. And it’s a much more dangerous environment they operate under. And it’s different. It’s still dangerous in America, but policemen have a different rules of engagement than your soldiers have. And there’s – there’s more restrictions and restraint on what we do in our country. So that’s why we say the military can’t operate here. So when we asked the President, can you kill Americans on American soil with your drone strikes, which is part of the military, it should be an easy answer. In fact, I hope someone’s calling him now and asking him for an answer. It would save me a lot of time and breath, and my throat’s already dry and I just got started. But if they would ask him for an answer, can the military operate in the United States? Well, no. The law says the military can’t operate in the United States. 

It’s on the books and he should simply do the honorable thing and say he will obey the law. It’s simple. But I don’t get why they refuse to answer it – Why they refuse to answer it. It worries me that they refuse to answer the question, because by refusing to answer it, I believe that they believe they have expansive power, unlimited power. The real irony of this is, is that many on the left, Senator Barack Obama included, were very critical of the Bush Administration. They felt like the Bush Administration usurped power. They felt like the Bush Administration argued invalid aggrandizement or grasping for power. John yew was one of the architects of this, basically just saying hey, if I’m going to protect you, I can do whatever the hell I want. Many on the left objected to that. Some of us on the right also objected to this – this usurpation of power by the Republican President. But the thing is, is it – now the shoe’s on the other foot and we’re not seeing any of that. We’re all of a sudden now seeing a President whose worried about wiretaps not at all worried about the legality of killing Americans on American soil with no judicial process. But the – the law of posse comitatus presents this from happening.

It’s very clear. It’s been on the books 150-some-odd years. I would think it would be pretty easy for the President to go ahead and say he will obey the law. We asked Brennan the question on this and we got no answer. The answers that we’ve gotten are almost more disturbing than getting an answer really, to tell you the truth. Because when the President responds that “I haven’t killed any Americans yet at home” and that “I don’t intend to do so but I might,” it’s – it’s incredibly alarming and really goes against his oath of office. He says in his oath of office that I will preserve, I will protect, and I will defend the Constitution. It doesn’t say I intend to or that I might. Can you imagine the furor if people were talking about the second amendment? Can you imagine what conservatives would say if a President said, well, yeah, I kind of like the second amendment and I intend to, when convenient, when it’s feasible, to protect the second amendment? Or what about those who believe in the First Amendment. If the President were to say, I haven’t broken the First Amendment yet, I intend to follow it, but I might break it? Or I intend to follow it when it’s feasible? So I have all these rules – and that’s what the President answered.

When he was at Google campus a couple weeks ago, they asked him the question, can you kill Americans on American soil? And he said, well, the rules will probably be different outside the U.S. Than inside, which basically means yes, he thinks he can kill Americans on American soil but he’s going to have some rules. Don’t worry about it because he will maybe some rules and there will be a process but it won’t be due process. It will be a process that he sets up in secret in the White House, and I – I – I don’t find that acceptable. The only answer really acceptable – you know, we asked a question that could be “yes” or “no.” Can you kill an American on American soil? It’s a yes or no question. They’ve been evasive and they have never really answered the question. But when we asked it, we pretty much knew only one answer was acceptable and that answer’s no. And if you don’t answer it, basically by not answering it, you’re saying yes. I was actually a little bit startled when I finally got the answer, “yes, we can kill Americans on American soil.”

I thought for sure that they would just be evasive to the end and try get their nominee through without opening Pandora’s Box. But they have opened Pandora’s Box and it would be a mistake to ignore it. It would be a mistake for us to ignore the ramifications of what they’ve done. When we separate out police power from judicial power, it’s an important separation. You know, the police can arrest you, they’re allowed to do certain things, but the policeman that comes to your door and puts handcuffs on you doesn’t decide your guilt. Now, sometimes we don’t always think about how important this separation is but it’s incredibly important that those arrests – who arrest you do not – they’re not even really the ones who ultimately accuse you. The court, through the people, accuse you and then you’ve given a trial to determine your guilt.

And it’s complicated. It isn’t always clear who’s innocent and who’s guilty. Judges and juries make mistakes. But at least we have a process, you get appeals most of the time. So we have a significant process going on that has a several hundred year tradition at the least. So what really gets me about the process that the President favors is, it’s sort of – it’s the “trust me” process.

You know, I have no intention of doing bad things, I will do good things, I’m a good person. And I’m not really disputing his motives or not saying he isn’t a good person. But I’m disputing someone who’s naive enough to think that that’s good enough for our republic, that his good intentions are good enough for our republic. It never would have been accepted, it would have been laughed out of the Constitutional Convention. The Founding Fathers would have objected so strenuously that that person probably would never have been elected to office in our country. Someone who doesn’t believe that the rules have to be in place and that we can’t have our rights guaranteed by the intentions of our politicians. Think about it. Congress has about a 10 percent approval rating. Do you think the American people want to base whether they’re going to be killed by a drone on a politician? I certainly don’t. Doesn’t have anything to do with whether he’s a Republican or a Democrat. I would be here today if this were a Republican President.

Because you can’t give that much power to one person. We separated the police power from the adjudication or from the jury power from the decisions on innocence and guilt, it’s separate from the police power purposefully so and with great forethought. Some transform this, and the President’s tried, Brennan has tried to transform this into, oh, well, we need to reserve this power for when planes are attacking the Twin Towers. Well, that’s not what we’re talking about, Mr. President, and I think you misunderstand or you purposely misunderstand or you purposely obfuscate or you purposely mislead. No one is questioning whether the U.S. can repel an attack. No one is questioning whether your local police can repel an attack. Anybody involved in lethal force, the legal doctrine in our country and has been historically, has always been that the government can repel lethal attacks. The problem is, is that the drone strike program is often not about combatants. It is about people who may or may not be conspiring but they’re not in combat.

They’re in a car, they’re in their house, they’re in a restaurant, they’re in a cafe. If we’re going to bring that standard to America, what I’m doing down here today is asking the President to be ex– is asking the President to be explicit. If you’re going to have the standard that you’re going to kill noncombatants in America, come forward and please say it clearly so we know what we’re up against. If you’re not going to do it, come up with the easy answer, is I’m not going to kill noncombatants. That would have been easy for him to say. And he could have said, well, the military at some point in time, you know, has to repel invasions.

We know that, Mr. President, we’re not questioning that. But we are questioning a drone strike program that – you know, we don’t know, because nobody will tell us the numbers – the numbers are secret – one Senator said in a public meeting the other day, 4,700 people have been killed overseas. If I had to venture a guess, a significant amount of them weren’t involved in shooting at American soldiers. But if they were, by all means, kill them. If we’re fighting a war in Afghanistan, which we have been, and if there are soldiers around the bend that are a threat to our soldiers, there is no due process at that point. But that’s not what we’re arguing about. We’re arguing about targeted strikes of people not involved in combat. That’s my concern. My concern also is that who is and what is a terrorist? Who is associated with terrorism? Because the government has put out many documents now that tell you to see something, say something. But the stuff you see – you know, I’m not so sure that these people are terrorists. When you see somebody paying in cash or if you have a store and one of your customers comes in frequently and they pay in cash, should you report them to the government in I can’t imagine that that’s the kind of stashed that we’re going to have – the kind of standard that we’re going to have in our country for drone strikes. When it comes to some of these people, though, I think some of the drone strikes have probably been justified. Awlaki was a traitor. One of the interesting questions about aged the enemy is, what exactly that means and what are the standards to be.

Kevin Williamson writes for the National Review. And he wrote an article on drones that I think really brings this home. If you’re going to talk about and want to know who are the people who could potentially be killed. Because in some ways al-Awlaki was a sympathizer, someone who aided and abetted by internet chatter. That’s the main thing he was accused of. They said he had more direct association – I haven’t seen the secret information on that. But what I would say is that he was initially brought up as a sympathizer. And here’s the problem: Many writers have said, if you take up arms against your you are an enemy combatant. I think that’s true. If you are in Afghanistan and you’re shooting at Americans, you are an enemy combatant. You don’t get due process. But here’s the question: If you’re in Poughkeepsie and you’re on the internet and you say, I sympathize with, you know, some group around the world that doesn’t like America, and you say bad things about America, are you a traitor? I mean, you can try someone for treason for that.

I’m not sure if it’ll rise up to that, if you’re a politically opposed to what your government is doing and in favor another. But Kevin Williamson says, “if sympathizing with our enemies and propagandizing on their behalf is equivalent to making war on the country, then the Johnson and Nixon administrations should have bombed every elite college campus in the country during the 1960s.”

That’s all that came out was anti-America, antiwar. 

Is objecting to your government or the policies of your government – the policy of your government sympathizing with the enemy? Some were openly sympathetic. Nobody will ever forget Jane Fonda sniveling around with North Vietnamese armored guns and it was despicable. That’s one thing if you want to try her for treason, but are you going to just drop a drone, a hell-fired missile on Jane Fonda? Are you going to drop a missile on those at Kent state? Kent state was not good, but in some ways it was accidental since they were shooting over the heads of these people. But can you imagine, we have gone from a country that was rightfully upset about the deaths at Kent state to a country that is going to say, if your country and you’re rabble-rousing because you don’t like the government’s foreign policy or government’s war actions that you are sympathizing? See, there are a lot of questions that aren’t being asked because sympathizing appears to be used as a standard for the drone strike program. We actually had students apparently during the Vietnamese war who were raising funds for the Viet cong. That sounds like treason. Sounds like something, when you’re fighting an enemy and you’re comforting the enemy, that does sound like treason. I have no problem with some people being tried for treason. But they don’t get a hell-fired missile sent to their house. There is, though, a difference between sympathizing and taking up arms. Most people around here who want to justify no rules, America is a battlefield, no limits to war, they really want to blur it all together. Because it’s easier to say, oh, you don’t want to stop anybody who is shooting at Americans. 

But it’s not true. I think lethal force can be used against those engaged in lethal force. What troubles me about the drone strike program is that quite a few – I don’t know the number – “The Wall Street Journal” says the bulk of the attacks in Pakistan have been signature attacks, meaning: nobody named and nobody specifically identified, and that civilians aren’t really counted because anybody, any male between the age of 16 and 50 is a combatant unless otherwise proven. But if those are the standards, I think we need to be alarmed. And I think there is a difference between sympathizing and taking up arms.

One of the interesting things – and Kevin Williamson in the National Review brings this out – and it’s sort of a conundrum for conservatives – because the thing about saying someone was involved and just taking the government’s word, like saying Awlaki was involved with these other people and taking the government’s word because we have no way of ascertaining or getting and questioning whether secret information is true or not true, is that just a few years before this – and a lot of people don’t remember this – Awlaki, who was killed, a couple years before this, Awlaki was brought to the Pentagon to speak as part of a group of moderate Islamic preachers. They thought him to be an Islamic “voice of reason.” He even came to the Capitol and said prayers in the Capitol. This is the guy who the government said was a good guy for a while who later said was a bad guy. And I think ultimately the evidence that he was a bad guy is pretty strong.

But most of his crime was sympathizing, and was it enough of a standard? I think in a court – in a treasonous court, I think Awlaki would have been convicted of treason. Were I a juror, I would have voted that he was committing treason and I wouldn’t have had trouble at all with a drone strike on him. But if we’re going to take by extension the standard we used in putting him on the list, that he was a sympathizer, an agitator and a pain in the royal you-know-what on the Internet, there’s a lot of those people in America, if that’s going to be our standard. That’s why I would feel a little more comforted if it weren’t an accusation by a politician that unleashes Hellfire missiles. I would be a little more comforted and I think we would all sleep a little better in our house at night if we knew before the Hellfire missile comes down, a policeman would come to your door and say, we accuse you of this. And they might put handcuffs on you and take you to jail, but they don’t get to summarily execute you. That’s all I’m asking here. I’m asking for the President to admit publicly that he’s not in favor of summary executions. That’s really all I’m asking. Summary executions of noncombatants. It seems like a pretty easy answer. We could be done with this in a moment’s notice if someone would call the President, ask him the question, we could be done with this. Because that’s what I want to hear. Not that he’s not going to use the military to repel an invasion. Nobody is questioning the authority of the President to repel an invasion. But I am questioning the authority of the President to kill noncombatants asleep at home, eating at the restaurant, or what have you.

One of the things that Williamson brings up in this “National Review” article again, which I also found a little bit – it’s a little bit off the subject but somewhat related. You know, we are fearful and we didn’t do a very good job with 9/11, frankly. 9/11 occurred because of a lot of mistakes, and sometimes you can look back as a Monday morning quarterback and say, oh, we should have done this. But one of the things that always bothered me about 9/11 was that no one was ever fired. In fact, they gave medals – the head of the FBI, the head of the CIA, everybody gets a medal. No one was ever fired. Some of you may not remember this, but there was a 20th hijacker, his name was Moussaoui, who was up in Minnesota, I believe. They capture him a month in advance to 9/11. And when they capture him, the FBI agent there, who was spot-on and doing an excellent job and really the guy who should have gotten the medal was the FBI agent that caught Moussaoui and was asking his superiors to get a warrant. He asked repeatedly, he sends 70 letters to headquarters saying, can I have a warrant to open this guy’s computer, to investigate him? He’s turned down. He gets no response. It was a horrible and tragic human error. What do we do? We promote and give medals to the people who were in charge. That agent should have gotten a medal, but anybody above him who made the decision not to even ask for a warrant shouldn’t have gone anywhere within the department.

Williamson makes the point, he says “if our law enforcement and intelligence agencies particularly the State Department had been doing a minimally competent job vis-a-vis visa overstays and application screening, at least 15 of the 19 9/11 hijackers would have been caught.” They were all here on student visas, they were all overstaying their student visas. Nobody was paying attention. I still ask that question to today. I ask, do we know where all the students are? Particularly from about 10 Middle Eastern countries, the ones who are in our country. Do we know where they are? I think we have not a good enough system to know where they all are, whether they’ve come and gone. And this is a real problem. Had we actually looked at Moussaoui’s computer – they did, they looked at it on September 12, the day after 9/11. They looked at his computer. I think it, within hours, led them and linked them up to several of the hijackers in Florida and ultimately would have perhaps exposed the whole ring. Same thing is going on in Arizona at the same time. They had somebody in Arizona saying there’s guys wanting to fly planes that don’t want to learn how to land them. There were horrible and tragic occurrences that happened, human breakdown. But how do we fix it? We fix the same way we fix everything in Washington. We threw ton of money at it and I mean a ton of money at it. Billions upon billions into the trillions have now been spent, but really the main problem with 9/11 was lack of communication, lack of trying, lack of really doing a good job at what you were already supposed to be doing.

When we look at this issue, and as we go forward from here, I think what is most important to me is that we just not let this go. This is the first time that I’ve decided to come to the floor and speak in a true filibuster. People talk about the filibuster all the time, they say the filibuster is overused and it’s abused. A lot of times the filibuster in our country and in the Senate is actually requesting the 60 votes happen and we have to do everything by unanimous consent, so it almost never happens. I’ve been here two years and I don’t think I’ve seen anybody come to the floor  and speak in an open and spoken filibuster as I am today. I think it is important, though, and I think the issue rises to such an occasion because I think there are very few things – there are a lot of things we disagree on – a lot of things we disagree on, Republicans and Democrats. And I think there are a lot of things that we could actually pass if we’d get together and try to do smaller bills and work on what we agree and get away from some of the empty partisanship. But the reason I came to the floor today to do this is because I think certain things rise above party politics.

Certain things rise above partisanship. And I think your right to be secure in your person, the right to be secure in your liberty, the right to be tried by a jury of your peers – these are things that are so important and rise to such a level that we shouldn’t give up on them easily. And I don’t see this battle as a partisan battle at all of the I don’t see this as Republicans versus Democrats. I would be here if there were a Republican President doing this. And really, the great irony of this is that President Obama’s position on this is an extension of George Bush’s opinion. It basically is a continuation and an expansion of George Bush’s opinion. George Bush was a President who believed in a very expansive power. Virtually, some would say, unlimited. He was accused of running an imperial Presidency. The irony is that this President that we have currently was elected in opposition to that. This President was one elected who when he was in this body was often very vocal at saying that the President’s powers were limited. When I first came here, one of the first votes that I was able to get was a vote on whether or not we should go to war without Congressional approval. And so the interesting thing is that the war was beginning in Libya, turned out to be a small war, but small wars sometimes lead to big wars. In fact, that was one of Eisenhower’s admonitions is beware of small wars that you may find yourself in a big war. Fortunately, the Libya war didn’t turn out to be a big war, although I think it’s still a huge mess over there, and I think it’s still yet to be determined whether Libya will descend into the chaos of radical Islam. I think there is a chance they still may descend into that chaos. But when the question came up about going to war in Libya, there was the question of, doesn’t the Constitution say that you have to declare war? And so we looked back through some of the President’s writings as a candidate.

One of the President’s writings I found very instructive and I was quite proud of him for having said it, the President said that no President shall unilaterally go to war without the authority of Congress unless there is an imminent threat to the country. I guess we should be a little wary of his unless now since we know imminent doesn’t have to be immediate and imminent no longer means what humans once thought imminent meant. But he did say that the President doesn’t go to war by himself. I think it would be fair to say that candidate Obama also felt that the President didn’t have the authority to imprison you indefinitely without a trial. I think it’s also safe to say that Barack Obama of 2007 would be right down here with me arguing against this drone strike program if he were in the Senate. It amazes and disappoints me how much he has actually changed from what he once stood for. But I forced a vote on his words. I took his exact words, we quoted them and put them up on a standard next to me and we voted on a Sense of the Senate that said no President should go to war without the authority of Congress. Which basically just restates the Constitution. You would think that would be a pretty easy vote for people. I think it got less than 20 votes. That is a sad state of affairs we’re in. Now some who probably actually believed that refused to vote for it because they said well, he is a Republican and I won’t vote with a Republican. But I honestly tell you, were the shoe on the other foot – were there a Republican President here and I a Republican senator – I would have exactly the same opinion. My opinion today on drone strikes would be exactly the same opinion under George Bush, and I was critical of George Bush as well. So were there a Republican President now, I would have the same instinct and the same resolution to carry this forward. And on the issue of war, it’s the same no matter which President.

One of the complaints that you hear a lot of times in the media is about there is no bipartisanship in Congress. The interesting thing is actually there is a lot of bipartisanship in Congress. If you look at people who don’t really believe in much restraint of government as far as civil liberties, it really is on both sides. And so you will find that often these votes on whether or not the Constitution says that we have to declare war in the Congress, Republicans and Democrats vote overwhelmingly against that. And you need to realize the implications of that – what they are voting for is to say we don’t retain that power and we don’t want it. The Constitution gave it to us, but we’re giving it back. And this has been going on for a long time. Really, probably for over a hundred years, starting with sort of the Woodrow Wilson sort of grab for Presidential power, Presidents have been getting more and more powerful for over a hundred years, Republican and Democrat. There was at one point in time in our history a pride among the Senate and a pride among the Congress that said these are our powers and we’re not giving them up. There were people on both sides of the aisle who would stand firm and say this is not a power I’m willing to relinquish. This is not something that is good for the country. And by relinquishing the power of Congress, we relinquish something very fundamental to our Republic, which is the checks and balances that we should have checks and balances to help and try to prevent one body or one part of the three parts of government from obtaining too much power. And so there was a time when we have tried to keep that power. Unfortunately, the bipartisanship that we have now, which many in the media fail to understand, they see us not getting along on taxes and on spending, but they fail to understand that on something very important, on whether or not an individual has a right to a trial by jury, whether an individual has the right to not be detained indefinitely, that there is quite a bit of bipartisanship, usually in the wrong direction.

Now, I will say that there is some evolution and some trend towards people being more respectful of this, and there has been some work on both sides of the aisle that has brought some of us who believe in civil liberties together. There was a bill last year called the National Defense Authorization bill, and in that bill they said that there was a clause that says that Americans can be indefinitely detained. What does that mean? Well, it means forever, basically, or without a trial, no sort of sentence, no sort of adjudication of guilt or innocence, but an American citizen can be held. And so the question I had, and there was another Republican Senator on the floor, does in a mean you can actually be sent, an American sent to Guantanamo Bay from here, who is accused of something but never gets a trial? And his answer was yes. His answer was yes, you could send them if they are a danger to the country. The problem with that kind of thinking is that, Who gets to determine whether you’re a danger? Who gets to determine whether you’re guilty or innocent? It sort of begs the question of what our court system is set up to do is to try to find guilt or innocence. Guilt or innocence isn’t always apparent, and sometimes an accusation is a false accusation. Sometimes accusations are made because people politically don’t like your point of view. So the question becomes should we have a process where we try to determine innocence or guilt? So in the National Defense Authorization bill, there was an amendment that said that you can be indefinitely detained, an American could be sent to Guantanamo Bay. And we had a big fight over it and we lost the first time around in 2012. We had an amendment that would have tried to protect American citizens. This was a good example of bipartisanship on our side. We had 45 votes, and I’d say it was probably about 38 Democrats and about seven Republicans. And so there was an example of both sides kind of working together.

We fought and we lost. The next year we came back and we fought for the same amendment again and we beat them. Interestingly, we beat them. We had 67 votes to say that you cannot detain an American, an American can’t be sent to Guantanamo Bay without a trial, without an accusation, without a jury, without the Bill of Rights. You can’t do that to Americans. We won the battle with 67 votes. The bill passes, the House passes their version without our amendment on it, it goes to conference committee where they work out the differences, and they stripped out our language. Sometimes when you win around here, you lose. But with the 67, there was a pretty good mix. Maybe 35, 40 Democrats and 15, 20 republicans. So there is some emerging consensus or some kind of emerging group. One of the other Senators has called it the “checks and balances” caucus, and I think that’s a very accurate term because that’s part of what we’re arguing for here. We’re arguing that no one person should get too much power, or no one body would get too much power. Some people see all that fighting and disputing between the different branches of government. They see it in a bad light. They say oh, with all that fighting and bickering, that’s gridlock.

But in some ways, our Founding Fathers I think weren’t too opposed to a little bit of gridlock, particularly if it were gridlock that said you know what, we’re not going to make it easy to get rid of the First Amendment. It’s not easy to get a Constitutional amendment in our country. We have added some through the years, but it’s not easy to do. We make it hard to amend the Constitution. And in fact, we make it such that it really isn’t a – we’re not really a country that’s majority rule, and I’m sort of a stickler for talking about the differences between a democracy and a Republic. I think some people are sloppy with their words and they – they love the idea that America is a democracy.

You know, Woodrow Wilson said that we were going to war in the first World War to make the world safe for democracy. Well, number one, we’re not a democracy and we never were intended to be a democracy. When Franklin comes out of the Constitutional convention, a woman comes up to him and asks him, what will it be – will it be a monarchy or a democracy? And he says it’s a Republic. It’s a constitutional Republic – if you can keep it. He was already worried, will democratic action lead to people straying away and giving a government too many powers? But we are a Republic. It’s important to know how a difference is between a Republic and a democracy, particularly with our history in our country. In our country, we had a period of time where majorities passed some very egregious and unfair and unjust laws.

In our country, we had a period of time where majorities passed some very egregious and unfair and unjust laws. These were called the Jim Crow laws. They passed laws based on your race or the color of your skin, and these were passed by majorities. The important thing about the Constitution and about rights and one of the reasons I am here today talking about the Fifth Amendment and how it gives you the right not to be committed to prison or not to be killed without due process is that our founders thought it was very important. This whole concept between a republic and a democracy, also between – or considering the idea that majority state legislatures were voting on something, Jim Crow laws, that would say to a white person you can’t sell a house to a black person or vice versa, those laws were passed by majority rule.

So any time someone comes up to me and says you want a democracy, that’s my first question, you’re okay with Jim Crow then, because democracies did bad things, but if you believe that rights are protected and that rights should be protected and that these individual rights are not something that a democracy can overturn, then you do truly believe in a protection that is more important than any Democratic rule.

There has been some dispute over this. There is a Supreme Court case by the name of Lochner back in 1905. The President doesn’t like Lochner at all. He is very much opposed to it. But the one thing about Lochner that I like is that Lochner really expands the Fourth Amendment. You know, the 13th, 14th and 15th were passed after the Civil War, and usually over Democrat objection. In my state, the Democrats ruled the state legislature in Kentucky for many, many years, and they voted against the 13th Amendment, the Fourth Amendment and the 15th Amendment.

The great champions of emancipation, of voting rights, of all of the post-war amendments were the Republicans. Every African-American in the country was a republican before 1930, virtually every African-American. In 1931 in Louisville, there were 25,730 black Republicans. There were 129 black Democrats. Every African-American was a Republican at one point in time. I try to tell people even though the numbers have unfortunately reversed that we are the party that believes in the immutability of rights. We don’t believe that a democracy can take away your rights, that a majority rule can take away your First Amendment, your Second Amendment, your Fourth Amendment. And I think if we got that message out, we might change some of what goes on.

But the President is an opponent of the Lochner decision, and in the Lochner decision, a state legislature decides something. It’s not really of importance what the decision is so much as that it’s about judicial deference, about whether the court should say well, the state legislature decided this, a majority should get to rule. So many, like Oliver Wendell Holmes, was a dissent in the Lochner case, and he basically said majorities should get to rule. Herbert Crawley, who was one of the founders of the new republic, he wrote that we can get trapped up in all this support for the Bill of Rights and all these ancient individual rights, if we get too carried away with that, this whole idea of rights things, we’ll have a monarchy of the law instead of a monarchy of the people.

Well, it was for good reason that we established a republic and not a democracy. One of the best contrasts, I think – and it may not be a perfect contrast but I think it has some truth to it and some validity, is that our revolution worked, but our revolution, we established a constrained government. In France, the mob came into power. They had mob rule. The French revolution was a disaster. We had some things going for us. We had had a colonial government with English common law and English adjudication and we adopted English practices, we were Englishmen and we believed in the rights of Englishmen. We had had that for several hundred years in our country, so it was easier for us to have a revolution, and they didn’t quite have that going on in France, so it was different. One of the differences I see between that America and the French is we established a republic and we weren’t going to have any majority rule where the majority were setting up a guillotine.

Ours wasn’t perfect. Our founders allowed and left slavery to occur. Interestingly, if you read the Constitution, I think they were embarrassed by it. You know, the word “slave” doesn’t occur in our Constitution and, in fact, there were many writers, many abolitionist writers – there was a writer by the name of Lysander Spooner, who was an abolitionist, and he actually wrote about the unconstitutionality of slavery before the war. And, really, if you read the Constitution and you leave out or acknowledge that there is no word in there, slavery, and nothing that really says you have to be consigned to slavery, there are things in there that say you can’t be kept without being presented with charges. Habeas Corpus means “present the body.” In the old days in England and in different monarchies, they’d just snatch you up. If you were next in line to be king or they made you mad, they snatched you up and put you in the tower. And so they came up with the right of Habeas Corpus, you had to present the body, you had to say, he’s been arrested and these are the charges against him. We kind of have gotten, you know, to where there’s some concern in our country about that, but we had that right all along.

So Lysander Spooner wrote and said, well, you know, why shouldn’t a slave come forward and say, this guy’s keeping me, he’s telling me that I have to work for him, but I haven’t been charged with anything. What is my crime? Eventually one court case did come forward and it was ruled incorrectly. And I’m not sure how the arguments were, but in Dread Scott they ruled you can’t make the argument. But I don’t know if habeas corpus was part of that case or not but it should have been. What I’m trying to say, though, is that the rights of the Constitution, the rights of the individual that were enshrined in the Constitution are important things that democracies can’t overturn. So when you get to the Lochner case, the Lochner case in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone can’t deprive you of determining how long your working hours are without due process. So President Obama’s a big opponent to this, but I would ask him, among the other things I’m asking him today, to rethink the Lochner case. Because the Lochner case is really what precedes and what the – the case Buchanan v. Warley is predicated upon. Buchannan v. Worley is a case from 1917. Interestingly, it comes from my state, from Louisville, Ky. There’s a young African-American attorney by the name of William Warley. He’s a Republican, like most African-Americans were in Louisville in those days. He was the founder of the NAACP. And like most founders of the NAACP, a republican. And so what they do in 1914 is they sue because the Kentucky legislature, by majority rule, by Democratic action, passes a law saying a white person can’t sell to a black person in a white section of town or vice versa.

So this is the first case the NAACP brings up. Morefield story was the famous – I think he was the first President of the NAACP famous attorney. Him and an attorney by the name of, I think Clinton blankey. But they go forward with this case and they win the case. It actually passes overwhelmingly. But interestingly, this case to end Jim Crow is based on the Lochner decision. So those who don’t like the Lochner decision, I’d say, go back, we need to reassess Lochner In fact, there’s a good book by Bernstein from George Mason talking about rehabilitating Lochner. The thing is, is that with majority rule, if you say we’re going to give deference to majority rule or we’re going to have judicial restraint and we’re going to say, well, whatever the majority wants is fine, you set yourself up for a diminishment of rights.

I go back to the – the discussion of the Constitution limits power that is given to Congress but it doesn’t limit rights. The powers are enumerated, your rights are unenumerated. The powers given to the government are few and defined. The freedoms left to you are many and undefined. And that’s important. And what does this have to do with Lochner? The case in Lochner is whether a majority rule, a state legislature can take away your due process, your due process to contract. Can they take away your life and liberty without due process. And the court rules, no. I think it’s a wonderful decision. It expands the Fourth Amendment and says to the people that you have unenumerated rights.

Now, there’s some dissension on how we look at these cases, but when you go forward to Buchannan v. Worley, yes, the case about Jim Crow laws and housing segregation, one of the people who was going to dissent – and I think he thought better of it when he thought about he would be the first justice in probably 70-some-odd years to say that he believed in the Jim Crow laws and was upholding Jim Crow laws – was Oliver Wendell Holmes. He actually writes an opinion that has been found but was never presented to the court and he ended up voting to get rid of the Jim Crow laws. But the interesting thing is, he actually wrote an opinion in favor because he believed so strongly in majority rule.

