[Congressional Record Volume 159, Number 32 (Wednesday, March 6, 2013)]
[Senate]
[Pages S1150-S1181]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           BRENNAN NOMINATION

  Mr. PAUL. Madam President, I rise today to begin to filibuster John 
Brennan's nomination for the CIA. I will speak until I can no longer 
speak. I will speak as long as it takes until the alarm is sounded from 
coast to coast that our Constitution is important, that your rights to 
trial by jury are precious, that no American should be killed by a 
drone on American soil without first being charged with a crime, 
without first being found to be guilty by a court. That Americans could 
be killed in a cafe in San Francisco or in a restaurant in Houston or 
at their home in Bowling Green, KY, is an abomination. It is something 
that should not and cannot be tolerated in our country.
  I do not rise to oppose John Brennan's nomination simply for the 
person. I rise today for the principle. The principle is one that, as 
Americans, we have fought too long and hard for to give up on, to give 
up on the Bill of Rights, to give up on the fifth amendment protection 
that says no person shall be held without due process, that no person 
shall be held for a capital offense without being indicted. This is a 
precious American tradition and something we should not give up on 
easily.
  They say Lewis Carroll is fiction; Alice never fell down a rabbit 
hole, and the White Queen's caustic judgments are not really a threat 
to your security. Or has America the beautiful become Alice's 
Wonderland?

       ``No, no!'' said the Queen. ``Sentence first--verdict 
     afterwards.''
       ``Stuff and nonsense!'' Alice said loudly. ``The idea of 
     having the sentence first.''
       ``Hold your tongue!'' said the Queen, turning purple.
       ``I won't!'' said Alice.
       [``Release the drones,''] said the Queen, as she shouted at 
     the top of her voice.

  Lewis Carroll is fiction, right? When I asked the President: Can you 
kill an American on American soil, it should have been an easy answer. 
It is an easy question. It should have been a resounding and 
unequivocal no. The President's response: He hasn't killed anyone yet.
  We are supposed to be comforted by that. The President says: I 
haven't killed anyone yet. . . . He goes on to say: and I have no 
intention of killing Americans, but I might.
  Is that enough? Are we satisfied by that? Are we so complacent with 
our rights that we would allow a President to say he might kill 
Americans, but he will judge the circumstances, he will be the sole 
arbiter, he will be the sole decider, he will be the executioner in 
chief if he sees fit?
  Some will say he would never do this. Many people give the President 
consideration. They say he is a good man. I am not arguing he is not. 
What I am arguing is that the law is there, set in place for the day 
when angels don't rule government. Madison said that the restraint on 
government was because government will not always be run by angels. 
This has nothing, absolutely nothing, to do with whether the President 
is a Democrat or a Republican. Were this a Republican President, I 
would be here saying exactly the same thing: No one person, no one 
politician should be allowed to judge the guilt--to charge an 
individual, to judge the guilt of an individual, and to execute an 
individual. It goes against everything we fundamentally believe in our 
country. This is not even new to our country. There is 800 years of 
English law that we founded our tradition on. We founded it upon the 
Magna Carta from 1215. We founded it upon Morgan of Glamorgan from 725 
A.D. We founded it upon the Greeks and Romans who had juries. It is not 
enough to charge someone to say that they are guilty.
  Some might come to this floor and they might say: What if we are 
being attacked on 9/11? What if there are planes flying at the Twin 
Towers? Obviously we repel them. We repel any attack on our country. If 
there is a gentleman or a woman with a grenade launcher attacking our 
buildings or our Capitol, we use lethal force. You don't get due 
process if you are involved with actively attacking us, our soldiers, 
or our government. You don't get due process if you are overseas in a 
battle, shooting at our soldiers. But that is not what we are talking 
about.
  The Wall Street Journal reported and said that the bulk of the drone 
attacks is signature attacks. They do not even know the name of the 
person. A line or a caravan is going from a place where we think there 
are bad people to a place where we think they might commit harm and we 
kill the caravan, not a person. Is that the standard we will now use in 
America? Will we use a standard for killing Americans to be that we 
thought you were bad, we thought you were coming from a meeting with 
bad people and you were in a line of traffic and so therefore you were 
fine for the killing?
  That is the standard we are using overseas. Is that the standard we 
are going to use here? I will speak today until the President responds 
and says: No, we won't kill Americans in cafes. No, we won't kill you 
at home in your bed at night. No, we won't drop bombs on restaurants.

  Is that so hard? It is amazing that the President will not respond. I 
have been asking this question for a month. It is like pulling teeth to 
get the President to respond to anything and I get no answer. The 
President says he hasn't done it yet and I am to be comforted. You are 
to be comforted in your home. You are to be comforted in your 
restaurant. You are to be comforted in online communicating in your e-
mail that the President has not killed an American yet in the homeland. 
He says he has not done it yet. He says he has no intention to do so.
  Hayek said that nothing more distinguishes arbitrary government from 
a government that is run by the whims of the people than the rule of 
law. The law is an amazingly important thing, an amazingly important 
protection. For us to give up on it so easily doesn't speak well of 
what our Founding Fathers fought for, what generation after generation 
of American soldiers has fought for, what soldiers are fighting for 
today when they go overseas to fight wars for us. It doesn't speak well 
of what we are doing here to protect the freedom at home when our 
soldiers are abroad fighting for us that we say our freedom is not 
precious enough for one person to come down and say: Enough is enough, 
Mr. President, come clean, come forward and say you will not kill 
Americans on American soil.
  The oath of office of the President says that he will, to the best of 
his ability, preserve, protect and defend the Constitution. He raises 
his right hand, he puts his left hand on the Bible, and he says 
``will.'' The President doesn't say, I intend to if it is convenient; I 
intend to unless circumstances dictate otherwise. The President says, 
``I will defend the Constitution. I will protect the Constitution.''
  There is not room for equivocation here. This is something that is so 
important, so fundamental to our country that he needs to come forward.
  When Brennan, whose nomination I am opposing today, was asked 
directly: Is there any limit to your killing? Is there any geographic 
limitation to

[[Page S1151]]

