Rand Paul's Filibuster, the Constitution, and National Security

Congrats to Sen. Rand Paul for highlighting an important issue by using his prerogative as a U.S. senator to launch a good, old-fashioned filibuster on John Brennan’s nomination for CIA director.

As I’ve written previously, it seemed earlier that he might be off on a couple of points of constitutional law. In the rarest of circumstances, a President has power, under Article II of the Constitution, to launch a military strike on American soil—but only if that American citizen has taken up arms against his country and poses an imminent threat to American lives. He must be, legally, a military target. And it must be a situation so urgent—a Jack Bauer-type scene from 24—that there isn’t even time for federal agents to get into place to capture the terrorist.

But his overall point is correct: We are witnessing repeated power grabs by an Imperial President. And he is correct that, when non-combatants are involved (American citizens who may sympathize with terrorists but are not involved in actual or imminent attacks on our fellow citizens or homeland) the Bill of Rights applies with full force, and no President can step outside the court system under those circumstances.

But it’s different where combatants are concerned. A man who takes up arms against this country—not as a criminal but as a warrior—becomes a military target if, and only if, he is actually engaged in operations against America.

Last night, Paul made follow-up comments suggesting that, if the U.S. citizen in question actually posed an imminent threat to American lives, a President could take whatever actions were necessary to stop him. If so, we’re all on the same side of this debate.

It also must be noted that it’s hard to conceive of how such an imminent threat could happen on American soil. It happens in James Bond movies, but unless the traitor has a remote-controlled guided missile, he must approach some populated area before he can cause harm. If he’s close enough to set off a bomb, he’s probably close enough for police and federal agents to intercept him.

But enough people are supporting Rand Paul that it’s important to pick out a couple points on the margins. Most of what Paul is saying is right, but it’s worth noting where he’s saying something that many of his supporters are not, or saying something that’s wrong.

First, Paul acknowledged that the military can act in a war zone, and that we’re in war zones overseas. Some of Paul’s supporters are holding onto the idea that there has not been a legal war since World War II, and that both wars in the past quarter-century (in Iraq and Afghanistan) are unconstitutional.

Evidently, Paul disagrees (and rightly so), since a war zone only exists in a war. Not only that, but Paul sponsored legislation to de-authorize the war overseas. To end a war means that there is one currently underway, and to attempt to rescind Congress’ authorization for war means that Congress had previously authorized war, pursuant to the Declare War Clause of the Constitution.

Second, Paul said today, “I personally don’t think it would be very hard to try someone for treason.” Actually, it is extremely hard to convict someone of treason. The Constitution requires two eyewitness to the treasonous act. If you have an American-born terrorist in a foreign land, like Anwar Al-Awlaki who was hiding in Yemen and launching terrorist attacks, we could go for many years and never have eyewitnesses.

Sometimes traitors cannot be successfully convicted of treason and, ironically, it’s for a reason Rand Paul supports. It’s so no President could even try to get his political opponents convicted of treason as a trumped up charge. You must have people who actually saw the traitor take up arms against this country or directly aid those who did.

Third, Paul also referenced people who “denounced their citizenship” still deserving all the constitutional protections. Although many rights extend to all persons, whether citizens or foreigners, the United States can deal with enemies who are not citizens in a much deadlier fashion than citizens.

If someone has denounced their citizenship, then they are no longer American. It’s unclear from his comments whether Paul realizes that, or perhaps merely mispoke. It’s likewise unclear whether he recognizes the distinction between military operations and law enforcement, and between domestic and foreign operations. We’ll probably learn those things in the coming days.

But one of his points is so true it bears repeating: How do we end this war? Is this perpetual war, covering the entire globe? The Constitution gives Presidents broad powers to win a war. The idea of Presidents permanently claiming this power against an undefined enemy and then exerting those powers on our home soil is a profoundly disturbing thought -- one that can endanger liberty itself for all Americans.

I’m not sure any of us know the perfect way out of that situation, though I’m sure we’re going to debate our options.

And that’s because Rand Paul was willing to actually follow through with a filibuster, and because many other senators committed to the Constitution—including other young and recent additions to the Senate, like Mike Lee and Ted Cruz—are backing that play as well.

So the Senate might have moved a step back in the direction of deserving the title of the world’s greatest deliberative body.

Ken Klukowski is legal columnist for Breitbart News.


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