I don’t think these questions – some may think these are idle questions. I don’t think it’s an idle question whether or not you have a democracy or a republic. I think that these questions from – that these questions from Lochner, from Buchanan v. Warley all the way to the present are important. Last year and the last couple years we had two cases on gun rights, the second amendment. These are called Heller and McDonald. Both of them I think can be seen as – once again an expansion of the Fourth Amendment to say, your privileges and immunities, which are part of the Fourth Amendment, include the Second Amendment and they include certain rights. In fact, I think any power or any right not given up to the government or limited by the enumerated powers is yours. So when they say the privileges and immunities of the Fourth Amendment, I believe that means everything else. What does that mean? It means I believe in a very circumscribed view for government.

Now, one of the side benefits of having a circumscribed view of the government would be a government that’s not allowed to do much wouldn’t get in many problems. For example, if your government wasn’t allowed to spend money that it didn’t – that it didn’t have or if your money wasn’t – your government wasn’t allowed to spend money on programs that were not enumerated as being within the purview of the federal government, you wouldn’t have these massive deficits. We would have never gotten in this fix if we believed in a republic and not a democracy.

Now what proof do I have that the current officials believe in democracy versus republic? When Obamacare came forward – you know, the – the comments from then-Speaker of the House Nancy Pelosi were, a majority passed this. You know? We passed this by a majority. It’s the law. Why would anybody question the Constitutionality? The President said the same thing. The President said, look, a majority passed this. What right has the court to overturn this?

The question has been written about by many I think brilliant scholars who have – have looked at the Constitution and looked at what it means. Some of this has to do with whether or not you presume liberty – Randy Barnett’s written about this, “Restoring the Constitution,” – whether you have a presumption of liberty or whether you have a presumption of Constitutionality. And that may sound a little esoteric. What does that mean? It’s whether or not when they pass a law up here, you just presume it’s fine because it’s the law and the judges should give deference to it because it was a law. So this is kind of confusing because you think, oh, I’m arguing for judicial activism. In a way, I kind of am. Because if the Congress usurps the Constitution, if the Congress takes away from your rights, the judges should stop them in their tracks. I’m not arguing for deference to the legislature. I’m arguing for deference to the Constitution.

And so I’m also arguing that there is a presumption of liberty. This goes back to the – the – the way we want to look at the Fourth Amendment. The Fourth Amendment says that we have unenumerated rights. It says that basically, you know, or – I guess by extension, when you go from the Fourth Amendment to the Ninth and Tenth Amendments is the best way to look at this. The Fourth Amendment talks about privileges and immunities and then when you look at what the Ninth and Tenth Amendments do, they say, you know, those powers not given to government, those freedoms you didn’t relinquish or those powers you didn’t give to the government are left to the states and the people respectively. And it says they’re not to be disparaged. I’ve always – always loved the way that was worded. Not to be disparaged. Not only is the federal government not to trample on your rights, they are not to be disparaged. But these rights are unlimited. They’re yours. You got them from your creator. These are natural born rights and no democracy should be able to take these away from you.

Now, by changing the Constitution, they could literally take away your freedom of speech or your freedom to practice your religion. I don’t think I see that ever happening and it’s difficult to change our Constitution. But incredibly important that your Founding Fathers put it in there and made it difficult. Now, I always kind of joke that if you go to a conservative meeting and you talk about the second amendment, everybody pats you on the back and they all love ya until you get to the Fourth Amendment. But if we’re going to have the second amendment, I think you’ve got to have the Fourth Amendment, the right to be free in your person from unreasonable search and seizures. That a judge should have to have a warrant to come in your house.

They always say, how are your guns going to be protected if they can come in your house without a warrant? You’ve got to have the fourth amendment. But you also have to have the 5th amendment. You know, we don’t talk about the 5th amendment very much. Everything’s about the second amendment. It’s been all over the news, you can’t turn on a channel without talking about the second amendment. But I think today’s as good a day as any to talk about the Fifth Amendment. I’ve come here to filibuster the nomination of John Brennan because I think the Fifth Amendment is important, that I think we shouldn’t be cavalier.

I don’t think we should be casual in our disregard for the Constitution. I think that to allow the President to trample on and shred the Constitution and say that the Fifth Amendment no longer applies is – is a travesty and is something that we should not do lightly. So I think it’s worth a discussion. So far it’s sort of a one-way discussion but we’ll see. But it’s worth a discussion that we talk about the Fifth Amendment. It says, no person shall be deprived of their liberty, of their life or their liberty. That’s what it means. It’s pretty clear and it’s pretty plain. You can’t take away someone’s life and liberty without due process. Or an indictment. So it should trouble every American. I can’t imagine that there wouldn’t be an American in our country that would not be troubled that we’re talking about killing noncombatants in America with drone strikes.

We have to get the President to respond to this. I don’t think it’s good enough for the President to say, I haven’t done it yet. I don’t intend to do it but I might. His oath of office says he will preserve, protect and defend the Constitution. The oath of office doesn’t say, well, I intend to when it’s convenient. I mean, you know, I’ve never seen a President go out on the lawn with the Chief Justice and say, “I intend to follow the Constitution when it’s convenient.” Because what he says is he won’t drop a hellfire missile on you unless it’s infeasible to capture you. That’s what they’re doing overseas. If that’s going to be the standard for America, if you’re not going to get a hellfire missile on you unless it’s infeasible, to me that sounds like unless it’s convenient. If it’s inconvenient. Nonfeasible sounds like inconveniency is the standard.

You know, I asked Secretary Kerry about this in his nominating process. I said, well, can you go to war without Congress approving of it, without a declaration of war like the Constitution says? And he said, no, I intend to obey the Constitution except for when I don’t intend to obey the Constitution and when it’s kind of – you know, it’s hard to get things through Congress and Congress is – so many squabbles and so many fights. So yeah, most of the time we’ll come to Congress and we’ll ask for a declaration of war – which, by the way, we have not done since World War I. And when we did, it was voted on nearly unanimously. We have not had a declaration of war. But this is the standard we get to. They don’t intend to kill anyone and we don’t intend to go to war without a declaration of war unless it’s impractical to get your approval. Well, that was the point. If you don’t get the point of the Constitution, if you don’t get the point of what kind of system our government is set up, what kind of system our founders set up, it was to make it impractical. It was to make it difficult to go to war. It was to make it difficult and make it important that there be debate and checks and balances.

If inconveniencecy is our standard for going to war without Congress, inconveniency is our standard for killing Americans on American soil with drones – I mean, I think we’ve sunk to a new low. I just can’t imagine as a country that that’s the standard that you want to have.

Hour 3

What we’re talking about is noncombatants eating dinner, sleeping in their house, walking down the street, a large percentage of the drone strikes have been people who were not carrying arms or in combat. Now, were they bad people? I’m not positive that I can tell you one way or the other, but I don’t want that sort of standard to be used in America. I don’t want the standard to be that if you’re close to a bad person and you’re a male between the ages of 16-50, that you are no longer a civilian but that you are actually a militant. Is that the standard we’re going to use in America? I don’t want the standard to be sympathizing. You know, has anybody ever been on the Internet? Have you ever seen crackpots on the Internet who say all kinds of crazy things? If you’re saying crazy things and they happen to be against your government, is that enough for a Hellfire missile to come down on your house? Is sympathizing enough? People have written about this and talked about the idea that during the Vietnam War, there were many people – and some of them frankly were treasonous and should have been tried for treason – but even having said that, I would never be for killing them without some sort of due process or trial. The idea of the right to trial by a jury is something that really we have based our history for hundreds and hundreds of years have been basises of a foundational principle for our country. I can’t imagine that we would be so cavalier as to let it go.

As we move forward with this nominating process, I have decided to occupy as much time as I can on the floor to bring attention. Ultimately, I can’t win. There’s not enough votes. There would be if truly there was an uprising of bipartisan support who would come to the floor and say, you know what? It’s not really about John Brennan. It’s about a Constitutional principle, and we’re willing to delay this until the President can explicitly answer that noncombatants in America won’t be killed with drone strikes. I think it’s a pretty simple answer, but it’s been like pulling teeth. I have written letter after letter for weeks and weeks trying to get an answer on this, and we haven’t had much luck.

There have been people who have written about the lawfulness of these lethal operations directed against citizens, and there is a question both in the country and outside the country, there is a question of what the standard will be, will it be the same standard? Now, some say there is no standard once you get outside the country, that anybody can be killed whether they are an American citizen or not. I frankly don’t like the idea of no standard. I think, for example, the most prominent American that has been killed overseas was Awlaki. He was on a list and his name was publicly known to be on a kill list for months. I see no reason why he couldn’t have been tried in a federal court, expeditiously, if he didn’t return home he’d still be tried, but given representation and tried for treason. These aren’t real frequent cases overseas that have occurred, so I see no reason why we wouldn’t use federal courts. The federal courts are adapted such that they can go into secret session, if there is classified material. Federal courts in Washington, Philadelphia, and New York have done this on occasion. 

And I think we could do this in federal court. We have tried and convicted quite a few terrorists, I think, number into the several hundreds in the United States in our courts. The main thing is that, I object to people becoming so fearful that they cavalierly give up their rights. We had two terrorists in Bowling Green, Kentucky. My town is 50,000 people. Who would have thought we would have two terrorists? And they were conspiring to either buy or send Stinger missiles to Iraq, and I’m glad they were caught and I’m glad they were punished. They were done so in a court. But many people said oh, let’s just send them to Guantanamo Bay forever, it’s like – once we go down that path that we’re not going to have any due process – our courts have done a pretty good job. In fact, I think we have not let off anybody from one of our courts that should have been kept here and tried. I do have some questions how these terrorists got to the country, and it goes back to while we don’t want terrorism to occur, how we should combat it. Whether it’s most – best combated by being in Yemen, Mali, Somalia, Afghanistan and Pakistan or whether some of the way we ought to combat terrorism is to do a better job of knowing who comes into our country and who leaves. For example, we have allowed 60,000 people from Iraq to come into this country in the last two or three years. I think that’s a lot, frankly. They come here under asylum. The problem with asylum is, see, I thought asylum was when you were escaping dictatorship, when you were going to be persecuted by a dictator. Well, we won the war in Iraq. It’s a democratic government over there, and I wouldn’t understand why you would be trying to leave a democratic government. Also, the 60,000 you leave, other than maybe the two we captured in Bowling Green, you would presume that most of them are pro-Western if they want to come over here, those are the people we want running Iraq. There are all kinds of reasons why they should stay in Iraq to run the country. But in letting so many people come in, we didn’t do a very good job, because the two terrorists we let in in Bowling Green, their fingerprints were on an I.E.D., And the I.E.D. was in a warehouse somewhere, and the interesting thing about it is they didn’t find the fragments that their fingerprints was on matching up in a database. After we caught them and were trying them and we knew their name and had their fingerprints, we went and directed towards some fragments that had been in a warehouse for years and years and had not yet been checked for fingerprints. So we’re really not quite doing the job.

Sometimes we want to analyze so much information that we get overwhelmed with the information, too. We collect millions and millions and billions of pieces and bits of information, but it can’t possibly all be analyzed, and some of it I fear goes against your rights to privacy. Any of your e-mails over six months can be looked at. We found out about this recently when we had an adultery affair in our military, and it’s like, I think your third party records are yours. So I had an amendment recently on this, and I told people that my Visa bill is pretty private. Just because I use my Visa card doesn’t mean I have given up that information and that the government should get to look at my Visa bill every month. But that’s what we have done. This has been going on, a lot of these things have been slipping away from us for a long time. They are not President Obama. They are 40 or 50 years of court cases. So like 30, 40, 50 years ago, we decided that, once a third party had your records, they weren’t yours and they weren’t private anymore, which I think is an absurd notion.

Think about the age we live in now and how a lot of people don’t use cash at all. Your Visa card has everything on it. You can look at a person’s Visa card, find out if they see a psychiatrist, what kind of medicines they are on sometimes. You can find out what kinds of magazines they get, what kind of books they get, where they buy them from. You can look at a person’s Visa bill and find out if they drink alcohol, or if they gamble. You can find out their travel patterns. There is a lot – you can find out a ton of information about someone’s Visa bill. Should people be able to look at your Visa bill without asking a judge and saying, we think he’s involved in this? And see, I’m not saying you can’t do this for a terrorist, but what you should do is you should go to a judge, you should present some evidence to say we think he’s a terrorist, we want to look at his Visa bill. Instead of saying everybody in America, your Visa bill is open to scrutiny. That’s basically what we have now. Your banking records, your Visa statements, all of your records that are held by a third party are not protected. You may have heard some about they want to have cybersecurity. Everyone wants their computers to be secure, including the computer companies. They work nonstop trying to keep these hackers out of our computers. But the law they want to pass wants to give immunity to the computer companies. Well, a lot of us don’t think much of it. We check off that confidentiality button and we hope that we have signed the contract and they are not going to share our stuff. They share it in a way, but in an anonymous way but with people you buy stuff from and we put up with that in order to get a great search engine. And I’m okay with that, that’s a private contract. What I’m concerned with is all of a sudden when we pass this cybersecurity all of a sudden its going to be, oh well, you really can’t sue them if they breach your privacy. So then we become everybody’s computer, everybody’s searches, everybody’s reading habits are open to the federal government. It’s once again because we are fearful of people coming at us and fearful of attacks, we give up our rights.

But I thought we were fighting to preserve our rights. So then what are we fighting for? These battles are going on throughout government. The interesting thing about these battles is they are not really always Republican versus Democrat. These are battles that are sometimes really coalitions of people from the right and people from the left who have gotten together and fought on these things. On trying to get the President to acknowledge that he won’t do drone strikes, there have been people on the Democratic side of the aisle who have allied with me and helped me to get some of this information. In fact, the President would have refused probably until hell froze over of giving me anything, but the fact that we got a few Democrats on there to ask for the information also, all of a sudden we had a coalition and we were able to get some information. But it hasn’t been easy, and that’s what’s worrisome. The fact that they don’t want to acknowledge limitation to the presidential power worries me that they believe in an incredibly expansive presidential power.

In order to stop that, we have got to be protective of our rights. You know, we have got to be able to not so easily give up on our rights. There is a white paper that was written and the title of it was the lawfulness of a lethal operation directed against a U.S. Citizen who is an operational leader of al-Qaida or an associated force. This is from the Department of Justice. This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force. One of the things that they do in the document – and some of this was leaked recently –  is they tell you the criteria for when they can kill people overseas. Now, we don’t know the criteria for killing people in this country. They make a contention that the rules will be different but no one’s really acknowledging exactly who they can kill or what the rules will be. For the people who were killed overseas by drone strikes, the thing that they come up with is that they say that it has to be an imminent threat but it doesn’t have to be immediate. 

Well, you know, to my thinking, only a bunch of government lawyers could come up with a definition for imminent that says it isn’t immediate. So that’s the first problem with it. Is that going to be the standard that’s used in America? That has to be an imminent threat but it doesn’t have to be immediate, because then my next question, what does that mean? Does that mean noncombatants who you think might someday be combatants are an imminent threat? I mean, it is a pretty important question, what is imminent? No, there is no question what is imminent lethal force. Someone aiming a gun at you, a missile, a bomb, any of these things is imminent, and no one questions that. No one questions using lethal force to stop any kind of imminent attack. But we become a little bit worried when the President says imminent doesn’t have to mean immediate. And when that happens and then when you see, from what we can tell from the unclassified portion of the drone attacks overseas, many of these people are not involved in combat. They might someday be involved in combat, they might have been involved in combat, but when we kill them, most of them are not involved in combat. So even overseas, there is some question of this program, but my questions are primarily directed towards what we do in this country. Now, it says that the U.S. government can use lethal force in a foreign country outside the area of active hostilities. That’s once again the point. We’re not talking about a battlefield, but because the battlefield has no limits, since the battlefield is not just Afghanistan, the battlefield has no geographic limits, so the battlefield is the whole world, including many in this body who say the battlefield is the United States. So once you acknowledge and admit that the battlefield is the United States, this whole idea of what’s imminent versus what is immediate becomes pretty important because we’re talking about your neighbors now. 

The other thing about this is, is you need to try to understand who – who are these terrorists? Members of al-Qaida. There are no people walking around with a card that says “al-Qaida” on it. There are bad people and there were bad people associated with the terrorists. We’ve killed a lot of them who were in Afghanistan training and part of the group that attacked us. But there are terrorists all over the world that are unhappy with their own local governments. Some of them are unhappy with us, too. But to call them al-Qaida is sometimes a stretch, and sometimes open to debate, who is and who isn’t. But then they use other words, and words are important. They’re either a member of al-Qaida or associated forces. I don’t know what that means.

Do you have to have talked to al-Qaida or do you just have to be committing terrorism? Do you have to be in a country where we’re supportive of the government and people are attacking the government? It’s not always clear. The other question you get to when it’s either al-Qaida or people associated is that now we get to the United States and we have the government defining what they say is terrorism. So the government has put out some documents, one by the Bureau of Justice, to warn you of who might be a terrorist. In fact, the government has programs, they want you to inform. They say, see someone, tell someone. If you see these people, you’re supposed to inform on them. So some of the characteristics of people who might be terrorists – and I don’t know, they don’t have to be an imminent threat so I don’t know, it doesn’t have to be immediate but some of these people might be terrorists. I don’t know. If the President’s going to kill these people, he needs to let them know.

Some of the people who might be terrorists are people who are missing fingers. Some people have stains on their clothing. Some people who have changed the color of their hair. Some of the people who have accumulated guns. Some people who have accumulated weatherized ammunition, which might be half the hunters in the South this time of year. Or, people who might like to pay in cash. Or, people who have seven days of food on hand. Well, I know people just for religious reasons, they are taught to keep food on hand. In fact, the government web sites sometimes tell you to keep food on hand for hurricanes. If you live along the coast, one government web site says keep food on hand. The other government web site says, if you do, you might be a terrorist. Now, not saying you are but if these are the characteristics of terrorism, would you not be a little concerned that if the government’s putting this list out, that we’re going to drop Hellfire missiles from drones on people in America who might be on this other list? I’m – I’m particularly concerned about that. So I think we can’t be sloppy about this. We can’t allow ourselves to, you know, be so, I guess, afraid of terrorism or afraid of our enemies that we give up on what makes us Americans. What makes us Americans are, you know, are our constitutional rights, that these are enshrined in our Constitution. It’s why we’ve gone to wars to defend these rights. You know, when we think the war still has purpose if we’re no longer able to enjoy these rights at home?

The problem as I see it, as we go forward, is that I wish I could tell you that there was an end to this, that there would be a grand battle for your constitutional rights or for what rights you lose overseas, what rights you lose here if you travel. The problem is, they don’t see an end to the war. They – they see perpetual war, perpetual war without geographic limits, and they see the battlefield here. So they want the laws of war to apply not only there but to apply here. Another way of saying the laws of war is martial law. These are the laws of war, these are the laws that are accepted in war. We accept a lot of things on the battlefield that we don’t want to accept here. I acknowledge, we accept it, you don’t get Miranda rights on the battlefield. You don’t get due process. You don’t get an attorney. If you’re shooting at us, we shoot back and kill you. The thing is, if you’re sitting at a cafe in Houston, you do get Miranda rights, you do get accused of a crime, you do get a jury of your peers. That’s what we’re talking about here. The President should unequivocally come forward and state that noncombatants, people not involved with lethal force, will not have drones dropped on them.

The other thing you should acknowledge is the law. Not only the constitutional law but the law since the Civil War has said the military doesn’t operate in the U.S. There’s a reason for the military not operating in the U.S. Why? The military operates under different rules of engagement than policemen. The rules are stricter on policemen. We do it because we’re not in a war here. So the policemen have to call judges. A lot of people don’t think through this, though, and they’ll say, well, these people are terrible, they’re awful people who would cut your head off. You’re right, they’re really bad people. We have really bad people in our country too sometimes. We have murderers and rapists. But tonight at 4:00 a.m., if there’s a rapist going around the neighborhood and you get to a house and there isn’t an imminent thing going on but you’re told he might be in this house, before the door’s broken down, they call on a cell phone, they get a judge out of bed and they say, we have chased him into this neighborhood, no one’s answering, we want to break the door down, can we have a warrant? And sometimes you don’t need it in that situation, but most of the time in our country the police have to call for a warrant. We have a process. But definitely when he’s arrested, they don’t just string him up. We don’t – we don’t have lynchings in our country. We don’t let mobs decide who’s guilty and who’s not.

I don’t question the President’s motives. I don’t think the President would purposely take innocent people and kill them. I really don’t think he would drop a Hellfire missile on a cafe or a restaurant like I’m talking about. But it bothers me that he won’t say that he won’t. And it also bothers me that when he was a Senator in this body and when he was a candidate, he had a much higher belief and standard for civil liberties, and that he seems to have lost that as he’s become President. So I think this is an important issue. It goes beyond John Brennan. It goes beyond really the President. It goes to an issue that rises above, I think, all other issues that we consider here. I voted for three of the President’s nominations, not because I agreed with them politically. In fact, I disagreed with the vast majority. But I disagree with the President on a lot of political issues, but I voted for his nominations because I think the President does get some prerogative in deciding who his political appointees are. I’ve chosen to make a stand on this one, and not so much the person, but the principle of this. I have nothing personally against Brennan, I have nothing personally against the President. But I have a great deal of concern about the rights that were enshrined in the Constitution. I have a great deal of concern about this slippery slope of saying that there won’t be accusations, there won’t be trials, that we will just summarily execute people. And the question is, will you execute noncombatants? If he’s not going to, he ought to say so.

In this white paper that was released, they talked about the three different conditions. One of them was imminence. But then they qualified it by saying imminent doesn’t have to mean immediate. Another one was feasibility. They said, you know, it’s not feasible to get some of these people overseas and so we kill them. But feasibility is to a certain extent could be defined as convenience. And so the question is, in America, you know, what if they live up in the Rocky Mountains and there are no roads leading up to where they are? They’re not very accessible, it’s not very feasible. And so are we going to do strikes based on convenience? Is that going to be the standard? When we talk about standards, they say they have a process in place, but the process is very important. The standards are important. But it’s also important that one group of people, one political group of people or one politician doesn’t get decide that standard. That the standard – and part of the way the process in our country works is there are checks and balances between three branches of government, and that one branch of government doesn’t get to unilaterally decide what these standards are. Because some of the standards are a little bit loose. Whether or not you’re near someone. Apparently we’re not counting civilians who are killed by drone strikes if they’re males between the ages of 16 and 50. If they were close to the person we were targeting, we just count them as other militants. Are we going to do that in the United States? If you’re eating with 15 of your family members and one of them one of them may or may not be communicating by e-mail with somebody a Middle Eastern country, can we just kill all 20 of you? And because some of you are within the right age group, that’s fine?

Or let’s say you’re eating with your cousin who is communicating with somebody in the Middle East and that person may or may not be a bad person, and then when you leave, let’s say you’re going to a wedding and you’re going from a pre-party and there’s 20 cars all going to the wedding and they know or they think they know or there may be a bad person among you, why don’t we just strike the caravan? These are called signature strikes. The “Wall Street Journal” said that the bulk of our drone strikes overseas are signature strikes. That’s a good question for the president. Are signature strikes going to be the standard for killing Americans in America? The President simply says the rules will probably be different for inside than outside. Well, I frankly don’t think that’s good enough. He says he has no intent to kill Americans in America. I frankly don’t think thats good enough. I don’t think it’s good enough for the President to say, I have no intention of breaching the Fourth – the Fifth Amendment. Intending not to is not the same as saying I won’t. His oath of office says, I will not – no, it says, I will protect, defend and preserve the constitution. It doesn’t say, I intend to protect, preserve and defend the Constitution except for when it’s infeasible or inconvenient. That’s not what the rules are about.

I think the rules are pretty absolute. The rules are, the Bill of Rights are yours. You got them from your Creator. They were enshrined in the Constitution. Nobody gets to take them from you. Nobody. No President from no party gets to be judge, jury and executioner. This decision to let this go, to let this nomination go without an answer is a big mistake for us. If we do this, if we let this nomination go without a debate, without significant opposition, without demanding more answers from the president, the problem is, is we’re never getting any more answers.

There will be some in this body who say, well, just let it go, the snow’s coming and we want to go home. The – the problem is, is that he’s never going to answer these questions unless he’s forced to. I suspect George Bush would have been the same. I suspect a lot of the Presidents would be the same, and I think it’s unfortunate but they see their power and their sphere of power as being more important than your constitutional rights. But we won’t get this by just the gladhand and the winning smile is not going to get any information from the President. The only way that this President would ever give us information is if we were to stop this nomination. And I’m not even saying stop it personally. My objection really is not so much to Brennan as being in charge of the CIA as my objection is to the program and to the President not admitting that he can’t do drone strikes in America. So I will continue to do what I can to draw attention to this and we’ll see where things lead. But I am disappointed in the President. I am one who, while I’m a Republican, I didn’t vote for him in 2008 or 2012, I am one who has admired certain aspects of his policy. I admired his defense of civil liberties. I admired him in 2007 when he said that Americans shouldn’t be involved in torture. I admired him when he said that we should follow the rule of law and that we should have warrants before we tap people’s phone, that we shouldn’t be trolling through people’s records. But I find a great irony and, really, frankly, a great hypocrisy to someone who would defend getting warrants before we tap your phone but won’t defend a trial before we kill you. You know, tapping one’s phone is a breach of your privacy and it should only be done if you’ve been accused of a crime and evidence has been presented and a judge grants a warrant. But killing someone with no due process? With no judicial oversight?

Now, some are saying in here, oh, we’ll get to it. We’re eventually going to set up a court, maybe a FISA court, which, unfortunately, probably won’t be quite good enough because it’ll be in secret and you really should have a chance to confront your accusers and have a public trial if you’re going to be killed. Particularly what I’m talking about is American citizens. But there needs to be some oversight. But the problem with waiting to do this and saying, oh, you know, we’ll do this, you know, sometime. We’ll get to it eventually. It never happens. Same way with saying, oh, we’ll get to – we’ll keep asking the president for more information. But it never happens. You know? If we do not take a stand for something we believe in, it’s going to slip away from us. I think our rights are gradually eroding. I think they are gradually slipping away from us. I think the understanding of the Constitution as a document that restrains your government, that restrains the size and scope of your government has been lost on a lot of people, and I think it’s something we shouldn’t give up on. When the President goes through his three different items that were leaked through this memo, he says there has to be an imminent threat and he says the capture has to be inconvenient or infeasible, and he says that the operation of killing the person has to be conducted within a manner consistent with the applicable law of war. Here’s the problem. That sounds fine if you’re in Afghanistan in the mountains fighting a war, but I’m talking about downtown Washington, D.C., talking about living in the suburbs of Houston or Atlanta. Are we going to have drone strike programs in America consistent with the applicable law of war? See, the other way to put law of war – and this isn’t a stretch, this is just turning the words around – martial law. Now, people, if you put it that way might have a little bit different impression. Do we want martial law in our country? If you go back to the battle we had over indefinite detention last year, where they are saying they can take a citizen without a trial, actually send them from America to Guantanamo Bay if they are accused of terrorism, – accused, not convicted, accused of terrorism – you start to worry about some of the stuff happening in our country, that this could actually happen. One of the sort of ironies of looking at different governments and looking at what makes people unhappy. In Tahrir Square in Cairo, there have been hundreds of thousands of people protesting, and it’s interesting what they are protesting. They are protesting – one of the large things they protest is something called an emergency decree, which I believe went in place by Mubarak 20-some odd years ago. So you get leaders who come in and they are fearful or they use fear to accumulate power, and you get a decree, so you get martial law. The martial law ironically enough in Egypt allows detention without trial. They do have the right to trial but there is an exception and it’s been excepted for the last 20-some odd years, and the people are hopping mad over it. So we get involved in their country and their politics and give them money and weapons, and we have got some of the same debate and proble here at home. Whether or not you can indefinitely detain.

You know, the president’s response to this was also pretty disappointing. It wouldn’t have become law without him. I think he threatened to veto it and then he signed it anyway. Empty threats are of no value. He struck no great blow for America or for American freedoms by not vetoing this. But when he signed it, he said something similar to what he’s saying now. He said well, I have no intent to indefinitely detain people. Am I the only one in America that’s a little bit, you know, underwhelmed by the President saying he has no intent to dough taken somebody but he is going to sign it into law saying he has the power to? That’s the same thing we’re getting now in this drone strike program. Don’t worry, everything’s okay. I’m your leader, and I would never detain you. I would never shoot Hellfire missiles at noncombatants. I won’t do that. And I can take him at his word, but what about the next guy? And the next guy? In 1923, when they destroyed the currency in Germany, they elected Hitler. I’m not saying anybody’s Hitler, so don’t misunderstand me. I’m saying that there is a danger even in a democratic country that someday you get a leader who comes in in the middle of chaos and says, Those people did it! Those people are the mistake, those people are who we need to rout out. And if the laws have been removed that prevented that from happening, if the laws had been removed that say we can indefinitely detain. In Hitler’s case, he said the Jews, those bankers, the Jews did this to us and they were indefinitely detained. Now, am I saying it’s going to happen in our country? Unlikely. I can’t imagine any of our leaders for all of our disagreements doing that. But if you don’t have the law to protect you, you don’t have that protection, because you do not know who the next guy is, and the next guy, or the next woman.

When Madison wrote about this, he was very explicit. He said we have these rules in place because we don’t have a government of angels. If we had a government of angels, we wouldn’t need these rules. And I will never forget the discussion with somebody about the Kelo case.