your drone strike program? Brennan responded and said: No, there is no 
limitation.
  So the obvious question would be, if there is no limitation on whom 
you can kill and where you can kill and there is no due process upon 
whom you will kill, does that mean you will do it in America? The 
Senator from Oregon asked him that question directly, in committee. And 
this so-called champion of transparency, this so-called advocate of 
some kind of process, responded to the Senator from Oregon by saying: I 
plan to optimize secrecy and optimize transparency.
  Gobbledygook. You were asked: Will you kill Americans on American 
soil? Answer the question.
  Our laws forbids the CIA from doing that. It should have been an easy 
question. The 1947 National Security Act says the CIA doesn't operate 
in our country. We have the FBI, we have rules, we have separated 
powers to protect your rights. That is what government was organized to 
do. That is what the Constitution was put in place to do, to protect 
your rights. So when I asked, he says: No answer. He says: I will evade 
your answer, and by letting him come forward we let him get away with 
it.
  I have hounded and hounded and finally yesterday I get a response 
from Mr. Brennan, who wishes to be the CIA chief, and he finally says: 
I will obey the law.
  Well, hooray. Good for him. It took a month to get him to admit that 
he will obey the law. But it is not so simple. You see, the drone 
strike program is under the Department of Defense, so when the CIA says 
they are not going to kill you in America, they are not saying the 
Defense Department won't. So Eric Holder sent a response, the Attorney 
General. His response says: I haven't killed anyone yet. I don't intend 
to kill anyone. But I might.
  He pulls out examples that are not under consideration. There is the 
use of local force that can always be repelled--if our country is 
attacked, the President has the right to protect and defend the 
country. Nobody questions that. Nobody questions if planes are flying 
toward the Twin Towers whether they can be repelled by the military. 
Nobody questions whether a terrorist with a rocket launcher or grenade 
launcher is attacking us, whether they can be repelled. They do not get 
their day in court.
  But if you are sitting in a cafeteria in Dearborn, if you happen to 
be an Arab American who has a relative in the Middle East and you 
communicate with them by e-mail and someone says your relative is 
someone we suspect of being associated with terrorism, is that enough 
to kill you? For goodness sake, wouldn't we try to make an arrest and 
come to the truth by having a jury and a presentation of the facts on 
both sides of the issue?
  See, the real problem here is one of the things we did a long time 
ago is we separated the police power from the judicial power. This was 
an incredibly important first step. We also prevented the military from 
acting in our country because we did not want to have a police state. 
One of the things we greatly objected to of the British is they were 
passing out general writs or writs of assistance. These were warrants 
that allowed them to go into a house but allowed them to go into 
anyone's house. What we did when we wrote our Constitution is we made 
the Constitution--we made the fourth amendment specific to the person 
and the place and the things to be looked for. We did not like the 
soldiers going willy-nilly into any house and looking for anything. So 
we made our Constitution much more specific.
  I think this is something we should not give up on so easily. I think 
the idea that we could deprive someone of their life without any kind 
of hearing, essentially allowing a politician--I am not casting any 
aspersions on the President. I am not saying he is a bad person at all. 
But he is not a judge.
  He is a politician. He was elected by a majority, but the majority 
doesn't get to decide whom we execute. We have a process for deciding 
this and we have courts for deciding this. To allow one man to accuse a 
person in secret and to never get notified that they have been 
accused--their notification is the buzz of the propellers on the drone 
as it flies overhead in the seconds before they are killed. Is that 
what we want from our government? Are we so afraid of terrorism and so 
afraid of terrorists that we are willing to just throw out our rights 
and our freedoms and what we have fought for and have gotten over the 
centuries? We have at least 800--if not 1,000--years' worth of 
protections.
  Originally, the protections were against a monarch. We feared a 
monarch. We didn't like having a monarch. When we came to this country 
and set up our Presidency, there was a great deal of alarm. There was a 
great deal of fear over having a king, and so we limited the executive 
branch. Madison wrote in the Federalist Papers that the Constitution 
supposes what history demonstrates, which is that the executive branch 
is the branch most prone to a war, most likely to go to war, and, 
therefore, we took that power to declare war and vested it in the 
legislature. We broke up the powers.
  Montesquieu wrote about the checks and balances and the separation of 
powers. He was somebody whom Jefferson looked toward. They separated 
the powers because there is a chance for abusive power when power 
resides in one person. Montesquieu said there can be no liberty when 
the executive and the legislative branches are combined.
  I say something similar; that is, there can be no liberty when the 
executive and the judiciary branches are combined, and that is what we 
are doing here. We are allowing the President to be the accuser in 
secret, we are allowing him to be the judge, and we are allowing him to 
be the jury. No man should have that power. We should fear that power 
not because we have to say: Oh, we fear the current President. It has 
nothing to do with who the President is. It has nothing to do with 
whether someone is a Republican or Democrat. It has to do with whether 
we fear the consolidation of power, whether we fear power being given 
to one person, be it a Republican or a Democrat. This is not 
necessarily a right-left issue.
  Kevin Gosztola, who writes at firedoglake.com, writes that the mere 
fact that the President's answer to the question of whether you can 
kill an American on American soil was yes is outrageous. However, it 
fits the framework for fighting a permanent global war on terrorism 
without any geographic limitations, which President Obama's 
administration has maintained it has the authority to wage.
  What is important to note is that we are talking about a war without 
geographic limitations, but we are also talking about a war without 
temporal limitations. This war has no limit in time. When will this war 
end? It is a war that has an infinite timeline. If we are going to 
suspend our rights, if there is going to be no geographic limits to 
killing--which means we are not at war in Afghanistan, we are at war 
everywhere. Everybody who pops up is al-Qaida. Whether they have heard 
of al-Qaida or whether they have had any communication with some 
network of al-Qaida, it is al-Qaida. There is a new war going on 
everywhere in the world, and there are no limitations.
  Glenn Greenwald has also written about this subject, and he was 
speaking at the Freedom to Connect conference. He said there is a 
theoretical framework being built which posits that the U.S. Government 
has unlimited power. Some call this inherent power. ``Inherent'' means 
it has not been defined anywhere; it has not been expressly given to 
the government. They have decided this is their power and they are 
going to grab it and take what they get.
  This is not new. The Bush administration did some of this too. When 
the Bush administration tried to grab power, the left--and some of us 
on the right--were critical when they tried to wiretap phones without a 
warrant. Many on the right and many on the left raised a raucous. There 
was a loud outcry against President Bush for usurping, going across due 
process, not allowing due process, and not obeying the restraints of 
warrants. Where is that outcry now?
  Glenn Greenwald writes:

       There is a theoretical framework being built that posits 
     that the U.S. Government has unlimited power, when it comes 
     to any kind of threats it perceives, to take whatever action 
     against them that it wants without any constraints or 
     limitations of any kind.

  As Greenwald suggests--and this goes back to Gosztola's words--
answering

[[Page S1152]]

yes to the question that you can kill Americans on American soil 
illustrates the real radicalism the government has embraced in terms of 
how it uses its own power.
  We were opposed to them listening to our conversations without a 
warrant, but no one is going to stand and say anything about killing a 
person without a warrant, a judge's review or a jury? No one is going 
to object to that? Where is the cacophony who stood and said: How can 
you tap my phone without going to a judge first? I ask: How can you 
kill someone without going to a judge or a jury? Are we going to give 
up our rights to any politician of any stripe? Are we going to give up 
the right to decide who lives and who dies?
  Gosztola goes on to say the reason the administration didn't want to 
answer yes or no to this question--can you kill Americans on American 
soil--is because he says a ``no'' answer would jeopardize the critical, 
theoretical foundation they have very carefully constructed that says 
there are no cognizable constraints on how U.S. Government power can be 
asserted.
  Civil libertarians once expected more from the President. In fact, it 
was one of the things I liked about the President. I am a Republican. I 
didn't vote for or support the President either time, but I admired 
him. I particularly admired him when he ran in 2007. I admired his 
ability to stand and say: We will not torture people. That is not what 
America does.
  How does the President's mind work? The President--who seemed so 
honorable, so concerned with our rights, so concerned with the right 
not to have our phone tapped--now says he is not concerned with whether 
a person can be killed without a trial. The leap of logic is so 
fantastic as to boggle the mind. Where is the Barack Obama of 2007? Has 
the Presidency so transformed him that he has forgotten his moorings 
and what he stood for?

  Civil libertarians once expected more from the President. Ask any 
civil libertarian whether the President should have the right to 
arbitrarily kill Americans on American soil, and the answer is easy. Of 
course no President should have the right or that power under the 
Constitution.
  Brennan has responded in committee that now the CIA does not have the 
right to do it on American soil. The problem is that this program is 
under the Department of Defense, so it is, once again, an evasive 
answer. They are not answering the true question: Will the Government 
of America kill Americans on American soil?
  Gosztola, from firedoglake.com, writes that there may never be a 
targeted killing of a U.S. citizen on U.S. soil--and the question of 
whether a U.S. citizen could be targeted and killed on U.S. soil may 
remain a hypothetical question for some time--but the fact that the 
Obama administration has told a U.S. Senator there is a circumstance 
where the government could target and kill an American citizen on 
American soil without charge and without trial is a stark example of an 
imperial Presidency.
  This is what our Founding Fathers wanted to fight against. They 
wanted to limit the role and the power of the President. They wanted to 
check the President's power with the power of the Senate, the power of 
the House, and the power of the judiciary. We have three coequal 
branches. Not one of them should be able to run roughshod on the other.
  The problem is we have allowed this to happen--not me personally, but 
Congress in general has allowed the President to usurp this power. If 
there were an ounce of courage in this body, I would be joined by many 
other Senators in saying we will not tolerate this, that we will come 
together, in a bipartisan fashion, and tell any President that no 
President will ever have the authority to kill Americans without a 
trial. When the President says he does intend to do so, we have to 
think that through.
  One year ago, the President signed a law that says a person can be 
detained indefinitely and that they can be sent from America to 
Guantanamo Bay without a trial. He wants us to be comforted by that. He 
wants us to remember and think well of him because he says: I don't 
intend to do so. It is not enough. I mean, would we be able to tolerate 
a Republican who stood and said: I like the first amendment, I am quite 
fond of the first amendment, and I don't intend to break the first 
amendment, but I might.
  Would conservatives tolerate someone who said: I like the second 
amendment, I think it is important and I am for gun ownership and I 
don't intend to violate the second amendment, but I might. Would we 
tolerate that he doesn't intend to do so as a standard?
  We have to think about the standards being used overseas. Google 
interviewed him not too long ago and asked him if he could kill 
Americans at home. He was evasive. He said there are rules. He said the 
rules outside would be different than inside. I certainly hope so. 
Outside the United States the rules for killing are that someone can be 
killed through a signature strike. We don't have to know what that 
person's name is, who they are or whom they are with. If a person is in 
a line of traffic and we think they are going from talking to bad 
people to talking to other bad people, we can kill that person.
  Is that going to be the standard in America? When they are asked if 
they have killed civilians in their drone strikes, they say no. 
However, a person is not counted as a civilian if they are male or if 
they are between the ages of 16 and 50. They are considered a potential 
and probable combatant if they are in the 16-to-50 age range.
  My question is: If you are not a civilian, if you are in proximity to 
bad people, is that the standard we are going to use in the United 
States? If we are going to kill Americans on American soil and the 
standard is going to be signature strikes of a person who is close to 
bad people or in the same proximity of bad people, is that enough? Are 
we happy with that standard? Are we happy we have no jury, no trial, no 
charges, and nothing done publicly?
  Eric Holder, the Attorney General's response to me is that they 
maintain they are not going to do this. We should just trust them. It 
is not about them, though. It is about the law. The law restrains 
everyone equally, regardless of their party or whether they are 
Republican or Democrat. The law is out there for the time when somebody 
inadvertently elects a truly bad person.
  When World War I ended, the currency was being destroyed in Germany. 
In 1923, paper money became so worthless that people wheeled it in 
wheelbarrows; they burned it for fuel. It became virtually worthless 
overnight. At the beginning of September 1923, I think it was like 10 
or 15 marks for a loaf of bread. On September 14, it was 1,000 marks. 
On September 30, it was 100,000 marks. By October 15, it was a couple 
of million marks for a loaf of bread. It was a chaotic situation. Out 
of that chaos, Hitler was elected democratically. They elected him out 
of this chaos.
  My point is not that anybody in our country is Hitler. I am not 
accusing anybody of being that evil. I think it is an overplayed and 
misused analogy. What I am saying is that in a democracy we could 
someday elect someone who is very evil, and that is why we don't give 
the power to the government. It is not an accusation of this President 
or anybody in this body; it is a point to be made historically that 
occasionally even a democracy gets it wrong. So when a democracy gets 
it wrong, we want the law to be there in place. We want this rule of 
law.

