The Following post first appeared on FactCheck.org.
Sen. Rand Paul says it “took 13 hours of filibuster” to finally force the Obama administration “to say, no, we won’t kill noncombatants in America.” In fact, Attorney General Eric Holder said “no” at a Senate hearing shortly before Paul began his filibuster.
“After much gymnastics I am very glad to hear that it is the opinion of the Department of Justice that it would be unconstitutional to kill a U.S. citizen on U.S. soil if that individual did not pose an imminent threat,” Sen. Ted Cruz told Holder at a morning hearing before the filibuster began.
Paul gets credit for forcing the issue and attracting national attention with an old-fashioned “Mr. Smith Goes to Washington” sort of filibuster. But the fact is that another senator had forced Holder, clearly and unequivocally, to give a “no” answer before Paul took the Senate floor. The filibuster was only successful in getting into writing what Cruz had gotten from Holder directly hours before.
The Kentucky Republican senator made his latest remarks about the success of his filibuster during a recent appearance on “Fox News Sunday.”
Paul, March 24: [I]t was disappointing to many that he would not answer the question and it was like pulling teeth and took 13 hours of filibuster for him [President Obama] to finally to say, no, we won’t kill noncombatants in America.
It was like pulling teeth, but Paul had some help and the filibuster played no role in it. Below is a ticktock of how events unfolded.
Paul’s filibuster was rooted in a March 4 letter he received from Holder. Paul placed a hold on John Brennan’s nomination as CIA director and repeatedly asked Brennan to explain the administration’s policy on the use of drones, particularly on U.S. soil. Holder responded on behalf of Brennan, saying it is “possible” for the president to authorize the use of “lethal force” on U.S. soil against an American citizen — but only under “extraordinary circumstances,” specifically mentioning the 9/11 and Pearl Harbor attacks.
Paul issued a press release on March 5 that carried the headline “AG Holder Asserts Authority to Conduct Drone Strikes on U.S. Citizens.”
“The U.S. Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening — it is an affront the Constitutional due process rights of all Americans,” Paul said in his release.
March 6, 9:30 a.m.
The Senate Judiciary Committee met for a hearing on oversight of the Department of Justice at 9:30 a.m. on March 6. Holder was the only witness.
About one hour into the hearing, Cruz asked Holder for his legal opinion on the president’s authority to use drones to kill Americans on U.S. soil. Cruz, a freshman senator from Texas, asked Holder the question four times before he finally got a direct answer. It came only after Cruz refined his line of questioning — ultimately asking virtually the same question that Paul would repeatedly ask hours later on the Senate floor: Does the Constitution allow the U.S. to use a drone to kill a U.S. citizen — even one who is a suspected terrorist — while he is sitting at a cafe and not an imminent threat to the United States? Holder finally told Cruz, “No.”
The full exchange between Cruz and Holder can be seen at about the 58-minute mark of the C-Span videotape of the hearing. Here’s the end of that exchange:
Cruz: The person is suspected to be a terrorist. You have abundant evidence he’s a terrorist. He’s involved in terrorist plots, but at the moment –
Holder: OK, I see.
Cruz: — he’s not pointing a bazooka at the Pentagon. He is sitting in a cafe. Overseas the United States government uses drones to take out individuals when they are walking down a pathway, when they’re sitting at a cafe. If a U.S. citizen on U.S. soil is not posing an immediate threat to life or bodily harm, does the Constitution allow a drone to kill that citizen?
Holder: I would not think that that would be an appropriate use of any kind of lethal force. We would deal with that in the way that we typically deal with a situation like that.
Cruz: With all respect, General Holder, my question wasn’t about appropriateness or prosecutorial discretion. It was a simple legal question. Does the Constitution allow a U.S. citizen on U.S. soil who doesn’t pose an imminent threat to be killed by the U.S. government?
Holder: I do not believe that — again, you have to look at all of the facts. On the facts that you’ve given me, and this is a hypothetical, I would not think that in that situation the use of a drone or lethal force would be appropriate because –
Cruz: General Holder, I have to tell you I find it remarkable that in that hypothetical, which is deliberately very simple, you were unable to give a simple one-word, one-syllable answer: No. I think it is unequivocal that if the U.S. government were to use a drone to take the life of a U.S. citizen on U.S. soil and that individual did not pose an imminent threat –
Feinstein: I agree.
Cruz: — that that would be a deprivation of life without due process.
Holder: Well, I have not been clear. I said that the use of lethal force — and I’m saying drones, be it guns or whatever else, would not be appropriate in that circumstance.