The Kelo case was a case where the government took private property and gave it to a richer person who had private property that wanted to develop it. Ironically, the justification they use is blight. They take it from one middle-class person and give it to a rich corporation and they say they’re doing that to rectify blight. But when they did that and when they came down with a ruling on this, it was concerning the logic of the way they get to this ruling that basically they really don’t have this right to your property. And when the kilo decision came down, it really bothered me. I remember we started having the battle in our local government. And in our local government, there was a battle over a resolution, and the resolution said – it was in the city council. The resolution said that the local city government can’t take private land and give it to another person. It was really like so many other things the intention of eminent domain was to build highways and have thoroughfares that you might get otherwise, but it was never intended to take from a private owner and give it to a corporation. That’s what they did with the Kelo decision.

Local governments began talking about this. I was talking to one of my local government officials. It was probably 20 years ago, 15, 20 years ago. Their response was but I would never do that. I would never take private land through eminent domain and give it to another corporation. I would never do that. So really the – and I believe – I believe that person. And I really frankly give the President the benefit of the doubt. I don’t question his motives. I don’t think he probably will kill noncombatants, but I certainly don’t want him to claim that he has the authority to kill noncombatants. So this is a big deal. It’s a huge deal.

So with the eminent domain, we finally passed it in our local commission. It was like 3-2. In my town in Kentucky, you can’t take private property through eminent domain and give it to another private individual. Because it is not about the individuals involved. It’s about the fact that we don’t always have angels running our government, we don’t always know who we’re going to get.

If we look through and we ask the question, if we ask the question do you want a government that is run by majority rule or a government that’s restrained by its documents, it’s a pretty important question, and ultimately there are ramifications to majority rule, to basically whatever the majority wants. One, the majority can vote upon minorities rules they don’t pass on themselves. In fact, Martin Luther King wrote – this is one of my favorite writings from him. He said that an unjust law is any law that a minority – that a majority passes on a minority but doesn’t make binding on themselves. I thought that was a great statement because you would almost apply that to any law written on any suggest. If the law excludes certain people and isn’t applied to everyone, then by definition it’s an unjust law. What a great way to put it succinctly and what a great way that we should look as far as trying to write rules. But you have to decide as a country whether you want majorities or politicians to decide things or whether you want reliance on documents and on a process and on a rule of law that protects you. I think if we rely on basically the whims of politicians, I think it’s a big mistake. 

You know, if we are going to rely on the politician basically sitting in the office going through flash cards and a power point presentation to make the decision on life and death for Americans in America, I think it’s a huge mistake. Any people who watch trials and court cases realize that even courts aren’t perfect. It’s actually amazing how we even get it wrong with courts in trials and juries. Many states and even many people who are in support of the death penalty question their support of the death penalty because of the imperfection of our courts. Through DNA testing, we don’t always get it right, even with that.

I think in Illinois, they stopped the death penalty, after having so many DNA testings that showed there was incorrect diagnosis of who  – who had committed the crime. And so the question becomes is even with all the checks and balances of the court, are you worried at all about having one politician accuse, secretly charge I guess if you can call it a charge and then execute Americans? I’m incredibly troubled by that. I can’t imagine that we as a free country would let that stand. I mean, I think it’s an insult to every soldier in uniform fighting for American freedom around the world that we would just give up on ours at home, that the President would cavalierly or incorrectly or without forethought – without sufficient forethought not tell us, not go ahead and explicitly say this will never happen in America. His answer to me shouldn’t have been no, we won’t kill noncombatants. It should be never, no, never, we will never in America come to that. Under my watch, we will never, ever allow this to happen in America. It’s incredibly disappointing. It should be disappointing to all Americans or anyone who believes in this.

We have to realize that trying to figure out guilt or innocence is very complicated. Anybody who h ever served on a jury realizes how difficult it is to determine guilt. Sometimes you are unsure. In some cases, are actually decided by gosh, the evidence is so equal that there wasn’t preponderance. I didn’t become completely convinced and this person is going to be put to death. Contrast that, the feeling that a juror has and what a jury is trying to do in finding innocence or guilt, letting someone be punished by death, contrasts that with our current standard. Our current standard for killing someone overseas is you can be sympathizing, you can be close to people who we think are bad, you can be in a caravan that we say bears the signature of bad people. Now, there is another debate that can be had about whether those are sufficient standards for war, and the standards are different for war in our country, but we have to adamantly and unequivocally stand up and say to those who would say this is a battlefield, the hell it’s a battlefield. This is our country. If you want to say that this is a battlefield, if you say that we’re going to have the laws of war here, we’re going to have martial law here, by golly, let’s have a debate about it.

Let’s have a discussion in the country, let’s have everybody talking about are we the battlefield. Is this a battlefield? Is our country a battlefield? Because what that means is you get no due process in a battlefield. And I’m not here to argue and say that you get due process in a battlefield. I’m here to argue that we can’t let America be a battlefield because we can’t say that we’re no longer going to have due process that we’re no longer going to have trial by jury that we’re no longer going to have presentment of charges and grand juries. It is impossible in a battlefield. In Afghanistan, it’s impossible to say hey, wait a minute, can I read you your Miranda rights? It is impossible. We’re not arguing for that. We’re not arguing for a judge or a jury or anything else. If people are shooting at our troops, they can do everything possible, including drone strikes.

It’s not even the technology so much that I’m opposed to but the technology opens doors that we need to be concerned with. Defense of our soldiers in war, there is no due process involved with that, but realize the danger to saying America is the war, America is the battlefield, because also realize the danger that these people – they are republicans and democrats – these people don’t believe there is any limit to the war. There is no geographic limit and there is no temporal limit. It’s a perpetual war, and many of it – if you prompt them or provoke them, they will open up and say oh, yeah, America’s is a battlefield, we need the laws of war, and you ask them when is the war going to end? When will we win the war? They will admit it. Some of them will frankly admit it. They will say the war goes on, it may go on for a long time. Some have talked about the 100 years’ war, 100 years being in these countries. But basically we are talking about perpetual war. We’re talking about a war with no geographic limit, no temporal limit and a war that really has come to our country.

Now, there will be bad people who come to our country who we need to repel. We’re not talking about that. If planes are being flown into the twin towers, we have the right to shoot them down with our military. That’s an act of war. No one questions that. If someone is standing outside the Capitol with a grenade launcher, we have a lot of brave capitol policemen and I hope that they – they kill the person immediately. Lethal force – for repel lethal force has never been questioned by anybody and is really not even controversial. But they want to make the debate about that and not about killing noncombatants driving in their car down Constitution Ave. Or sitting in a cafe on Massachusetts Avenue. Now, there may be bad people who are driving in their car and there may be bad people sitting in cafes around the country. If there are, accuse them of a crime, arrest them and try them.

The battlefield coming to America or acknowledging that is an enormous mistake. So there are some big issues here, some issues that we as a country I think gloss over. We – you know, you watch the nightly news and there’s sometimes so much hysteria about so many issues, so many people yelling back and forth. But this is really an issue that I think if we could get a frank discussion – you know, I’ve proposed to the leadership – I haven’t had much luck with this – but I proposed that for a constitutional debate or a debate of importance, that everybody come. And instead of hearing me for all day, we take two or three minutes and we go around the room and everybody speaks and it’s limited but there’s some kind of debate and discussion, less speech making and more debate. I proposed that we have lunch together. I’ve asked to come to the democratic lunch. I haven’t been – I haven’t got the invitation secured yet. It’s only been two years so it may happen. But there are many reasons for discussion, there are many reasons why we should have civility, there are many reasons why people on both sides of the aisle can agree to this. If we were to have a vote maybe not on the nomination but a vote on restricting drones, there is a bill out there that we’re working on that would restrict drones to imminent threats and really doesn’t even get into the distinction of the military. Things in the country would be the FBI; it wouldn’t be the military because that’s the law. And there’s an important reason for the law. But we have a bill that we’re going to come forward with that we’re working on that would simply say that there has to be a – a real imminent, lethal threat, something you can see. Which then I think people could agree to that. Because it’s not so much the drone that we object to. If some guy’s robbing a liquor store two blocks from here and the policemen come up and he comes out brandishing a gun, he or she can be shot. They once again don’t get Miranda Rights, they don’t get a trial, they don’t get anything. If you come out brandishing a weapon and people are threatened by it, you can be shot. So it’s important to know what we’re talking about. We’re not talking about the guy coming out of the liquor store with a weapon. Even a drone could kill him if the FBI had drones. So my objection to drones isn’t so much the technology. There may be a use in law – for law enforcement here. But there are also potential, great potential for abuses.

Many government agencies have been – become buying drones and these hopefully will remain unarmed drones and it’s a different subject but it’s a subject that sort of dovetails from this into the next subject, which is should you have protection from the government snooping, you know, from the government looking through your bedroom windows? And I remember when I read “1984” when I was in hi school, it – it bothered me but I – I really couldn’t quite connect. And I – I kind of was – I felt somewhat secure in the sense that, well, we didn’t have two-way televisions. This was back in the 1970’s. We didn’t have the ability to look at people and the government couldn’t look at me in – in my house 24 hours a day. And you could kind of get the feeling of how terrible that would be for that to happen and technology was behind that. And actually “1984” I think was written in 1949, so, really, talk about, you know, really being able to foresee the future.

But now fast forward another 30 or 40 years and look at the technology we have now. We have drone as that are less than an ounce. I – presumably with cameras. I don’t know. It’s hard for me to believe that. But less than an ounce with a camera. It is not impossible to conceive that you could have a drone fly outside your window and see what you’re reading, to see what your reading material is. It’s not impossible to say that they couldn’t send drones up to your mailbox and read at least there – you know, what kind of mail you’re getting and where it’s from. It’s not unconceivable that drones could – inconceivable that drones could follow you around. We had an important Supreme Court case last year, though, that was a blow for privacy and this was a Supreme Court case that had to do with GPS tagging. GPS – everybody knows what GPS Is, but what they were doing is the police were shooting them on to cars or tagging them when you weren’t with your car and then just following you around, waiting for you to commit a crime. Well, you know, if you tag everybody’s car and wait for them to speed, we’re going to have a big deal on fines. There’s going to be a problem. This was a problem to – there’s also a problem of following people around waiting for people to commit a crime. So the Supreme Court ruled – and I think it was unanimously – that you have to have a warrant to do that. The thing about surveillance is, those of us who believe in privacy around arguing against any surveillance. What we’re arguing is, that you have to have a reason to do it and you have to ask a judge for permission. So it isn’t a society where there is no surveillance or a society where you have absolute privacy. If you commit a crime, the police go to the judge and they ask for permission to do this. But there are some worrisome things about direction of drones.

For example, the EPA now has drones and the EPA’s flying drones over farmland. I think some of this may be even in the – the defecation patterns of the cows. I don’t know exactly what they’re looking for because manure in streams is said to be a pollutant and actually, frankly, thousands of animals might. But the whole idea is, if you think someone is dumping anything in a stream – and I’m not opposed to having laws stopping that – get a warrant, search them or get a warrant and spy on them with a satellite. I mean, a satellite or a drone or however you want to do it. But you have to have some kind of probable cause they’re committing a crime. Because you can imagine that we would devolve into a society where every aspect of our life would just be open to the government to watch what we’re doing.

Now, they say there’s something called an open spaces concept. They say, well, you’ve got 40 acres and the land is open so it’s not really private anymore. Well, I think that’s absurd. I think that’s sort of analogous to the whole banking secrecy. It’s like, oh, you gave your records to your bank so you don’t really care if anybody looks at them? That’s absurd. I have a 40-acre farm and I go hunting out there but I just – you know, I’m supposed to not care if people watch me, everything I do, once I’m outside of my house? My privacy’s only inside my house and not in open spaces? I disagree with that. One of the interesting things about the right to privacy – and you’ll actually get some disagreement from people on the right about this – there was a case called the Griswold case, it had to do with birth control. And a lot of conservatives objected to it because they saw it as a building block for the Roe v. Wade. I’m pro-life and didn’t like the decision in Roe v. Wade but actually don’t mind the decision in Griswold so much. And the reason is, going back to a little bit of the discussion we had earlier on Lochner, is that with Griswold, what I see is, is that they talked about a right to privacy. Now, some said, the conservatives who don’t – who are worried about the judiciary coming up with new things or creating new things, is they thought the right to privacy wasn’t in the Constitution so you really don’t have it. And that’s a mistaken notion. Because, for example, the right to private property, that’s not in the Constitution either but I don’t think any of the founding fathers or most of us today would argue you don’t have a right to private property. In fact, I think it’s one of the most important parts – in fact, there was some debate about having it in there. But the thing is, is that I think the right to privacy, the right to private property, they’re part of what I call the unenumerated rights. And the unenumerated rights are basically everything else not given to the government. You gave the government – or we give the government through the compact of the Constitution, we give the government enumerated powers. There’s about 17-19, depending on how you count them, but there are – they are, as Madison said, few and defined.

When you talk about the rights, though, the 9th and 10th Amendment say those rights not specifically delegated to the federal government are left to the states and the people respectively. And they’re not to be disparaged. So the interesting thing about your rights are, is that there isn’t sort of a list of your rights. And, in fact, when the founding fathers were putting together the bill of rights, one of the objections to the bill of rights were that they said, oh, if we put the bill of rights together, everybody will think that’s all of the rights and they’ll think if it wasn’t listed, you don’t get it. So the 9th and 10th Amendment were a really important part of it. In fact, I don’t know that I would have voted for the – the Bill of Rights inclusion if you didn’t have the 9th and 10th. I mean, I like all the others, of course, but the 9th and 10th then protect all those not mentioned. And so it’s an interesting thing that some – some on the right disagree. In fact, the majority don’t like the Griswold decision but I actually kind of like it because I think your right to privacy is yours. The same way I think your right to private property is yours. It wasn’t delegated and it wasn’t taken, it wasn’t given to the federal government; it is yours.

It gets back to sort of the primacy of liberty, the primacy of your individual freedom that you didn’t get that, you weren’t given your free government. It’s something that was yours naturally. Or, as many of us believe, it comes from your creator. So your rights are natural and inborn, they were enshrined in the constitution, not given you,  they were enshrined in the constitution. Not that the Constitution was instituted among men to protect the government, they were to protect the people from the government. It was to limit the size of government, to try to restrain the size of government, to try to allow for a government that lived under a rule of law. And Hayek said that nothing distinguishes arbitrary government from a Constitutional government, more clearly than this concept of the rule of law. The important thing about the rule of law is also that the rule of law is something that – it gives a certainty. And businessmen have talked about certainty. And without relinquishing the floor, I would like to hear a few comments from Sen. Lee.

Hour 4

SEN. LEE: I would point out that this condition of imminence is described as follows. It says, “the condition that an operational leader, an operational leader of a group presenting a threat to the united states, the condition that an operational leader presents an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. Persons and interests will take place in the immediate future.”

Now, Senator Paul, wouldn’t it be your understanding that if something is imminent, that it would need to be something occurring immediately?

SEN. PAUL: Well, yeah, and I think there’s really no question about using lethal force against an imminent attack. And I think that’s why we need to make the question that we’re asking the President very clear, and the question is if planes are attacking the world trade center, we do believe in an imminent response. We do believe in an imminent defense for that. The problem is that if we’re talking about noncombatants who might someday be involved, if they are in America, I see no reason why they shouldn’t be arrested.

SEN. LEE: And so if we’re dealing with something that is imminent, we are talking about something that’s about to occur, it’s urgent, and that typically is the standard. Any time government officials in other contexts, law enforcement, for example, sometimes regrettably and tragically law enforcement officers have to make a spur of the moment judgment call in order to protect human life. Sometimes in doing that, they have to do something that they wouldn’t ordinarily do. This always turns on some kind of an imminent standard. It always turns on some kind of an emergent threat, something that is about to occur that is occurring at the moment. And yet we’re told in black and white right here in this white paper that this condition, that of imminence, does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future. That begs the question, what then is the standard? Who then makes this determination? Presumably it’s the President of the United States. Perhaps it’s others. Reporting up in the chain of command to the President of the United States. But if actual imminence isn’t required as part of this ostensibly imminent standard, what then is the standard? Is there any at all? And if there is a standard, why is it so broad that you could give a 747 right through it? And if that’s the case, how is that compatible with time-horned notions of due process, those notions deeply embedded in our founding documents, those notions that we understand come from god and cannot be revoked by any government.

I wish I could say that the imminence standard problem in the department of justice white paper is the only problem. It’s not. We look to the very next page, the page dealing with the feasibility of capture. One of the other standards outlined in the Department of Justice white paper, outlining the certificates in which the government of the united states may take a human life using a drone in a case involving a United States citizen, is that the capture has to be infeasible, and the United States has to be continuing to monitor whether capture becomes feasible at some point. As to this standard, on page 8 of the department of justice white paper, it says that as to the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact specific and potentially time-sensitive inquiry. In other words, they are saying that it has to be – it has to be something that could not be physically effectuated during a relevant window. But what’s the relevant window? The white paper makes absolutely no effort whatsoever to define what the relevant window is. Who then makes this determination? And according to what factors is that determination made? Here yet again we have a standard-less standard. We have a standard that is so broad, that is so malleable, that is so easily subject to so many varying interpretations, no one can reasonably look into this and decide who the government may kill with a drone and who the government may not kill with a drone. That’s a problem and that it seems to me, Senator Paul, is fundamentally incompatible with time-horned notions of due process. Would you not agree with that assessment? 

SEN. PAUL: Absolutely, and I think the crux comes down to this, you know, talking about having an imminent standard, and this is part of the problem in the sense that he doesn’t want to talk about it, and if we’re going to do something so dramatic as to no longer have the fifth amendment apply in the United States, to have no accusation, to have no rest, no jury trials for folks that are to be killed in the United states, it’s such a dramatic change that you would think we would want to have a full airing of a debate over this.

SEN. LEE: Would the Senator from Kentucky yield for a question?

SEN. PAUL: I yield – I will not yield the floor but I will allow you to make comments.

SEN. LEE: If you will yield for a question, I would just ask whether you are aware of an exchange that some members of the Senate judiciary committee had with attorney general holder this morning on this subject?


SEN. LEE: And were you aware of the fact that some of us asked attorney general holder for a more robust analysis, that provided in a series of memoranda authored by the office of legal counsel, the U.S. Department of Justice’s chief advisory body, and the fact that so far the department of justice has declined to make those available to members of the judiciary committee.

SEN. PAUL: Yes, I’m aware of that. In fact, I think we have the transcript of some of the conversation from this morning.

SEN. LEE: If I can supplement that question just by describing what I encountered in connection with that, I expressed frustration to the attorney general over the fact that members of the Senate judiciary committee who have significant oversight responsibilities with regard to the operation of the U.S. Department of Justice have not had access to that memorandum, and this is part of our oversight responsibilities. This is something we ought to be able to see. So far not something we have been able to see. I encourage the attorney general to make available to members of the Senate judiciary committee those very documents which he claimed add some additional insight and give us some additional analysis above and beyond what this white paper is saying. I thought that might be relevant to you in addressing my question.

SEN. PAUL: Absolutely.  At this point – at this point, if we have – Mr. President, I will have some comments entertained from Senator Cruz, a question.

SEN. CRUZ: Would the Senator from Kentucky yield for a question?

SEN. PAUL: I don’t yield the floor but I will acknowledge a question to the chair.

SEN. CRUZ: Thank you, Senator. I’d like to ask your reactions to the testimony that attorney general Eric Holder gave this morning in the Senate judiciary committee. I’d like to describe that testimony for you and then ask your reaction to that testimony. And I will begin by saying that Senator after Senator on the judiciary committee invoked your leadership on the issue of drones and asked attorney general Holder about the standards for drone strikes in the united states, and indeed although you do not serve on the judiciary committee, it was as if you were serving in absentia because the attorney general was forced over and over again to respond, and I would note that your standing here today like a modern Mr. Smith goes to Washington because surely be making Jimmy Stewart smile. And my only regret is that there are not 99 of your colleagues here today standing with you in defense of the most fundamental principles in our Declaration of Independence and our Constitution, namely that each of us is endowed with certain unalienable rights by our creator and that first among them is life, the rife to life and the right not to have life arbitrarily extinguished by our government without due process of law.

Now, at the hearing this morning, Attorney General Holder was asked about the letter he sent you in which you asked him whether the united states government could use a drone strike to kill a U.S. citizen on U.S. soil, and as you know, attorney general Holder responded in writing that he could imagine a circumstance where that would be permissible and the two examples he gave were number one pearl harbor and number two the tragic countries on this country on September 11, 2001. And in the course of the hearing, attorney general holder was asked for more specifics on that and in particular both of those were military strikes on our country with imminent and indeed grievous loss of life that flowed from it, and few, if any, disagree that the united states government may act and act swiftly to prevent a military attack that would take immediate loss of life.

The question that attorney general holder was asked three different times was whether the united states government could take a U.S. citizen who was suspected of being a terrorist on U.S. soil who was not engaged in any imminent threat to life and bodily harm, who was simply sitting at a cafe, could the united states government use a drone strike to kill that U.S. citizen on U.S. soil. Three times when asked that direct question, attorney general holder responded that in his judgment that was not – quote – “appropriate.” Now, the first question – and if I may, I’d like to ask a series of questions. The first question, does it surprise you that the attorney general would speak in vague, amorphous terms of appropriateness and prosecutorial discretion rather than the bright lines of what the Constitution protects, namely the right of every American to have our life protected by the Constitution. 

SEN. PAUL: Mr. President, I am quite surprised, although I guess I shouldn’t be, that we don’t get direct responses. You know, it’s a pretty direct question. It’s the question I have been asking all morning. It’s the question I have been asking for a month and a half because I am really talking about situations where you have a noncombatant, someone not posing an imminent threat who they think may someday pose an imminent threat because that’s what we are doing overseas. If that’s the standard overseas, I am asking is that going to be the standard here, so it amazes me, and part of the reason we are here today in the midst of a filibuster is because they won’t answer the question directly. So I – I applaud the attempts to try to get a more specific question. I guess I’m not terribly surprised that we have had trouble getting a direct answer.

SEN. CRUZ: Will the Senator yield for additional questions?

SEN. PAUL: As long as I don’t yield the floor.

SEN. CRUZ: After three times declining to answer a direct question would killing a U.S. citizen on U.S. soil with a drone strike, when that U.S. citizen did not present an imminent threat, would that be Constitutional, after three times simply saying it would not be appropriate, finally the fourth time, attorney general holder responded to vigorous questioning.

In particular, the course of the questioning, the point was made that attorney general holder is not an advice columnist giving advice on etiquette and appropriateness. The attorney general is the chief legal officer of the United States. And I will note that I observed it was more than a little astonishing that the chief legal officer of the united states could not give a simple one-word, one-syllable, two-letter answer to the question does the Constitution allow the federal government to kill with a drone strike a U.S. citizen on U.S. soil who is not posing an immediate threat. The proper answer, I suggested at that hearing, should be no, and that should be a very easy answer for the attorney general to give. Finally, the fourth time around, attorney general holder stated – quote – “let me be clear. Translate my appropriate to no. I thought I was saying no. All right?  No.”

So finally after three times refusing to answer the question whether it would be Constitutional to do so, the fourth time, the attorney general asked that. So the question that I want to ask is your reaction to this exchange and in particular when attorney general holder on the fourth time finally stated his opinion and I assume the opinion of the department of justice that it is unconstitutional for the federal government to kill a U.S. citizen on U.S. soil that does not pose imminent threat, when he stated that, my response was that I wish he had simply said so in his letter to you to begin with.

I wish John Brennan in his questioning that you provided had said so to begin with, and indeed I then said that the Senator from Kentucky and I are intending to introduce legislation in this body to make clear that the united states government may not kill a U.S. citizen on U.S. soil if that individual does not pose an imminent threat of death or grievous bodily harm. And I observed that if the attorney general’s view was that it was unconstitutional  for the U.S. Government to do so, that I assumed he would be supporting that legislation. I welcome the reaction to that exchange.

SEN. PAUL: Well, Mr. President, the – the response is a little bit troubling that it took so much work and so much effort of cross-examination to finally get an answer. I will note that in his final answer, I don’t ever see the words Constitutional or unconstitutional . He is responding to Senator Cruz’s words of Constitutional. He says let me be clear, translate my appropriate to no. I thought I was saying no. All right? No. Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he doesn’t believe killing people, not actively engaged in combat with drones in America on American soil is Constitutional. It sure would have short circuited and saved quite a bit of time. I will say, though, that I will believe a little more of the sincerity of the President and of the attorney general if we were to get a public endorsement of the bill that says drones can’t be used except for under imminent threat, and define that as a – an imminent threat where you actually have a lethal attack under way. And if we could get to that, I think this is something that really both parties ought to be united by. It’s such a basic principle that I couldn’t imagine we couldn’t unite by this. I think you have done a long way to trying to get these answers.

But I guess what still disappoints me about the whole thing is that it takes so much work to get people to say they’re going to obey the law. It takes so much work to get the administration to admit that they will adhere to the Constitution. It should be a much simpler process, but I commend the Senator from Texas for not letting go and for trying to get this information. I would welcome any more comments that he has. 

SEN. CRUZ: If the Senator would yield for one final question? Is the Senator from Kentucky aware of any precedent, any supreme court case, any lower court case, the decision of any President of the united states beginning with George Washington up to the present, the stated views of any member of this united states Senate beginning with the very first congress up to the Senate, up to the present. Is the Senator from Kentucky aware of any precedent whatsoever for the proposition that this administration seems unwilling to embrace or at least embrace explicitly and emphatically? Namely, that the Constitution somehow permits or at least does not foreclose the united states government killing a U.S. citizen on U.S. soil who is not flying a plane into a building, who is not robbing a bank, who is not pointing a bazooka at the pentagon but who is simply sitting quietly at a cafe, peaceably enjoying breakfast, is the Senator from Kentucky aware of any precedent whatsoever for what I consider to be the really remarkable proposition that the united states government, without indicting him, without bringing him before a jury, without any due process whatsoever, can simply send a drone to kill that united states citizen on U.S. soil?

SEN. PAUL: Mr. President, I’m aware of no legal precedent for taking the life of an American without the Fifth Amendment or due process. What is troubling, though, is that Attorney General Eric Holder is on record as actually arguing that the Fifth Amendment right to due process is to be determined and is to be applicable when determined solely by the executive branch. Now, I would appreciate the comments and opinion from the Senator from Texas on the – the idea that the executive branch gets to determine when the bill of rights applies. 

SEN. CRUZ: If I may continue my questioning and give my – my views on that question and ask your response to my views on – on whether the executive may determine its own limitations, I would suggest the genesis of our Constitution is found in the notion that the President is not a king, that we are not ruled by a monarchy, and that no man or woman is above the law. And accordingly, no man or woman may determine the applicability to himself or herself. For that reason, the framers of our Constitution won not one but two revolutions. The first revolution they won was a bloody battle for our independence from King George. And a great many of them gave the ultimate sacrifice so that we might enjoy the freedom we do today.

But the far more important war they won was the war of ideas, where for millennia, men and women had been told that rights come from kings and queens and are given by grace to be taken away at the whim of the monarch. And what our framers concluded instead is that our rights don’t come from any king or queen or President, they come from god almighty and sovereignty does not originate from the monarch or the President, it originates from we the people. And accordingly, the Constitution served, as Thomas Jefferson put it, as chains to bind the mischief of government. And I would suggest that any time power is arrogated in one place, in the executive, that liberty is threatened. And that should be a view that receives support not just from republicans, not just from democrats or independents or libertarians, that should be a view that receives support from everybody, that none of us should want to live in a country where the President or the executive asserts the authority to take the life of a united states citizen on U.S. soil without due process of law and absent any imminent threat of harm. I would suggest the idea that we should simply trust the attorney general, trust the director of the CIA, Trust the President to exercise an astonishing power to take of life of any U.S. citizen, that trust, in my judgment, is fundamentally inconsistent with the bill of rights. And I would ask the Senator from Kentucky’s reaction if you share my understanding that our rights are protected not at the whim or grace of the executive but they are protected by a Constitution and ultimately they are rights that each us was given by our creator and we are obliged to protect the natural rights to life, liberty and property that every man and woman in America enjoys. 

SEN. PAUL: Well, Mr. President, this is what makes it this debate so important. This debate is about fundamental rights that we – that most of us or many of us believe that we derive from our creator and it’s important we not give up on these, that we not allow a majority vote or one branch of the government to say we’ve now decided you don’t get all of these rights anymore. Our founders really wanted to make it difficult to change things, to take away our rights. And so this is an important battle and one in which I think we should engage because the President needs to be more forthcoming. The President needs to let us know what his plans are. If he’s going to overrule the Fifth Amendment and if the attorney general’s going to decide when the Fifth Amendment applies, that’s a pretty important distinction and change from the history of our country. Mr. President, at this time, I’d like to ask for any comments, without yielding the floor, but ask for any comments or questions from the Senator from Utah.

SEN. LEE: In response to your – your question, I – I would like to add to your remarks and those of the junior from Texas the fact that in the concluding paragraph of the department of justice white paper on this issue, the department concludes as follows. “In sum, an operation in the circumstances and under the constraints described above would not result in a violation of any due process rights.” It’s a rather interesting conclusion in light of the fact that two out of the three analytical points outlined above in the memorandum in the white paper are themselves so broad as to be arguably meaningless or, at a minimum, capable of being interpreted in such a way as to subject American citizens to the arbitrary deprivation of their own right to live.

First, as I mentioned earlier, by proposing an imminence standard that leaves out anything imminent – in other words, it’s not just peanut butter without the jelly; it’s peanut butter without the peanut butter – there is no “there” there. They define out of existence the very imminence standard that they purport to create and follow. That is not due process. It’s the opposite of process.

