Targeted Killing: Drones

Why I Don't Mind the Rand Paul Filibuster

By Steve Vladeck
Wednesday, March 6, 2013, 9:10 PM

Jack is certainly right that 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." He's also right that "Congress should debate these issues responsibly, at least roughly consistent with the truth, and without recourse to outlandish hypotheticals portrayed as administration positions." My quibble with Jack's reaction--and the central reason why, misstatements and other serious disagreements with him notwithstanding, I actually think there's something admirable about the ongoing actions of the junior Senator from Kentucky--is the pervasive secrecy surrounding our drone program.

Yes, I am as sure as Jack as that Senator Paul's hypotheticals are "outlandish," and yes, I'm as sure as Jack is that some of what Senator Paul is saying is "painting a misleadingly very unattractive picture" of the U.S. government's actual policy with regard to drone strikes. But that's solely because I (and, I suspect, Jack) trust the current Administration--and those working on its behalf--and can't imagine a scenario in which it would resort to the use of force (or believe that it would be lawful for it to do so) in circumstances remotely resembling those described by Senator Paul this afternoon and evening, or by Senator Cruz during this morning's Senate Judiciary Committee hearing. But that's just what we think. Critically, it's not because we actually know how the government conceives of its authority, or the limits thereof, in spite (if not because) of the "white paper."

And that's the real problem here: However responsibly the Obama Administration has actually acted when it comes to targeted killings, however careful it has actually been in selecting targets and trying to minimize both false positives and collateral damage, there comes a point where the public has a right to not just take its word for it. After all, as Justice Jackson put it 60 years ago, "due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration."

If a Mr. Smith Goes to Washington-style filibuster is the only leverage that a junior Senator has to make that point, and to actually try to force the Executive Branch to provide more details to the public about just what authority it believes it possesses, then I'm hard-pressed to begrudge him the right to try... Senator Paul may be deeply misguided in thinking that the problem is drone strikes against U.S. citizens and/or on U.S. soil, as opposed to the far more immediate (and pervasive) problem of strikes against non-citizens overseas. But regardless of his rhetoric or his motivation, it's hard to disagree that this entire discussion would only be advanced by a more comprehensive public defense by the Executive Branch.