Senators, and the politics-watching public, got a brief respite from fiscal crises Wednesday, when Sen. Rand Paul, R-Ky., mounted an old-school filibuster that lasted almost 13 hours, delaying the confirmation of CIA veteran John Brennan to lead the spy agency.
The point of Paul’s political theater wasn’t Brennan himself, but the secrecy surrounding America’s drone warfare and the presumed authority the nation’s chief executive has to order the killing without due process on U.S. soil of Americans who pose an “imminent threat.”
But as a right-wing, libertarian Republican took the mantle of defender of civil liberties, the Democrats, traditionally at the forefront when such issues are involved, were nowhere to be seen.
Only one, Sen. Ron Wyden of Oregon, an open critic of the Obama administration’s drone policy, stood with Paul.
“I want it understood that I have great respect for this effort to really ask these kinds of questions,” Wyden said. “And Sen. Paul has certainly been digging into these issues in great detail.”
Paul recently wrote asking for clarification on the extent of such executive power to kill Americans. U.S. Attorney General Eric Holder responded in a March 4 letter, stating, “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.”
Holder further explained that the president can use such power in the event of incidents like Pearl Harbor or the terrorist attack on Sept. 11, 2001. “Were such an emergency to arise, I would examine the particular facts and circumstances before advising the president on the scope of his authority.”
In fighting back at Holder’s response, Paul stood shortly before noon Wednesday, to speak up about the civil liberties he believes should be afforded to every American.
“I rise today for the principle,” Paul said shortly before noon Wednesday. He ran out of words around 12:39 a.m. the following day. “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 … this is a precious American tradition and something we should not give up on easily.”
The efficacy of Paul’s strategy is debatable.
If the Kentucky senator accomplished anything, said Stephen Vladeck, professor of law at American University's Washington College of Law, it was showing how little is known about the extent of the reach of executive power.
“It is hard to know when the government can use force and when it may not,” Vladeck said. “Whether the public should know more is hard to disagree with. When the government claims authority to use military force against its own citizens we shouldn’t take its word for it. I think there needs to be some transparency. Congress should assert itself more, and the administration should open up to oversight.”
Others like Chris Hellman, a senior research analyst at National Priorities Project, said Paul’s filibuster was effective in accomplishing what he set out to do – shine the spotlight on the possibility of drone strikes against U.S. citizens on domestic soil.
“Sen. Paul’s choice to utilize the now rarely used true filibuster drew attention to the issue that a floor statement or press briefing simply would not generate,” Hellman said. “The fact that his filibuster held up the confirmation vote on the president’s nominee to head the CIA – the agency most closely associated with drone strikes – made the senator’s point even more forcefully.”
When Brennan went before the Senate Intelligence Committee for a confirmation hearing last month, there was bipartisan support for garnering more knowledge about the use of such unmanned aerial systems.
Sen. Barbara Mikulski, D-Md., voiced concerns about being “jerked around” by the CIA and about the lack of trust between the agency and Congress – something Brennan vowed to repair.
But while progressive Democrats were noticeably not a part of Wednesday’s political theater, some say it is not a sign that they aren’t working on the drone issue.
“Generally speaking, the left is against the use of drones as a weapon of war, including in Afghanistan,” Hellman said. But he doesn’t know why more liberals didn’t speak out. “Drones are considered faceless, soulless killing machines. But this is a different issue … and one where it’s Congress versus the executive branch, not Democrats vs. Republicans.”
Others like Boston University political historian Thomas Whalen believe that in time Democrats will begin voicing those concerns. According to him, Democrats are just more focused on the sequester and other budget issues at the moment.
“The budget is taking up time and I don’t think a lot of liberals are focusing on foreign policy now,” Whalen said. “Given enough time, this could cause a cleavage in the party.”
Or perhaps the work is going on behind the scenes.
Sen. Dianne Feinstein, D-Calif., who chairs the Senate Intelligence Committee, has been working on making sure her colleagues have access to all the legal opinions justifying the use of drone strikes. The White House agreed this week to have that access granted on the heels of Brennan’s confirmation.
“I am pleased the administration has made this information available,” she said in a statement on Tuesday. “It is important for the committee to do its work and will pave the way for the confirmation of John Brennan to be CIA director.”
Vladeck said this shows “Democrats are more concerned about action rather than words.”
While Paul remains worried about whether the administration would, say drop a “Hellfire missile on Jane Fonda,” National Priorities Project's Hellman said this is unrealistic and adds that, "Terrorists in the United States differ from terrorists in Pakistan in one critical way – it's a much simpler matter to apprehend them in this country, which ultimately is the best outcome. It may not be practical to apprehend them in a foreign country. But for example, the U.S. was willing to risk American lives trying to capture Osama bin Laden alive, when they could certainly have killed him with an air strike.”