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What Rand Paul Misses: Congress, not the Constitution, should curtail the presidentís war powers.
National Review ^ | 03/09/2013 | Andrew McCarthy

Posted on 03/09/2013 5:03:48 AM PST by SeekAndFind

It was Wednesday, shortly before Senator Rand Paul’s bravura 13-hour filibuster, the Jimmy Stewart star turn in Paul’s crusade to have the Constitution ban a bogeyman of his own making: the killing of American citizens on American soil by America’s armed forces — a scandal that clearly cries out for action, having occurred exactly zero times in the 20 years since jihadists commenced hostilities by bombing the World Trade Center.

At a hearing of the Judiciary Committee, Senator Ted Cruz was grilling Attorney General Eric Holder. Cruz seemed beside himself — in the theatrical spirit of the day — over Holder’s refusal to concede that the imaginary use of lethal force conjured up by Paul would be, under any and all circumstances, unconstitutional. The attorney general preferred the fuzzier term “inappropriate” — at least until Senator Cruz finally browbeat him into saying that by “inappropriate” he meant “unconstitutional.”

Fuzzy was better. To be sure, Cruz is an accomplished constitutional scholar and a favorite of mine, and I can say neither of those things about the attorney general. Yet my sympathies were with Holder. I found myself wishing he’d stood by his equivocal guns.

I need to be careful here. To cross Paul admirers can mean being cast into the neocon darkness, along with all those other cogs in the military-industrial complex who dream of a global American empire — and that’s even when the offense is not compounded by suggesting that Eric Holder might have been right about something. So let me say outright: I am against using our armed forces to kill our citizens in our homeland.

That puts me in the same camp as about 99.9 percent of Americans. In part, that owes to our natural, patriotic predilection. But there’s another part of the explanation — just as important, but less well noticed: After 20 years, we understand the particular conflict we are in. We can confidently say that, in the war authorized by Congress a dozen years ago, we do not need to use lethal military force inside our country.

You see, there is a right way to do what Senator Paul says he wants to do, a way that does not involve messing around with the Constitution in a manner we will come to regret. Contrary to Senator Paul’s assertions, and those of senators Cruz and Mike Lee, who lent their voices and scholarly heft to Paul’s filibuster, the Constitution does not prohibit the use of lethal force in the United States against American citizens who collude with the enemy.

American history and jurisprudence teach that American citizens who join the enemy may be treated as the enemy: captured without warrant, detained indefinitely without trial, interrogated without counsel, accused of war crimes without grand-jury proceedings, tried by military commission without the protections of civilian due process, and executed promptly after conviction. That is because these measures are permissible under the laws of war, and the Constitution accommodates the laws of war — they are the rule of law when Congress has authorized warfare.

Under the laws of war, enemy combatants may be subjected to lethal force — that’s usually the idea. It makes no sense to conclude that the Constitution abides all the aforementioned departures from peacetime due process but prohibits the killing of American enemy combatants . . . particularly when the proponents of this novel claim are quick to concede that the government is free to use lethal force against American enemy combatants once they leave our territory.

The Constitution enables the government to marshal all the might necessary, under any conceivable circumstances, to quell threats to the United States. The Framers, with a humility that contrasts sharply with our certitude, understood that some threats could be existential in nature. While the senators busied themselves during the Paul filibuster with Alice in Wonderland and “Stand with Rand” tweets, it might have been worthwhile for someone to read Hamilton’s trenchant observation (from Federalist 23) that

it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.

Heedlessly, Senator Paul and his supporters figure they have a handle on the infinite. We can safely assume, they tell us, that the Constitution bars attacks in the U.S. on Americans who — if you can follow this — appear to be non-combatants, even if they may be working with the enemy, as long as they are not engaged in “imminent” violence.

Really? Let’s imagine something that, unlike Senator Paul’s speculations, is actually foreseeable — a scenario based on the way our enemies function, as remote from the Washington debate as that may be. Let’s suppose we have an American scholar of Islam fulfilling the role of the Blind Sheikh — i.e., a jurist schooled in sharia with sufficient academic depth to be qualified to issue fatwas approving terrorist attacks.

Ostensibly, our American sheikh might be sitting passively in a mosque, a café, or an apartment. He certainly doesn’t look like an enemy combatant — especially if, as was the case with the Blind Sheikh, various maladies render him incapable of building a bomb, carrying out an assassination, or doing most things of use to a jihadist cell. Yet in the enemy’s doctrine, attacks cannot happen until he green-lights them. Senator Paul says he’s fine with lethal force against imminent threats. So, when does our sheikh get imminent? When the phone rings? When some other innocent-looking young man comes into the café, sits down at his table, and starts whispering in his ear?