Cruz: You keep saying “appropriate.” My question isn’t about propriety. My question is about whether something is constitutional or not. As attorney general you are the chief legal officer of the United States. Do you have a legal judgment on whether it would be constitutional to kill a U.S. citizen on U.S. soil in those circumstances?
Holder: A person who is not engaged, as you describe — and this is the problem with hypotheticals. The way in which you have described this person sitting at the cafe not doing anything imminently, the use of lethal force would not be appropriate, would not be something –
Cruz: I find it remarkable that you still will not give an opinion on the constitutionality. Let me move on to the next topic because we’ve gone round and round.
Holder: Let me be clear: Translate my “appropriate” to “no.” I thought I was saying no, all right? No.
Feinstein: You have “no.”
Cruz: Well, then I am glad. After much gymnastics I am very glad to hear that it is the opinion of the Department of Justice that it would be unconstitutional to kill a U.S. citizen on U.S. soil if that individual did not pose an imminent threat. That statement has not been easily forthcoming. I wish you had given that statement in response to Senator Paul’s letter asking you it.
Cruz was referring to the March 4 letter when he told Holder, “I wish you had given that statement in response to Senator Paul’s letter asking you it.”
March 6, 11:47 a.m.
Paul began his filibuster at 11:47 a.m. At the start, Paul made reference to Holder’s March 4 letter and asked the question that Cruz had posed to Holder earlier that day.
Paul, March 6: Eric Holder sent a response, the attorney general, and his response says “haven’t killed anyone yet. I don’t intend to kill anyone but I might.” And he pulls out examples that really aren’t under consideration. There is the use of lethal force that can always be repelled. If our country is attacked, the President has the right to defend and protect the country. Nobody questions that. Nobody questions if planes are flying towards the twin towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled. They don’t get their day in court. But if you are sitting in a cafeteria in Dearborn, Mich., if you happen to be an Arab-American who has a relative in the Middle East and you communicate with them by e-mail and somebody says, oh, your relative is someone we suspect of being associated with terrorism, is that enough to kill you?
In the fourth hour of the filibuster, Cruz went to the Senate floor to ask Paul some questions — which gave Paul a break from speaking without having to yield the floor. Cruz relayed his earlier exchange with Holder and how difficult it was to get an answer. But, Cruz told Paul, he finally got the answer that both had been seeking.
Cruz, March 6: So the question that I want to ask is your reaction to this exchange and in particular when Attorney General Holder on the fourth time finally stated his opinion and I assume the opinion of the Department of Justice that it is unconstitutional for the federal government to kill a U.S. citizen on U.S. soil that does not pose imminent threat, when he stated that, my response was that I wish he had simply said so in his letter to you to begin with….
Paul, March 6: Well, Mr. President, the – the response is a little bit troubling that it took so much work and so much effort of cross-examination to finally get an answer. I will note that in his final answer, I don’t ever see the words constitutional or unconstitutional. He is responding to Senator Cruz’s words of constitutional. He says, ‘Let me be clear, translate my appropriate to no. I thought I was saying no. All right? No.’ Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he doesn’t believe killing people, not actively engaged in combat with drones in America on American soil is constitutional. It sure would have short-circuited and saved quite a bit of time. I will say, though, that I will believe a little more of the sincerity of the President and of the attorney general if we were to get a public endorsement of the bill that says drones can’t be used except for under imminent threat, and define that as a – an imminent threat where you actually have a lethal attack under way.
Even after that exchange, Paul repeatedly raised the hypothetical example of the man at the cafe. In hour 7 of his filibuster — three hours after Cruz and Paul had their exchange — Paul said, “What we have been trying to get the President to say is you can’t kill noncombatants. You can’t kill people in a cafe in Seattle. That’s what we’re asking. It is blatantly unconstitutional to kill noncombatants.”
Paul ended his filibuster about 12:40 a.m. on March 7.
Later that day, Paul issued a press release with the headline “Sen. Paul Reaches Victory Through Filibuster.” As evidence of his filibuster “victory,” Paul cited the letter Holder sent him on March 7 that said, “It has come to my attention that you have now asked an additional question, ‘Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that, is no.”
White House press secretary Jay Carney read Holder’s letter at a press briefing shortly after it was issued, clearly indicating the president’s support for it. “The president has not and would not use drone strikes against American citizens on American soil,” Carney said.
On Fox News later that day, Paul was asked how he decided to end the filibuster. He said, “You know, it was hard to pick an ending time because you want to have a victory. And ultimately, today, we had a victory because the White House finally conceded that we had a point and they answered our question. So that to me was a huge victory, but last night at midnight, I didn’t know it.”
But the White House did answer the question and Paul did know it long before midnight. He did, however, now have it in writing.
– Eugene Kiely