Filibustering the imperial presidency

On March 6, Senator Rand Paul of Kentucky took to the Senate floor to begin a filibuster of John Brennan’s nomination as Director of the Central Intelligence Agency. He ended his filibuster 13 hours later on March 7. Following the filibuster, Mr. Brennan was easily nominated.

But the point of this filibuster was not to stop Mr. Brennan’s nomination — he was considered a shoo-in. Instead, it was to draw attention to a rarely discussed but crucial issue facing the American people: what are the limits of the president’s power?

Paul decided to undertake his filibuster after receiving a letter from Attorney General Eric Holder on March 4, which answered a question Paul had brought up in Mr. Brennan’s nomination hearings: whether the Obama administration believes that, “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.” Mr. Holder responded by writing:

“As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. . .The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront. 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.”

To summarize Mr. Holder’s answer: Yes, he can. He hasn’t done it yet though, so relax.

In response, Paul began his filibuster, rising in opposition to the government’s flagrant disregard for the constitutional right of due process. It may surprise some, but our government does have a precedent of killing American citizens without any kind of legal oversight. On September 30, 2011, American citizen Anwar al-Awlaki was killed in a drone strike in Yemen. Al-Awlaki had joined al-Qaeda and was a major public relations figure for the group, responsible for recruiting and motivation. However, al-Awlaki was still an American citizen, and as such was entitled to a trial under the due process clause of the Constitution. The government claimed that because al-Awlaki posed a wartime threat, no prior permission from a judge was necessary for his killing.

A more disturbing case took place two weeks later on October 14, 2011, when al-Awlaki’s son, Abdulrahman al-Awlaki, a sixteen year old, who had no connections to terrorism, was also killed in a drone strike in Yemen. The younger al-Awlaki was also an American citizen, and my research has not found any official government statement on the matter.

Paul asked during his filibuster whether Jane Fonda could have been killed during the Vietnam War: “Some [protestors] openly were sympathetic. No one will ever forget Jane Fonda swiveling around in North Vietnamese armored guns, and it was despicable. And it’s one thing if you’re going to try her for treason, but are you just going to drop a drone hellfire missile on Jane Fonda?” He also questioned whether student protestors, some who openly sympathized with the Viet Cong, could have been killed.

These are fair questions. And on the morning of March 7, Mr. Holder responded with another letter addressing the question of whether the president can kill American non-combatants on American soil. He responded, “The answer to that question is no.” Paul forced our government to acknowledge that there are indeed some limits on its war-making powers, and it was a victory for every American concerned with our civil liberties and powerful government.

Since the mid-twentieth century, the president’s powers in the area of war have increased dramatically and unconstitutionally. America’s entry in the Second World War also signaled the end of Congress’ authority in war-making, as all subsequent wars have been undeclared and have gone without a congressional declaration of war, as mandated by the Constitution.

When President Obama began military assaults on Libya in 2011, which is by any definition a war, he sought permission from the European Union, the Arab League and the United Nations, but not the United States Congress. Even a minor restraint, the War Powers Resolution of 1973, which asks that the president seek congressional approval for military action within 60 days of the start of hostilities (which is a huge time window), has been consistently attacked by presidents for limiting their ability to wage war.

Paul brought the legal questions of drone warfare to the limelight. But he also put forward the question of the president’s greatly expanded powers and the limits upon them. Our republican framework is one that puts checks and balances on all branches of government. As of now, the executive is largely unchecked in his ability to bring us to war. The American people, acting through their elected representatives, deserve a voice in whether to send our young men and women overseas.

Alex Dragone is a freshman History major from Woodcliff Lake, N.J. He is a columnist for The News-Letter.