Secondly, they outline a set of circumstances in which this attack may occur where capture is infeasible and then they define an understanding of feasibility that is so broad as to render it virtually meaningless. So at the conclusion of the memo, when the memo says, “In sum, an operation of the circumstances and under the constraints described above would not result in a violation of any due process rights,” its describing constraints that are not really constraints. And that is a problem. That amounts to a deprivation of due process. In light of these circumstances, I think it really is imperative that the American people and, at a minimum, those who serve in this body, or, at a minimum, those who serve on the Senate judiciary committee, that – that we be given an opportunity to review the wholesale legal analysis identified by the attorney general today that have been prepared by the Department of Justice’s office of legal counsel. This is the chief advisory body within the U.S. Department of Justice. It is the job of the fine lawyers in the office of legal counsel to render this advice and we ought to have the benefit of that. At a minimum, we ought to have the benefit of that within the Senate Judiciary Committee. So when I asked the attorney general this morning whether he’d make those available, I was surprised and a little bit frustrated when he declined to offer them immediately. He said that he would check in with those that he needed to consult with. I reminded him that he is, in fact, the attorney general. He does, in fact, supervise those who work in the department of justice. I hope that’s satisfactory and responsive to your question. 

SEN. PAUL: Yes. Mr. President, I agree with the comment from the Senator from Utah. The – the whole problem is, is that if the President says, “my plan has due process,” that would be sort of like me saying, “I passed my law and I think it’s Constitutional.” Well, the same branch of government doesn’t get to judge whether it’s Constitutional. That’s the whole idea of the checks and balances. We pass a law in the Senate and the Supreme Court can rule on whether it’s Constitutional. So the President gets to decide that will he’s going to abrogate the fifth amendment or abbreviate the fifth amendment or do certain things and then he says, oh, I’m really not because the way I interpret it is, I am applying the fifth amendment to my process. Well, you can’t do that. You can’t be judge, jury, and executioner and Supreme Court all rolled into one. That is an arrogation of power that we cannot allow. Mr. President, at this time, I’d like to entertain comments from the Senator from Kansas without yielding the floor, if I can. For a question.

SEN. MORAN: Mr. President, thank you. I’d like to address the Senator from Kentucky with a series of several questions.

The presiding officer: The Senator from Kansas.

SEN. MORAN: Mr. President, thank you. First of all, let me outline a thought in listening to this conversation and ask a question about it. We have seen our President, his actions to be determined to be unconstitutional  in a recent case in the court of appeals here in the District of Columbia in which the President made the determination that he could determine the definition of recess of the Senate. And we now have a court who has declared the President’s conclusion in that regard to be unconstitutional . And I don’t know that we want to get into the magnitude or evaluating what Constitutional violations are most damaging to the American people or to our rights and liberties, but I would ask you to compare the consequences of the President being wrong once again in regard to the Constitutionality of utilizing a drone strike to end the life of an American citizen. And, again, trying to suggest that we have seen precedent where the President acts unconstitutionally, and fortunately the legal process is there to make certain that that is – a determination is made as to the Constitutionality of that act. In this case, what would be the consequences of a drone strike as compared to a court appointment – oh, I’m sorry, an appointment to a body under the recess clause is Constitutional? 

SEN. PAUL: Mr. President, I think the analogy is apt. The difference in the recess appointments is you get to make your appeal to a court while still living, which makes a big difference. In the case of the recess appointments, the President decided that he could determine when the legislative branch was in session or out of session. So you have this same sort of conflict again. The President has a sphere and we have a sphere but now he’s saying that he controls our sphere also, that he can tell us when we’re in session or out of session, and he can basically do what he wishes. And the supreme court rebuked him pretty sternly, and so I agree with the Senator from Kansas, – there’s a great deal of similarity between the two because it’s once again the executive branch or the President acting as if the checks and balances between the legislature and between the executive branch don’t exist, that he basically has made the decision for us that he’s decided we were in recess. But you’re correct, the court gave him a pretty stern rebuke on it and said that would be unconstitutional .

SEN. MORAN: Mr. President, if I could ask another question. The presiding officer: The Senator from Kansas.

SEN. MORAN: To the Senator from Kentucky, what’s the logical extension of a decision that it is Constitutional to utilize a drone by our military to strike at the life of an American citizen here in the united states, and I would think that – I would see if you would agree with me, most Americans would find it repulsive, unconstitutional, a terrible violation of public duty if a military officer on the streets of Wichita, Kansas, pulled a gun and shot an American citizen. And really is that not the logical extension of the idea that a drone strike from above results in the death of a U.S. citizen without due process, is that any different than the ability to kill somebody in any other manner that I think most Americans would recognize today as prohibited without d process of law by our Constitution? 

SEN. PAUL: Mr. President, the analogy that the Senator from Kansas I think brings up is appropriate. We have had rules on the books since the civil war saying the military doesn’t act in our country. So it’s not just a drone. It’s any sort of law enforcement in the United States. We recognize that. We respect our soldiers. We’re proud of our soldiers, but we have limited their sphere to the sphere of war, and within the United States for our security. We have the police and we have the FBI It’s because the rules of engagement are different. It’s different being a soldier. It’s a tough job being a soldier.

It’s not the same on the streets of Wichita or the streets of Bowling Green, Kentucky. So we have different rules and we have made it different. But you’re right, I think people would understand that it would be wrong for a military officer to shoot someone on the streets in America. It’s prohibited for a good reason, not because their soldiers are bad people but because it’s different rules for soldiers. But that’s what’s most troubling about many of these people saying Wichita is the battlefield. And if it is the battlefield, they don’t understand why the military can’t act in Wichita or Houston or Bowling Green, Kentucky, so it does delve into the problem that we have to debate. Is there a limitation to where the battlefield is, and if the Senator has another question, I will yield for a question without yielding the floor.

SEN. MORAN: Mr. President, I have an additional question and I believe it’s my final question. I would ask the Senator from Kentucky through the President that we’re really here at this point in time in the juncture of the Senate with the issue of whether or not to confirm a particular individual to a particular office, an administrative appointment. And I would ask the Senator from he doesn’t believe that the issue of the due process rights of American citizens is of such a magnitude that the real issue that ought to be before the Senate is not the confirmation of an individual but we ought to resolve the issue of whether or not the Senate believes that it is Constitutional for the due process rights of an American citizen to be taken by a drone strike here in the united states, and the opportunity now presents itself, it would be a reason not to grant cloture – let me ask it as a question. Would not it be a reason not to grant cloture on this nomination until we resolve this issue?

SEN. PAUL: Mr. President, I think it’s very reasonable and it is more important than just the nomination of one individual. When we’re talking about whether or not the Bill of Rights is going to be changed, when we’re talking about whether or not you will have a the due process to be tried in a court or whether you could be killed, summarily executed without a trial, that’s an important change in the history of our country.

But the Senator’s response also made me think of something else. Another way to resolve this where we could conclude this debate and get on with the nomination would be for the majority party to come forward with a resolution that says you know what? We aren’t going to kill noncombatants in America with drone strikes. We’re not going to use the military.

We will reaffirm the law, so there is a resolution that both parties could come forward and it would be a wonderful resolution to this process, would be to say the Senate goes on record in bipartisan fashion as saying we’re not going to overturn the Fifth Amendment, that if you’re an American and you live in America, you will not be killed without being accused of a crime, tried by a jury and convicted by a jury. And that would be, I think, a reasonable resolution to this, and I would entertain it if the other side were interested.

SEN. MORAN: I thank the Senator from Kentucky for responding to my questions. Mr. President, thank you. A Senator: Would the Senator from Kentucky yield for a question?

SEN. PAUL: Yes, without relinquishing the floor, I will yield for a question from the Senator from Texas.

SEN. CRUZ: I would ask the Senator his reactions as to the possible justifications for the administration’s repeated reluctance to answer what should be a very straightforward question. I find myself genuinely puzzled that both Mr. Brennan and Attorney General Holder, when asked whether the United States government may kill a United States citizen on U.S. soil with a drone strike, absent an imminent threat of harm to life or grievous bodily injury, I find it quite puzzling that both of them did not simply respond of course not, of course we can’t. We never have in the history of this country, and we never will. The Constitution forbids it.

In my understanding of the Constitution, that was not a difficult question that you asked, and I find it quite remarkable that they treated it as a difficult question. And to be clear, there is no dispute or at least no serious dispute that if an individual poses an imminent threat of harm, if an individual is robbing a bank, there is no dispute that law enforcement, a SWAT team, can use deadly force to prevent the imminent threat to life or limb. What this issue is about is an individual who is not posing an imminent threat, a U.S. citizen on U.S. soil, and the administration’s continued reluctance to say the Constitution forbids killing that U.S. citizen without due process of law.

So what I want to ask you about is efficacy. Let us take a hypothetical individual whom the U.S. Government believes to be a terrorist, who is sitting at a cafe enjoying a cup of coffee, not posing an imminent threat to anybody. And the question I would ask about efficacy, and if I might, I’d like to ask a couple of questions. Number one, if it turns out the intelligence is incorrect, that this individual the U.S. Government suspects of being a terrorist is not in fact a terrorist, that they have the wrong guy, and if a drone strike is used and that individual is killed, is there any effective remedy to correct that tragic mistake? 

SEN. PAUL: Mr. President, I think the question is well put. And the first aspect of the question is what is the President thinking, how could the President  why would the President not respond to us, why would the President not answer a pretty easy question and say that noncombatants in the United States won’t be killed with drones? I think the reason is complicated, and his conjecture because I can’t get it in his mind, I would say it is sort of a contagion or an infection that affects republicans and democrats when they get into the white house.

They see the power that the presidency has, it’s enormous, they see themselves as good people, and they say I can’t give up any power because I’m going to do good with that power. The problem they don’t see is that the power itself is intoxicating and that the power someday may be in the hands of someone else who is less inclined to use it in a good way, and I think that’s why the power grows and grows and grows because everybody believes themselves to be doing the right thing.

With regard to exactly what would happen in a situation where there is not an imminent threat, it boggles the mind that we can’t answer that question. And I don’t have a good understanding as to why exactly that we can’t get a response. And I would yield for a response from the Senator from Texas.

SEN. CRUZ: If I could ask a second question. In the instance where the intelligence was wrong and a U.S. citizen was killed by his or her government without due process of law, that there obviously would be no remedy, but I would ask you about the alternate scenario. If it were the case that this individual was in fact a terrorist, was involved in a plot to threaten the lives, threaten the safety of other Americans, if this U.S. citizen sitting in a cafe is killed with a drone strike, focusing on efficacy once he is killed, am I correct that you can’t interrogate him further, you can’t find out who else was in the terrorist plot with him, you can’t find out what methods he had put in place, you can’t find out if there is an imminent threat planned that he may know of, but if a drone from the sky simply kills him, that knowledge perishes with him at that cafe, and so undermines the legitimate efforts of our government to protect the safety and security of all Americans. 

SEN. PAUL: Mr. President, I think it’s an excellent question and really kind of gets to the root of the whole problem we’re talking about here because we’re talking about people that may not all be good people. They may be bad people and they may be plotting to do something bad to America and they may be in a cafe, so there may be all kinds of reasons to arrest them, punish them, but there may be all kinds of reasons to try to get more information from them, particularly if they are not involved in combat, it’s hard to imagine why you would want to kill them if they are not involved in combat, why not capture them and try to get some useful information out of them?

So it is a little bit difficult to understand why the President wouldn’t say what is obvious, why would we want to kill noncombatants in America? But the reason we keep asking the question is of the drone strikes overseas, which were not privy to all the details because some of it is classified, but the details that have been in the press is that a lot of these people being killed overseas are not in combat. So the real question is if you’re going to take this drone strike overseas and it has no geographic limitations, you’re bringing it home to America, does the President not think it’s incumbent upon him to say ‘Well, yeah, we’re bringing it home but we’re not going to kill noncombatants.’ What an important question. I think you have raised it appropriately, and I would anticipate or respect any other response that you would like to give.

SEN. CRUZ: One final question for the Senator from Kentucky. I am aware the Senator from Kentucky is originally from the great state of Texas, and as the Senator is no doubt aware, today is the 177th anniversary of the fall of the Alamo. 182 men were stationed at the Alamo. After 13 days of a bitter siege, fighting an army of thousands, those patriots gave their lives for freedom. They put everything on the line to stand against tyranny and to stand for the fundamental right of every man and woman to breathe freely, to control our own lives, our own autonomy, to make decisions about what our future would be.

And if I may presume to speak on behalf of 26 million Texans, I will say that I have no doubt that Texans are proud to see the distinguished Senator from Kentucky as a native-born Texan fighting so valiantly for liberty, serving as such a clarion voice for liberty at a time when sometimes liberty has few champions, and indeed I would suggest if those brave patriots of the Alamo were here, that William Barrett Travis and Davy Crockett and Jim Bowie and each of the others who gave their lives for freedom would be standing side by side with you and would be proud to call you brother.

Sen. President, I’d like to say that I appreciate the remarks of the Senator from Texas, and if the filibuster goes on long enough, we would like to hear a recitation of William Barrett Travis’ last words at the Alamo. We had to memorize that as a kid and I’m afraid my memory’s gone a little dusty but you are younger and may still remember that for us. The issue at hand is really an issue that goes beyond party politics, it goes beyond nominations.

It goes beyond, you know, the President’s a Democrat, I’m a Republican. I voted for three of the President’s nominations, much to the chagrin and much to the criticism of some on my side. But I’ve done so because I think the President does get some progressive. That’s just my personal viewpoint on choose, political appointees. Now, this is a political appointee but I don’t consider this debate to be about the appointee.

I think this debate is more about a Constitutional issue and I think it rises to a level, it rises to a level above the individual and it’s something that we need to draw attention to, we need to have a good, healthy discussion in our country. And I don’t think it has to be a bitter partisan battle. I’ve met the President personally. I’ve flown on Air Force One with him. I respect him. I respect the office. And I think he and I could have a reasonable conversation on this.

In fact, I think if he were here today, he might actually agree with much of what I’m saying. What I’m disappointed in, and I don’t know if it’s the muddle of a large government and not getting a message forward, but what I’m disappointed in is it’s been so hard to get him to agree with what I think he should already and probably already agrees with. But when we’re talking about doing something so different, when we’re talking about changing the way that we adjudicate guilt, changing the way we decide someone’s life or death, it’s too important just to say, oh, Mr. President, go ahead and do it and as long as you tell me you have no intent of breaking the law or no intent of killing Americans, that’s enough. It just simply isn’t enough.

You know, it’s not enough to say I haven’t done it yet, I don’t intend to kill anybody but I might. And he came up with some circumstances where he might use the drone strikes in America, and then in Senator Cruz’ cross-examination in the committee, we’ve gotten them to admit under duress I think but to admit that they’re not talking about people in a cafe. And some might say, well, he’s never mentioned people in a cafe. The reason it comes up of people not involved in combat is that a lot of the people who have been the victims or have been killed by these drone strikes have not been involved in combat when they’ve been killed. They’ve been riding in cars, walking down the street, traveling in caravans. And I’m not saying they’re good people. I’m just saying the standard for who we kill overseas, we have to ask the question, and I don’t think we’re doing our job if we don’t ask the President, are you going to use the same criteria for how you kill people overseas, is that the same criteria here? And it shouldn’t be, well, I’ll tell you later. It shouldn’t be, I don’t intend to do it and I probably won’t, but I might. I mean, that’s just not enough.

I mean, we are talking about basic protections that we fought our revolution over and really in a way when I see the wars that we’ve gone to and not every war’s been the has been perfectly justified or that we should do. But the thing is, when our soldiers fight, I see them as fighting for the Bill of Rights and I think they see that too. No matter where they are around the world, I see them fighting for the Bill of Rights and our Constitution. But if we’re giving that up, if we’re not going to adhere to the Fifth Amendment, I find it takes the wind out of the sails. You know, the wind out of the sails.

And can you imagine being a soldier in Afghanistan or Iraq or far-flung places around the world and you’re being told, well, you were fighting for the Bill of Rights minus the Fifth Amendment? Or when we say we’re going to indefinitely detain people, we’re going to fight for the Bill of Rights minus the Sixth Amendment. You know, it’s pretty important. These things are what we’re fighting for so we really should at least have a robust debate over, you know, the magnitude of these changes, over how these will be set up, over exactly what will happen, how this process is going to work. And just say I’m not intending to do so is not enough. Mr. President, I’d like to, without yielding the floor, allow a question from the Senator from Texas. 

SEN. CRUZ: If the Senator from Kentucky would allow this question, I would like to respond to his very gracious invitation and ask if the following letter gives the Senator from Kentucky encouragement and sustenance as he stands and fights liberty. This letter was written February 24, 1836, and it begins as follows.

“To the people of Texas and all Americans in the world. I am besieged by a thousand or more. I have sustained a continual bombardment and cannonade for 24 hours and have not lost a man. The enemy has demanded a surrender at discretion. Otherwise, the garrison are to be put to the sword if the fort is taken. I have answered the demand with a cannon shot and our flag still waives proudly from the walls. I shall never surrender or retreat. Then I call on you in the name of liberty, of patriotism and of everything dear to the American character, to come to our aid with all dispatch. If this call is neglected, I am determined to sustain myself as long as possible and die like a soldier who never forgets what is due to his own honor and that of his country. Victory or death. Signed, William Barrett Travis.”

My question is, does that glorious letter give you an encouragement and sustenance on this 177th anniversary of the Alamo?

SEN. PAUL: Mr. President, I think what Travis’ letter at the time Alamo talks about is that there are things bigger than the individual. At the time he wrote that, I don’t think they had much hope of surviving and he died at the Alamo as well as with other volunteers, some from my state of Kentucky. But there was an issue bigger to them at the time that they saw as bigger than the issue of the individual, and I think that’s what this debate is about. This isn’t really about the person of John Brennan. This really isn’t about the person of Barrack Obama. This is about the body of the Constitution. It’s about our respect for it. And it’s about whether or not we will hold these principles so dear and we will hole these principles so high that we’re willing to try to enjoin a debate to try to get both sides to talk about this and to try to admit because we don’t want people to be killed who are innocent in America. We want to have the process that has protected our freedoms for a couple hundred years now to remain in place, and we’re unwilling to diminish that simply because of fear.

You know, F.D.R. said you know, “there’s nothing to fear but fear itself.” I think we should also say it’s not that we should let fear be so great that we allow the loss of our freedoms. And I think that’s where we are, that sometimes, you know, terrorists are everywhere and they’re trying to attack us. Well, we need to remember that it’s our freedom that’s precious and we need to try to do everything we can to uphold that. And, Mr. President, at this time, I would entertain a question without yielding the floor from the Senator from Oregon. 

SEN. WYDEN: Thank you very much, Mr. President. The issue of American security and American freedom really doesn’t get enough discussion here in the United States Senate and it’s my view that the Senator from Kentucky has made a number of important points this day. And I’d just like to take a few minutes to lay out my views on this issue and then pose a question to my colleague from Kentucky. We’ve talked often about these issues and I always learn a great deal. Of course the Senate will be voting on the nomination of John Brennan, the Deputy National Security Advisor, to be the Director of the Central Intelligence Agency.

I voted in favor of Mr. Brennan during Tuesday’s intelligence committee meeting and I intend to vote for Mr. Brennan on the floor. Virtually every member of the intelligence committee now in my view believes that Mr. Brennan has substantial national security expertise and experience and it’s certainly my hope that he will be a principled and effective leader that the CIA needs and deserves. And I think Senator Paul and I agree that this nomination also provides a very important opportunity for the United States Senate to consider the government’s rules and policies on the targeted killings of Americans and that, of course, has been a central pillar of our nation’s counter terror strategy. For several years now, Mr. President, I and colleagues, Senator Paul as well, have been seeking to get more information about the Executive Branch’s rules for conducting targeted killings of Americans, and I’m pleased that after considerable efforts, efforts really that should not have to have been taken to get documents that the intelligence committee has been entitled to for some time. The committee has now received those secret legal opinions.

Now, to be clear and this was a point that Senator Paul made in the course of discussion, targeted killings of enemy fighters, including targeted killings that involved the use of drones, can be a legitimate wartime tactic. And if an American citizen chooses to take up arms against the United States, there will absolutely be circumstances in which the President has the authority to use lethal force against that American. But I think it’s been our view, a view that I hold, I know Senator Paul holds, that the Executive Branch, should not be allowed to conduct such a serious and far-reaching program by themselves without any scrutiny, because that’s not how American democracy works. That’s not what our system is about. Our unique form of government is based on a system of checks and balances that will be here long after the current President and individual Senators are gone. And sometimes from time to time the Senator from Kentucky and I say we ought to have something that we call a checks and balances caucus, you know, here in the Senate and that those checks and balances depend on robust congressional oversight. And, frankly, they depend on bringing the public into this discussion as well, that there be public oversight.

We share the view that details about individual operations do need to be kept secret, but the congress and the public need to know what the rules for targeted killings are so that they can make sure, as Senator Paul has touched on in the course of this day, that American security and American values are both being protected. It’s almost as if we have a Constitutional teeter-totter. We want both our security and our liberty. And this is especially true when it comes to the rules for conducting targeted killings of Americans.

Mr. President, what it comes down to is every American has the right to know when their government believes that it is allowed to kill them. So now the Executive Branch has gradually provided congress with much of its analyses on this crucial topic, but I think more still needs to be done to ensure that we understand fully t implications of what these heretofore secret opinions contain, and we have a chance to discuss them as well. Now, in his capacity as deputy national security advisor, John Brennan has served the President’s top counterterrorism advisor and one of the administration’s chief spokesmen regarding targeted killings and the use of drones. He would continue to play a decisive roam in U.S. Counterterror efforts if he is confirmed as Director of the CIA. and the intelligence committee is charged with conducting vigilant oversight of these particular efforts. Now, a number of colleagues on the Senate intelligence committee of both political parties I think share a number of the views that Senator Paul and a number on this side of the aisle have been expressing today and the past few days.

I’d especially like to express my appreciation to the former chairman of the intelligence committee, Senator Rockefeller, there is no more committed to the principles the CIA. Stands for, there’s no individual more committed to the principles that the CIA. Stands for than Senator Rockefeller, and he feels that more needs to be done to ensure that congress has the power to do responsible oversight. Senator Udall and Senator Collins and Senator Heinrich are all ones that share that view as well. And in doing that, we recognize that we have a responsibility and that ultimately it’s up to American voters to decide whether congress is fulfilling its obligation to conduct vigorous oversight of the Executive Branch’s actions and activities.

So let me then turn to the question that has received most of the attention today and is really about what I’d like to explore for a moment or two with my colleague from Kentucky. The President has also said, and I was encouraged by a number of his comments, including the state of the union address, that with respect to counter terror efforts, no one should take his word for it, that the administration is doing things the right way. And as part of that, he said he was going to engage the American people in a discussion of these kinds of issues. And when it comes to continuing the public debate about the rules for conducting targeted killings, there are a number of questions that need to be explored and one that I will address to Senator Paul involves this question that he and I have been interested in for some time and that is the question of the geographic limitation with respect to the use of lethal authority. And Senator Paul and I and others have been asking for some time is what are the limits with respect to these lethal authorities, and in particular whether they can be used inside the United States. And having listened to a bit of comments made by Senator Paul with confirmation hearings tomorrow, we haven’t gotten all of them, but certainly the point that the Senator has made this afternoon is an issue that I and others have asked of the attorney general for some time, and we haven’t been able to get an answer. We haven’t been able to get an answer in recent weeks.

Senator Paul has sent a number of letters on this topic. He’s received two responses, and he shared them with me. Now, I would just say for purposes of this question, I think the response from John Brennan, and he stated quite clearly his view on this, was quite constructive. He said the CIA Does not conduct lethal operations inside the United States, and most importantly, as per the conversations the Senator from Kentucky and I have had, Mr. Brennan said the CIA Does not have the authority, does not have the authority to conduct those operations. So he was unequivocal with respect to what would happen if he was confirmed as the head of the CIA That he would not have the authority to conduct those operations. So for purposes of if anybody’s kind of keeping score, I would just say that Mr. Brennan on the questions that the Senator from Kentucky and I have been interested in, he was clear and forthright, and I have been interested in this for some time. I’m glad the Senator from Kentucky has asked the question. We have now gotten an answer that is unequivocal from Mr. Brennan.

So that then brings us to the second response from Attorney General Holder. This letter, repeated statement that the U.S. Government has not carried out any drone strikes inside the United States and that the Obama administration has no intention of doing so. It goes on to say that the Obama administration rejects the use of military force where well-established law enforcement authorities in the country provide the best means for incapacitating a terrorist threat. I would certainly agree with this position. It’s clear to me that prosecutions in federal court provide a tough, effective means for dealing with terrorist suspects, which is why there are a great many terrorists who are now sitting in American prisons today locked behind bars, which is exactly where they belong. The Attorney General went on to state, and I quote here, it’s possible to imagine an extraordinary circumstance such as Pearl Harbor or the 9/11 attacks in which quote “it would be necessary and appropriate under the Constitution and laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.”

And this is what I’d like to unpack a little bit with my colleague from Kentucky. Having asked this question a number of times and thinking a lot about what the answer ought to be, on this particular issue, it seems to me that the Attorney General has certainly moved in the direction of what we wanted to hear. And I want to just kind of outline it, and I think we agree on most of it, and let’s have a chance to exchange some thoughts. One of the core principles of American democracy is that we do not ask our military to patrol our streets, and it was important to me to hear the Attorney General emphasize that principle. I know that there are some who believe that the military ought to be given more domestic counterterror responsibilities like capturing and detaining terror suspects inside the country.

I do not share that view and I know that the Senator from Kentucky does not share that view, and I am grateful that the Obama administration has now said they don’t share that view either. In fact, as I talked about it with a number of colleagues, I actually voted against the annual Defense Authorization Bill for the past two years because I was concerned that those two bills didn’t address adequately that particular principle. Now, the Attorney General then suggested what I think we would all consider an unlikely scenario. The Pearl Harbor, the 9/11 attacks in which it would be unlawful for the President to use military force inside the United States.

As I read that statement and this is the point of my question to my friend from Kentucky it sounds a lot like the language that is in Article 4 of the Constitution which directs the United States government to protect individual states from invasion. In my judgment, if the United States is being attacked by a foreign power, like the 1941 attack on Pearl Harbor, the President can indeed have the power to use military force to defend our country. So the reason that I have been asking this question and have been interested in exploring it with my colleague from Kentucky is that I think it’s extremely important to establish that unless you have an extraordinary situation, unless there is an exceptional situation like Pearl Harbor, the President should not go around ordering the military to use lethal force inside the United States. Our military, we’re very proud of them, plays a vital role in efforts to combat terrorism overseas, but here at home we rely on the FBI And other law enforcement agencies to track down the terrorists, and they do this job well.

So I thought it was helpful to see the Attorney General as part of what has been discussed here clarify and establish that the President can only use military force inside the United States in extraordinary circumstances like the Pearl Harbor attack. So I just in posing this question wanted to ask, I know that the Senator from Kentucky and I have had discussions over this, and I thought about it overnight and thought about our discussions, and my sense is that the Senator from Kentucky doesn’t believe that the Attorney General’s response was clear enough. And I very much respect his view on this point. And one of the reasons why I wanted to kind of walk through briefly a little bit of history is that I think there are some issues still to be debated on this issue. My colleague has certainly been correct in asking valid questions because the Attorney General has left open the possibility of using military force inside the United States outside of the extraordinary Pearl Harbor circumstance that I have mentioned.

So I say to the Senator, I think you are raising some important questions. In fact, some of the most important questions that we could be asking here on the floor of the Senate. It seems to me that the President the Attorney General has ruled out using military force inside the United States, except in cases of an actual attack by a foreign power, and I understand why my colleague from Kentucky would say that we ought to be engaging more with the administration and be asking for additional insight. So I want it understood that I have great respect for this effort to really ask these kinds of questions, force them to be debated on the floor, and Senator Paul has certainly been digging into these issues in great detail, and frankly on the question of how we balance American security and American liberty, we have worked together often and we’re certainly going to be working together often on these issues in the days ahead, and I think I would just like to allow the Senator from Kentucky to respond to my question, recognizing that while we might differ a bit on the aspect of the Attorney General’s response that I have cited this afternoon, that in an instance of an extraordinary threat to our country, the kind of exceptional threat to our country, I do see almost as part of what article 4 is about, the President’s ability to defend us in those kind of situations, my colleague from Kentucky may see it differently and frankly he is raising important issues, and I’d be interested in his thoughts this afternoon.

Hour 5

SEN. PAUL: Mr. President, I want to thank the Senator from Oregon for coming down to the floor, for being a champion for civil liberties, for being a champion for the Bill of Rights. And we get a lot of grief in Washington about lack of civility, people yelling and screaming at each other, and I think in my dealings with Senator Wyden from the other side of the aisle, it’s been evident that people can be from different perspectives, find common ground, and also really try to get to a point – which really isn’t a partisan point. I have tried to make them since I have been down to this not so much about Brennan, but it’s about the principles.

I’ve voted for two or three of the nominations, three of the nominations so far of the president because I think he deserves some latitude in his political nominees. With regard to a couple of things, I think the Senator from Oregon hit it really well, that the problem of — we had this use of authorization of force on Afghanistan. Most people think that was going to war in Afghanistan, but now it’s been so broadly interpreted that it means worldwide war basically forever, and that’s sort of why we get into some of these problems, because not only is it worldwide, which is a big debate in itself, now worldwide means us at home, too, the battlefield is here. I agree with the Senator from Oregon that Brennan was very forthright and it was a little bit onerous getting the response, but once we got the response, it was exactly what was appropriate. He said he would obey the law, the law is very clear, the CIA does not operate in the United States.

