Monday, April 22, 2013

Drones, Rand and Your Liberty

This is a commentary I wrote at the height of the Rand Paul filibuster fallout.  I really felt it was a good piece and could add to the debate, so I submitted it for publication to my favorite outlet.  They unfortunately took so long to reject it that it became somewhat irrelevant.  I decided to put it up here finally because I am really kind of proud of the piece, and I hope you enjoy.

There has been some criticism of Senator Rand Paul in the past, some of it deserved, but his recent filibuster over the question of the use of drones by the administration has earned him a great deal of praise.  Conversely, we have also seen an incredibly disturbing pushback against the whole episode, which has created some very strange bedfellows.  From John McCain, lambasting the idea of stirring up the kiddies to Lawrence O’Donnell, spewing invectives like “psychopath” on a supposed news show, we saw people become very critical of the idea of demanding this government answer a simple question: Do you believe you have the authority to kill an American citizen on American soil without the due process protections guaranteed by the Constitution  you swore to uphold?  A very simple question, one the administration would not answer clearly until after the filibuster.  Their initial response was filled with rather asinine non sequiturs like Pearl Harbor or 9/11, as if someone would not notice the difference between an active and on-going commission of violence versus what Paul was asking after. The critics of Senator Paul have come from all sides and all angles, some painting the episode as tin foil hat conspiracy to un-American naiveté about how the grown-ups need the latitude to keep us ‘safe’ from all the scary things out there.  Neither of these is true, and trying to stifle debate over an incredibly important constitutional issue because you don’t want to be a hypocritical War Hawk by not supporting Obama’s version of the drone program or are aiming to be an immensely hypocritical Democrat defending ‘your guy’ while they are in office is ridiculous.

One of the problems in this episode was Paul’s terrible hypothetical that he brought up, the one that is constantly repeated about someone’s “café-experience” over political dissent.  This unfortunate, sound-bite worthy bit, gives the critics the ability to minimize the argument by easily lampooning the hypothetical.  Paul needed a much better example of what he was talking about.  Many people, even among the critics, agree that the drone program needs more oversight.  There is a great deal of talk about the 2001 Authorization for Use of Military Force (AUMF), and what that allows the president to do, and so many people seem to be in the very unfortunate company of Bush torture memo author, John Yoo, that when we used the word “War”, we essentially made the president into an all powerful emperor who can do literally anything anywhere in the world, like targeting an American citizen for death without due process.  If we want to delve deeper into the question of drones, both domestically and on foreign soil, to see if our Constitution  actually provides us with any protection of our lives and liberty, we need to frame the questions better.  Here is a domestic hypothetical that Paul could have framed and demanded an answer to:
We have Natural Born American Citizen “X”.  Mr. X is abroad and has been identified by our Executive Branch officials as a member of al Qaeda.  We do not know why or how he was identified as such, for that is secret.  This individual has been classified as worthy of targeted killing by drone because he poses an “imminent threat” to American National Security.  We do not know who or by what metric, using what evidence, this determination has been made, for that too is secret.  No evidence has been submitted to any court, not even a secret FISA court, and no indictment has been handed down by a Grand Jury.  This man’s life is forfeit because the Executive Branch has convinced itself that he is guilty of a crime.  Now, intelligence has been gathered that Mr. X is back in the U.S. for some unknown reason. An alert comes through that Mr. X has been spotted in the Arizona desert 10 miles from the Mexican border, traveling south about to leave the country.  There is no one who could be mobilized to capture him before he gets to the border.  There are no Mexican authorities who could intercede on their side of the border.  So, the question is this - does the President’s supposed  authority to kill this man abroad now translate to this scenario?  Mr. X is labeled a imminent threat, he is in the open with minimal collateral damage, there is no real opportunity to capture him, and it is unknown if another opportunity such as this will ever exist again.  Can he shoot?  If the answer to that question is yes, then what is Administration’s definition of due process as guaranteed by the 5th Amendment?  If the answer is no, does the Administration believe it can kill this man in two hours when he crosses over into Mexico?  If we change the conditions of the hypothetical to having Mr. X in the Idaho wilderness about to cross into Canada does anything change?  If in this scenario either Mexico or Canada informed the President that they did not have the ability to capture this individual, but demanded that no drone or missile cross their airspace, what then?  Does the President have the authority to cause an international incident in the pursuit of killing Mr. X?