Now, after 20 years, it is probably safe to say there is no need to have our armed forces on alert for this contingency. If the executive branch has enough intel to know who and where this sheikh is, the FBI can arrest him, just as the FBI arrested José Padilla as he disembarked from a plane in Chicago in 2002 — every bit the enemy combatant, though not yet acting on his mass-murder plot. That is how war power has always worked under the Constitution: Having the technical law-of-war justification to kill José Padilla does not require you to kill him. You do what is sensible under the circumstances.

In the ongoing conflict, the enemy does not have fortifications inside our territory that would enable its operatives to keep the police at bay. As long as we catch them in time, our enemies can be safely taken into custody. And if we catch them on the precipice of deadly action, ordinary law-enforcement principles allow for the use of lethal force to stop them.

But that may not always be the case. We could have enemies with much greater capabilities, enemies including traitorous Americans. The fact that we do not appear to need lethal military force in the homeland in this conflict does not mean we will never need it.

So leave the Constitution alone. The Constitution does not tell us what should or must be done in a particular situation. It tells us the outer limits of what is legitimate in all threat situations. To shackle our power to meet a threat, as Hamilton explained, is to put us in peril.

The goal, according to Senator Paul, is to shackle the president. That is done by trimming his sails in the Authorization for Use of Military Force (AUMF), not by trimming his constitutional power.

Senator Paul has the controversy he sought because the Obama administration arrogantly claimed nigh-limitless power to kill anyone, anywhere, at the president’s whim. There is no reason to believe the president actually intends to abuse such power — he has not done so to this point and, as National Review’s Editors point out, “the day an administration starts killing Americans with drones at cafés — to borrow one of Rand Paul’s hypotheticals — is the day impeachment proceedings begin.” So, assuming the administration is simply trying to protect the president’s institutional turf, it has made the error of conflating the theoretically limitless power the Constitution could potentially vest in the president if a threat were dire enough with the finite authorization Congress has actually given the president for the use of force in this conflict.

Senators Paul and Cruz have suggested that the constitutional claim they’ve posited — viz., presidents are not empowered to kill Americans on American soil absent an imminent threat of violence — is “easy,” “clear,” and “obvious.” I respectfully disagree. It is none of those things. What is easy, clear, and obvious is that if we do not need certain troublesome authorities to fight a war successfully, Congress can withhold them.

Why does it make a difference whether this curtailment comes from the AUMF rather than the Constitution? Because, absent a sudden-attack situation, the Constitution makes Congress the master of what force is lawfully authorized, while our tradition holds that the courts are masters of what the Constitution means.

Since 2004, courts have made themselves a part of the national-security equation to an unprecedented degree. When challenged to construe constitutional doctrines, they seek to impose logic. Senator Paul’s proposal of a Constitution-based no-lethal-force exception to the principle that an American who joins the enemy may be treated like the enemy is not logical.

To iron out the inconsistencies, the courts may well conclude that if Americans are not to be treated as enemy combatants for purposes of lethal force, they should not be treated as enemy combatants for purposes of capture, detention, interrogation, and military war-crimes trials. Furthermore, if they follow the trajectory of the Supreme Court’s 2008 Boumediene decision, courts may well conclude that any core constitutional protections extended to American citizens must also be extended to alien enemy combatants. That would be the end of the law-of-war approach to counterterrorism.

Is that Senator Paul’s objective? I do not know. Many of his libertarian supporters would welcome it. Most Americans would disagree, recognizing that the war paradigm has been instrumental in preventing a reprise of 9/11.

I do know this: If all the senator really has in mind is some curtailment of presidential overreach, the right way to do that is to limit the AUMF. If his ambition is greater, if he believes the country would be better off ending the war paradigm and returning to peacetime due process, the forthright way to do that is to repeal the AUMF. That would be a terrible mistake, but one we could withstand, however painfully. What we might not be able to withstand is the shackling of constitutional powers we may someday need to sustain the United States.

— Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center.


TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events
KEYWORDS: drones; randpaul; warpowers
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1 posted on 03/09/2013 5:03:48 AM PST by SeekAndFind
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To: SeekAndFind

The MSM are mostly covering Senator Paul as a nut. The state media continues to do Obama’s bidding. That a US Senator questioning the Kenyan POTUS’s dismissal of fifth and sixth amendment rights should be treated this way in a “free press” can mean only one thing...the press is no longer free.

The media caved in ‘07 when they refused to look into Obama’s early life, his college records, birth story, and upbringing in Indonesia. They still refuse to cover any story, in detail, if it might do harm to the Obama regime.