The only problem is not with his response but that the department of defense is the one directing the drone program so it doesn’t really answer the final question. On holder’s response, if it would have been written by the Senator from Oregon as he states it, there probably wouldn’t be so much problem. I think that maybe the recounting of the letter gives it a little more strength than the letter actually possesses in its own words. If he were to say that we were ruling out all strikes other than extraordinary strikes, that would actually be a pretty good letter, but instead he says that he can imagine, I suppose, under certain circumstances that — and he lists a couple circumstances, and the interesting thing is, is pearl harbor and 9/11, a lot of us agree, probably you, probably me, we all agree we can repel a military attack. The reason we ask the next question and the reason I’m concerned about the next question — and I have only seen the unclassified versions of these, but the unclassified versions of the drone attacks indicate that a significant amount of them are not killing people with a weapon. People like to talk about “if you take up arms.” Well, a lot of these peopte aren’t in arms. It doesn’t make them good people, but they aren’t carrying arms around. They are not actively shooting our soldiers or us. And so the question becomes is — the particular time they are killed, they looked like noncombatants. So if you have somebody who is sitting in a cafe in our country, even if they are a bad person, you would probably rather arrest them. One, they would get the due process of our country. Two, if they were arrested and they were bad people, you might actually get some information from them. So I would like to see a little bit better wording. And the last thing I would say, and I appreciate hearing your response is, the attorney general was in the judiciary committee this morning and was asked a bunch of questions on this. I have looked through the transcript of a couple of them and it’s still like pulling teeth. I mean, he was asked four times “do you think it’s constitutional to kill someone in a cafe in Seattle or Houston or Louisville,” and he kept saying it wasn’t appropriate, but language is important, you know, when we’re talking about this. Appropriate is not strong enough. It’s sort of like the president saying I have no intention. We really just want him to say he won’t, you know. Not having intention. So he finally didn’t quite put it together in his response but in his response combined with the questioning, you can get the opinion that maybe he thinks it’s not constitutional to kill noncombatants having dinner. But boy, wouldn’t it be a lot easier if they would just say that? And at this point, I would entertain a question without yielding the floor. 

SEN. WYDEN: Mr. President?

The presiding officer: The Senator from Oregon is recognized. SEN. WYDEN: Just to respond to the Senator from Kentucky’s point in noting the fact that he would not be giving up the floor in the process, I think that the Senator from Kentucky is making an important point, and the way I read it, it really would focus on ensuring that our country would be protected against those kind of exceptional circumstances, and I would just like to leave the discussion here by noting that I think both of us feel that this is just the beginning of this debate. The nature of warfare has changed so dramatically. We are going to have to 
— and I particularly appreciate the chance to work on this in a bipartisan way — we are going to have to be continually digging in and trying to excavate more information about how all of this actually works without in any way jeopardizing sources and methods and kind of ongoing operations. I think we can do it. And with respect to how I read particularly that part of the letter — and I thought a lot about it — I said, I think that the two of us and others who could be part of — we can call it the “Checks and Balances Caucus” — but we can just make sure people understand it is about liberty and security. I think we can flush this out more in the days ahead. I know that I’ve had four sessions now with the classified, you know, documents that were made available as a member of the intelligence committee, and I still have a lot of questions. And some of those, I think we will have to ask in a classified way. But I think others of them we can ask in a public way and the two of us can work on that together. I think there is a very strong case for beginning to declassify some of the information with respect to these drone policies. I think that can be done as well consistent with protect being our national security. So I think the Senator from Kentucky has made a number of important points this afternoon. I thank him for the chance to work with him on these issues and look forward to continuing this discussion in the days ahead and appreciate this time this afternoon.

SEN. PAUL: Mr. President?

The presiding officer: The Senator from Kentucky.

SEN. PAUL: A lot of the process for getting this information wouldn’t have happened without the Senator from Oregon as well as the senior Senator from georgia, both working together to get information. It’s really the way the system ought to be working. And one of the, I think, good things about the body is, both Republicans and Democrats working together to get information from, not necessarily adversarial, but in a way adversarial, another branch of of government 
— we are a branch of government, but it is not partisan against partisan; it’s bipartisan working for the power of the checks and balances to try to ensure a leveling. But I want to thank him for helping to get the information to make this a much fuller debate. Mr. President, at this time, without yielding the floor, I would like to entertain a question from the Senator from Florida.

The Presiding officer: The Senator from Florida is recognized.

SEN. RUBIO: Thank you for the opportunity. Let me begin by, I know you’ve been here a while, just let me give you some free advice — keep some water nearby and keep it handy. Trust me. Anyway, thank you for entertaining my question. Let me just begin by saying that, because my question to you is about the motivation for being here on the floor for you today. What brought me here — I’ve been reading some of the accounts of what has been going on here and people have been talking about the Senator from Kentucky is involved in a filibuster. Some are already characterizing it as another Republican filibuster one of the President’s nominees. But, just to be clear, I guess my question, because I understand this from everything you say and what you’ve been saying up until now, your primary issue that brings you to the floor today is that you’ve asked a very straightforward question on an issue of constitutional importance and yet, you have not received a straightforward answer. And certainly not only you have not received an answer, but we saw testimony earlier this morning that, quite frankly, I watched the video two or three times and I personally do not understand why it was so difficult to say “yes” or “no.” So just to be clear, your motivation for being on the floor is not to deny the president a vote on one of his nominees. Your motivation is that you have asked this administration a very important and relevant question and have been unable to receive a straightforward answer to that question. 

SEN. PAUL: Mr. President, my response to this is that, yes, in fact I’ve actually voted for several of the president’s nominations. And my trying to draw attention to this issue is because I believe that it’s an incredibly fundamental issue. And that is of, you know, how you would kill people — Americans on American soil, whether the constitution applies, whether the Fifth Amendment applies. So my motivation in doing this is really not partisan. It is something that has to do — and I have a said frankly, and I truly mean this. If it were a republican president today, I would still be in the same place because the American people deserve answers on this. And there are different rules in war than there are here, and we need to acknowledge and separate ourself and say we’re not completely — we’re not in the middle of a battle zone. We still do have Miranda rights, you still do get an attorney in the United States. And it is not the same battlefield. But he is bringing battlefield strategy home, we have to know, and he should, before he starts doing it, we need to know: What are the rules? Does the constitution apply?

Mr. President, I would entertain a further question from the Senator from Georgia — I mean, from Florida without losing the — yielding the floor.

SEN. RUBIO: Without yielding the floor, Senator, the follow-up question I have — because I think this is actually a very useful exercise for the folks that have been snowed in today and there’s nothing better to watch but C-Span, or have been able to be with us here today, to actually understand the structure of our government and how it was designed because it is my personal opinion that we have gotten away from that. So let me describe for a second, my position and it leads up to the question that I’m going to ask. I am actually a member of the Intelligence Committee, which means that we reviewed this nomination. And I have questions that I care about that were somewhat different than the valid ones that the Senator from Kentucky is raising. And as a member of that committee, I asked those questions. The nominee answered those questions. But we have a job to do. I think that’s what’s important for people to understand. Members of the Senate have an important constitutional role to give advice and consent on these nominations. We have an obligation, not just to pass these folks through but to actually ask serious question, to determine if they’re qualified for the position they’re going to hold. I mean, you want your Senators to be doing that. And both parties, no matter who the president may be. And so I undertook that effort as part of the intelligence committee. I asked my questions. I got answers to my questions and believed that the nominee was qualified, believe that the president has a right to his nominees, even if they’re not the people that we would nominate, believe that, ultimately, these nominees deserve a vote. And that’s why I voted to move this nomination on. Now, just because — just as the president has a right to his nominations, and ultimately to have a vote on those nominations, so, too, do members of the senate have a right to their role, and in particular to ask relevant questions on issues of important public policy and get answers from the Administration. This is not — and I think sometimes this is being lost. We have different branches of government, they’re coequal branches of government. The presidency, the executive branch, is it important? Absolutely it’s important. It is the commander in chief. It is the top single office in the nation. But the legislative branch is a coequal branch with a job just as important. And in order to do that job, we have to have access to information, the ability to ask relevant questions, and get straight answers and, to be frank, sometimes I feel, when we ask questions of this administration, like they feel like it’s beneath them to answer questions from us from time to time. I think that’s very unfortunate. I think my question is, when you’re here today, Senator, raising these issues — it’s my opinion, I would like to hear what you have to say. This is more than just an issue of the constitutionality of this particular program. It’s a defense of of this institution. It is a defense of the legislative branch. It is a defense of the senate as an institution. Irrespective about how you feel about the nominee or the nomination or the program or where you fall on this constitutional issue, it is a defense of this institution and of its constitutional — not constitutional right, constitutional obligation to ask relevant questions of public policy and to get answers. To ask questions so the people back home will know the answers to these questions. If we’re not going to ask these questions, who’s going to ask them? The press? Maybe, in a press conference but that’s not what they’re paid to do, that’s what we’re paid to do. That’s what we were elected to do. So I’d like to hear your views on that, because my belief, from what I’m picking up from everything you’re saying here today you’re actually on the floor here today standing up for the obligations that this institution has to ask questions like this and to be able to get straight answers to these questions. 

SEN. PAUL: Well, Mr. President, I think the Senator from Florida has got it exactly right. This is about checks and balances, it’s about the co-equal branches of government, and it’s about how we limit usurpation of power by checking and balancing each of the different powers. So when Montesquieu wrote that there can be no liberty when you combine the executive and legislative, they were separated for a reason.

When the Constitution says that congress declares war, not the president, it was separated for a reason. So when we look forward to these things, and the Senator from Kansas brought this up earlier — when the president says, “oh, I have the ability to determine when you are in session or not and I can do recess the appointments when I think you’re out of session.” Boy, that is a great usurpation of power to one branch and we should fight it as an institution, republican and democrat and not make this partisan, not make these partisan issues. And so I agree with you. I think there is a need for those checks and balances and by the body not struggling to get as much information as they can, not really, in this case as much about the individual as about the policy, then I think it is a mistake for the body not do it and I agree with you completely. It is — it is something that should be defended and it’s not something to be derided as partisan because I don’t see it as partisan at all. I see it as a defense of the separation of powers and of the checks and balances. And, Mr. President, at this time, I would yield — without yielding the floor — for another question.

SEN. RUBIO: And this will probably be my last question, before I get to it let me just say that all the other Senators that are — and I know some of my colleagues have already come to the floor and some might be watching or some might be nearby. I would just say this, just think about this for a moment: You may or may not agree with the Senator from Kentucky’s position on this issue. Maybe you have seen the Attorney General’s answer or you saw his testimony this morning and you’re satisfied with it. Maybe you’re not that concerned about this issue at all. I don’t think that’s the issue. I think what we need to remember is that all of us have something we care deeply about or multiple things we care deeply about and the day will come, the day will come when something you care about or some issue you’re involved in or some question that you have, that you will try to raise that question and it may be under a different administration — I think we have to remember that the President not be president forever. There will be a new president in three and a half years and after that and so forth and some of the folks that are here now may still be here. At some point in the future, all of us will have questions we want answered and we will have an administration or some other organism of government that refuses to give us answers, straight answers. And when that moment comes, you will want your colleagues to rally to your side, even if they don’t agree with you and defend your right as a representative of the people of your state to ask important questions, particularly questions of constitutional importance, and get straight answers to those questions.

It’s my feeling here today, and the Senator will have to comment on this, if he had just gotten a straight answer to that letter, if he had just gotten a straight answer in the testimony today, this would not be necessary. If simply, they would have taken in the question, which I think is a pretty straightforward question, and answered it in a straightforward way, all of this could have been avoided and this nominee could have had a vote. But instead they’ve decided to go in a different direction and it baffles me. But here is the question that I have. I think this is important for the folks that are watching back home because they may say, why do you have to do it this way? Why can’t you just ask the question and not have to do this process of stopping things from moving forward? I think my view is and I want to share them with the Senator and get his impressions are twofold-  number one, because these are the tools at our disposal. That’s why the system was created, the way it was designed this way. One of the things that the Senate has at its disposal to preserve and protect its prerogative to ask important questions of this type, are the rules that we’ve set up here. And they don’t protect one Senator, they protect every Senator here. Everyone here, even if I don’t agree with you. One of the things that gives you the ability to ask and have questions answered, is this role we have in confirming nominees. And secondly, I would say this is not the Secretary of the Treasury. This is not some other unrelated cabinet position. This is the central intelligence agency, which is directly related to the program that the Senator from Kentucky has relevant questions about. And so I guess I’d want to hear from him a little bit more about why he chose this particular nomination and why and how it’s relevant to the larger question that he’s asking. 

SEN. PAUL: Well, Mr. President, the answer to the question is that, we’ve tried the normal channels and have been for a month. We sent the standard letters. We sent three different letters to John Brennan and didn’t get any response. But then when the leverage became used or the leverage became apparent that both republicans and democrats on the intelligence committee were asking for more answers, then we finally began to get answers. The answers, unfortunately, didn’t quite answer the question. As the days worn on, we’ve actually gotten more answers. Since I’ve been standing here this morning, we’ve now gotten a report of the attorney general’s testimony before the Judiciary Committee. In that, under withering cross-examination, I guess is the best to put it, he finally owns up and says well, maybe somebody in a cafe, it wouldn’t be appropriate to kill them in America. Well, the Senator from texas wanted one step further. We don’t want you to say whether it is aprpropriate, We want you to say whether you think you have the power to do it, whether you think you have the constitutional authority to kill someone who is a noncombatant in a restaurant or in their house or in their church or wherever? Do you think you have the power to kill noncombatants? It is a pretty important question. And I think we may have eeked some of the answer out from attorney general holder. It would be nice if we would actually get that in clean language with the attorney general would now say that this is our policy. But, see, this comes from allowing the executive branch so much power. If you allow them to make the rules, to make the decisions without any kind of oversight or scrutiny, the danger is that there really will be no 
— no process. So the thing is, is that right now we have a program going on where we kill people around the world with drone strikes and there are criteria and standards for how we do it. 

And the obvious question is: You’re going to do that in America, under what standards?

We have had at least allegations, we have had some who have said the bulk of the drone strikes around the world have been signature killings, which means the people aren’t identified who’s being killed, that it’s a long line of traffic and we blow up the line of traffic. Now, you can debate whether in war you may have a looser criteria for who you’re blowing up but I would think that in America, we wouldn’t blow up a caravan going from a wedding to a funeral, from a church to the house, from a political meeting back to their home. We would have different rules in America. If you’re accused of a crime, if they think you’re somehow a terrorist, then they would arrest you, particularly if you’re in a noncombat opportunity. Why in the world would the president take the position that if if you’re eating in a cafeteria, you’re eating in a restaurant, you’re at home asleep, that you couldn’t be arrested? So it’s a really easy question and the president should just very frankly answer the question, “I will not kill noncombatants. In America.” I mean, I just can’t imagine why the president can’t answer an easy question. Now, there have been people on both the right and the left that have been asking these questions. Glenn Greenwald writes a lot about this issue and this is a pretty, I think, interesting proposition he puts forward. He says, “if you posit that the entire world is a battlefield, then you’re authorizing him to do anywhere in the world what he can do on the battlefield.” That’s been my point. If the United States is a battlefield and we’re going to have the rule of — the laws of war, or another way it can be put, martial law in America, if we’re going to have that in America, boy, you need to know about it. Because martial law — living under martial law is the way they live in Egypt. That’s why they just had a rebellion of Egypt and overthrew Mubarak because they had, by martial law, indefinite detention. So those who say “the battlefield is here,” we need to live under the laws of war in our country and they tell you to shut up if you want an attorney, by golly, be careful about that. Be quite careful if you’re going to let us go to that sense. So, Greenwald goes on, he says, “if this — if we can do on a battlefield what we can do anywhere, we can do here, kill, imprison, eavesdrop, detain, all without limits or oversight or accountability, that’s what the ‘world is a battle field’ theory, that’s why this is so radical and alarming, not to mention controversial.”

He also quotes from Esquire from Charles Pierce, who said, “this is why the argument many liberals are making that the drone program is acceptable, both morally and as a matter of practical politics, because of the faith that you have in the guy who happens to be presiding over it at the moment. So you’ll remember that many of these people didn’t like George Bush and they railed and railed about wiretaps and now they’re suspiciously quiet that we get to a killing program. But he says that if you have so much confidence because you like the guy, the president in charge of this, he says that that’s criminally naive, intellectually empty, and as false as blue money to the future.

He goes on to say that “the powers we have allowed to leech away from their constitutional points of origin into that office have created in the presidency a foul strain of outlawry. That worse is now seen as the proper order of things. If that is the case,” and the author says he believes it is, then the very nature of the presidency of the United States at its core has become a vehicle for permanently unlawful behavior. This is coming from a liberal. Every four years we elect a new criminal because that’s become the precise job description. So we have to ask some important questions. I’m not asking any questions about the president’s motives. I don’t question his motives. I, frankly, don’t think he will be killing people in restaurants tonight or in their house tonight. But this is about the rule of law. It isn’t so much about him. It isn’t so much about John Brennan. It’s about having rules so that someday if we do have the misfortune of electing someone you do not trust, electing someone who might kill innocent people or who might kill people that they disagree with politically or they might kill people who they disagree with religiously or might kill people of another ethnic group, we’re protected. That’s what these protections are about. But they aren’t so much about the individuals involved now. But there is a program that’s going on around the world that is killing individuals with drones. And it’s done in a warlike fashion. And the thing is, is that in war, you don’t get due process. So these people around the world don’t get Miranda rights and I’m not arguing for that. If you have a gun leveled at an American in Afghanistan, you’re going to be killed with no due process. I’m not arguing for that. But I am arguing that it’s different if you’re in Afghanistan pointing a weapon at us or here pointing a weapon at us. It is different if you’re eating dinner or if you’re in your home at night. So I think there are clear and distinct differences and there’s no excuse for the president not giving us a clear-cut answer.

There’s a writer by the name of Conor Friedersdorf who writes for The Atlantic and I’ll get into that in just a minute. At this time, Mr. President, I’d like to, without yielding the floor, stop for a question from the Senator from Georgia.

SEN. CHAMBLISS: Well, I thank the Senator from Kentucky. And, first of all, let me say I appreciate the Senator’s passion. I appreciate the fact that as he knows, he and I have had some discussions about this issue over the last several days and weeks, and I appreciate you bringing this to the forefront as you’ve done. We’ve — we have talked about your question that you submitted to Mr. Brennan for answering and this is not a rocket science question. This is a question that is perfectly reasonable, perfectly rational and a question that ought to be able to be addressed by the Administration in a very quick, simple, direct response. And I have been dumbfounded, as the Senator from Kentucky knows, about the fact that you didn’t get a straightforward, simple answer immediately.

But the fact of whether or not a drone attack — and I am one of those who thinks that we need to detain and interrogate folks as opposed to just firing drones at everybody, because we’re losing a lot of valuable information from folks that we take shots at versus folks that we’re able to detain and interrogate — but, still, I know the Senator from Kentucky agrees with me that at the end of the day, we need to take out bad guys, guys that seek to do us harm. And your position all along has been that with due process, that ought to happen.

My question to the Senator from is to the Senator is, you know, with the administration not giving you a straightforward answer — and I understand that the attorney general, in response to some questions today in the judiciary committee again was very evasive on the question, in spite of having given you a letter just yesterday on this issue, that there still is not a straightforward, black-or-white — as it appears to me they could give you — answer to this question. Am I correct about that? 

SEN. PAUL: Mr. President, the Senator from Georgia is correct. And I also while he’s on the floor want to thank him for getting some of this information to come forward, because it has been a very onerous task. And without his leadership on the intelligence committee as well as republicans and democrats asking for more information, we wouldn’t have gotten anywhere here. And with that input, we’ve been able to get some answers. The answers haven’t all been good. Brennan has answered I think the appropriate answer, the CIA doesn’t work within the United States and that should be pretty obvious, because everybody knows that and that’s the law.

The problem is, is he doesn’t answer the final question because the drone program is under the department of defense, and really if we’re going to bring that home to America, I — I really think the intelligence committee as well as the whole body ought to be not just waiting for the president to tell us how he’s going to use it in America, really we have civil law in America and we ought to be part of that process. But I don’t think we can allow it to go on without our input.

SEN. CHAMBLISS: Let me, Mr. President, if I could ask the Senator again, a little different, question just to make sure that I understand the — exactly what the Senator has asked for, your position, as I understand it, has been, all along, that if we have bad guys flying airplanes into a tower or if we have folks who are firing missiles or tanks or weapons of any sort in the United States seeking to carry out an act of war, an act of terrorism, taking those guys out is not a problem.

SEN. PAUL: Yeah, Mr. President, the idea of combating lethal force I don’t think is questioned by very few, if anybody. You know, if planes are flying into the Twin Towers, we obviously send up F-16’s, if we have missiles — we do whatever we can to stop an attack on America. What I’m really concerned about — and in the same way if it’s a domestic terrorist. If there’s someone outside the capitol with a grenade launcher, we don’t give them Miranda rights, we kill them. I mean, that’s just the way it works. If you are exerting lethal force against American soldiers anywhere in the world or our country, you use lethal force to stop that. And sometimes you can’t stop to even ask permission from congress, you do that. Imminent threats are repulsed. But because a lot of the drone attacks — and I’m not saying they’re necessarily wrong the way they’re done, it’s just that they’re done at people that aren’t in the middle of a battle. So if we transfer that to America, I don’t think that’s acceptable for Americans. It’s a different debate on whether it’s always a good idea, whether we should do it and what the rules should be overseas. But the rules we have currently I don’t think are appropriate for the United States. 

SEN. CHAMBLISS: Let me — Mr. President, if I could ask the Senator again a little different question just to make sure that I understand the — exactly what the Senator has asked for, your position, as I understand it, has been all along that if we have bad guys flying airplanes into a tower or if we have folks who are firing missiles or tanks or weapons of any sort in the United States seeking to carry out an act of war, an act of terrorism, taking those guys out is not a problem.

SEN. PAUL: Yeah, Mr. President, the idea of combating lethal force I don’t think is questioned by very few if anybody. You know, if planes are flying into the twin towers, we obviously send up F-16’s, if we have missiles. We do whatever we can to stop an attack on America. What I’m really concerned about — and in the same way if it’s a domestic terrorist. If there’s someone outside the capitol with a grenade launcher, we don’t give them Miranda rights, we kill them. I mean, that’s just the way it works. If you are exerting lethal force against American soldiers anywhere in the world or our country, you use lethal force to stop that. And sometimes you can’t stop to even ask permission from Congress, you do that. Imminent threats are repulsed. But because a lot of the drone attacks — and I’m not saying they’re necessarily the wrong the way they’re done, it’s just that they’re done at people that aren’t in the middle of a battle. So if we transfer that to America, I don’t think that’s acceptable for America. It’s a different debate on whether it’s always a good idea, whether we should do it and what the rules should be overseas. But the rules we have currently I don’t think are appropriate for the United States. 

SEN. CHAMBLISS: And, again, Mr. President, if I could direct a question to the Senator, the fact is that from a pure oversight standpoint, Armed Services, Intel, these committees that have jurisdiction over the issue of fighting the war on terrorism need to have the right kind of information so that we can ask the right questions. And getting the right kind of information out of this administration has been worse than having a root canal and more difficult than having a root canal. And I, again, am appreciative of the Senator being forceful in asking the question, and I think at the end of the day, again, you have had no issue relative to ultimately – let’s having a vote on Mr. Brennan. I’m not supportive of the nomination of Mr. Brennan but I think he ought to have a vote and I intend to express myself in much greater detail on that a little bit later. But from the standpoint of simply moving the issue forward, if the administration had come to you with a direct answer days or weeks ago when you asked the question, we probably would not be here now. So, again, I thank the Senator for his comments on this issue.

SEN. PAUL: Well, Mr. President, I want to thank the ranking member of the Intelligence Committee and also say that this could come to a close any time. If the president will sort of say what Attorney General Holder was trying to say this morning and put it into actual words, that he thinks that he has the military authority to reject imminent attack, I think we all agree to that. But if he says that he’s not going to use drones on people who are not engaged in combat in America, I think we could be done with this debate. I think one phone call from the president to clarify what his position is or from the attorney general to actually write out what his position is, but I guess the reason I’m kind of alarmed is we have a quote from the attorney general saying that the fifth amendment, the executive branch will decide when and if to — to use the fifth amendment. Now, I understand times of war and in battlefields. That’s a different story. I’m talking about in the United States. I don’t think the executive branch gets an option of whether to adhere to the Fifth Amendment in the United States. And but if they could be more clear on that, I think we could be done with this debate any time. I’ve never objected to a vote on Brennan, on the nominee for C.I.A., But I have objected to the idea that basically the — we’re just going to throw out the baby with the bath water and the Bill Of Rights becomes something of — of lesser importance. 

MR. REID: Mr. President? Would my friend yield…

The presiding officer: The majority leader is recognized.

MR. REID: Would my friend yield without losing the floor for a unanimous consent request?

SEN. PAUL: Without losing the — or yielding the floor, I would be happy to entertain a question.

The presiding officer: The majority leader.

MR. REID: Mr. President, I ask unanimous consent that the Senate proceed to the consideration of calendar number 43, that the cloture motion at the desk be reported, the mandatory quorum under rule 22 be waived, there be 90 minutes for debate with 30 minutes under the control of the chair and one hour under the control of the vice chair of the Intelligence Committee, with 30 minutes of the vice chair’s time under the control of Senator Paul. Following the use or yielding back of that time on the nomination, the Senate proceed to vote on the cloture motion. If cloture is invoked, the Senate proceed to vote on confirmation of the nomination with no intervening action or debate. Further, that the motion to reconsider be considered made and laid on the table with no intervening action or debate, and no further motions be in order to the nomination, that President Obama be immediately notified of the Senate’s action, and the Senate resume legislative session. Mr. President, before I hear from my friends on the consent, I have no problem if people want to talk for long times, no problem. I have done that a time or two in my days, but I think that the rest of the body needs to know if we’re going to finish tonight or tomorrow or the next day. So my consent request is pretty direct. We would have 90 more minutes of debate, an hour under the control of the Senator from Georgia and 30 minutes under the control of Senator Feinstein or their designees.

The presiding officer: Is there objection to the majority leader’s consent request?

MR. REID: I would just simply say if there is objection, we’ll just come back tomorrow.

SEN. CHAMBLISS: Reserving the right to object.

The presiding officer: The Senator from Georgia.

SEN. CHAMBLISS: If I may direct a question to the majority leader through the chair, as I understand what you are asking for is 90 more minutes, 30 minutes for Senator Feinstein, 30 minutes for me.

MR. REID: You would have 30, he would have 30.

SEN. CHAMBLISS: And Senator Paul would have 30 minutes. And does your consent, it would start right now, basically, or?

MR. REID: Yeah, basically.

SEN. CHAMBLISS: Continuing to reserve the right to object, I guess then I would direct a question to the Senator from Kentucky since he has the floor of what amount of time you think you want to utilize.

The presiding officer: The Senator from Kentucky is recognized.

SEN. PAUL: Mr. President, reserving the right to object, I would be happy with the vote now. I have talked a lot today. But the only thing I would like is a clarification. If the president or the attorney general will clarify that they are not going to kill noncombatants in America. He essentially almost said that this morning. He could take his remarks that he virtually agreed ultimately with Senator Cruz, put it into a coherent statement that says the drone program will not kill Americans who are not involved in combat. I think he probably agrees to that. I don’t understand why we couldn’t put that into words, but if he does, I want no more time, but if not, I will continue to object if the administration and the attorney general will not provide an adequate answer. And I object.

MR. REID: I’m not in a position to talk for the attorney general. We’ll just finish this matter tomorrow.

The presiding officer: The objection is heard. The Senator from Kentucky is recognized.

MR. REID: Everyone should plan on coming tomorrow. We’re through for the night.

A Senator: I’m not sure, Mr. President, exactly

The presiding officer: Objection is heard.

SEN. PAUL: Mr. President, at this time, without yielding the floor, I’d like to entertain a question from the Senator from Pennsylvania.

The presiding officer: The Senator from Pennsylvania is recognized. 

SEN. TOOMEY: Thank you, Mr. President. I want to thank the Senator from Kentucky for raising I think a very, very important issue, and I would just like to kind of walk through a little bit of clarification so that I understand clearly exactly what’s transpired here and the exact question to which the Senator from Kentucky would like a response. For my perception, my understanding is this seems like a very simple and basic request, and so I’m surprised that we don’t have a simple and straightforward answer. So I wonder if the Senator from Kentucky would just — just summarize briefly for me so that I understand clearly the exact request that you made to the administration.

SEN. PAUL: Mr. President, in late January, we sent a letter to John Brennan, the nominee for the C.I.A., asking a bunch of questions, but included among those questions was can you kill an American in America with a drone strike? And we got no response and no response and no response. Thanks to the intervention of the ranking member on the intelligence committee as well as members from the opposite aisle on the intelligence committee, we finally got an answer about two days ago. The answer from John Brennan was that he acknowledges the C.I.A. cannot act in the United States. That is the law and that was nice. But the attorney general responded and said that they don’t intend to, they haven’t yet but they might.

SEN. TOOMEY: And am I correct in understanding that that’s currently the state of play? That’s the most recent response you have gotten in writing from the administration?

SEN. PAUL: Mr. President, that’s the only direct response I have gotten. I have also read the testimony from the judiciary committee where the Senator from Texas cross-examined the attorney general who responded indirectly to my question by saying it was inappropriate, it was inappropriate, we probably wouldn’t do that, but wouldn’t answer directly whether it was unconstitutional or not. It appears at the end that he may have said that it would be unconstitutional to kill noncombatants. It should be a pretty simple answer. And, really, that’s all I am asking. I can be done any time if I can just get a response from the administration or from the attorney general saying that they do not believe they have the authority to kill noncombatants in America. 

SEN. TOOMEY: Mr. President, to further follow up on further clarification here, if the administration seems to be unwilling to state unequivocally that they recognize that they do not have the legal authority to kill a noncombatant American on American soil, did they suggest under what circumstances they would? Did they suggest a process by which they would identify an American citizen, noncombatant on American soil that might be subject to being killed by a drone strike?