  As I mentioned, Hayek said that this is what distinguished us. 
Nothing distinguishes us more clearly from arbitrary government and a 
government of whims than a rule of law, and a stable and consistent 
government is the rule of law.
  Heritage has an author who has written some about the oath of office. 
His name is Kesavan. He writes that the location and the phrasing of 
the oath of office for the President--this is something I mentioned 
earlier, that the President says he will protect and defend and 
preserve the Constitution--words are important. The oath doesn't say, I 
intend to preserve, protect, and defend; it says, I will.
  Kesavan writes, though, that the location and phrasing of the oath of 
office strongly suggests that it is not empowering but limiting. So the 
President doesn't take an oath of office that says: I intend to 
preserve, protect, and defend the Constitution, but I also feel that I 
have inherent powers that were never mentioned by anybody that I will 
be the sole arbiter of interpreting what those powers are.

[[Page S1153]]

  That sounds more like a king. That is not what we wanted. We did not 
want an imperial Presidency. What Kesavan suggests is that the oath of 
office is not empowering but that it is limiting, that the clause 
limits the President and how the President can execute or how the 
Executive power can be exercised.
  One unanswered word in that Constitution includes the Fifth Amendment 
to the Constitution. What does the Fifth Amendment say? The Fifth 
Amendment says that no person shall be held to answer for a capital or 
otherwise infamous crime unless on presentment or indictment of a grand 
jury. It is pretty explicit. The Fifth Amendment protects us. It 
protects us from a King placing a person in the tower, but it also 
should protect us from a President who might kill us with a drone.
  We were granted due process. It is not always easy to sort out the 
details of who is a threat to the country and who is not a threat to 
the country. If it were people with grenade launchers on their 
shoulders, that is easy. In fact, I agree completely. A person does not 
get due process if they are actively attacking America. But we have to 
realize there have been reports that over half of the drone strikes 
overseas are not even directed toward an individual, they are directed 
toward a caravan of unnamed individuals.
  Overseas, I have no problems. If people are shooting at American 
soldiers overseas, by all means, they get no due process. But we also 
have to realize that many--we don't know because they won't tell us the 
number, but many of the drone strikes overseas are done when a person 
is walking, whether to church, a restaurant, or along the road; they 
are done when a person is in a car driving; they are done when a person 
is in a house eating or in a restaurant eating; or they are done when a 
person is in a home sleeping. I am not even saying all those people 
didn't deserve what they got, but I am saying they were not actively 
involved in something that is an imminent threat, and if they were in 
America, they would be arrested.
  If we think a person is a terrorist in America, we should arrest 
them. But here is the question: Who is a terrorist? That is why I have 
been so concerned with a lot of people around here who want to say if 
you are associated with terrorism. The reason is that our government 
has already put out things that I think are of a questionable nature.
  The Bureau of Justice put out a bulletin within the last year 
describing people we need to be worried about. These are the people we 
are supposed to say something about if we see something. Who are these 
terrorists who live among us? People who might be missing fingers on 
one hand; people who might have stains on their clothing; people who 
might have changed the color of their hair; people who like to pay in 
cash; people who own more than one gun; people who own weatherized 
ammunition; people who have 7 days of food in their house--these are 
people we should be afraid of and we should report to our government, 
so says our government. Are they going to be on the drone strike list? 
I think we need to get an answer from the President.
  If you are going to kill people in America, we need rules, and we 
want to know what your rules are because I certainly don't want to have 
7 days of food in my house if that is on the list of terrorism. There 
are some governmental Web sites that advise us to have food in our 
house. If we live in a hurricane-prone area, we are supposed to keep 
some extra food around. Who is going to decide when it is OK to have 
food in our house and when it is not?
  There is something called a fusion center. Fusion centers are 
supposed to coordinate between the Federal Government and the local 
government to find terrorists. The one in Missouri a couple of years 
ago came up with a list, and they sent this to every policeman in 
Missouri. This kind of concerns me. The people on the list might 
include me. The people on the list from the fusion center in Missouri 
whom we need to be worried about and whom policemen should stop are 
people who have bumper stickers that might be pro-life; people who have 
bumper stickers that might be for more border security; people who 
support third-party candidates; people who might be in the Constitution 
Party. And isn't there some irony there--people who might be in the 
Constitution Party, who believe in the Constitution so much, they might 
be a terrorist.
  So I think we need to be concerned about this. Things are not so 
black and white. If someone is shooting a gun at us--a cannon, a 
missile, a rocket, a plane--it is pretty easy to know what lethal 
attacks are and to repel them, and there should be no due process. But 
we are talking about people in their home. We are talking about people 
in a restaurant or a cafe that someone is making an accusation against.
  If the accusation is based on how many fingers you have on your hand, 
I have a problem with that standard. If the standard to be used for 
killing Americans is whether a person pays in cash, I have a problem 
with that. If the standard to be used in America is being close to 
someone who is bad or the government thinks is bad is enough for you to 
be killed and not even to count you as an accidental kill but to count 
you as a combatant because you were near them--see, here is the 
problem, and this is no passing problem, this is an important problem. 
There was a man named al-Awlaki. He was a bad guy. By all evidence 
available to the public that I have read, he was treasonous. I have no 
sympathy for his death. I still would have tried him in a Federal court 
for treason, and I think he could have been executed. But his son was 
16 years old, and he missed his dad, who had been gone for 2 years. His 
son sneaks out of the house and goes to Yemen. His son is then killed 
by a drone strike. They won't tell us if he was targeted. I suspect, 
since there were other people in the group--there were about 20 people 
killed--that they were targeting someone else. I don't know that. I 
don't have inside information on that, but I suspect that.