Bob Woodward is just the tip of the iceburg...there must be lots of lesser lights in the MSM who cower in fear...as Obama holds the IRS and other governmental agencies over their heads.

Will anyone talk?


2 posted on 03/09/2013 5:15:45 AM PST by kjo (+)
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To: SeekAndFind

We are at “war paradigm.”


3 posted on 03/09/2013 5:16:21 AM PST by HomeAtLast ( You're either with the Tea Party, or you're with the EBT Party.)
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To: SeekAndFind

Rand Paul’s 13 hour diatribe was wonderful. He brought up many more conservative points than just the use of drones at home.

Keep it up senator. I will vote for you against Hillary.


4 posted on 03/09/2013 5:22:46 AM PST by Vaquero (Don't pick a fight with an old guy. If he is too old to fight, he'll just kill you.)
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To: SeekAndFind

This is nice - just like when all the liberal pundits were correcting those liberal politicians who accused Bush and Cheney of over stepping their Constitutional bounds fighting the WOT...I hope to hell we see more filibusters out of the new guys and maybe ruin another dinner between Obungo, McCain and Linda


5 posted on 03/09/2013 5:23:46 AM PST by capydick (''Life's tough.......it's even tougher if you're stupid.'')
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To: SeekAndFind

6 posted on 03/09/2013 5:23:47 AM PST by Travis McGee (www.EnemiesForeignAndDomestic.com)
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To: SeekAndFind

McCarthy is a good man, but there is too much fussing over small-print technicalities in his arguments — to the detriment of the Big Picture.

When governments merely PREPARE to kill their own citizens its time for dramatic action. Lurking somewhere in the current scenario is a last step that turns a president Obama into a Lincoln or Stalin or Mao or Saddam — perfectly willing to target entire segments of his own population for slaughter.

I’m all for “national security,” and I’m NOT a libertarian under even the loosest definition, but I’m with Rand Paul on this one. The idea of missile-toting, remote-controlled drones hovering above me and controlled by Big Brother can’t possibly be Constitutional, lest what good is the Constitution to me?


7 posted on 03/09/2013 5:24:14 AM PST by PaleoBob
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To: SeekAndFind

I am a Rand Paul fan.

But I have a question about how far he would, or would not, go with his analysis.

Suppose United 175 had been taken over 200 miles west of where it actually happened. Then suppose that by the time it arrived over NJ, we already had combat air patrol in place.

Suppose then that the hijacker pilot did not respond to standard warnings and had the South Tower lined up.

Does Senator Paul believe that a Presidential order to destroy the plane and all the US citizens on board would have been constitutional?


8 posted on 03/09/2013 5:27:46 AM PST by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: Travis McGee

Andrew misses the most likely scenario: A militia group in paramilitary training in the woods killed by drone as enemies of the state preparing for warfare.
Count on it.


9 posted on 03/09/2013 5:28:32 AM PST by Louis Foxwell (Better the devil we can destroy than the Judas we must tolerate.)
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To: PaleoBob

another thing that McCarthy is missing here is the very important political point: Rand showed that Obama can be attacked successfully, and that standing up to him is the thing to do. Our prissy establishment has created this monster of “likeability” - and now they cower from that very thing. I normally like McCarthy, but he missed on this one.


10 posted on 03/09/2013 5:30:17 AM PST by C. Edmund Wright
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To: SeekAndFind

“having occurred exactly zero times in the 20 years since jihadists commenced hostilities by bombing the World Trade Center”

The claim of that power occurred exactly zero times in the 200+ years since this country was founded. Then Holder said what amounted to “stroke of a pen, death of a citizen - pretty cool.”

The claim also extends far beyond “jihadists” (who this administration seem oddly uninterested in).

Having to drag the DOJ head kicking and screaming into admitting “no we cannot kill an American citizen on American soil doing nothing harmful” is ... weird.


11 posted on 03/09/2013 5:31:34 AM PST by ctdonath2 (3% of the population perpetrates >50% of homicides...but gun control advocates blame metal boxes.)
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To: SeekAndFind

McCarthy is usually great, but he’s wrong on this one. The constitution protects the individual, period, from both the president and the Congress. That is, if the constitution is being followed and upheld by variouis federal officials.


12 posted on 03/09/2013 5:32:19 AM PST by Will88
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To: SeekAndFind

What the author misses are three points:

1.) it is the Constitution that defines the boundaries that both the President and Congress have, and provides a means for one to overpower the other

2.) When there is a dispute for which neither has the will nor desire strong enough to override the other, but for which the action is contradictory to the Constitution, the USSC may be invited to step in, at which point the meaning of the Constitution is determined to govern

3.) in those rare instances when no. 2 above is deemed by the USSC to contradict the meaning of the Constitution, the will of both the President and Congress may be deemed unlawful or the Constitution may subsequently become amended. This normally takes a long time.