SEN. PAUL: Well, Mr. President, there has been a white paper that was released that goes through a series of things. They do have a step or a process they go through in determining who to kill. The problem I have is that in foreign countries, I don’t know the exact number because it’s classified, but in foreign countries, many of the people being killed aren’t actively engaged in combat. And I’m not saying that’s right or wrong or making an opinion on that, but I’m saying that’s not a standard I can live with in the united states, so let’s say a third of the drone strikes are going against people that are eating dinner with their family or walking down the road or sleeping in their house. If that is our standard and we’re going to do drone strikes in America, I can’t tolerate or I can’t live with myself if i would accept a standard in the united states that would allow that to happen here.

SEN. TOOMEY: Well, Mr. President, I think, judging from the response, what I understand is that there is a standard that applies overseas, but we haven’t gotten — correct me if I’m mistaken — but we haven’t gotten a definitive word as to whether that same standard would apply domestically to American citizens or not. And just to say and if we haven’t gotten a definitive answer, then we — it seems to me, and again correct me if I’m wrong, but it suggests to me we have no idea what standard would be used, and I can’t imagine that we would find it acceptable to be in a situation where an administration would suggest that using the drone to kill an American noncombatant on American soil without even disclosing the process by which they would determine that that was appropriate? This is — this is a little — this is kind of hard to understand. Am I understanding it incorrectly? 

SEN. PAUL: Well, Mr. President, the — the interesting thing about this is for many years, no one would talk about the drone strike program at all, and then recently one of the former spokesmen for the president said he was instructed to never say it existed, but now that it is in the open, the president a week ago was asked at Google when he was there for an interview, he was asked can you do this, and his answer was well, the rules would probably have to be different inside than outside. But that implies that he thinks he can do it inside — in America, and then the question really becomes what are those rules. And this is as much about the checks and balances of — you know, they say we have the ability to advise and consent. This is some friendly advice I’m giving to the president today, is that he ought to think about and we should think about as a body whether we are a check and balance to the power of the executive, whether it’s republican or democrat. To me I think it’s immaterial that no president should have the power to make these decisions, you know, unilaterally.

SEN. TOOMEY: Well, Mr. President, I will finish up here, but I just want to make two points here. One is I think we ought to have a — a robust debate about the circumstances under which we would use drone strikes overseas, and understand the implications, think about this. We have what is still to the United States a relatively new threat in the form of these non-state actors, these terrorists organizations that are sometimes affiliated with each other, sometimes not, scattered around the globe. It’s — this is new. In addition, we have new technology that we never had before. It wasn’t terribly long ago that the idea of flying an unmanned drone and using it to kill a person that could be hundreds or thousands of miles away, that was completely implausible. Now of course we have the ability to do it. When new circumstances and new technology come to bear, we ought to have a discussion about when and whether and how it’s appropriate to use that. When we’re talking about American noncombatants on American soil, I think the starting point ought to be we’re not going to do that, and the onus ought to be on whoever has got an explanation for when and whether and why and under what circumstance we would, and that ought to be debated very, very carefully and thoroughly and until such time, I think it would ought to be easy to acknowledge that this is not going to take place. And if we can’t get a direct answer to that question, then I have to say I think the — the Senator from Kentucky is — is performing an important service in putting a spotlight on this, and I commend him for doing it and I thank him for doing it. With that, I finish my questions. 

SEN. PAUL: Well, Mr. President, I would thank the Senator from Pennsylvania for asking his questions and being part of the debate. I think that ultimately we could get this straightened out in the sense that it isn’t so much about the debate about the person as it is about the issue, and if we could get the administration or the attorney general to put his answer in a succinct form and simply say that they believe that they have the authority to repel an attack, which most of — I think all of us agree to that, but they don’t have the authority to kill someone in a restaurant, to kill someone at home in their house, to kill someone when they are eating dinner, that really if you want to say that you can use drones in America to strike people, not only would it have to be remarkably different, it couldn’t be almost anywhere like the way we use drones around the world, which brings up some other important questions. But the thing is that this has brought us to a much bigger and important debate. When people tell you that America is a battlefield, when they tell you that the battlefield is here, realize what they are telling you. They are telling you your Bill of Rights don’t apply, because in the battlefield, you really don’t have due process, and I’m not arguing for that. I’m not arguing for some kind of silly rules for soldiers to ask Miranda rights and do all this. War is war. War is hell. But we can’t have perpetual war. We can’t have war that has no temporal limits, and we can’t then have war that is a part of our daily life in our country, that we’re going to say from now on in our country you really don’t have the protections of the bill of rights. So I think it’s — it’s incredibly important. And we have been kind of blast about this whole drone strike program, and it should come home to where we can really think about it because that’s what they are asking to do. They are asking to bring the drone strikes to the homeland. And so I think we really need to be careful. We need to ask important questions, and I think at the very least, we need to be asking the question, you know, can you do this with no due process? Are we not going to have an accusation, are we not going to have a public accusation or charge? Are we not going to have a trial by jury? I started out today reading from “Alice in Wonderland,” and I’d like to go back to” Alice in Wonderland” because it just really I think points out the absurdity of where we are at this point. We think of Louis Carroll as being fiction. Of course it’s fiction. We think, you know, Alice never fell down a rabbit hole. Of course she didn’t. She is not real. The white queen and her caustic judgments, they’re not really a threat to us. But there is a question — has America the beautiful become Alice’s wonderland? We can hear the queen saying no, no, but her response is sentence first, verdict afterwards. Well, that’s absurd. How could we sentence someone without determining first whether they are guilty or innocent? Only in Alice’s wonderland would you sentence someone before you try them. Would you sentence someone to death before you accuse them. Do we really live in Alice’s Wonderland? Is there no one willing to stand up and say to the president for goodness sakes, you can’t sentence people before you try them. You can’t sentence people before you – he determined whether they are guilty. There has been discussion in our country about whether even the courts can sometimes make mistakes. Some states have gotten rid of the death penalty because they have made mistakes and through their DNA testing found that they sometimes convicted the wrong person. Can you imagine with all the checks and balances of our court system, which I think is the best in the entire world, with attorneys on both sides, whether you can afford one or not, there is argument back and forth and you have these procedural protections and you can appeal, and sometimes you can still get it wrong. If we can get it wrong in the best system in the world, do you think one politician might get it wrong? But you will a never know because nobody is told who is going to be killed. It is a secret list. So how do you protest? How do you say, I’m innocent? How do you say, yes, I e-mail with my cousin who lives in the Middle East, and I didn’t know he was involved in that? Do you not get a chance to explain yourself in a court of law before you get a hellfire missile dropped on your head? So I think that really, it just amazes me that people are so willing and eager to throw out the bill of rights and just say, oh, that’s fine. You know, terrorists are a big threat to us. And, you know, I am a so fearful that they will attack me that I’m willing to give up my rights, I’m willing to give up on the bill of rights? I think we give up too easily. Now, the president has responded and he said he hasn’t killed anybody yet in America. And he says he doesn’t intend to kill anyone in America, but he might. I frankly just don’t think that’s good enough. The president’s oath of office says that I will — not that “I might” or not that “I intend to” — the president says “I will” protect, preserve, and defend the constitution. He doesn’t say, I’ll do it when it’s practical or I’ll do it unless it’s infeasible, unless it’s unpleasant and people argue with me and I have to go through congress and I can’t get anything done, then I won’t obey the constitution. It’s out there. It is a rule. He doesn’t get to choose. Recently it appears that he believes that he does have some superpower, some power that sort of exceeds the other branches of government. Recently he told the body of the Senate that he decides when we’re in recess. That he decides when we’re working. The court rebuked him and the court told him that it’s unconstitutional and they reversed his decision and do you know the people that he appointed through a recess that he made up — do you know what they’re doing right now? They’re still at their post. They’re still working in defiance of the court. So this will have to go to the Supreme Court. I guess it takes another year or so to go up there. But he’s been told that what he did was illegal. I guess what disappoints me most about this, though, is that you know the president, when he ran for office, was someone who actually I had a great deal of respect for among the issues of civil liberties. I work with many on the other side of the aisle because frankly many on the left and some on the right actually we truly do believe in civil liberties and protecting the individual. And I think the president was one of those when he was in the Senate. The president when he ran for office often talked about that America it isn’t American to torture people. I agreed with him. He said it isn’t American to give up on the right to privacy, to say that you don’t need a warrant to tap someone’s phone. And I agreed with him. And I respected that about him. But I can’t for the life of me understand how he goes from that kind of belief where he believes so much in the constitutional protections to your phone, but he’s not willing to stand up for the constitutional protection to your life? It just doesn’t make any sense at all. And if he does, why won’t he say it? I have my own sort of theory on this, and this applies both to republicans and democrats. My theory is that it’s sort of a contagion, sort of an infection that you get when occupying the Oval Office. I’m a good person so more power to me would be a good thing. But Lord Acton said that power corrupts and absolute power corrupts absolutely. There is a danger when someone has so much power that they think more power and more power and more power, I will do good with that power. The problem is. That even if that is a good person, someday someone occupying that office may not be a good person. Someday you may get someone in the Oval Office who says, what about those people? They look different than us. What about those people? They have different color skin. What about those people? They have a different color ideology that in. What about those people? The danger is, also that we’ve already defined some of the people who we think might be terrorists.

The Bureau of Justice came out with a list of characteristics and they said, if you see this, report on it. See this, tell someone. They want you to inform on your neighbor so you have to know which one of my neighbors is a terrorist. So they gave you some descriptions of people to be worried about they said people missing fingers. People with colored stains on their clothes. People who have weatherized ammunition, people who have multiple guns, people who like to use cash. You know, if that’s the criteria or the criterion for who is a terrorist, you know, I’d be a little bit worried that that — if you’re one of those people, you might have a drone attack you in your bed tonight. This has gone on in more than one place. The fusion centers they developed were supposed to be a liaison between the federal government and the local government. In these fusion centers, for example, in Missouri, they also came up with some characteristics of people who might be terrorists. They actually sent it out as a memo to all the police officers. Could you imagine if you are one of these people, people who are pro-life, people who are for secure borders, people who support third-party candidates, and the big irony of all this – people who belong to the constitution party. So if you believe in the constitution, you might be a terrorist. They say it was a mistake and they eventually apologized and now they don’t – try not to have their memos become public, I think. But the point is, if this is what we’re getting to, this is the criterion for who is a terrorist, you would think — you really would think that you’d be worried about giving your president the authority to kill Americans on American soil without any kind of due process. So I find it quite alarming. I think the answer that he could have given is pretty simple. I think there’s a possibility even that his answer that he may even agree with some of the things that we’re saying here today. But why won’t he give it? I think the president, republican and democrat, don’t give the answer because they’re afraid of constricting their authority at all. They believe in some sort of inherent power that’s not listed anywhere. But they think they have got it and they don’t want to give up any of it. They jealously guard their power. So they have this power and they don’t want to give it up. And so that’s why they won’t answer us with a straight answer. So you get things that I can — the only word I can think of is “gobbledygook.” You get this craziness that comes from attorneys that makes no sense. So when he was asked what is an imminent threat, these people that we’re going to kill with drones have to be an imminent threat. But his attorneys say, well, “Imminent” doesn’t have to mean “Immediate.” That’s the only way they can justify because probably half of these drone attacks are people not engaged in any kind of combat. That’s a different debate. You can argue right or wrong whether we should be killing these people not involved in combat because there is evidence they are trying to hurt us and attack us. But it is a pretty low standard. For goodness sakes, could there be any question that in America we’re going to accept a standard so low, a standard that basically says that if we think you might someday be engaged in hostilities, we can kill you.

Hour 6

Overseas, one of the most famous citizens they killed Anwar al-Awlaki he worked with our enemies I think he could have been tried for treason. I think if I were on the jury, from what I read, I would have voted for his death. The thing is, some kind of process might be helpful. His son, though, 16 years old, was killed two weeks later in a separate drone strike and he was on nobody’s list that I know of. They won’t respond. But I think the response by the President’s spokesman is reprehensible and really should be called out. It is sort of this flippant response that I think shows absolutely no regard for individual rights or for Americans. He said, well, the kid should have chosen a more responsible father.

Think about that. Is that the standard that you wish your government to operate on in America? We got a lot of criminals in our country. We got a lot of bad people. If you happen to be the son of a bad person, is that enough to kill you? The other thing is that people killed overseas that are not the target, they don’t call them civilians because they say anybody between the age of 16 and 50 that’s a male is a potential combatant. Are we going to use that same standard here in our country? Are we going to use the standard in our country that if you just happen to be a male and you happen to be standing near somebody that we’ve judged to be a problem, that you’re going to go ahead and, oh, I guess that’s not even collateral damage. That person was probably a bad person because he was standing close to this person? I think there are different standards for war than there are for within our country. And it’s not always going to be perfect, and there is legitimate debate over what the rules should be in a war, where a war is overseas, exactly what happens. And I think good, honest people can disagree on some of that, but what I worry about are the people who say that America is a battlefield. Because when they say America is a battlefield, they say that they want the laws of war to apply here. Which the reverse of that is basically, if you reverse the laws of war, they’re talking about martial law is what they’re talking about. Law that’s acceptable under extreme circumstances.

I don’t think what we have in our country right now is a circumstance where you I would accept martial law. But we’ve already instituted some of the thanks you’ll see in other countries under martial law enforcement in Egypt they have indefinite detention. That’s their emergency decree that occurred back in the 1950’s. And it went on and on — maybe about 1950’s, 1970’s. So they were very happy about having martial law. Indefinite detention. Well, you got it last year. The President’s response again was inadequate. How did the response — what did the President say to having indefinite detention in our country? He said, well, I don’t intending to use it. With you know, I’d rather have a President who has the chutzpah to not sign the legislation and send it back and say, take it out or I won’t sign it. I would have a lot of respect for someone like that. Mr. President, without yielding, I would be happy to entertain a question from the Senator from Texas.

SEN. CORNYN: Mr. President, I wanted to come to the floor to pose a few questions to my colleague from Kentucky. First to say that I admire his fortitude and his willingness to ask appropriate and reasonable questions of the administration on a matter of grave importance. This is no less important than our constitutional government itself. It does not give sole power to the administration to make decisions but recognizes that the Congress is a coequal branch of government, and indeed we have important oversight responsibilities of the department of justice, the department of defense, and there isn’t any more delicate and important matter than the limitations placed on the government when it comes to dealing with our own citizens. So I would just — I’d like to ask the Senator from Kentucky whether he’s aware of — whether he’s aware of some of these issues. First of all, shortly after President Obama took office, the holder justice department declassified and released detailed previously top-secret legal memos attempting to explain the legal rationale for the enhanced interrogation program that the central intelligence agency used during the Bush Administration.

Now, these memos were written by the office of legal counsel at the department of justice, which is frequently called the lawyer for the executive branch, who issues those authoritative memos. But President Obama, Eric Holder, presumably, decided they would release those previously classified memos that explain the legal rationale for the enhanced interrogation program. And I would further ask the Senator if he recalls that when the Obama administration made these legal memos, highly classified legal memos public documents, does he remember that the attorney general made some specific comments. He said — quote — “we’re disclosing these memos consistent with our commitment to the rule of law.”

Yet today the same justice department refuses to release to members of Congress, including this Senator, the Senator from Kentucky, and other members who have oversight responsibilities the very same legal rationale, in this case for the drone strikes that the Senator from Kentucky is talking about. So I wanted to ask, first of all, the Senator from Kentucky whether he’s — he believes I’ve accurately recited the facts but then to ask him whether he sees a double standard here on the part of the Obama-holder justice department, where on one hand they release these legal memos from the office of legal counsel, and in this case instead of releasing the legal rationale for the authority to make drone strikes, they issued what’s in essence a white paper, or press release, that was leaked to the news media. So I — I would ask the Senator from Kentucky to respond.

SEN. PAUL: Mr. President, the question from the Senator from Texas is a very good one and there something seem to be a double standard going on here. There seems to be one standard for, you know, wiretapping of phones or interrogation but seems to be much less of a standard for actually killing. And it seems to be hypocritical and you — you would wonder why. With regard to releasing the — the memos on how they come about their process, some of that was leaked. It’s always curious to me, it seems almost as if the leaks come on purpose, as if they were intentional, the leaks happen right before a nomination process. I don’t know the truth of that but I do think that not only should we get the memos but we — if there’s going to be a drone strike program in America, perhaps we should actually be writing the rules and sending them to the President and that would be our job, not to listen to him on when he’s going to do drone strikes in America but actually to spelling out and having an open discussion. Because in America, I don’t think that should be a secret how we’re going to — you know, how we’re going to go about this in America. So I see no reason not only to get the drone memos and I think it would be more consistent not only with their earlier position, but I think what we should do is really be a part of the process of determining how we go forward with, if we’re going to have drone strikes in America, what the rules would be.

SEN. CORNYN: Mr. President, would the Senator yield for another question?

The presiding officer: The Senator from Texas.

SEN. CORNYN: I would just ask further of the Senator from Kentucky, I believe the question that he has asked, whether the President has the power to authorize lethal force such as a drone strike against a U.S. citizen on U.S. soil and without trial is a very clearly stated question and one to which I believe the Senator and the rest of members of Congress are entitled to a very clear answer. I was in the Senate Judiciary Committee hearing with the Attorney General this morning when we attempted to ask him on a number of occasions what his answer would be to this question and yet he equivocated, he was ambiguous. He seemed to be ambiguous when a clear answer would serve him just as well, as the point the Senator from Kentucky has made. But I question I have for the Senator is that wouldn’t it in all likelihood, the legal rationale or justification issued by the office of legal counsel at the department of justice likely include a discussion which illuminate and elucidate the answer to the Senator’s question? In other words, I would assume, without having seen that classified memo, that it would go through a rather lengthy analysis of the hypothetical situations under which these drone strikes might be used and would in all likelihood I think shed some light on and clarify the answer to the Senator’s question. Wouldn’t that be a reasonable way to answer what is a very straightforward and reasonable question?

SEN. PAUL: Mr. President, one of the things that actually even piecing together what I’ve heard of some of his testimony, he did finally admit to some things that I think are consistent with what I’m saying. They haven’t put it in writing previously. I would think that he could almost take his testimony today where he almost at some point seems to agree that it would be Unconstitutional to kill noncombatants, people not actively engaged in combat. If he would say that, I think he would answer my question basically. Because I’ve never been talking about people engaged in lethal force. There’s always, you know, you really don’t get much due process you’re engaged in lethal force, lethal force is used against you. So you would think if he would just answer that simple question, similar to what he actually started in the testimony, but they won’t give us a succinct answer, or any answer really, and so that’s the answer we’ve been trying to get all along.

SEN. CORNYN: If the Senator would yield for one last question.

The presiding officer: The Senator from — the Senator from Texas.

SEN. CORNYN: To the Senator’s point, last point, I’m reading from a letter — a letter dated March the 4th from the Attorney General to Senator Paul, where he says — and I quote — “the question you have posed is entirely hypothetical, unlikely to occur, and one would hope that no President will ever have to confront.” But he goes on to say, in response to Senator Paul’s question, “it is entirely” — or “it is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.”

In other words, to the Senator’s point, on one hand he said it would be a hypothetical question, unlikely to occur and one we hope no President would ever have to confront, and then on the other hand he said, it is possible to imagine a scenario under which it would happen. So appearing to say — to be — well, cast further lack of clarity on something that should be a straightforward “yes” or “no.”

SEN. PAUL: Mr. President, the interesting thing about saying it’s hypothetical and it wouldn’t happen, I could buy that except for the fact that our foreign drone strike program, a significant amount of the drone strikes are on people not actively engaged in combat. So whether that’s right or wrong’s another question, but since we already have an example of a significant amount of those not engaged in active combat, it’s hard for him to say that this is a rare or unusual, hypothetical thing that could never happen because it seems like it’s a big part of the drone program overseas.

SEN. CORNYN: I would — I said that was my last question, Mr. President. I’d ask the Senator to yield for this will be my last question.

The presiding officer: The Senator from Texas.

SEN. CORNYN: It strikes me, Mr. President, that there is a clear double standard here. The Senator’s asked a reasonable question to which he has not gotten a clearance — a clear answer and one that’s clearly within the purview of the united states senate in our oversight capacity for the department of justice and as a coequal branch of government. But on one hand, the Obama-holder justice department not just released a white paper but released previously classified legal memos from the office of legal counsel on the enhanced interrogation program, saying that it was consistent with their commitment to the rule of law. And today, in response to an imminently reasonable request, is giving the Senator from Kentucky what can adequately — I think appropriately be called the Heisman or stiff-arm and denying him access to that. So I just wanted to come to the floor and — and make that point and ask those questions and say again I admire the Senator’s fortitude and willingness to stand up and — and challenge the Administration on this — on this issue. It would be easy to satisfy the Senator’s request. He’s made that very clear. He is not intending to block a vote on this nomination but he is intending to get the information that he has requested and he’s entitled to it.

SEN. PAUL: Mr. President?

The presiding officer: The Senator from Kentucky.

SEN. PAUL: The questions and points the Senator from Texas have made are — are very good points and it also shows you that we’re really not that far apart on trying to finds an answer to this because really there is no ultimate ability of me to stop this nomination. I am already getting tired and I don’t know how long I’ll be able to do this so I can’t ultimately stop the nomination. But what I can do is try to draw attention to this and try to get an answer. That would be something if we could get an answer from the President, and I think we’d all sleep better and feel more comfortable if he would say explicitly that noncombatants in America won’t be killed with drones.

The reason it has to be answered is because our foreign drone strike program does kill noncombatants. They may argue that they’re conspiring or they may someday be combatants, but if that’s the same standard we’re going to use in the United States, — same standard we’re going to use in the United States, it’s a far different country than I know about. Ours is a country where dissent, vocal dissent, even vehement, vociferous dissent as far as whether our country should go to war, whether our country should raise taxes, lower taxes, we’ve always allowed a great deal of dissent in our country. But some of the people who we have said we’re targeting have been dissenters, probably traitors, too, but they’ve also been people who’ve been vocalizing more than they’ve been shooting anybody. Now, it’s not to say you can’t be a traitor even if you don’t shoot anybody, but if you’re going to be accused of treason or being a traitor in the United States, I — I would think you’d get your day in court probably.

It’s particularly troublesome since some of the descriptions of who might be a terrorist are such that, you know, I’d be a little bit concerned about the slippery slope to who is and who terrorist. And I just can’t in imagine believe we would do that without an open accusation, without a trial by jury, without verdict. So I think it is important that this discussion go on. And I’m not really ultimately setting the goal that I can stop this nomination. I’m here today to draw attention to a Constitutional principle, to try to get the Administration to admit publicly that they will not kill Americans who are not involved in combat.

But it really doesn’t have so much to do with Brennan or with his nomination. It has to do with a constitutional principle. And ultimately Brennan will be approved. He will be the head of the CIA This will be a blip in his nomination process. But I hope people will see it more as an argument for how important our rights are, that really no one, no branch of government, no individual politician should be above that law, should be able to dictate and say what they think the law is. Now, we had some of this even under a Republican President. I was critical of President Bush for saying that he had the ability to interpret the law, he had the ability to put signing statements, which were extensive sometimes, which gave his interpretation of what the law was or what he thought the law was.

So I’ve been critical of both sides thinking they have more power than they have. Our Founding Fathers were brilliant in the sense that when they separated the powers and had these coequal powers of government, these branches of government, they were somewhat pitted against each other. And by having equal power and being able to judge the power of the other branch, no one branch could accumulate too much power. But in our country, it’s been going the other way for a long time. It hasn’t been just Democrat Presidents or just Republican Presidents. It’s, frankly, been both. For maybe a hundred years or so, power’s been gravitating and gravitating and gravitating and going to the presidency. Not just the presidency. When people talk about the bureaucracy, these are people who are within the Executive branch, millions of them.

When we passed Obama care, it was 2,000-some-odd pages. There have been 9,000 pages of regulations written since. Obama care had 1,800 references to the Secretary of Health shall decide at a later date. We gave up that power. We gave up power that should have been ours, that should have been written into the legislation. We gave up that power. And as a consequence, we gave it to the Executive Branch. We gave it to people who, many of them who we call bureaucrats, are unelected. So we gave away power.

It is a struggle and it should be a perpetual struggle. But we shouldn’t give in on that struggle and give up that power. So right now there was mention that the President should reveal to us drone memos on how he’s making the decisions. We’ve had some leaks about that but I would go one step further. Not only should the President let Congress know what he’s doing, maybe we should tell him what to do.
Maybe the — maybe the Congress should be setting the rules for how we do drone strikes. Maybe the Congress should be protecting the American people from their government. That sounds, oh, that’s terrible protecting you from your government. The Constitution wasn’t written to restrain your behavior. It was written to restrain your government’s behavior. A lot of people get confused when we talk about religion and the first amendment, but if you read the first amendment, it says, Congress shall make no law.” It doesn’t say anything about your religious preferences. It is not limit your involvement in government. It is not supposed to limit so much religious soft in government. We have a prayer in the senate every morning. You can’t have it in your public school. But we have a prayer every morning. We have the 10 commandments around here, but you can’t have it in your local school. I think we kind of got confused on things. It was really about government getting involved in your religion. We didn’t want to establish a church. We thought it was a bad idea to have an official church because then the government would be telling the church what to do. But it’s really all about the documents that we have protecting you from an overbearing government.

Your government was given a few defined powers, enumerated powers. There are 17-19, depends on what how you want to count them. They’re few and defined. But your liberties are many, basically unlimited and undefined. When you read the ninth and tenth amendment, it says that those rights not explicitly given to government are left to the states and the people. They’re yours, not to be disparaged. These are important debates we’re having.

When Montesquieu talked about the separation of powers and the different checks and balances, he said, there can be no liberty when you combine the Executive and the Legislative. Likewise, I would add to that there can be no liberty when you combine the Executive and the Judiciary. So if you allow the President to tell you that he can have drone strikes on Americans on American soil allowing him to be not only the Executive, you are allowing him to be the Judiciary. If he takes it secret, nobody can object. I remember one time I was complaining to another Senator about these things called suspicious activity reports. Your bank is required to file them on you. In fact if you do a wire transfer and you pay your visa through your bank over the phone, you can be part of a suspicious activity report. If you turn cash into the bank or get cash out of the bank over a certain arrangement you can get a suspicious activity report. But I was concerned about this because there had been 8 million of them filed since 9/11. The Senator’s response was, he’s never had anybody complain about it. The reason you don’t complain is they’re secret. They don’t tell you they’re doing this. So if you get on the kill list, it is a little hard to complain. So we might have a kill list on American citizens and nobody might complain because it’s secret. You don’t know you’re on the list. So I think it is important that we have a big debate, discussion over this. That we let the President know he doesn’t get to write all these rules on killing American citizens. The constitution still are applies in our country. The reason this is a big debate is that when you are a in a war, the Constitution doesn’t always apply on the battlefield in another country. There is a debate over whether the Constitution is here or whether it extends beyond the border. But a practical matter is we can’t enforce the constitution beyond our border. You have sort of consented to your constitution. You sort of consent to your government by voting. We have that arrangement in our country. It doesn’t really happen in Mexico or Europe or Afghanistan.

It certainly doesn’t happen in the middle of hostilities. But’s that’s the real danger that’s the problem here, that’s the rub. This whole thing is about the use of authorizational force that was passed after 9/11 to go to war in Afghanistan. If you had voted on that – you didn’t, your leaders did — but had you voted on that I’m going to war in Afghanistan to get the people who attacked us on 9/11. I was all for it I still  think that was something wended to do. We couldn’t let people attack us but I don’t think you would have thought when you voted for that that you were voting for a worldwide — that you were voting for a worldwide end that included America as part of the battlefield. That’s a real problem here. The Administration, John Brennan who wants to be head of the CIA, Eric holder, head of the Attorney General, they all believe — and many here believe this also — that there’s no geographic limit to the war. It’s not in Afghanistan, they say it’s everywhere. But they say  “everywhere” includes here. If you don’t think you can apply due process in the middle of a war, what happens if they say the war is here? That means you don’t get any protection. So you are accused of a crime, that’s it. I can’t imagine that that’s what we want as Americans. I just can’t imagine that we would believe are — or acquiesce or allow the President to say that he’s going to make the decisions for us, that basically he would kill noncombatants in America. I frankly think eventually he will admit — it would be nice if he would admit tonight that he’s not going to do it. If anybody has got a phone, give him a call, we’d like to know, we’d like to know an answer. I think it would be appropriate. When the Attorney General came this morning to the Judiciary Committee to answer questions, he was asked this question, can you kill noncombatants if they’re sitting and having tea somewhere in America? He kind of we weebled and wobbled and went around the issue. Finally, they said, is it Constitutional or not? Do you think you can do this? Instead of saying, well, we might not, we don’t intend to. And it sounds like he finally admits in the end that it is Unconstitutional.

But then why can’t we get them to issue a statement? Why can’t we get them to say explicitly we’re not going to do this? I see no reason — it would take them five minutes to jot this down on a piece of paper. If they don’t intend to do it, why not tell us? When your government won’t tell they’re not going to do something, they’re saying, yes, we have the power. If they will not say no, I will not kill Americans who are not involved in combat here at home, if they cannot tell you that, they are saying yes, they will kill Americans not involved in combat. It is a simple question.

Connor Friedersdorf writes for the Atlantic and he writes, “Does President Obama think that he has the power to kill American citizens on U.S. soil? If he accuses a guy in the Arizona desert or rural Montana of being an al-Qaida terrorist, is it even kosher to send a drone over to blow him up, as was done to people overseas? Is it never okay to drone strike an American citizen to death in America?” It’s an easy question. Answering it wouldn’t jeopardize national security in any way. So why do Americans — why does the Obama administration keep officials dodging?  Why do they keep dodging the question? When the President was asked this question at Google last week, he said, well, we might have different rules inside the country than outside the country. Well, that’s sort of assumes that he thinks he can kill Americans here and he might have different rules, more protections, but he’s not going to tell you. He says it’s secret. I for one am not very comforted.

