Rand Paul and Domestic Drones

Some Republicans (including former VP Dick Cheney) applaud the Obama administration’s use of drones for targeted killing of US citizens abroad. Senator Rand Paul (R-KY), in contrast, is threatening to filibuster John’s Brennan’s confirmation to head the CIA, based on his failure to answer a simple question during last week’s hearings (transcript here, see pages 56-57).

Senator Ron Wyden (D-OR):

I’ve asked you how much evidence the President needs to decide that a particular American can be lawfully killed, and whether the administration believes that the President can use this authority inside the United States. In my judgment, both the Congress and the public needs to understand the answers to these kinds of fundamental questions. What do you think needs to be done to ensure that Members of the public understand more about when the government thinks it’s allowed to kill them, particularly with respect to those two issues — the question of evidence, and the authority to use this power within the United States?

The Response:

I have been a strong proponent of trying to be as open as possible with these programs as far as our explaining what we’re doing. What we need to do is optimize transparency on these issues, but at the same time, optimize secrecy and the protection of our national security. I don’t think that it’s one or the other; it’s trying to optimize both of them. And so, what we need to do is make sure we explain to the American people: what are the thresholds for action; what are the procedures, the practices, the processes, the approvals, the reviews.

The Office of Legal Counsel advice establishes the legal boundaries within which we can operate. It doesn’t mean that we operate at those outer boundaries. And, in fact, I think the American people would be quite pleased to know that we’ve been very disciplined and very judicious, and we only use these authorities and these capabilities as a last resort.

Senator Wyden, unfortunately, failed to force John Brennan to respond to the core question about the domestic use of drones.  Much turns on whether one interprets Brennan’s “response” as a conscious effort to sidestep the issue or simply a failure for no particular reason to answer both parts of the question.

Senator Paul’s interpretation, as reported in the Hill, is clear:

What I want to hear from John Brennan before I let his nomination go forward is that no, a CIA or the Department of Defense cannot kill someone in America without any kind of judicial proceeding. By Brennan not saying no, that he won’t strike Americans in America, he is essentially saying yes, and that is very scary and worrisome to me.

One could argue that Senator Paul’s fears are overblown.  At the same time, if we could turn the clock back to September 10, 2001, my guess is that most would not believe that there would be a time in the near future when we would condone “enhanced interrogation techniques,” indefinite detainment at GITMO, extraordinary rendition, the expansive powers granted in the PATRIOT Act, the use of drones for domestic surveillance or the use of drones for the targeted killing of US citizens abroad.

I don’t believe that anything Mr. Brennan would have said in his hearings would be binding on the federal government going foreword. But this seems like a reasonable question that deserves a response (regardless of whether it would somehow compromise the preferred balance between transparency and national security).