  Here is the real problem. When the President's spokesman was asked 
about al-Awlaki's son, do my colleagues know what his response was? 
This I find particularly callous and particularly troubling. The 
President's response to the killing of al-Awlaki's son--he said he 
should have chosen a more responsible father. It is kind of hard to 
choose who your parents are. That is sort of like saying to someone 
whose father is a thief or a murderer or a rapist--obviously a bad 
thing, but does that mean it is OK to kill their children? Think of the 
standard we would have if our standard for killing people overseas is 
that you should have chosen a more responsible parent. It just boggles 
the mind and really affects me to think that would be our standard.
  There is absolutely no excuse for the President not to come forward 
on this. I have been asking for a month for an answer. It is like 
pulling teeth to get any answer from the President. Why is that? 
Because he doesn't want to answer the question the way he should as a 
good and moral and upstanding person--someone who believes in the 
Constitution should--that absolutely no American should ever be killed 
in America who is sitting in a cafe. No American should ever be killed 
in their house without a warrant and some kind of aggressive behavior 
by them. There is nothing American about being bombed in one's sleep. 
There is nothing constitutional about that.
  The President says to trust him. He says he hasn't done it yet. He 
says he doesn't intend to do so but he might. That is just not good 
enough. It is not enough for me to be placated. It is not enough for me 
to be quiet.
  So I have come here today to speak for as long as I can. I won't be 
able to speak forever, but I am going to speak for as long as I can to 
draw attention to something that I find really to be very disturbing.
  People have asked about this nomination process because I have 
actually voted for a couple of the President's nominees, some of whom I 
have objected to, some of whom I have had personal differences with as 
well as political differences with. This is not about partisanship.
  I voted for Secretary of State John Kerry. I have almost nothing in 
common with him politically. I have disagreed with him repeatedly on 
the floor. But I gave the President the prerogative of choosing his 
Secretary of State because I think the President won the election and 
he deserves to get

[[Page S1154]]

to make some choices on who is in his Cabinet.
  I voted for the very controversial Secretary of Defense, Chuck Hagel. 
There were things I liked about him and things I disliked about him. I 
filibustered him twice before I allowed him to go forward, and people 
have given me a hard time. Conservatives from my party have blasted me 
for doing that, but I gave the President that prerogative.
  So I am not standing here as a Republican who will never vote for a 
Democrat. I voted for the first three nominees by the President. This 
is not about partisanship. I have allowed the President to pick his 
political appointees, but I will not sit quietly and let him shred the 
Constitution. I cannot sit at my desk quietly and let the President say 
he will kill Americans on American soil who are not actively attacking 
a country. The answer should be so easy. I can't imagine that he will 
not expressly come forward and say: No, I will not kill Americans on 
American soil.
  The Fifth Amendment says that no person shall be held for a capital 
or otherwise infamous crime unless on the presentment or indictment of 
a grand jury. It goes on to say that no person will be deprived of 
life, liberty, or property without due process. Now, some hear ``due 
process,'' and if a person is not a lawyer--I am not a lawyer--when we 
first hear it, we think, what does that mean? What does it mean to have 
due process?
  What it means is we are protected. We get protections. Is our justice 
system perfect? No. Sometimes a person goes all the way through due 
process in our country, and we have actually convicted people who are 
innocent. Fortunately, it is very rare, but we have actually convicted 
people who are innocent. What are the chances that our President, going 
through a PowerPoint slide show and flashcards, might make a mistake on 
innocence or guilt? I would say there is a chance. Even our judicial 
system, which goes through all of these processes, including a judge 
reviewing the indictment, a jury reviewing it, and then a sentencing 
phase and all of that going forward--we sometimes make mistakes. What 
are the chances that one man, one politician, no matter what party they 
are from, could make a mistake on this? I think there is a real chance 
that exists. That is why we put these rules in place.
  Patrick Henry wrote that the Constitution wasn't given or written or 
put down to restrain you; the Constitution was to restrain us. There 
has always been, since the beginning of the time we first had 
government, this desire to restrain the government, to try to keep the 
government from growing too strong or to try to keep the government 
from taking your rights.
  It is interesting that when we look at the Constitution, the 
Constitution gave what are called enumerated powers to government. 
Madison said these enumerated powers were few and defined. The 
liberties we were given, though, are numerous and unlimited. So there 
are about 17 powers given to government which we have now transformed 
into about a gazillion or at least a million new powers--we don't pay 
much attention to the enumerated powers or to the Constitution anymore. 
But the Constitution left our rights as unenumerated; they aren't 
limited. Your rights are limitless.
  So when we get to the 9th and 10th Amendments, they say specifically 
that those rights not granted to your government are left to the States 
and the people respectively. It didn't list what those rights are. The 
14th Amendment talks about privileges and immunities being left to you 
also. They are to be protected.
  I don't think there is a person in America--that is why I can't 
understand the President's unwillingness to say he is not going to kill 
noncombatants. Think about that. He is unwilling to say publicly that 
he is not going to kill noncombatants, because that is what we are 
talking about here. I am not talking about someone with a bazooka or a 
grenade launcher on their shoulder. Anyone committing lethal force can 
be repelled with lethal force. No one argues that point. I am talking 
about whether you can kill noncombatants because many of the people 
being killed overseas are noncombatants. Are they potential combatants? 
Maybe. Maybe the standard can be less overseas than it is here for 
people involved in a battle, but it is getting kind of murky overseas 
as well.
  For goodness' sake, in America we can't just have this idea that we 
are going to kill noncombatants. We are talking about people eating in 
a cafe, at home, in a restaurant. I think we need to be a little more 
careful.
  The power that was given by the Constitution to the Senate was that 
of advise and consent. This constitutional provision provides us with 
the power to consent to nominations or withhold consent. It is a check 
on the executive branch, but it only works if we actually use it.
  I am here to speak for as long as I can hold up to try to rally 
support from people from both sides to say: For goodness' sake, why 
don't we use some advise and consent? Why don't we advise the President 
he should come forward and say he will not condone nor does he believe 
he has the authority to kill noncombatants?
  As a check on the executive branch, this power that is granted to the 
Senate is the right to withhold consent. The Constitution does not 
provide Senators with the specifics or the criteria of why we withhold 
consent. That is left to us to decide.
  I withhold my consent today because I am deeply concerned the 
executive branch has not provided an answer, that the President refuses 
to say he will not kill noncombatants.
  The President swore an oath to the Constitution. He said he will 
protect, defend, and preserve the Constitution. He did not say: I 
intend to when it is convenient. He said: I will defend the 
Constitution. It is inexcusable for him not to come forward.
  There is an author who writes for The Atlantic who has written a lot 
about the drone program by the name of Conor Friedersdorf. He recounts 
the tale of al-Awlaki's son who was killed. He said when the 
President's spokesman was asked about the strike that killed him, the 
President's spokesman replied: Well, he would have been fine if he 
``had a more responsible father.''
  If that is our standard, we have sunk to a real low.
  Cornered by reporters after this, White House Press Secretary Robert 
Gibbs attempted to defend the kill list, which is secret, of course. We 
have to remember, if we are going to kill noncombatants in America or 
people we think might someday be combatants, the list will be secret. 
So one will not get a chance to protest: Hey, I am not that bad. I 
might have said that at one time, but I am not that bad. All right. I 
have objected to big government, not all government. I am not fomenting 
revolution. I was critical at that meeting. I was at a tea party 
meeting, and I was critical of the President, but I am not a 
revolutionary. Please, don't kill me.
  Should we live in a country where we have to be worried about what we 
say? Should we live in a country where we have to worry about what we 
write? What kind of country would that be? Why is there not more moral 
outrage? Why is there not every Senator coming down to say: You are 
exactly right. Let's go ahead and hold this nomination and why don't we 
hold it until we get more clarification from the President.
  Conor Friedersdorf of The Atlantic writes:

       . . . it's vital for the uninitiated to understand how Team 
     Obama misleads when it talks about its drone program. Asked 
     how their kill list can be justified, Gibbs--

  The President's spokesman--

     replies that ``when there are people who are trying to harm 
     us, and have pledged to bring terror to these shores, we've 
     taken that fight to them.'' Since the kill list itself is 
     secret, there's no way to offer a specific counterexample.

  It is one thing to say: Yes, these people are going to probably come 
and attack us, which, to tell you the truth, is probably not always 
true. There are people fighting a civil war in Yemen who probably have 
no conception of ever coming to America.
  Friedersdorf goes on to say:

       But we do know that U.S. drones are targeting people who've 
     never pledged to carry out attacks in the United States.

  So we are talking about noncombatants who have never pledged to carry 
out attacks are being attacked overseas. Think about it, if that is 
going to be the standard at home: people who have never truly been 
involved with combat against us.