When the President says, I haven’t killed any Americans yet, and I don’t intend to kill any Americans, but I might, that doesn’t really confident me so much. I don’t think that’s strong enough language. The Presidential Oath of Office says, I will preserve, protect, and defend the Constitution. It doesn’t say, I intend to. It doesn’t say, I intend to preserve if it’s convenient — I intend to preserve, protect, and defend the constitution if it is convenient. In this his memo he says he’s only going to kill people if it is infusible. It sound a little bit like it is tough, it is inconvenient. So I’m going to preserve, protect, and defend the Constitution as long as it’s feasible. It just doesn’t really inspire me. Friedersdorf goes on to say, with regard to the President’s answer at Google, that he couldn’t give a straight answer.

Counterterrorism Advisor John Brennan, whose nomination we’re talking about, won’t answer either. He finally did answer but only under duress. And his answer was actually appropriate answer. The CIA can’t do this in America. The court begs the question because the CIA is not in charge of the drone program, the Department of Defense is. We need an answer from the Department of Defense. And we get an answer from Eric Holder that says they haven’t done it yet. They don’t intend to do it, but they might. And doesn’t say specifically that they won’t.

These answers have been out there for a while, and we’ve been through this and around this and asked for questions, and I think so much of this — you know, these are simple questions. These are questions that I can’t imagine why we can’t get an explicit answer unless the answer is no. Unless the answer is they don’t want limitations on their power, unless the answer is that they don’t want to be constrained by the Constitution, unless their answer is that the Bill of Rights doesn’t apply to them when they think it doesn’t apply to them. And see, that’s the real danger. Eric Holder was asked about this and asked about the Fifth Amendment of he was asked, does it apply? He said, well, it applies when we think it applies. What does that mean? I know it is a debatable question overseas, American citizens, this and that, but I don’t think it is a debatable question in our country.

Does the Fifth Amendment apply? I don’t know how you can argue the Fifth Amendment does apply. I don’t know how you can argue that we have an exception to the bill of roots when we want to. But this is the same President that did argue that to determine when the Senate is in recess because he didn’t get a few of his appointees last year, he argued that the Senate was in recess and said he could appoint anybody he wanted and he did. It went to court and the court rebuked him. The court says you don’t get to decide all the rules for government. The Senate decides when they’re in recess. You decide when you’re in recess. But you don’t get to decide the rules for the Senate, they struck him down and has he obeyed the ruling? Has he listened to what the court did? Has he been chastised and rebuked by the court?

The people that he appointed illegally are still doge doing that job. All of their decisions are probably ink valid. So for the last two years or year and a half, however long these recess appointments have been out there, all of these decisions are going to be a huge mess. They’ve made all these decisions and it is going to be uncertain whether the decisions are imping to be valid. All of this happens because for some reason he thinks he has power that he doesn’t actually have.

I think there are some analogies to what we’re talking about here. One of the things that the rules he said he would adhere to as far as the drone strikes overseas was that there has to be an imminence to the threat. But then his team of lawyers follow up and conclude, well, it has to be imminent but it doesn’t have to be immediate. I think only a gaggle of government lawyers could come together and say that imminent doesn’t mean immediate. Spencer Akerman wrote in “wired” about this and the title of this is How Obama Transferred an Old Military Concept so He Can Drone Americans.

“Imminent used to mean something in military means, mainly that an adversary had begun preparations for an assault. In order to justify his drone attacks on American citizens, President Obama redefined the concept of imminence to exclude any actual adversary attack.” It is important to get that and to register that. He has defined a potential imminent attack to mean that it excludes any actual adversary attack. So you’re under imminent attack but there is no attack. I mean, it is a bizarre logic, but it is done to widen what they can, to grant them more power.

Ackerman says, “This is at the heart of the Justice Department’s newly leaked white paper.” These are these drone memos. It was first reported by NBC news, explaining why a broader concept of imminence trumps traditional Constitutional protections. American citizens enjoy from being killed by their government without due process. It’s an especially striking claim when considering that the actual number of American citizens who are senior operational leaders of al-Qaida is a vanishingly small number. As much as Obama talks about rejecting the concept of perpetual war, he’s providing and institutionalizing a blueprint for it. This is what we’re talking about. Don’t think that if you give the President the power to kill Americans that it is a temporary power. The use of authorization of force, they say, has no geographic limit and no temporal limit. There is no end to the war. There is no end to the lessening or abrogation or giving up of your rights. If you give up your rights now, don’t expect to get them back.

Ackerman goes on. “Imminence has always been a tricky concept. It used to depend on servable battlefield preparations like tanks on a front or the fueling of fighter jet squadrons. Even under those circumstances, there was little consensus internationally about various wars that we have had in the past. President George w. Bush contended that the U.S. Had to invade Iraq not because the government new Saddam Hussein was about to launch an attack on America but because it didn’t.” Because it was unknown, because we fear things we don’t know, we don’t know so we conclude yes and we preemptively attack.

“Bush contended that the uncertainty about Saddam’s weapons of mass destruction augmented by 9/11 warnings of shadowy terrorist groups plotting undetectable attacks redefined imminence.” So when I say this is not a partisan battle, I’m true to my word. President Bush started this, President Obama is expanding this. The real irony, though, is President Obama ran as the anti-Bush candidate. He ran as the guy with the real moral umbrage at what President Bush was doing and in the end he’s taking Presidential power to a new level beyond what President Bush could have ever imagined.

So Bush contended that they could invade because they were uncertain about what Saddam could do. He redefined imminence to mean the absence of dispositive proof, refuting the existence of an unconventional weapons program. He redefined imminence to be the absence of proof that you don’t have something. So you have to prove a negative. You have to prove you don’t have something or you are an imminent threat. That would be sort of like saying to Mexico prove to us you don’t have a nuclear weapon or we’re going to bomb Mexico City. It’s a bizarre notion of imminence. So Mexico is now an imminent threat to the United States because they are unwilling to prove they don’t have a nuclear weapon. You can see the convoluted logic that occurs here. 

“When U.S. Troops invaded, they learned that Saddam did not possess what Bush or Condoleezza Rice famously termed ‘smoking gun’ that could come in the form of a mushroom cloud. The undated justice department white paper summary of a number of still classified legal analyses redefines imminence once again. Al Qaeda leaders are continually planning attacks, the updated white paper says, and so a preemptive attack does not require the United States to have clear evidence that a specific attack on U.S. Persons in interest in the immediate future.”

Well, realize what this means. First of all, nobody has got an al-Qaida card. You know, I think we say every terrorist in the world is in al-Qaida because then they have got to prove otherwise. So nobody has got an al-Qaida card. Everybody is in al-Qaida. So we say that unless you can prove that you’re not attacking us because we know the history of al-Qaida is to continue to attack us, we can preemptively attack you. But now we’re talking about bringing that kind of gobbledygook, jumbled logic to the United States, are these going to be the standards by which we kill Americans? Ackerman goes on, “for an adversary attack to be imminent and a preemptive U.S. response justified, U.S. Officials need only incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage and the likelihood of heading off future disastrous attacks on America.”

So if we say al-Qaida is always attacking us and we say you’re part of al-Qaida, then we can kill you, but the thing is that that’s an accusation. If you are a U.S. citizen and you live in San Francisco or Houston or Seattle and someone says you are a member of al-Qaida, shouldn’t you get a chance to defend yourself? Shouldn’t you get to go to court? Shouldn’t you get a lawyer? Are these not things that we would want in our country? Ackerman goes on. He says “there is a subtlety at work in the justice department framework. It takes imminence out of the context of something an enemy does and places it in the context of a policymaker’s epistemic limitations.”

We are not looking to see if someone has a rocket launcher on their shoulder. We are saying because we think that these people don’t like us and will continue to attack us that we can preemptively kill them. Realize that this kind of logic is being used overseas, and that’s debatable, but now they are going to bring this logic to America. So when you read stuff like this that imminence is out of the equation and in its place we’re going to put a policymaker’s epistemic limitations or estimations, that’s how we’re going to decide who is going to be killed in America? All we know is what have in the foreign drone program. We have no evidence yet because no one has told us that — they just told us they haven’t killed anyone yet, they don’t intend to but they might, but they haven’t told us what the rules are that they are going to use in this context, what rules are going to be used in America. If you’re going to kill noncombatants, people eating dinner in America, there have to be some rules. Does the Constitution apply?

But when Eric Holder was asked about the Fifth Amendment, he says the Fifth Amendment applies when they think it applies. He says the executive branch is very careful and they are very conscious of the Fifth Amendment and they do try to apply the Fifth Amendment when they can. It’s a different story if you’re talking about a war overseas and you’re talking about people who live in our country. You don’t get the option of determining when the Fifth Amendment applies. Ackerman goes on to say “if there is a reasonable debate over what imminence means in the era of terrorism and what standards ought to be accepted for defining it as an international norm, this framework where they talk about that they are thinking about what the terrorist is doing rather than what the terrorist is doing basically preempts the whole idea of determining or trying to discuss or figure out what imminence really means.”

Ackerman goes on, “all that matters to justify a drone attack is for the U.S. to recognize that it can’t be all knowing,” so interestingly, it’s not intelligence that drives the attack. It’s you saying I don’t know but I am worried that these people do attack us continuously, so by me not knowing their plans, that is a justification for an attack. Realize that could be the standard in the United States. “It’s the logical equivalent of the CIA’s signature strike which target anonymous military age males in areas where terrorists operate.” This should be the thing that should just scare the you know what out of you. If we are killing people overseas who we don’t know their name because we think they are in a caravan going from a place where we think there are bad people to another place where there are bad people, that’s a fairly loose standard.

So let’s say there are people going from a Constitution party meeting to a libertarian party meeting. Both these groups don’t like big government. They hate big government. They are opposed to government. They are nonviolent as far as I know but they were on the fusion list for potential terrorists. Are we going to kill people in a caravan going from one meeting to the next? Are we going to have to name the person we kill in the United States? You say that’s absurd. We would never do that. What about whose phone we tapped. Do we have to name that person? Used to be the requirement. It’s gotten less so over time. We have gotten to the point where the Fourth Amendment protections to name the person, place and what you want to look at have become looser over time. So I think it’s a legitimate question. If you’re going to target Americans on American soil, are you going to name them first? Are you going to tell us who is on the list? The list overseas is secret, so the question is the list going to be secret in the United States? How do you get your due process if you don’t know you’re on the list? It’s a little bit late after the drone attack to say ‘hey, it wasn’t me, I really didn’t mean what I said in that email. I shouldn’t have made that comment online.’

Some liberals have had a double standard on this and haven’t been very good. Some have been more honest than the President in their criticism of being hypocritical. The President seemed concerned at one time about warrants for wiretaps. He seemed to be concerned about Americans and torture. He seems to have lost a little bit of that when we talk about whether or not to kill Americans on American soil. Eugene Robinson who I consider to be a liberal pundit, writes in the San Antonio review news. It’s called Judicial Review Needed for Drone Hit Citizens. It begins this way. “If George W. Bush had told us that the war on terror gave him the right to execute an American citizen overseas with a missile fired from a drone aircraft without due process or judicial review, I would have gone ballistic.”

These are Eugene Robinson’s words. If he had heard this about George Bush, he would have gone ballistic. And to his credit, “he says it makes no difference that the President making this chilling claim is Barrack Obama.” What’s wrong is wrong. Robinson goes on to say “the moral and ethical questions posed by the advent of drone warfare are painfully complex. We had better start working out some answers because, as an administration spokesman told me recently, drone attacks are the new normal.” In the ongoing struggle against terrorist groups such as al-Qaida, these attacks have become normal. They have become commonplace. They have become the rule rather than the exception. But at least Eugene Robinson is someone who is consistent in his application of criticism. He says he would have gone ballistic had George W. Bush done exactly what President Obama is doing, and his response is it makes no difference that the President making this chilling claim is Barrack Obama. What’s wrong is wrong.

The question of when we get due process, whether or not it applies to you here or overseas is a big question, but under our concept of government, it’s not a question that should be left up to one branch of government. You know, should one branch of government get to decide that you don’t get due process? That the Fifth Amendment doesn’t decide you. This is an incredibly important question. John Brennan and the nomination today pale in comparison to that question. Does the President alone unilaterally get to decide whether the Fifth Amendment applies to you, or can he say that he is going to secretly accuse you of a crime and yet the Fifth Amendment doesn’t apply to you? Now, this is worrisome because the Attorney General has been asked about the applicability of the Fifth Amendment to the drone program. He said the Fifth Amendment applies when they think it applies. He says they try to give some kind of process. It’s not due process. Due process involves a jury and a judge and a public trial and an accusation. By process, they mean they get together and look at a PowerPoint presentation, they go through some flash cards and they decide who they’re going to kill. That is the process. Now, they may say oh, you’re demeaning the process by treating it flippantly, but whether they are serious or not about the process, is that the process you want for someone in America?

Do you want in America for the process for you being accused of a crime to be a PowerPoint presentation by one branch of government; maybe in a political party you’re part of, maybe in a political party you’re not a part of? There are things in politics that are partisan. I don’t think I would want Americans to be subject to any partisanship with determining whether you get the Fifth Amendment, whether you get a jury trial. I can’t imagine anybody would. I don’t care whether it’s a Republican or Democrat. I don’t want a politician deciding my innocence or guilt. I mean, it’s as simple as that.

The President should say unequivocally, we’re not going to kill noncombatants, we’re not going to do PowerPoint presentations in the oval office on Tuesdays, you know, we’re not going to have terrorist Tuesdays for Americans. He should say that. I mean, I don’t think it’s that hard. It’s an easy question to the President. Mr. President, are you going to have terrorist Tuesdays for Americans? Are you going to put flash cards of Americans up and pass them around the table in the oval office with pictures of Americans on them and decide who’s going to die and who’s going to live. Are you going to publicly charge people or are you going to secretly charge people? Are you going to have any kind of trial or any kind of representation, does anybody get a chance to say, ‘hey, it wasn’t me, I didn’t do it?’ Does anybody get a chance to represent or have representation?

This is an article that we found interesting also by Noah Shactman. This was also printed in “Wired.” It’s called U.S. Drones can now Kill Joe Schmoe Militants in Yemen. This is not quite about the domestic issue so much and a little more about the foreign issue, but there is a linkage between the foreign drone attacks and what will become the domestic drone attacks. Why? Because that’s the only drone attacks we know and we’ve not been told that there will be American plan for killing Americans and a foreign plan for killing Americans or foreigners overseas. We haven’t been told that. We haven’t been told anything. We’ve been told to go sit in a corner, including the Senate, including the Congress, sit down and be quiet. They’ve got a process, they’ve got a PowerPoint presentation, they’ve got flash cards. I don’t think that’s adequate.

Noah Shactman writes in “Wired,” he says, “in September, American-born militant Anwar al -Awlaki was killed in a U.S. Drone strike in Yemen. In the seven months then, the al-Qaida affiliate there has grown in power, influence and lethality. The American solution? Authorize more drone attacks.” Kind of brings me back to that quote from the CIA Agent. He said, “drone attacks are like a lawn mower. When you quit mowing the lawn, the terrorists come back. They sometimes maybe more numerous.” The question is, you have to always say, can you kill them all? You know, can you kill every terrorist in the world? Or for every terrorist you kill, maybe three or four pop up, maybe ten pop up. What happens to the families of people who happen to be the ones we made mistakes on or happen to be in the wrong place at the wrong time? I know the President, his spokesman, found it cute to say, “oh, they should have chosen better parents. They should have chosen a more responsible parents.” I don’t that endearing or cute. I find that really reprehensible to say that’s the standard. You have to ask the question, is that going to be the standard in the United States? Are we going to kill people because they’re related to bad people? And to flippantly say, should have chosen better parents after we kill a 16-year-old?

Shactman goes on to write, “the American solution authorized more drone attacks and not just against well-known extremists like al -Awlaki, but against faceless, nameless low-level terrorists as well. A relentless campaign of unmanned airstrikes has significantly weakened al-Qaida’s central leadership. In Pakistan and in Afghanistan. You know, I’m not saying that we shouldn’t use drones. I’m not saying that they’re not a valuable weapon that’s helped us to decimate our enemies. I’m just saying that it’s different in a war zone and in our country. And if the President can’t acknowledge that being in battle somewhere is different than walking down the street in Washington or Baltimore or Philadelphia, if he can’t acknowledge that there’s a distinct difference, it’s beyond me how we can let him get away with that.

“Militants that were chosen for these drone strikes or for robotic elimination were based solely on their intelligence signatures, their behavior, as captured by wiretaps, overhead surveillance and local informants.” So the people that are to be killed in these drone strikes — and this is largely in the tribal areas in Pakistan — we don’t know their names. We’re targeting people whom we do not know their names, we cannot really know much about them if we don’t know their names. We’re targeting themselves by their signatures, where they go, who they visit. Well, probably inevitably the milk man’s got to go to the terrorist camp, too, or the doctor as well.

So maybe they’re complicit but some people who may not be quite the people we think we’re after are in the caravan going from city to city. Maybe you’re in the local food distribution business and you make good money selling it. But the question is, whether or not that’s the kind of standard you’d like to have in America, whether or not a signature strike would be acceptable in America. These are questions that ought to be asked and the President ought to answer. These people are being targeted by their signature. Their behavior is captured by wiretaps, overhead surveillance and local informants.

Schactman goes on to say, “a similar approach might not work in this case, however. In Yemen,” where we have a lot of drone strikes, he says, “every Yemeni is armed.” It’s going to be kind of hard to tell whose friend and foe and they’re all armed and they’re all fighting and they’re all mad at each other. So how do they differentiate between suspected militants and armed Yemenis that are armed on our side?

Schachtman goes to say, “what’s more, al-Qaida in the Arabian peninsula, the Yemeni affiliate of the terror collective, is joined at the hip with an insurgency largely focused on toppling the local government.” Another official informed the Washington post. So there’s a very real risk that America is being perceived as taking sides in a civil war in Yemen. The Yemeni drone campaign, actually two separate efforts run by the CIA and the military’s joint special operations command will still be more tightly restricted than the Pakistani drone war at its peak. Potential targets need to be seen or heard doing something that indicates that they are plotting against the west. Or are high up the militant hierarchy. You don’t necessarily need to know the guy’s name, you don’t have to have a ten-sheet dossier on him. But you have to know the activities of this person, what he’s been engaged in, said one official.

Gregory Johnson, a Yemen specialist at Princeton, believes that these signature strikes, or something an awful lot like them, have actually been going on for quite a while in Yemen. He goes on to say that he thinks al –Awlaki’s son was killed just a month after his dad in a signature strike. He says that he thinks there’s been 13 such attacks in Yemen in 2012. Now, when you talk to people around here, they’ll just say, oh, there are no signature strikes. What are you supposed to believe? A lot of people are saying they have evidence and have heard there are signature strikes. Those in power, who have the secrets, say, “oh, we’re not.” It’s hard to know what to believe. I think one thing that is easy to understand, though, is that I can’t imagine we would allow such a standard in the United States, where we don’t name who we’re killing and that we kill people involved in a caravan. I would think it should be pretty easy for the President to say, there will be no signature strikes in America.

Schactman goes on to say that “many of these strikes have hit lower-level militants, not top terror names. This authorization only makes targeted killings legally and bureaucratically kosher. Despite the increased pace of strikes, though, 13 attacks are more than there were in all of 2011 on al-Qaida in the Arabian peninsula. In fact, White House Counterterrorism Advisor John Brennan last week called it “the terror group’s most active operational franchise.” All of which leads Micah Zinco at the Council for Foreign Relations to wonder, where this drone campaign is going. “By any commonsense definition, these vast targeted killings should be characterized as America’s third war since 9/11. Unlike Iraq and Afghanistan, where government agencies acted according to articulated strategies, Congressional hearings and press conferences provided some oversight and time lines explicitly stated when the U.S. combat role would end. The third war Orwellian in its lack of cogent strategy, transparency and end date. Since these attacks are covert, the administration will offer no public defense. But it begs CIA Director Petraeus’ haunting question at the onset of the Iraq war. Petraeus asked: Tell me how this ends.’

That’s a question I have for the President: How does the war end? How do we win? How do we declare victory and when will the war end? The problem is, is that we have come up with a scheme that basically has no limitations, no geographic limitations on where the war’s fought. It’s hard to defeat an enemy if the entire war is the battlefield. That is a problem with determining victory. It’s a problem with ultimately coming home is the other problem with having no geographic limitations to this is saying that war is here, you know, that war is in America and that the battlefield here at home is one that we’re going to have rules or the laws of war are going to apply in your everyday life.

The center for Constitutional rights has taken a position and has been concerned and this was before we were talking about drone strikes in America. The center for Constitutional rights has been concerned even about American citizen overseas. On September 30, they put out this release. They said, “today, in response to the news that a missile attack by an American drone attack has killed U.S. citizen Anwar al-Awlaki the center for Constitutional rights, which had previously brought a challenge in federal court, to the legality of the authorization to target al-Awlaki in Yemen, released the following statement.” This is from the center for Constitutional rights. “The assassination of al-Awlaki by American drone attacks is the latest of many affronts to domestic and international law. The targeted assassination program that started under Bush and was expanded under Obama essentially grants the executive the power to kill any U.S. citizen deemed to be a threat.

Hour 7

I think that’s a good way of putting it, because when you think about it, obviously they’re killing some bad people. This is war. There’s been some short-term good. The question is, does the short-term good outweigh the long term cost, not only just in dollars but the long-term cost of whether or not we’re encouraging a next generation of terrorists?

This is a quote from Bruce Riedel, a former CIA Analyst. He says, “The problems with the drones is it’s like your lawn mower. You got to mow the lawn all the time, the minute you stop mowing, the grass is going to grow back. Maybe there is an infinite number of terrorists. Maybe the drone strikes aren’t the ultimate answer. There is a billion Muslims in the world, maybe there needs to be some component of this that isn’t just the killing fields. I’m not saying that many of these people aren’t allied against us and would attack and they don’t deserve to die. I’m just not sure that it is the ultimate earns the ultimate way. I’m also concerned that many of the people who are the strongest proponents of this are also the ones that want to bring the war to America and say that America is part of this perpetual battlefield.

The United States now operates multiple drone programs, including acknowledged U.S. Military patrols over conflicted zones in Afghanistan and Libya and classified CIA surveillance flights over Iran. Strikes against al Quaed are carried out under secret lethal programs involving the CIA and the JSOC. The matrix was developed by the NCTC to augment those organizations separate with overlapping kill lists. The result is a single continually evolving database in which biographies, locations, known associates, and affiliated organizations are all cataloged. So are strategies for taking targets down. Including extradition requests capture operations and drone patrols. Obama’s decision to shutter the CIA’S secret prisoners ended a program that had become a source of international scorn but it also complicated the pursuit of terrorists. Unless a suspect surfaced on the sight of a drone, the United States had to scramble to figure out what to do. We had a disposition proficiency said a former U.S. Counterterrorism official.

The database is meant to map out contingencies, create an operational menu that spells out each agencies role in case a suspect surfaces in an unexpected spot. If he’s in Saudi Arabia picked up by the Saudis, if traveling overseas to al-Shabaab, we can pick him up by ship. If in Yemen, kill or have the Yemenis pick him up. There’s been some discussion as to what to do with these people. It is a complicated situation. But I think the take-home message from all of this is what we’re stuck in is a very messy sort of decision making, a type of decision making that I don’t think is appropriate for the homeland Is appropriate for the United States. I think the idea that in the United States that this is to be a battlefield and that you don’t need an attorney, you don’t need a court, you don’t get due process is really repugnant to the American people and should be.

I think it’s something that we have given up on too easily if we let the President dictate the terms of this. If the President is unwilling to say clearly and unequivocally that he is not going to kill noncombatants in America, I don’t think we should tolerate that. I think there should be a huge outcry and the President should come forward and explain his position. This discussion tonight really isn’t so much about John Brennan. It isn’t about his nomination so much as it’s about whether or not we believe that in America there are some rights that are so special that we’re not willing to give up on these. So as we move forward into this debate, it’s not really about who gets nominated to be the head of the CIA It’s about principles that are bigger than the people. It’s about something bigger and larger than the people involved. It’s about Constitutional principles that really we shouldn’t give up on.

I think we should all judge as inadequate the President’s response when he says he hasn’t killed Americans in America yet, he doesn’t intend to, but that he might. I don’t think that that is a response that we should tolerate. And so as we move forward in this debate, we need to understand and we need to fight for something that is classically American, something that we are proud of and something that our soldiers fight for, and that is our rights, our individual rights, our right to be seen as an American, to be tried in a court by our peers, and I think if we were to give up on that, it’s a huge mistake. One of the things we have to ask is what kind of standard will there be? If there is going to be a program in America, what kind of standard, you know? If we’re going to kill Americans in America, what kind of standard will there be? If the standard is to be sympathy, you can imagine the craziness of this. Mr. President, I would at this time yield for a question without yielding the floor to my colleague from Kansas. 

SEN. MORAN: Mr. President?

The presiding officer: The Senator from Kansas.

SEN. MORAN: Mr. President, thank you. Through the chair, I – through the president, I would like to ask the senator from Kentucky a couple of questions. I have been listening to the – to the conversation to the debate, to the discussion here on the senate floor throughout the afternoon, and I am – I would ask the senator from Kentucky these questions – is it not true that the constitution of the United States is a document designed to protect the freedoms and liberties of Americans? Often, the Constitution, I believe, I would ask again the Senator from Kentucky, is the document while sometimes perceived to be a grant of authority is not really the main purpose of the United States Constitution to make sure that the American people enjoy certain liberties and freedoms that the founding fathers who wrote that document believe were important for American citizens, and whether or not that’s true, I will let the gentleman from Kentucky tell me, but if that is the case, if it is Constitutional to intentionally kill an American citizen in the United States without due process of law, then what is not Constitutional under the United States Constitution? If the conclusion is reached as the administration – at least is unwilling to say is not the case, if the conclusion is reached that it is within the powers of the Constitution for the Executive to allow for the killing of an American citizen in the United States, then what is left in our Constitution that would prohibit other behavior? If you can go this far, what liberties remain for Americans? 

SEN. PAUL: Ultimately, the question is who gets to decide? Does the President get to decide unilaterally that he is going to do this, and how would you challenge it? You know, if you’re dead, you have a tough time challenging basically his authority to do this. But no, I can’t imagine any way that you can usurp and go beyond the Constitutional requirements in the United States. I see no way he can do that, and I can’t imagine that he would even assert such a thing. But it still boggles the mind that he won’t explicitly say that he will not do this.

SEN. MORAN: Request the President to ask a question of the Senator from Kentucky. Again in the absence of the assurance or the statement from the administration, from the President of the United States or his attorney general, the appropriate venue of the Senator from Kentucky is not the appropriate venue for us to insist upon that – that answer. Is it not appropriate for this to be the venue on which, the United States Senate, made clear that it is unconstitutional in our view for the death of united states a United States citizen in the United States by military action, this is the opportune moment because of the pending confirmation of the nomination of the head of the Central Intelligence Agency. And so while today’s order of business really is an administrative appointment, is this issue not so important that we need to utilize this moment, this time in the United States Senate to make certain that that question is answered in a way that makes clear not only for today and for the current occupant of the CIA And its administration, but for all future Americans, all future CIA’S, all future military leaders that it is clear that in the united states American citizens cannot be killed without due process of law. 

SEN. PAUL: Mr. President, I think it’s a good point. I think it’s also a point to be made that that would be also one resolution to this impasse would be to have a resolution come forward from the Senate saying exactly that, that our understanding is – and this has been something that Senator Cruz and I have discussed – is that whether or not we should limit the President’s power by legislation or by resolution, basically saying that repelling an imminent threat is something the President can do but killing noncombatants is not something that’s allowed under the Constitution. I think the courts would rule that way should the courts ever have to rule on this, but it would be much simpler and more healthy for the country if the president would simply come out publicly and say that.

SEN. MORAN: Finally, I would ask the Senator from Kentucky, while this opportunity to discuss this issue on the Senate floor has occurred today, it certainly is an opportunity for the American people to understand a significant basic Constitutional right may be at stake, and while the Senator from Kentucky has led this discussion, I would ask him has he now received as a result of bringing this attention to this issue any additional reassurances from the Attorney General or the President of the United States that the administration agrees that there is no Constitutional right to end the life of an American citizen using a drone flying over the lands of the United States and attacking a united states citizen?

SEN. PAUL: Mr. President, since we began this today, I have had no communication from the White House or the Attorney General. The only thing we have gotten indirectly was that the Attorney General was before the Judiciary Committee today and that he did seem to backtrack or acknowledge a little bit under withering cross-examination – he was not very forthcoming in saying that what we would like to hear is that they will not kill noncombatants in America, but I think that’s still a possibility from them, and I think his answers weren’t inconsistent with that, but you would think it would be a little bit easier and they would make it easier on everyone, and you would think they would want to reassure the public that they have no intention – not just they have no intention but that they won’t kill Americans. 

SEN. MORAN: Again, Mr. President, to the Senator from Kentucky, while there is a significant important issue before the United States Senate today and that is the confirmation of the Director of the Central Intelligence Agency, I would ask the senator from Kentucky is this – is not the more important issue, the less pedestrian issue that we face here on the Senate floor and in the United States of America one that has been with us throughout our history? One that was with us when the Constitution was written and one that is with us every day thereafter, and that is what are the meanings of the words contained in the United States Constitution and what do they mean for everyday citizens that they know that their own government is constrained by a document created now more than 200 years ago? Is that not the most important question that faces our country, its citizens on a daily, ongoing basis?

