Sen. Rand Paul's ongoing filibuster (as of this writing) of John Brennan's nomination as CIA Director is exciting, if only because it is a rare example of leadership and principle on Capitol Hill. It's quite gratifying to see so much attention (finally!) being paid to the Constitution. Paul, who was joined earlier by Sen. Ron Wyden (D-OR), has also demonstrated that true bipartisanship is based on shared principle, not politics. But while Paul's stance on individual liberty is correct, he is wrong on the thorny issue of distinguishing combatants and non-combatants.
Put simply, Paul is opposing the government's policy on the use of unmanned drones to kill citizens who have joined the enemies of the United States, even when those citizens are on U.S. soil.
Both the Bush and Obama administrations have used drones to kill foreign enemies; the Obama administration has used drones to target U.S. citizens who joined terrorist organizations overseas; but that weapon has yet to be deployed against a U.S. citizen who is still within the country. The Obama administration has indicated that it claims the power to do so.
(Yes, it is ironic that an administration that opposes enhanced interrogation as "torture," and which even has opposed the practice of detaining terrorists at Guantánamo Bay and trying them in special military courts, now claims the power to kill those terrorists--arguably a worse and more irreversible fate than arrest or torture.)
Earlier Wednesday, Sen. Ted Cruz (R-TX), who supports Paul's filibuster, was able to pressure Attorney General Eric Holder into saying that targeting a U.S. citizen not engaged in active combat would not be constitutional.
Paul has reiterated that point. Yet it is not quite so clear-cut--especially for terrorists, who try to blend into the rest of the population.
Israel's highest court wrestled with the same issue in 2006, ruling that it was legal for the military to kill a terrorist even if that terrorist was engaged in ordinary, everyday activity, though that power was carefully circumscribed and not to be used if other means are available.
It is the function being performed by a person, not their physical distance from the battlefield (e.g. in a café), that defines that person as a combatant.
The U.S. government wants the power to target people, including U.S. citizens, who are unlawful combatants disguised as civilians. It likely has that power under the Constitution.
Sen. Paul is confusing the issue somewhat by suggesting that the government wants the power to target people who are definite non-combatants. He is right that the Constitution does not grant that power, and that individual liberties come first regardless. But he is wrong about the distinction between combatants and non-combatants, which is really the core of the problem.