13 posted on 03/09/2013 5:37:05 AM PST by Real Cynic No More
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To: SeekAndFind

What the author misses are three points:

1.) it is the Constitution that defines the boundaries that both the President and Congress have, and provides a means for one to overpower the other

2.) When there is a dispute for which neither has the will nor desire strong enough to override the other, but for which the action is contradictory to the Constitution, the USSC may be invited to step in, at which point the meaning of the Constitution is determined to govern

3.) in those rare instances when no. 2 above is deemed by the USSC to contradict the meaning of the Constitution, the will of both the President and Congress may be deemed unlawful or the Constitution may subsequently become amended. This normally takes a long time.


14 posted on 03/09/2013 5:37:08 AM PST by Real Cynic No More
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15 posted on 03/09/2013 5:38:16 AM PST by SunkenCiv (Romney would have been worse, if you're a dumb ass.)
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To: SeekAndFind

Mr. Andrew C. McCarthy needs to put his spectacles on and read the Fifth Amendment. It is very clear the federal government cannot kill a United States citizen without due process of law. The President’s judgement or urge is not due process of law.

Mr. McCarthy states, “The Constitution enables the government to marshal all the might necessary, under any conceivable circumstances, to quell threats to the United States.” Under his interpretation, a President could define anyone who opposes his or her policies as a threat to the United States. If I actively or passively oppose a law passed by Congress, or a regulation issued by the President, why shouldn’t I be considered a threat to the United States, particularly if I attempt to organize other citizens to actively oppose the law. Wasn’t Martin Luther King a “threat to the United States?” He deliberately flouted and violated laws in a nonviolent fashion. Mr. Obama and Mr. Holder have openly and deliberately chosen not to enforce laws passed by Congress. Are they not “threats to the United States”?

The Fifth Amendment is clear. It reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The words are clear — “No person shall. . . be deprived of life, liberty, or property, without the due process of law. . .”.

With respect to the first part of the Fifth Amendment relating to answering to a crime in time of war, consider:
1) It specifically speaks to a capital or infamous crime. Plotting or minor crimes do not qualify.
2) It specifically speaks to a person in actual service (army, navy militia) in time of war or public danger. A citizen not enrolled in the armed forces is not “in actual service” and therefore cannot be held to answer for a capital or infamous crime without indictment (i.e. due process of law). In addition, the Amendment speaks to “time of War or public danger” with the word “War” capitalized and therefore implying a formal declaration of war. There has not been a formal declaration of war passed by Congress since the December 11, 1941 declaration of war against Germany. There is no declaration of war in effect today so the President has no authority to use the armed forces against US citizens or the citizens of any other nation.


16 posted on 03/09/2013 5:39:06 AM PST by Soul of the South (Yesterday is gone. Today will be what we make of it.)
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To: SeekAndFind

Wrong. The Constitution is an absolute. Obama does not have the authority to murder a US citizen on US territory. That decision should not require a specific Act of Congress for its prevention. The president (or in Obama’s case, the Community Organizer in Chief) cannot take that action with or without the approval of Congress.


17 posted on 03/09/2013 5:39:27 AM PST by Pollster1
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To: Will88
McCarthy: “You do what is sensible under the circumstances.”

When Obama is President, this is not reassuring.

18 posted on 03/09/2013 5:43:19 AM PST by GoDuke
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To: HomeAtLast

Exactly. There is zero guidance from the constitution on what is considered an official declaration of war. Technically if congress officially proclaims we are at war and votes to fund the proclamation, once signed by the president we are at war. This 10 plus year “War on Terror” is just the latest example.

Additionally, since we are in a state of war the congress has the constitutional authority under Article I section 8 to establish tribunals that are inferior to the supreme court for the purpose of dealing with piracy and other felonies.


19 posted on 03/09/2013 5:47:11 AM PST by PJammers (Quis custodiet ipsos custodes?)
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To: SeekAndFind

McCarthy also seems to just glide on by the fact that this debate began concerning the use of drones. Drones are used in hostile nations because we have no other practical way to get at the terrorists who are a threat.

Within the US, we have almost limitless ways to get at any individual and group that might pose a threat. You really have to use a lot of imagination to come up with a scenario where the use of drones would be the only way to deal with a threat within the US.


20 posted on 03/09/2013 5:53:27 AM PST by Will88
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