[[Page S1155]]

  Friedersdorf continues:

       Take Pakistan, where the CIA kills some people without even 
     knowing their identities. ``As Obama nears the end of his 
     term, officials said the kill list in Pakistan has slipped to 
     fewer than 10 al-Qaeda targets, down from as many as two 
     dozen. . . . ''

  Yet we are killing hundreds of people in Pakistan.
  There is a quote that I think sort of brings this and makes this very 
poignant. There is a quote from an ex-CIA agent--I think it is Bruce 
Riedel--who says: The drone strike program is sort of like a lawnmower. 
You can keep mowing them down, but as soon as the lawnmower stops, the 
grass grows again.
  Some people have gone one step further and said: For every 1 you kill 
or for maybe every 1 you accidentally kill whom you did not intend to 
kill, 10 more spring up.
  Think about it. If it were your family member and they have been 
killed and they were innocent or you believe them to be innocent, is it 
going to make you more or less likely to become involved with attacking 
the United States?
  I have written a couple letters to John Brennan, who has been put up 
for the CIA nomination. I think it looks like the first letter was sent 
January 25. So here we are into March, and I only got a response when 
he was threatened. So here is a guy whom the President promotes as 
being transparent and wanting to give a lot of information to the 
American people, he will not respond to a Senator. They treat the 
Senate with disdain, basically--will not even respond to us, much less 
the American people, when I asked him these questions. He finally 
responded only when his nomination was threatened.
  So when it came to the committee and it appeared as if I had 
bipartisan support for slowing down his nomination if he did not answer 
his questions, then he answered his questions. It does not give me a 
lot of confidence that in the future, going forward, if he is approved, 
that he is going to be real forthcoming and real transparent about 
this.
  I do not have a lot of anticipation or belief that we are going to 
get more information after this nomination hearing. Some are now 
saying: You have gotten your pound of flesh. Let him go, and we will 
keep working on this. The problem is, once he is gone, the discussion 
is over.
  Others in my party have been trying to get information about what 
went horribly wrong in Benghazi and have gotten some of that 
information but only by using it as leverage to try to get the 
President to do what is the honorable thing; that is, to be more 
transparent with his ways.
  In the first letter I sent to Brennan, I asked him the question: Is 
it legal to order the killing of American citizens and that you would 
not be compelled to even give your reasoning--not even specific to the 
case but any of your reasoning?
  Finally, as these questions came forward, some of the things were 
leaked out. One of the most troubling things that came out is when 
Brennan and the President finally began to talk about the drone strike 
program, which, according to the former Press Secretary, they were to 
deny that it existed for years.
  When they finally came out, they told us a couple things about their 
interpretation of it. One, they have no geographical limit to their 
drone strikes. The second thing is they told us what they thought was 
imminent. This is pretty important because a lot of Americans, myself 
included, believe if we are being attacked, we can respond with lethal 
force. But a lot of Americans think that we have to actually be engaged 
in that to respond with lethal force. But they told us the way their 
lawyers interpret ``imminent'' is imminent does not have to mean 
``immediate.''
  Only a bunch of lawyers could get together, government lawyers could 
get together and say imminent is not immediate. You have to understand, 
and what we should be asking the President is, Is this your standard 
for America? If you are going to assert that you have the right to kill 
Americans on American soil, are you going to assert--are you going to 
assert--that your standard is that an imminent threat does not have to 
be immediate?
  I am quite concerned, when I hear this kind of evasiveness, with this 
sort of nonresponse to questions.
  We also asked: Would it not be appropriate to require a judge or a 
court to review this?
  See, here is the real interesting thing. We had a President who ran 
for office saying your phone should not be tapped without a warrant. I 
happen to agree with Candidate Obama. But what happened to Candidate 
Obama, who wanted to protect your right to the privacy of your phone, 
who does not care much about your right not to be killed by a drone 
without any kind of judicial proceeding?
  I think we should demand it. The way things work around here, though, 
is people kind of say: Yes, we will demand it, and maybe later on this 
year we will talk about a bill or talk about getting something. What 
they should do is just say: No more. We are not going to move forward 
until we get some justice. We are not going to let the President--any 
President, Republican or Democratic--do this.
  One of the other questions I asked the President was: It is 
paradoxical that the Federal Government would need to go before a judge 
to authorize a wiretap on U.S. citizens even overseas but possibly not 
have any kind of oversight of killing an American here in America.
  We have asked him how many citizens have been killed. We have not 
gotten an answer to that. They say not many, and hopefully it has not 
been many. But I think it is important to know. I think it would be 
important to know, if we are going to target Americans in America, if 
that list exists. I think it would be important to know if being close 
to someone is also justified. What if you just happen to live in the 
neighborhood of somebody who is a suspected terrorist? Is it OK because 
you were close to them? What if you happen to go to dinner with a guy 
you did not know or a woman you did not know and the government says 
they are a terrorist? Just because you are having dinner with them and 
you are a male between the ages of 16 and 50, does that make you a 
combatant?
  We also asked the question: Do you condone the CIA's practice of 
counting civilians killed by U.S. drone strikes as militants simply 
because they are of the same age? Similar to every other question, no 
answer.
  We asked him whether al-Awlaki's son was a target. No answer.
  We asked how many people have been targeted? No answer.
  Part of the problem with this is that we are--or Congress in general 
is sloppy about writing legislation in general.
  I will give an example. When the ObamaCare legislation was written--
it is over 2,000 pages--but it leaves up to the Secretary of Health, I 
think 1,800 times, the power to decide at a later date what the rule 
would be. So since ObamaCare, of 2,000 pages, has been written, there 
have been now 9,000 pages of regulations.
  Dodd-Frank is kind of the same way. Dodd-Frank is a couple thousand 
pages. It now is going to wind up with 8,000 or 9,000 pages of 
regulations.
  We abdicate our responsibility by not writing legislation. We write 
shells of legislation that are imprecise and do not retain the power. 
Because of that, the executive branch and the bureaucracy, which is 
essentially the same thing, do whatever they want.
  This happened also with the authorization of use of force in 
Afghanistan. This happened over 10 years ago now--12 years ago. I 
thought we were going to war against the people who attacked us, and I 
am all for that. I would have voted for the war. I would have preferred 
it to have been a declaration of war. I think we were united in saying: 
Let's get those people who attacked us on 9/11 and make sure it never 
happens again.
  The problem is, as this war has drug on, they take that authorization 
of use of force to mean pretty much anything. They have now said the 
war has no geographic limitations. So it is not a war in Afghanistan; 
it is a war in Yemen, Somalia, Mali. It is a war in unlimited places.
  Were we a body that cared about our prerogative to declare war, we 
would take that power back. But I will tell you how poor--and this is 
on both sides of the aisle--how poor is our understanding or belief in 
retaining that power here.
  About 1 year ago, I tried to end the Iraq war. You may say: I thought 
the

[[Page S1156]]