SEN. PAUL: I think American citizens get that, but not only that, I come from a state that has two large military bases. When our soldiers go off, when I talk to them, they talk of fighting for our Bill of Rights; they talk of fighting for our Constitution. They don’t think they are going off to conquer any people. They 
— they truly believe and they honestly appraise that they are fighting for our Bill of Rights. So that’s why I see this as somewhat of an insult to our soldiers to say that – and to insinuate somehow that the Bill of Rights just isn’t so important, that our fear is going to guide us away or take us away from something so fundamental and so important. But I think Americans do realize that the protections of having a jury trial are incredibly important and that assessing guilt is not always easy when you’re accused of a crime. I think that Americans do know that it’s really important to try to get it right when someone is accused of a crime, and so I think the American people are with us in wanting to find these answers, and you’re right that this isn’t ultimately about the nomination. This is about a question that’s bigger I think than any individual, and it’s about something that our country was founded upon, and that’s basically the individual rights. 

SEN. MORAN: Mr. President, I thank the Senator from Kentucky for responding to my questions.

SEN. PAUL: Mr. President, we have had a good and healthy debate today. I think we have hit upon a few points. We may have even hit a couple of points more than once. I think that it’s a – when we think about and put in perspective so many of the battles that we have up here are battles that I think the American public sometimes is disgusted with. They see a lot of things that we do as petty and partisan, and sometimes I see disagreements up here who I think are completely partisan and completely petty on both sides, but I think this issue is different in the sense that this isn’t about this particular individual and their nomination. I have actually voted for the President’s first three nominations to his cabinet, so I haven’t taken a partisan position that the President can’t nominate his – his political appointees. I have looked carefully at the nominees. I have asked for more information. I have true I had to extend debate on some of the nominees. But in the end I voted for three out of three and many of the judges that the President has put forward. Not because I necessarily agree with their politics. I don’t agree with much of the President’s politics. In fact one of the few things I did agree with the President on was the idea of civil liberties, was the idea that you don’t tap someone’s phone without a – warrant a warrant, that you don’t torture Americans and really that you don’t kill Americans without due process. These are things that really I thought the president and I agreed on.

So I’m not so sure exactly, you know, where we stand with that. And I actually kind of think that probably he still does agree with me, or I still agree with him. But the question is, why can’t he publicly go ahead and announce that he’s not going to combatants? 

SEN. PAUL: The resolution that we’ve talked about. And this resolution says, “To express the sense of the Senate against the use of drones to execute American citizens on American soil.” “Expressing the sense of the Senate against the use of drones to execute American citizens on American soil.” “Resolved that it is the sense of the Senate that the use of drones to execute or target American citizens on American soil who pose no imminent threat clearly violates the Constitutional due process of rights. The American people deserve a clear, concise and unequivocal public statement from the President of the United States that contains detailed legal reasoning, including but not limited to the balance between national security and due process, limits of Executive power, and distinction between the treatment of citizens and noncitizens within and outside the borders of the United States. The use of lethal force against American citizens and the use of drones in the application of the lethal force within the united states territory.”

SEN. PAUL: There’s another article that I think is of interest and this is another article by Spencer Ackerman in “Wired.” This talks about once again the signature strikes and the idea that basically we’re killing people whose names we don’t know. The title of this was “CIA Drones kill large groups without knowing who they are.” The expansion of the CIA’s undeclared drone war into the tribal areas of Pakistan required a big expansion of who can be marked for death. Once the standard for targeted killings was top-level leaders in al Qaeda or one of its allies, that’s long gone, especially as the number of people targeted have grown. This is the new standard, according to a blockbuster piece in the “Wall Street Journal.” Men believed to be militants associated with terrorist groups but whose identities aren’t always known may be targeted. The CIA Is now killing people without knowing who they are on suspicion of association with terrorist groups. The article does not define the standards but the standards are said to be suspicion and association.

While this is overseas, it kind of gets to the point we’ve been talking about, is what is the standard that will be used in America? If we are to have drone strikes in America, what is the standard that we will use? Is it a standard that says that you have to be suspicious or that you have to be associated? Strikes targeting those people, usually groups of such people, are what we call signature strikes. The bulk of CIA’S drone strikes are signature strikes now, which is a remarkable thing. So what we’re talking about 
— and that’s one of the reasons why we’re concerned here, because if the President claims that he can do strikes in America and the bulk of the current strikes overseas are signature strikes, wouldn’t it be worrisome that we could kill people in America without even knowing their name? The bulk of the CIA Strikes now are signature strikes, it was written in the “Wall Street Journal” in an article by Adam Entoise and Siobhan Gorman and Julian Barnes. And the bulk really means the bulk. The “journal” reports that the growth in clusters of people targeted by the CIA Has required the agency to tell its Pakistani counterparts about mass attacks. So we’re talking about pretty significant attacks here. They’re only notifying them when they’re going to kill more than 20 at a time. Determining who is a target is not a question of intelligence collection. The cameras on the CIA Fleet of predators and reapers work just fine. It’s a question of intelligence analysis, interpreting the imagery collected from the drones from the spies and spotters below to understand who’s a terrorist and who, say, drops off the terrorist’s laundry. Admittedly, in a war with a shadowy enemy, it can be difficult to distinguish between the two. 

So the question is: Is this the kind of standard we will use in the United States? Will we use a standard where people don’t have to be named? We don’t know. The president has indicated that his drone strikes in America will have different rules than his drone strikes outside of America but we’ve heard no rules on what those drone strikes will be. So we have drone strikes inside and outside. They’re going to have different rules. But we already know that a large percentage of the drone strikes overseas were not naming the person. Is that going to be the standard? We also know that we have targeted people for sympathizing with the enemy. We talked about that before. In this 1960’s, we had many people who sympathized with North Vietnam. Many people will remember Jane Fonda swiveling herself around in a North Vietnamese artilleries and thinking gleefully that she was just right at home with the North Vietnamese. Now, while I’m not a great fan of Jane Fonda, I’m really not so interested in putting her on a drone kill list either. We’ve had many people who have dissented in our country. We’ve had people in our country who have been against the afghan war, against the Iraq war. I was opposed to the Iraq war.

There have been people who are against the government on occasion. What are the criteria for who will be killed? Does the Fifth Amendment apply? Will the list be secret or not secret? Can you kill noncombatants? And people say, well, the president would never kill noncombatants. The problem is, is that’s who we’re killing overseas. Now, we are alleging that they may be conspiring someday to be combatants or they might have been yesterday, but are we going to take that same kind of standard and use it in America? Are we going to have a standard that if you’re, you know, on your ipad typing e-mails in a cafe, that you can be targeted for a drone strike? These are – these are not questions that are inconsequential. These are questions that should be known and these are questions that should be public. These are questions that should be discussed in congress. These are questions – in fact, we shouldn’t be asking him for drone memos. We should be giving him drone memos. We shouldn’t be asking him how he’s going to run the drone program. We should be telling him how he’s to run the drone program. That is our authority. We’ve abdicated our authority. We have – we don’t do what we’re supposed to. We are supposed to be the checks and balances, but we’ve let the President make these decisions because we have largely abdicated our responsibility.

In this Spencer Ackerman story from “Wired,” he talks about and goes on to say, “fundamentally, though, it’s a question of policy. Whether it’s acceptable for the CIA To kill someone without truly knowing if he’s the bomb smith or the laundry guy. The journal reports that the CIA’S willingness to strike without such knowledge, sanctioned in full by President Barack Obama, is causing problems for the State Department and the military. As we’ve written this week, the high volume of drone attacks in Pakistani tribal areas contributes to Pakistani intransigence on another issue of huge importance to the U.S. Convincing Pakistan to deliver the insurgent groups it sponsors to peace talks aimed at ending the Afghan war. The drones don’t cause that intransigence. Pakistani leaders, after all, cooperate with the drones and exploit popular anti-American sentiment to shake down Washington. The strike – the strikes become cards for Pakistan to play, however cynically.” And I think that’s quite true of Pakistan, they play both sides to the middle and they play both sides to get more money from us. I think they have been complicit in the drone attacks and then they complain about them publicly. 

They have two faces: One – one to their people and one privately to us. But the question is: Have we gotten more involved in Pakistan other than al Qaeda leaders and have we gotten more involved in Pakistan that involves more of people who want to be free of their central government?

Ultimately we as a country need to figure out how to end war. We’ve had the war in Afghanistan for 12 years now. The war basically has authorized a worldwide war. Not only am I worried about the perpetual nature of the war, am I worried – I’m also worried about the geographic, that there’s no geographic limitations to the war. But I’m particularly concerned and what today has all been about is that I’m worried that they say that the United States is the battlefield now. My side, their side, the President. Everybody thinks that America’s the battlefield. The problem is, they also think you don’t get due process on a battlefield. And largely they’re correct. When you’re overseas on a battlefield, it’s hard to have due process. We’re not going to ask for Miranda rights before we shoot people in battle. But America is different. So one of the most important things I hope that will come from today is that people will say and people will listen, how do we end the war in Iraq? How do we end the war in Afghanistan? I tried to get a vote – I did get a vote, I tried to end the Iraq war two years after it ended by taking away the authorization of use of force and I still couldn’t get that voted on. It’s even more important not to end the war in Iraq but ultimately to end the war in Afghanistan. Because the war in Afghanistan, the use of authorization of force, is used to create a worldwide war without limitations. To create a war that some say the battlefield is here at home. This battlefield being here at home means you don’t get due process at home. There have been members of the Senate stand up and say, when they ask you for a lawyer, you tell them to shut up. Is that the kind of due process we want in our country? Is that what we’re moving towards? So the questions we’re asking here are important questions.  And these questions are: Does the bill of rights apply? Can they have exceptions to the bill of rights?

SEN. PAUL: One of the articles from “National Review” recently was by Kevin Williamson. We got into this a little bit earlier. And I thought it was an important article because it talked about, you know, what our concern is, is about what standard we will use, what will be the standard for how we kill Americans, in America. And he talks a little bit about how his belief is that Awlaki was targeted mainly as a propagandaists. And the interesting thing about Awlaki is before he was targeted, we actually invited him to the Pentagon. We considered him to be a moderate Islamist for a while. We invited him to the Pentagon. I think he actually gave and did prayers in the Capitol at one point. So the question is: If we made a mistake the first time about whether he was our friend and I think we did could you make a mistake on the other end? The question is, is if the government’s to decide who are sympathizers and people who are politicians with no checks and balances are to decide who is a sympathizer, is there a danger really that people who have political dissent could be included in this? 

The way Williamson describes Awlaki was “he was first and foremost an al Qaeda propagandist. He was a preach and a blogger who first began to provoke U.S. Authorities through the online bile that earned him the title the bin Laden of the internet. Was he an active participant in planning acts of terrorism against the U.S.? The F.B.I. Did not think so, at least in the wake of 9/11 attacks. The Bureau interviewed him four times and concluded that he was not involved. The Defense Department famously invited him to dine at the pentagon as part of the Islamicic outreach efforts, and in 2002, he was conducting prayers in the U.S. Capitol. Throughout the following years, Awlaki became a sort of al Qaeda gadfly, dangerous principally because he was fluent in English and therefore a more effective propagandist. It was not until the first Obamas that Awlaki was promoted by U.S. Authorities from propagandist to operations man. You may remember the context. The Obama administration had been planning to try 9/11 conspirators in New York City when the country was thrown into a panic by the machinations of the would-be under pants bomber.

‘The Obama administration in an interesting about-face, whereas it had been planning to try cha lead Khalid Sheikh Mohammed and his co-conspirators there, definitively turning our national back on Gitmo, turned around and made the decision that it couldn’t do it in New York. Awlaki was a part of this. He was a propagandist and part of this. They said that Abdullah Mutab actually sought out Awlaki in Yemen and Awlaki had blessed his bomb plot and had even introduced him to a bomb maker. This according to the Obama administration is what justified treating Awlaki as a man at arms, earning him a place on the secret national hit list.”

Williamson asked this question, though. He says “if sympathizing with our enemies and propagandizing on their behalf is equivalent to making war on the country, then the Johnson and Nixon administrations should have bombed every elite college in America in the early 1960’s. And as satisfied– these were his words, not mine– as satisfying as putting Jane Fonda on a kill list might have been, I don’t think our understanding of the law would have approved such a thing even though she did give communist aid to the aggressor in Vietnam. Students in Ann Arbor, Michigan, were actively and openly raising funds for the Vietcong throughout the war.” Would it have been proper to put them on kill lists? I don’t know.

Williams says “I don’t think so. There is a difference between sympathizing with our enemies and taking up arms against the country.” They aren’t the same thing. So we have to ask ourselves what is the standard? Could political dissent be part of the standard for drone strikes? And you say well, that’s ridiculous.

We have listed people already on web sites and said that they were a risk for terrorism for their political beliefs. The fusion center in Missouri listed people who were pro-life origin, listed people who believed in strong borders of immigration. They listed people who were supporters of third-party candidates, the Constitution party or the Libertarian party. These people were listed and a mailing sent out to all the police in the state to beware of these people, beware of people who have bumper stickers on their cars supporting these people. That to me sounds dangerously close to having a standard where the standard is sympathy, not for your enemies but sympathy for unpopular ideas or ideas that aren’t popular with the government. That concerns me, and it concerns me whether or not we could have in our country a standard that’s less than the Constitution. The Constitution is the standard I just can’t imagine that we would want to give up on this standard or that any president could assert that the standard would not be the Constitution.

There was an article in “Human Rights First.” This is an article that was published in December 2012. It begins with this this prefacing statement. “The United States is establishing precedence that other nations may follow, and not all of them will be nations that share our interests or the premiums we put on protecting human life. Including innocent citizens.” This was a statement by John Brennan. I think it’s a statement that actually carries some weight and should be thought through. The reason why I say that this filibuster is not so much about Brennan as it’s about a Constitutional principle. The Obama administration has dramatically escalated targeted killing by drones as a central feature of counterterrorism response. 

Mr. President, at this time I have a unanimous consent request, and I’d like to read it into the record. With this unanimous consent request, I would emphasize that this would be ending the debate and allowing a vote on Brennan, and so part of his unanimous consent request would be the establishment of a vote on this resolution as well as setting a vote up on the confirmation of John Brennan to be CIA Director. The resolution states “resolved that it is the sense of the Senate that the use of drones to execute or to target American citizens on American soil who pose no imminent threat clearly violates the Constitutional due process – Rights of citizens.”

That’s the most important clause of that, and I think it’s important for the American people to know that apparently the other side is going to object, so it’s important to know that the majority party here in the Senate, the party of the President, is going to object to this statement being voted on. They can still vote against it if they wish, but they are going to object, I understand, to having a vote on this statement. “The use of drones to execute a target, American citizens on American soil, who pose no imminent threat clearly violates the Constitutional due process rights of citizens.”

So what we’re talking about is a resolution that says, what we have been trying to get the President to say is you can’t kill noncombatants. You can’t kill people in a cafe in Seattle. That’s what were asking. It is blatantly unconstitutional to kill noncombatants. I can’t understand why we couldn’t get a resolution, particularly because I am willing to with this resolution move forward and let the vote occur on Brennan. The second part of the resolution is the American people deserve a clear, concise and unequivocal public statement from the President of the United States that contains detailed legal reasoning, including but not limited to the balance between national security and due process, limits of Executive power and distinction between treatments of citizens and noncitizens within and outside the borders of the United States, the use of lethal force against American citizens, and the use of drones in the application of lethal force within the United States territory. So basically, the second part of the resolution asks basically that we do our job. That we do our job and ask the President to let us know what is going on with the program. So if there is an objection to this, it would be an objection to, one, killing citizens who are noncombatants, and two, to giving us a report on what the program will actually entail.

So, Mr. President, I ask unanimous consent that at the time to be determined by the two leaders tomorrow, the Senate vote on this resolution as I just read it and with the addition to it that they then turn to the Brennan nomination or are allowed to proceed to a vote.

SEN. DURBIN: Mr. President?

The Presiding Officer: Is there objection?

SEN. DURBIN: Mr. President, reserving the right to object.

The Presiding Officer: The Senator from Illinois.

SEN. DURBIN: I would say to my friend from Kentucky, I am chair of the Constitution, Civil Rights and Human Rights Subcommittee of the Senate Judicial Committee. We are scheduling a hearing on the issue of drones because I believe the issue raises important questions, legal and Constitutional questions, and I invite my colleague to join us in that hearing if he would like to testify. I think this is something we should look at and look closely. That’s why this hearing is being scheduled. I believe at this moment it is premature to schedule a vote on this issue until we thoroughly look at the Constitutional aspects of all of the questions that you raise today which are important, and because of that, I have no alternative but to object.

The Presiding Officer: Objection is heard.

SEN. PAUL: Mr. President, I’m disappointed that the Democrats choose not to vote on this. You know, while the answer around here for a lot of things is we’ll have a hearing at some later date to be determined, the problem is that this is a nonbinding resolution. This is a resolution just stating we believe in the Constitution and hey, Mr. President, send us some information on, you know, what your plans are for how this is going to work. It doesn’t change the law. In fact, I wish we could do more than that. We have an actual law that will be introduced where we will actually try to change the law. This is a symbolic gesture. And a way to allow us to move forward, and I’m disappointed that we can’t. 

This was an article that was publish in “Human Rights First” back in December of 2012. Like I said, it has an opening statement by John Brennan that I think is actually well thought out and recognizes some of the advantages and disadvantages of drone strikes. He starts out by saying – this is from Brennan, “the United States is establishing precedents that other nations may follow and not all of them will be nations that share our interests.” Think about what he is saying there. Other people are going to get drones. We have already lost a drone in Iran. How long do you think it is before Iran has drones? How long do you think it is before Hezbollah has drones or Hamas has drones?

So I think there is a certain amount of thought that ought to go into a drone-killing program, particularly when the people that are being killed by the drones will have their own drones, I think within short order. The Obama administration has dramatically escalated targeted killing by drones as a central feature of its counterterrorism response. Over the past two years, the administration has begun to speak more openly about the targeted killing program, including in public remarks by several senior officials. While we welcome and appreciate these disclosures, they nevertheless provided only limited information. Experts in other governments have continued to raise serious concerns about this. The precedent that the U.S. targeted killing policy is setting for the rest of the world, including countries that have acquired or are in the process of acquiring drones. Yet have long failed to adhere to the rule of law and protect human rights.

So we like to believe that we actually have rules in place and we wouldn’t misuse drones. Imagine what it’s going to be like, though, when countries get drones who have none of the rules, none of the checks and balances. The impact of the drone program on other U.S. Counterterrorism efforts, including whether U.S. allies and other security partners have reduced intelligence sharing and other forms of counterterrorism cooperation because of the operational and legal concerns expressed by these countries. The impact of drone operations on other aspects of U.S. counterterrorism strategy, especially diplomatic and foreign assistance efforts designed to counter extremism promotes stability and provide economic aid. The number of civilian casualties, including a lack of clarity on who the United States considers a civilian in these situations.

Of note and of consideration also is whether the legal framework for the program that has been publicly asserted so far by the administration comports with international legal requirements. The totality of these concerns heightened by the lack of public information surrounding the program require the administration to better explain the program and its legal basis and to carefully review the policy in light of the global precedent it is setting and serious questions about the effectiveness of the program on the full range of U.S. Counterterrorism efforts. While it is expected that elements of the U.S. government’s strategy for targeted killing will be classified, it is in the national interest that the government be more transparent about policy considerations governing its use as well as its legal justification. And that the program be subject to regular oversight.

Furthermore, it is in the U.S. national security interest to ensure that the rules of engagement are clear and that the program minimizes any unintended negative consequences. How the U.S. operates and publicly explains its targeted killing programs will have a far-reaching will have far-reaching consequences. The manufacture and sale of unmanned aerial vehicles is an increasing global industry and drone technology is not prohibitively complicated. I’ll give you an idea that there’s a marketplace f drones. Last year I introduced a bill to require a warrant before you can use a domestic drone to spy on citizens. And before I introduced it or anybody knew outside my office, we already had calls and lobbying coming from drone manufacturers. So this is a big business. Some 70 countries already possess drones, including Russia, Syria, and Libya, and others are in the process of acquiring them.

As White House Counterterrorism Chief John Brennan stated, “the United States is establishing precedence that other nations may follow and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians.” By declaring that it is an armed conflict with al Qaeda’s associated forces, which is a term that has not been defined 
— and I think this is an important point, because everybody’s always talking about, don’t worry, you’re fine, you’re not a terrorist, we’re only going out after terrorists. The problem is, is that, like I said, the government has defined terrorism in this country to mean things that may not include terrorists. Paying cash, you know, having weatherized ammunition, you know, there’s a lot of different things that they’ve used as definition. But so we say that we’re going after al Qaeda, people who work with them or associated forces.

What exactly that means, I don’t know, particularly because even al Qaeda is a little bit hard to define because they don’t have membership cards, some of them probably don’t use the label at all. I doubt many of them have any communication with any kind of central headquarters or central group called al Qaeda. But by declaring that it is an armed conflict with al Qaeda’s associated forces without articulating limits to that armed conflict, the United States is inviting other countries to similarly declare armed conflicts against groups they consider to be security threats for purposes of assuming lethal targeting authority. Moreover, by announcing that all members of such groups are legally targetable, the United States is establishing exceedingly broad precedent for those who can be targeted. Even if it is not to utilize the full scope of this claimed authority, as an alternative to armed conflict based targeting, U.S. Officials have claimed that targeted killings are justified as self-defense.

Responding to an imminent threat. The problem is, is that; you know, we defined imminent to be not immediate, so having a murky definition of what imminent is allowed us to really run into problems. It’s also not clear that the current broad targeted killing policy serves U.S. Long-term strategic interests in combating international terrorism. Although it has been reported that some high-level operational leaders of al Qaeda have been killed in drone attacks, studies show that the vast majority are not high-level terrorist leaders. National security analyst and former U.S. Military officials increasingly argue that such tactical gains are outweighed by the substantial cost of the targeted killing program, including growing anti-American sentiment and recruiting support for al Qaeda. The broad targeted killing program has already strained U.S. Relations with allies and, therefore, has impeded the flow of critical intelligence about terrorist operations.

The problem is, when we talk about this, particularly, you know, one of the most important things to our intelligence is actually human intelligence. We get information from people who are our friends, who live in those countries, blend into the population, are part of their population. But, you know, we’ve gone on and some of this we have destroyed in the sense that one of the people who helped us to get bin Laden was a doctor in Pakistan by the name of Dr. Shakil Afridi. If you don’t stand by the people who give you intelligence and give you information, you won’t get more. But when he did help us, somehow his name was leaked. I don’t know where the leak came from but his name was leaked and then he was arrested by the Pakistanis and he’s now in prison for the rest of his life.

So I’ve asked several times, both to the previous secretary of state as well as to the current Secretary of State, and I asked the current Secretary of State point blank and directly, will you use the leverage of foreign aid to say we’re not going to give you foreign aid if you don’t release this doctor who gave us information? And it’s a little bit ironic that we won’t do it, particularly since at one point in time we actually had a $25 million reward I think for any information that led to help to getting bin Laden. So it’s kind of disappointing that we haven’t really held out and supported our human intelligence and people like Dr. Afridi, who helped us get probably the most notorious terrorist of the last century.

The U.S. Government doesn’t report the number of deaths from drone strikes. Independent groups have estimated, though, that they have claimed several thousand lives so far. Estimates and public comments by some Senators have said as much as 4,700. Now, what we don’t know about the 4,700 but what would be an important statistic, I think, or maybe a troubling statistic, would be how many of the 4,700 were killed in combat, actually holding weapons, fighting, going from a battle? And how many of the drone strikes were actually on people that weren’t involve in combat?

And I think if we were if that number were released, I think if that number were made public, it would concern you even more because you may well find out that a lot of the people and we’ve seen some of the strikes on television. People in their cars, people walking around without weapons, people eating dinner, people at home in their house. Now, I’m not saying these are good people necessarily. I’m just saying that the drone strike program that we have in place currently seems to have a fairly low threshold for who they kill.

And the question would be whether or not you’re going to use that standard if you have a domestic drone strike program in the United States. And so I think really we’re getting to the point and that is one of the most important questions as we look at the foreign drone program is understanding what are the parameters that allow us to kill people in foreign countries and are those parameters going to be used here? Well, for the most part, over the last decade, they haven’t admitted we have a drone strike program but now they admit it. The President doesn’t want to answer any questions about it, doesn’t say he won’t use it here, just that he’s not intending to use it here, and then says well, probably there would be different rules inside the U.S. Than outside the U.S.

The problem is, and this is where the Senate ought to get involved instead of punting this to another time, the Senate ought to get involved and what the Senate ought to do is say, we’re not going to wait for the President to send us a memo. We’re going to send him a memo. We’re going to tell him what the rules are drone strikes are. We’re going to tell him that the Constitution does apply to Americans, particularly Americans in the United States, and that there are no exceptions. You know, I find it inexcusable that the Attorney General says, well, the Fifth Amendment, we will, you know, use it as needed, basically. We’ll use it when we choose. And the problem with that is, is that I don’t think the executive branch should get to pick and choose. Mr. President, without yielding the floor, I’m going to allow a question from my colleague from Texas.

SEN. CRUZ: I thank the Senator from Kentucky and I want to ask the following question. If the Senator from Kentucky is aware of the reaction the American people have had to his extraordinary efforts today? And given that the Senate rules do not allow for the use of cellular phones on the floor of the Senate, I feel quite confident that the Senator from Kentucky is not aware of the Twitter verse that has been exploding.

So what I wanted to do for the Senator from Kentucky is give some small sampling of the reaction on Twitter so that he might understand how the American people are responding to his courageous leadership. To Senator Paul’ doing something that the last four years has happened far too little in this chamber, which is standing up and fighting for liberty.

So I will read a series of tweets.

“So proud of Rand Paul standing up for what’s right. Stand with Rand.” “Rand Paul, a reason to be proud of your elected representatives again. Keep going, Rand.”

“Proud of Senator Rand Paul and all who have joined him in this effort. Stand today with Senator Rand Paul.”

“So happy with Rand Paul right now. Someone finally using the system to aid, not usurp our rights.”

“Rand Paul filibusters Brennan nomination. Over four hours now. Glad someone in the Senate has some spine.” That was tweeted awhile ago.

“Rand Paul is my hero today, a man with backbone.”

“Today Rand Paul is my hero.”

“Kentucky Senator Rand Paul is a true Constitutional hero in his filibuster against CIA No, nominee.”

“I can honestly say I am proud to currently live in Rand Paul’s state of Kentucky.”

“So proud of Rand Paul, he’s bringing it. He’s not going to let our Constitution get trashed. A breath of fresh air.”

“Pray for this fight for Rand.”

“I’m so beyond proud of Rand Paul and the way he is standing up for each and every American citizen right now by filibustering the Senate.”

“I am very proud of Senator Rand Paul. This is an important moment when one person had the courage to yell ‘stop.’ stand with Rand.”

“So proud of Rand Paul. We need more like him. Stand with Rand.”

“Rand Paul is now in hour seven of his filibuster. He is standing up for our rights thank you. Stand with Rand.”

“It’s frightening that Obama seeks to have an ever-growing amount of power. Drone strikes are frightening. Stand with Rand.”

“Dear GOP: The base is crying out for more of you to stand with Rand. If you want the base, get it together.”

“Stand with Rand. We need you now more than ever. This president has usurped power. We can’t say anything bad against him.”

“Stand with Rand. So long as Rand speaks, we’ll be tuned in.”

“It is unconstitutional to target and kill Americans on American soil with a drone. Stand with Rand.”

A retweet from Senator Rand Paul “I will commend the Senator from Kentucky for being so flexible that he was able to tweet while standing on the floor of the Senate” and a retweet from Senator Rand Paul’s tweet, “I will not sit quietly and let president Obama shred the Constitution, with the hashtags, “filiblizzard” and “stand with Rand.”

Here is a more mixed one but nonetheless demonstrating the respect the Senator from Kentucky is earning across the aisle. “I may not always agree with Rand Paul, but he has my respect. He’s very willing to do what he feels is right.”

“Stand with Rand because we deserve to know if American citizens should fear murder from our government. Everyone should be aware of this important moment in American history. Stand with Rand.”

“Proud to call Rand Paul my Senator. Stand with Rand.” 

“It is unconstitutional to target and kill Americans on American soil with a drone. Stand with Rand.”

“The federal government does not have the power to kill its citizens whenever it wants. There is something called due process. Stand with Rand.”

“Fight for our Constitutional rights and liberties. Stand with Rand.”

“Stand with Rand. I have gained a lot of respect for Senator Paul today. This is not a right or left issue. It is a civil liberties issue.”

“Thank you, Rand Paul, and others who are taking a stand for patriotic Americans. A great day for liberty when Senator Rand Paul and a handful of others stood up for liberty. Stand with Rand.”

“And it is ironic that a Nobel peace prize winner won’t guarantee that he won’t use drones against Americans. Stand with Rand.”

Now, I will note to the Senator from Kentucky and ask his reaction to these. This is but a small sampling of the reaction in Twitter, indeed in my office. I think the technical term for what the Twitter verse is doing right now is called blowing up.

And I would suggest to the Senator from Kentucky and then ask his reaction, I would suggest that this is a reflection of the fact that the American people are frustrated. They are frustrated that they feel too few elected officials in Washington stand for our rights, are willing to rock the boat, are willing to stand up and say the Constitution matters and it matters whether it’s popular or not. It matters whether my party’s in power or another party is in power.

The Constitution matters, our rights matter, and so many Americans I think are frustrated that they view elected officials as looking desperate to stay in power, desperate to be re-elected, desperate to do everything except fight for the Constitution and fight for our liberties, and I think this outpouring that the Senator from Kentucky is seeing is a reflection of that great frustration, and I join with the sentiments of these and many others on Twitter. And so I ask the Senator from Kentucky if he was aware of this reaction and what his thoughts are to the many thousands more who I haven’t been able to read their tweets and their words of encouragement as the Senator from Kentucky, more than anyone is standing with Rand.

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