Drones: Domestic Use

On Senator Paul’s Filibuster

By Jack Goldsmith
Wednesday, March 6, 2013, 6:36 PM

Recall that Senator Paul asked John Brennan whether he believed the President “has the authority to order lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without a trial?,” and that John Brennan and the Attorney General responded.  Brennan rightly said that CIA has no authorities in this context.  The Attorney General gave a typically imprecise and self-defeating answer.  But it was basically in line with the position of past presidents in saying that the President rejects military force when law enforcement means are available, but that the President can use military force in response to an attack like Pearl Harbor and 9/11.

As Alan notes, at about noon today Senator Paul initiated a filibuster of the Brennan nomination.  I watched it on CSPAN from about 3-5 p.m. (and it is still going on as I write this post).  The “debate” was transfixing and is hard to summarize.  In general Senator Paul and others falsely maintained that the Obama administration has implied that it has authority to use a drone to kill a U.S. citizen inside the United States who is not engaged in combat and does not present an imminent threat and who is simply (a hypo they keep using) “sitting quietly in a café peaceably enjoying breakfast.”  Senator Paul also claims that the administration’s position on homeland use of force has no legal limits and amounts to martial law.  Along the way, Senator Paul is painting a misleadingly very unattractive picture of the circumstances in which the United States uses drones abroad in words that will now be played around the world as credible statements of U.S. policy.

Senator Paul has principled concerns about the implications of the endless “war on terrorism,” not just at home, but also (as his filibuster remarks makes clear) abroad.  There are many hard legal and policy issues here that are worthy of serious debate.  I believe Congress should engage these issues and play a greater role in their resolution.  I also think the Obama administration has harmed its cause with its excessive secrecy on some these issues, with its poor answers to congressional questions, and with its broader failure to engage Congress and nail down its renewed support for contemporary U.S. counterterrorism policy.  But we are still at war with dangerous enemies, and Congress should debate these issues responsibly, at least roughly consistent with the truth, and without recourse to outlandish hypotheticals portrayed as administration positions.