Iraq war was already over. It is. But we still have an authorization of 
use of force that says we can go to war in Iraq anytime. Since they 
think the use of force in Afghanistan means limitless war anywhere, 
anytime in the whole world, for goodness' sake, wouldn't we try to take 
back an authorization of force if the war is over?
  But here is the sad part. I actually got a vote on it. I think I got 
less than 20 votes. You cannot end a war after it is over up here. It 
has repercussions, because these authorizations to use force are used 
for many other things. So the authorization of force says you can go 
after al-Qaida or associated terrorists.
  The problem is that when you allow the executive branch to sort of 
determine what is al-Qaida, you have got no idea. For the most part I 
will not be able to determine that either. All the information is 
classified. There are a lot of bad people. There is a war going on in 
Yemen. I do not know how much it has to do with us, you know, or how 
much there is an al-Qaida presence there trying to organize to come and 
attack us. Maybe there is. But maybe those are also people who are just 
fighting their local government.
  How about Mali? I am not sure. In Mali, they are probably worried 
more about trying to get the next day's food than coming over here to 
attack us. But we have to ask these questions. We have to ask about 
limitations on force, because essentially what we have now is a war 
without the geographic boundaries.
  We have many on my side who come down here and say, the battlefield 
is here in America. Be worried. Be alarmed. Alarm bells should go off 
when people tell you that the battlefield is in America. Why? Because 
when the battlefield is in America, we do not have due process. What 
they are talking about is they want the laws of war. Another way of 
putting that is, they call it the laws of war. Another way to put it is 
to call it martial law. That is what they want in the United States 
when they say the battlefield is here.
  One of them, in fact, said, if they ask for a lawyer, you tell them 
to shut up. Well, if that is the standard we are going to have in 
America, I am quite concerned that the battlefield will be here and 
that the Constitution would not apply. Because to tell you the truth, 
if you are shooting at us in Afghanistan, the Constitution does not 
apply over there. But I certainly want it to apply here. If you are 
engaged in combat overseas, you do not get due process. But when people 
say, oh, the battlefield has come to America, and the battlefield is 
everywhere, the war is limitless in time and scope, be worried because 
your rights will not exist if you call America a battlefield for all 
time.
  We have asked him whether the strikes are exclusively focused on al-
Qaida and what is the definition of being part of al-Qaida. In 1947, 
the National Security Act was passed. It said the CIA does not operate 
in America. Most people--most laypeople know that. The CIA is supposed 
to be doing surveillance and otherwise outside the United States of 
foreign threats. The FBI works within the United States. They do some 
of the same thing. But they are different groups. The CIA operating in 
Iraq or Afghanistan does not get a warrant before they do whatever they 
do to snoop on our enemies. The FBI in our country does. They operate 
under different rules, and for a reason. We do not want them to operate 
in the United States. We are not saying the CIA are bad people, we just 
do not want them operating with no rules or the rules we allow them to 
operate with overseas. We do not want them operating in our country.
  The disappointing thing is that a month ago when I asked John Brennan 
this question, as his nomination came forward, I could not get an 
answer. He would not answer the question about the CIA operating in the 
United States. Only after yanking his chain, browbeating him in 
committee, threatening not to let him out of committee does he finally 
say he is going to obey the law. We should be alarmed by that. Alarm 
bells should go off when we find that what is going on here is it takes 
that much for him to say he is going to obey the law.
  The President has said: Don't worry, because he is not going to kill 
you with a drone unless it is infeasible to catch you. Now that sounds 
kind of comforting. But I guess if our standard for whether we kill you 
is whether it is practical, that does bother me a little bit. It does 
not sound quite strict enough. I am kind of worried that maybe there is 
a sequester and the President says we cannot have tours in the White 
House. Maybe he has not got enough people to go arrest you. He had 
policemen by him. He is saying he is going to lay off the policemen. Of 
course, he does not have anything to do with the policemen, so do not 
worry about that. But he had the policemen by him that he is going to 
lay off, so maybe it is infeasible because he has laid off the 
policemen so it is going to be easier to kill you.
  I know that sounds as though we have gone a slippery slope beyond 
what he is asking for. But if his standard is it is infeasible to 
capture you and that is what you are hanging your hat on, I would be a 
little concerned that that may not be enough protection for Americans 
on American soil.
  There is a law called posse comitatus. It has been on the books since 
shortly after the Civil War. It is once again one of those things a lot 
of people do not think about, but it is an important thing. It says the 
military does not operate on U.S. soil unless there is a declaration of 
an insurrection or a civil war. There has to be a process that Congress 
goes through. We have had this law for a long time.
  Once again, the reason we do it is not because we think our military 
are bad people. I am proud of our soldiers. I am proud of our Army. I 
am proud of what they do for our country. But they operate under 
different rules. It is a much more dangerous environment they operate 
under. It is different. It is still dangerous in America, but policemen 
have different rules of engagement than your soldiers have. There are 
more restrictions and restraint on what we do in our country. So that 
is why we say the military cannot operate here.
  So when we asked the President, can you kill Americans on American 
soil with your drone strikes, which is part of the military, it should 
be an easy answer. In fact, I hope someone is calling him now and 
asking him for an answer. It would save me a lot of time and breath. My 
throat is already dry and I just got started. But if they would ask him 
for an answer: Can the military operate in the United States? Well, no, 
the law says the military cannot operate in the United States. It is on 
the books. He should simply do the honorable thing and say he will obey 
the law. It is simple. But I do not get why they refuse to answer it. 
It worries me that they refuse to answer the question. Because by 
refusing to answer it, I believe they believe they have expansive 
power, unlimited power. The real irony of this is is that many on the 
left, Senator Barack Obama included, were very critical of the Bush 
administration. They felt as though the Bush administration usurped 
power. They felt the Bush administration argued invalid aggrandizement 
or grasping for power. John Yoo was one of the architects of this, 
believing basically that the President just says, hey, I am going to 
protect you, I can do whatever the hell I want.

  Many on the left objected to that. Some of us on the right also 
objected to this usurpation of power by the Republican President. But 
the thing is, now that the shoe is on the other foot, we are not seeing 
any of that. We are now seeing a President who was worried about 
wiretaps not at all worried about the legality of killing Americans on 
American soil with no judicial process.
  But the law of posse comitatus prevents this from happening. It is 
very clear. It has been on the books for 150-some-odd years. I think it 
would be pretty easy for the President to go ahead and say that he will 
obey the law. We asked Brennan the question on this and we got no 
answer.
  The answers we have gotten are almost more disturbing than getting an 
answer, really, to tell you the truth. Because when the President 
responds that I have not killed any Americans yet at home, and that I 
do not intend do so, but I might, it is incredibly alarming and goes 
against his oath of office. He says in his oath of office that I will 
preserve, I will protect, and I will defend the Constitution. It does 
not say I intend to or that I might.

[[Page S1157]]

  Can you imagine the furor if people were talking about the second 
amendment? Can you imagine what conservatives would say if the 
President said, well, you know, I kind of like the second amendment and 
I intend to, when convenient, when it is feasible, protect the second 
amendment? Or what about those who believe in the first amendment, if 
the President were to say, I have not broken the first amendment yet, I 
intend to follow it, but I might break it, or I intend to follow it 
when it is feasible? So I have all of those rules, and this is what the 
President answered when he was at Google Campus a couple of weeks ago. 
They asked him the question: Can you kill Americans on American soil? 
He said: Well, the rules will probably be different outside the United 
States than inside. That basically means, yes, he thinks he can kill 
Americans on American soil, but he is going to have some rules. Do not 
worry about it, because he will make some rules and there will be a 
process, but it will not be due process. It will be a process that he 
sets up in secret in the White House, and I do not find that 
acceptable.
  The only answer really acceptable, you know, we ask a question that 
could be yes or no: Can you kill an American on American soil? It is a 
yes-or-no question. They have been very evasive. They have never really 
answered the question. But when asked it, we pretty much knew only one 
answer was acceptable. That answer is no. I mean, if you do not answer 
it, basically by not answering it you are saying yes. I was actually a 
little bit startled when I finally got the answer: Yes, we can kill 
Americans on American soil. I thought for sure that they would be 
evasive to the end, try to get their nominee through without opening 
Pandora's box.
  But they have opened Pandora's box. It would be a mistake for us to 
ignore it. It would be a mistake for us to ignore the ramifications of 
what they have done. When we separate out police power from judicial 
power, it is an important separation. You know, the police can arrest 
you. They are allowed to do certain things. But the policeman that 
comes to our door and puts handcuffs on you does not decide your guilt. 
Sometimes we do not always think about how important the separation is. 
But it is incredibly important that those who arrest you are not the 
ones who ultimately accuse you. The court, through the people, accuses 
you, and then you are given a trial to determine your guilt.
  It is complicated. It is not always clear who is innocent and who is 
guilty. Judges and juries make mistakes. But at least we have a 
process. You get appeals most of the time. We have a significant 
process going on that has a several-hundred-year tradition at the 
least. So what gets me about the process that the President favors is, 
it is the ``trust me'' process. You know, I have no intention of doing 
bad things. I will do good things. I am a good person.
  I am not disputing his motives or saying he is not a good person. But 
I am disputing someone who is naive enough to think that is good enough 
for our Republic, that his good intentions are good enough for our 
Republic. It never would have been accepted. It would have been laughed 
out of the Constitutional Convention. The Founding Fathers would have 
objected so strenuously that that person would probably never have been 
elected to office in our country.
  Someone who does not believe that the rules have to be in place, and 
that we cannot have our rights guaranteed by the intentions of our 
politicians--think about it. Congress has about a 10-percent approval 
rating. Think the American people want to face whether they are going 
to be killed by a drone on a politician? I certainly do not. It does 
not have anything to do with whether he is a Republican or Democrat. I 
would be here today if this were a Republican President, because you 
cannot give that much power to one person. We separated the police 
power from the adjudication or from the jury power from the decisions 
on innocence and guilt. It is separate from the police power, 
purposefully so, with great forethought.

