A bipartisan filibuster of John Brennan's nomination to lead the CIA riveted Washington on Wednesday. Senators from both sides of the partisan aisle, led by Sen. Rand Paul (R-KY), took to the Senate floor to force further debate on a nomination that should not proceed.
Sen. Paul’s 12 hours of comments included a succinct and clear expression of his concerns:
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.
Brennan's nomination presents a rare window of accountability, and Senators are right to use it as an occasion to challenge an administration prone to self-congratulation about transparency, even while extending government secrecy and executive fiat to unprecedented levels.
How we got here
Brennan was deemed unfit to lead the CIA four years ago, because of his record at an agency whose institutional hands remain stained by human rights abuses for which it has never faced (and indeed actively obstructed) justice.
Even worse than the CIA's human rights abuses, or its self-serving destruction of evidence of international crimes, is an expanding set of disturbing claims by executive branch officials that must be rejected for our Constitution to survive.
Attorney General Eric Holder testified about the power to kill Americans without trial before the Senate Judiciary Committee on Wednesday, after sending a related letter to Sen. Paul the day before. His letter asserted the authoritarian power to kill Americans without trial, even within the United States, followed by congressional testimony arguing that Congress' Authorization to Use Military Force (AUMF) in Afghanistan could also justify military action within the US.
Those conclusions, put simply, render our country unfit to be considered part of the free world, let alone its leader.
In 2001, Congress enacted the AUMF to enable the invasion of Afghanistan, not authorize domestic warfare. Moreover, it has already been stretched well beyond the limits of plausible interpretation: even before President Obama came to the White House, the AUMF was cited to justify the detention of US citizens in military custody without proof of crime.
Senators from both parties had previously raised concerns about assassination without trial, which is absolutely illegal under not only the US Constitution, but even the Magna Carta. The administration's responses to their inquiries unfortunately make matters only worse.
This week’s developments
On the one hand, Holder claims that the authority to arbitrarily kill Americans within the US could be triggered only by an extraordinary event on par with Pearl Harbor or the 9/11 attacks. On the other hand, the few legal limits that executive officials have previously acknowledged are themselves routinely violated in practice. In other words, nothing would prevent this extreme power from being used abusively.
Until this week, the battle over Brennan's nomination had focused on disclosure: whether the Holder Justice Department (and, in particular, its Office of Legal Counsel infamous for authorizing torture under the Bush demonstration) would give Congress key documents that members have long sought to identify the legal standards under which the administration conducts drone strikes targeting American citizens.
After members of the intelligence committee (but not other senators) were allowed access to the documents, the committee approved Brennan's nomination, sending it to the Senate floor where a bipartisan band of Senators managed yesterday to stall it, at least for the moment.
They are right to raise resistance. As Sen. Ron Wyden (D-OR) said:
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 counterterror strategy.
Especially encouraging was the reaction of other Senators to Sen. Paul’s filibuster. While he began alone, Wyden’s support rendered it a bipartisan effort, despite Wyden’s vote in committee to approve Brennan’s nomination to send it to the Senate floor. In addition, several GOP senators eventually joined him, including Minority Leader Mitch McConnell (R-KY), Mike Lee (R-UT), Ted Cruz (R-TX), John Thune (R-SD), Ron Johnson (R-WI), Tim Scott (R-SC), and Dean Heller (R-NV).
The battle continues, with Senate Democrats continuing to seek confirmation as early as this weekend. But as the Washington Post’s Jennifer Rubin asks:
Where, for goodness’ sake, are the liberal civil libertarians? Where are the Republicans (who would filibuster Chuck Hagel, but only for show, and only briefly)? Where, for that matter, are the mainstream media and the liberal punditocracy that would be calling for impeachment about now if a Republican president had done all this?….
And so it’s come to this: Rand Paul talking all by himself on the Senate floor. On one level, it shows the power of a single senator to make a difference. On the other hand, it is a very sad statement on the intellectual collapse of both the right and the left — and most especially of the media, whose first impulse in this administration is to circle the wagons around the White House.
[Update: Brennan's nomination was confirmed by the Senate on March 7 by a vote of 63-34, after Attorney General Holder sent Sen. Paul a letter conceding that the President does not "have the authority to use a weaponized drone to kill an American not engaged in combat on American soil."
That answer does address the alarming scenarios that Sen. Paul appropriately raised earlier this week. It does not, however, address a deeper, underlying problem: the prior uses of drones to kill Americans abroad have not complied with legal requirements set forth in the OLC memos, suggesting that the limiting principles -- including the welcome one articulated today by the Attorney General -- are not as credible as one might hope. We'll write more about this in the coming days.]