That is a better scenario than a café, and once again, the question is not “Would you Mr. Obama?” but “Can you Mr. President of the United States?”  No one drawing breath right now would assume John Yoo would not happily endorse killing Mr. X wherever he may be, but what about John McCain?  Given the scenario of some nefarious individual being blasted in his home state, what he would say?  How about Lawrence O’Donnell at that point?  If we framed the issue a little better, would it be psychotic to ask if this Mr. X, condemned by some Star Chamber using secret evidence that can’t be discussed or disseminated, can be summarily executed by the President of the United States?  When and under what conditions may we start asking those questions before we become crackpots?

We also need start discussing this drone program in its international context.  This ridiculous notion that the AUMF allows the President to kill anyone anywhere also needs to be reexamined.  Try it with this other hypothetical when it comes to international drone use:

French national of Algerian descent, Mr. Y, is employed in an aid agency and is working in Yemen.  American Intelligence determines that Mr. Y is actually an al Qaeda operative and the aid agency is a deep cover.  He becomes listed for targeted killing, he is located and a drone is dispatched to eliminate him.  The drone strike misses, and Mr. Y flees back to France, vociferously claiming his innocence and demanding that his government protect him from an undeserved American death sentence.  There is popular outcry, a media firestorm, and immense pressure is placed on the French government until the point they grant Mr. Y asylum; he will not be extradited to the United States unless and until all their evidence against him is made public.  Given his cause célèbre, Mr. Y isn’t even detained.  Now, Mr. President, do you have the authority to violate NATO ally France’s sovereignty and launch a drone strike against Mr. Y if a situation presents itself in which there is minimal collateral damage?  Does the AUMF provide you with the ability to engage in overt acts of war against other nations because they might exercise the sovereign right to protect their citizens from execution and their territory from incursion?

Where would McCain and Senator Lindsay Graham stand on this hypothetical?  Does new CIA Director John Brennan believe that we could kill this individual under these circumstances?  Once again this is not a question of “Would you?” but “Could you?”  Killing scary Muslim folk in far off, underdeveloped countries doesn't seem to phase the American people, but what about the rest of the world?  We do not discuss the collateral damage or whether killing innocent civilians, including children, is making more enemies (and far more dedicated enemies at that) than we are killing in these strikes.  What Senator Paul was asking is what do we conceive as the limits on our government’s ability to kill its own citizens and, by extension, to have a conversation about our government’s continued policy of killing quite a few people all over the world with absolutely no oversight, all in furtherance of the ubiquitous “War on Terror” which makes every square inch of the planet a war zone.  Not trusting in your government’s ability to brand someone an enemy of the state and kill them without trial or publicly presenting the evidence does not make you a paranoid freak-show getting your bunker ready for Mad Max-esque end times.  Members of the media who mocked or belittled the idea of questioning the administration’s seeming contempt for due process (not only the corner stone of our legal system, but the oldest concept of the common law) show themselves to either be willfully ignorant or incestuously entwined with the administration and their talking points.  Those on the right, especially sitting legislators, upset over their cherished War Hawk notion of ‘kill them all anywhere, anytime’ policy being questioned need to go back and read the Constitution  and its very real and necessary limits on the power of the government.  Those on the left who do not criticize the policy because “their guy” is in power need to take a real long look in the mirror.  They decry the hyper-partisanship of our government and the inability to get anything done, yet criticize Senator Paul because he is from the other side, doing what these clowns should have been doing all along, speaking truth to power.  If you stand against the idea of the death penalty in all criminal cases because the State might execute an innocent man, and you don’t stand up and question the use of drones, either foreign or domestic, to kill someone by executive fiat, because you happen to trust the guy holding the office today, then your entire world view is a logical disconnect, an ideological inconsistency that is really indefensible.  To shout down those, who, poorly worded or not, would question the scope, depth and breadth of the President of the United States’ power to kill his own citizens, does a disservice to the Constitution  and all those who in the past have fought for our rights.  Not questioning the powers-that-be about the limits of their power led to ‘enhanced interrogation techniques”, something most people would have thought impossible prior to 9/11.  In light of that do we really see the questioning of a President’s (regardless of political party) idea of when, where, why and how he can kill another citizen as being unreasonable?  Questioning authority is not, and should not, be a partisan issue and not exercising that right today only makes it harder to push back against over reach tomorrow.  Those legislators, pundits and journalists who would blithely or sarcastically minimize or trivialize the idea that we as citizens should never defer or trust in government’s ability to simply always make the right call in these situations, need to ask the few remaining Japanese internment camp victims how much trust we as a people should place in our government to protect our lives and liberty in a time of war.