  Some transform this--and the President has tried--Brennan has tried 
to transform this into: Oh, well, we need to reserve this power for 
when planes are attacking the Twin Towers. Well, that is not what we 
are talking about, Mr. President. I think you misunderstand or you 
purposefully obfuscate or you purposefully mislead. No one is 
questioning whether the United States can repel an attack. No one is 
questioning whether your local police can repel an attack. Anybody 
involved in lethal force, the legal doctrine in our country, and has 
been historically, has always been, that the government can repel 
lethal attacks.
  The problem is that the drone strike program is often not about 
combatants. It is about people who may or may not be conspiring but 
they are not in combat. They are in a car. They are in their house. 
They are in a restaurant. They are in a cafe. If we are going to bring 
that standard to America, what I am doing down here today is asking the 
President to be explicit. If you are going to have the standard that 
you are going to kill noncombatants in America, come forward and please 
say it clearly so we know what we are up against. If you are not going 
to do it, come up with what the easy answer is: I am not going to kill 
noncombatants. That would have been easy for him to say.
  He could have said the military at some point in time needs to repel 
invasions. We know that. We are not questioning that. We are 
questioning a drone strike program--we don't know, because nobody will 
tell us the numbers. The numbers are secret. One Senator said in a 
public meeting that 4,700 people had been killed overseas. If I had to 
venture a guess, a significant amount of them weren't involved in 
shooting at American soldiers. If they were, by all means kill them. If 
we are fighting a war in Afghanistan--which we have been--and if there 
are soldiers around the bend who are a threat to our soldiers, there is 
no due process at that point. This is not what we are arguing about. We 
are arguing about targeted strikes of people not involved in combat. 
That is my concern.
  My concern also is who is and what is a terrorist, who is associated 
with terrorism. The government has put out many documents now which 
tell you if you see something, say something. The documents you see, I 
am not so sure these people are terrorists. If you see somebody paying 
in cash or if you have a store, such as one of your customers comes in 
frequently and they pay in cash, should you report them to the 
government? I can't imagine that is the kind of standard we are going 
to have in our country for deciding drone strikes.
  When it comes to some of these people, though, I think some of the 
drone strikes have probably been justified. Al-Awlaki, I think, was a 
traitor. This is not from looking at classified documents, this is from 
reading the lay press. By all means, he gave up on his country, 
renounced his citizenship, went overseas, consorted with and aided the 
enemy.
  One of the interesting questions about aiding the enemy is what 
exactly that means and what are the standards to be. Kevin Williamson 
writes for the National Review. He wrote an article on drones that I 
think truly brings this home if you are going to talk about and want to 
know who are the people who potentially could be killed. In some ways 
al-Awlaki was a sympathizer, someone who aided and abetted through 
Internet talk and chatter. That was the main thing he was accused of. 
Actually, after the fact, they said he had more direct association. I 
don't know if that is true. I haven't seen the secret information on 
that.
  What I would say is he was initially brought up as a sympathizer. 
Here is the problem. Many writers have said if you take up arms against 
your country, you are an enemy combatant. I think that is true. If you 
are in Afghanistan, have a grenade launcher on your shoulder and are 
shooting at Americans, you are an enemy combatant. You don't get due 
process.
  Here is the question: If you are in Poughkeepsie and you are on the 
Internet, and you say I sympathize with some group around the world 
that doesn't like America, and say bad things about America, are you a 
traitor? I mean, you can try someone for treason for that. I am not 
sure if it will rise up to that if you are politically opposed to what 
your government is doing in favor of another. Kevin Williamson gets it 
pretty clearly:


[[Page S1158]]


       If sympathizing with our enemies and propagandizing on 
     their behalf is the equivalent of making war on the country, 
     then the Johnson and Nixon administrations should have bombed 
     every elite college in America.

  During the 1960s, that is all that came out was anti-America, 
antiwar. Is objecting to your government or objecting to the policy of 
your government sympathizing with the enemy?
  Some were openly sympathetic. No one will ever forget Jane Fonda 
swiveling around in North Vietnamese armored guns, and it was 
despicable. It is one thing if you want to try her for treason, but are 
you going to drop a drone Hellfire missile on Jane Fonda? Are you going 
to drop a drone Hellfire missile on those at Kent State?
  Our country objected to what happened at Kent State, which was not 
good--but it was accidental since they were shooting over the heads of 
these people. Can you imagine we have gone from a country that was 
rightfully upset about the deaths at Kent State to a country which now 
is going to say, if you are in college and you are rabble rousing 
because you don't like the government's foreign policy or the 
government's war actions, you are sympathizing? There are a lot of 
questions that aren't being asked, because sympathizing appears to be 
used as a standard for the drone strike program.
  We actually had students, apparently during the Vietnam war, who were 
actually raising funds for the Vietcong. That does to me sound like 
treason. It sounds to me something like we are fighting an enemy and 
you are giving comfort to the enemy. That does sound like treason. I 
have no problem with some people actually being tried for treason, but 
they get a day in court. They don't get a Hellfire missile sent to 
their house. There is a difference, though, between sympathizing and 
taking up arms. Most people around here who want to justify no rules, 
America is a battlefield, no limits to war--they really want to blur it 
all together. It is easier to say, oh, you don't want to stop anybody 
who is shooting at Americans, but it is not true. I think lethal force 
may be used against those engaged in lethal force.
  What troubles me about the drone strike program is quite a few--I 
don't know the number--the Wall Street Journal says the bulk of the 
attacks in Afghanistan has been signature attacks. This means nobody 
was named, nobody specifically was identified, and civilians aren't 
really counted. This is because anybody, any male between the age of 16 
and 60, is a combatant unless otherwise proven. If those are the 
standards, I think we need to be alarmed. I think there is a difference 
between sympathizing and taking up arms.
  One of the interesting things Kevin Williamson and the National 
Review brings out, and it is sort of a conundrum for conservatives--
because saying someone was involved and just taking the government's 
words, like saying al-Awlaki was involved with these other people and 
taking the government's word, we have no way of ascertaining or 
questioning whether the secret information is true or not true. A few 
years before this--and a lot of people don't remember this--al-Awlaki, 
who was killed a couple years before this, was brought to the Pentagon 
to speak as a part of a group of moderate Islamic preachers. They 
thought him to be an Islamic voice of reason. He even came to the 
Capitol and said prayers in the Capitol. This is the guy who the 
government said was a good guy for a while and later said he was a bad 
guy. I think ultimately the evidence he was a bad guy is pretty strong. 
Most of his crime was sympathizing.
  It wasn't enough of a standard. I think in a court, in a treasonous 
court, al-Awlaki would have been convicted of treason if I were a 
juror. I would have voted he was committing treason, and I wouldn't 
have had trouble at all with a drone strike on him.
  If we are going to take by extension the standard we used in putting 
him on the list that he was a sympathizer, agitator, and a pain in the 
royal you-know-what on the Internet, there are a lot of those people in 
America if that is going to be our standard.
  That is why I would feel a little more comforted if it weren't an 
accusation by a politician who unleashes Hellfire missiles. I would be 
a little more comforted--and I think we would all sleep a little better 
in our houses at night--if we knew that before the Hellfire missile 
comes down, a policeman would come to your door and say we accuse you 
of this. They might put handcuffs on you and take you to jail, but they 
don't get to summarily execute you.
  That is all I am asking. I am asking for the President to admit 
publicly he is not in favor of summary executions. That is really all I 
am asking, about summary executions of noncombatants. It seems like a 
pretty easy answer.
  We could be done with this in a moment's notice if someone will call 
the President and ask the question. We could be done with this because 
that is what I want to hear, not that he is going to use the military 
to repel an invasion. Nobody is questioning the authority of the 
President to repel an invasion. I am questioning the authority of the 
President to kill noncombatants asleep at home, eating in the 
restaurant, or what-have-you.
  One of the things Williamson brings up in his National Review article 
again--which is a little bit off the subject but somewhat related--we 
were fearful and we didn't do a very good job with 9/11, frankly. 
September 11 occurred because of a lot of mistakes, and some of you 
could look back as a Monday-morning quarterback and say, oh, we should 
have done this.
  One of the things that sort of bothered me about 9/11 was no one was 
ever fired. In fact, they gave medals--the head of the FBI, the CIA, 
everybody gets a medal. No one was ever fired.
  Some of you may remember there was a 20th hijacker. His name was 
Moussaoui. He was in Minnesota, and they captured him a month in 
advance of 9/11. When they captured him, the FBI agent there--who was 
spot on--was doing an excellent job. The agent who should have received 
the medal was the FBI agent who caught Moussaoui and was asking his 
superiors to get a warrant. He asked repeatedly. He sent 70 letters to 
headquarters, saying: May I have a warrant to open this guy's computer, 
to investigate him? He was turned down. He got no response. It was a 
horrible and tragic human error.
  What do we do? We promote and give medals to the people who were in 
charge. That agent should have received a medal, but anybody above him 
who made the decision not to even ask for a warrant shouldn't have gone 
anywhere within the department.
  Williamson makes the point if our law enforcement and intelligence 
agencies--particularly the State Department--had been doing a minimally 
competent job vis-a-vis visa overstays and application screenings, at 
least 15 of the 9/11 hijackers would have been caught. They were all on 
student visas, and they were all overstaying their student visas. 
Nobody was paying attention. I still ask that question today. I ask, do 
we know where all the students are, particularly from about 10 Middle 
Eastern countries? The students who aren't from our own country, do we 
know where they are? I think we have not a good enough system to know 
where they all are, whether they have come and gone. This is a real 
problem.
  Had we actually looked at Moussaoui's computer? They did; they looked 
at it on September 12. The day after 9/11 they looked at his computer. 
I think it, within hours, led them and linked them up to several 
hijackers in Florida and ultimately would have perhaps exposed the 
whole ring.
  The same thing was going on in Arizona at the same time. They had 
somebody in Arizona saying there are guys who want to fly planes and 
don't want to learn how to land them.
  There were horrible and tragic occurrences that happened, human 
breakdown. How do we fix it? We fix it the same way we do everything in 
Washington: We threw a ton of money at it, and I mean a ton of money. 
Billions upon billions and into the trillions of dollars have now been 
spent. Really the main problem with 9/11 was a lack of communication, 
lack of trying, lack of doing a good job at what you were already 
supposed to be doing.
  When we look at this issue, and as we go forward from here, I think 
what is most important to me is we not let this go. This is the first 
time I have decided to come to the floor and speak in a true 
filibuster. People talk about filibuster all the time. They say the 
filibuster is overused and it is abused. A

[[Page S1159]]

lot of times the filibuster in our country and in the Senate is 
actually requesting 60 votes happen and we need to do everything by 
unanimous consent, so it almost never happens. I have been here 2 
years, and I don't think I have ever seen anybody come to the floor and 
speak in a filibuster as I am doing today. I think it is important, 
though, and I think the issue rises to such an occasion. There are a 
lot of things we disagree on, Republicans and Democrats. I think there 
are a lot of things we could actually pass up here, a lot of things we 
could actually agree to we could pass if we get together, try to do 
smaller bills, work on what we agreed and get away from some of the 
empty partisanship.
  The reason I came to the floor today to do this is because I think 
certain things rise above party politics. Certain things rise above 
partisanship.
  I think you are right to be secure in your person, the right to be 
secure in your liberty, the right to be tried by a jury of your peers. 
These are things that are so important and rise to such a level we 
shouldn't give up on them easily. I don't see this battle as a partisan 
battle at all. I don't see this as Republicans versus Democrats. I 
would be here if there were a Republican President doing this.
  Really, the great irony of this is President Obama's position on this 
is an extension of George Bush's opinion. It basically is a 
continuation and an expansion of George Bush's opinion. George Bush was 
a President who believed in very expansive powers, some would say 
unlimited. He was accused of running an imperial Presidency. The irony 
is this President we have currently was elected in opposition to that. 
This President was one elected who, when he was in this body, was often 
very vocal at saying the President's powers were limited.
  When I first came here, one of the first votes I was able to receive 
was a vote on whether we should go to war without congressional 
approval. The interesting part is that the war was beginning in Libya. 
It turned out to be a small war, but small wars sometimes lead to big 
wars. In fact, that was one of Eisenhower's admonitions, to beware of 
small wars, that you may find yourself in a big war. Fortunately, the 
Libya war didn't turn out to be a big war, although I think it is still 
a huge mess and it is still yet to be determined whether Libya will 
descend into the chaos of radical Islam. I think there is a chance they 
may still descend into that chaos.

  But when the question came up about going to war in Libya, there was 
the question of, well, doesn't the Constitution say you have to declare 
war? And so we looked back through some of the President's writings as 
a candidate, and one of the President's writings I found very 
instructive and I was quite proud of him for having said it. The 
President said that no President shall unilaterally go to war without 
the authority of Congress unless there is an imminent threat to the 
country. I guess we should be a little wary of his ``unless'' now, 
since we know imminent doesn't have to be immediate and imminent no 
longer means what humans once thought imminent meant. But Candidate 
Obama did say that the President doesn't go to war by himself.
  I think it would be fair to say that Candidate Obama also felt the 
President didn't have the authority to imprison you indefinitely 
without a trial. And I think it is also safe to say that Barack Obama 
of 2007 would be right down here with me arguing against this drone 
strike program if he were in the Senate. It amazes and disappoints me 
how much he has actually changed from what he once stood for.
  But I forced a vote on his words. I took his exact words. We quoted 
him and put those words up on a standard next to me, and we voted on a 
sense-of-the-Senate that said: No President shall go to war without the 
authority of Congress--which basically just restates the Constitution. 
Now, you would think that would be a pretty easy vote for people. I 
think I got less than 20 votes. That is the sad state of affairs we are 
in. There were some who actually probably believed that but refused to 
vote for it because they said: Well, he is a Republican, and I won't 
vote with a Republican. But I honestly tell you, were the shoe on the 
other foot, were there a Republican President here and I a Republican 
Senator, I would have exactly the same opinion. My opinion today on 
drone strikes would be exactly the same opinion under George Bush. And 
I was critical of George Bush as well. Were there a Republican 
President now, I would have the same instinct and the same resolution 
to carry this forward. And on the issue of war, it is the same no 
matter which President.
  One of the complaints you hear a lot of times in the media is about 
there being no bipartisanship in Congress. Well, the interesting thing 
is, actually, there is a lot of bipartisanship in Congress. If you look 
at people who don't really believe in much restraint of government as 
far as civil liberties, it really is on both sides. So you will find 
that often on these votes on whether the Constitution says we have to 
declare war in the Congress, Republicans and Democrats vote 
overwhelmingly against that.
  Now, you need to realize the implications of that. What they are 
voting for is to say we don't retain that power and we don't want it. 
The Constitution gave it to us, but we are giving it back. And this has 
been going on for a long time, really, probably for over 100 years, 
starting with Woodrow Wilson, who sort of grabbed for Presidential 
power, and Presidents have been getting more and more powerful for over 
100 years, Republican and Democratic.
  There was at one time--point in time in our history a pride among the 
Senate and a pride among the Congress that said: These are our powers, 
and we are not giving them up. There were people on both sides of the 
aisle who would stand firm and say: This is not a power I am willing to 
relinquish; this is not something that is good for the country. And by 
relinquishing the power of Congress, we relinquish something very 
fundamental to our Republic, which is the checks and balances that we 
should have--checks and balances to prevent one body or one part of the 
three parts of government from obtaining too much power. So there was a 
time when we tried to keep that power.
  Unfortunately, the bipartisanship we have now, many in the media fail 
to understand. They see us not getting along on taxes and on spending, 
but they fail to understand that on something very important--on 
whether an individual has a right to a trial by jury, whether an 
individual has the right to not be detained indefinitely--there is 
quite a bit of bipartisanship, although usually in the wrong direction.
  Now, I will say there is some evolution and some trend toward people 
being more respectful of this, and there has been some work on both 
sides of the aisle that has brought together some of us who believe in 
civil liberties.
  There was a bill last year called the national defense authorization 
bill. In that bill, there was a clause that said Americans can be 
indefinitely detained. What does that mean? Well, it means forever, 
basically, or without a trial, no sort of sentence, no sort of 
adjudication of guilt or innocence, an American citizen can be held. So 
there was another Republican Senator on the floor, and I asked the 
question: Does that mean an American could actually be sent to 
Guantanamo Bay from here, someone who is accused of something but never 
gets a trial? And his answer was yes. His answer was yes, if they are a 
danger to the country.
  The problem with that kind of thinking is, who gets to determine 
whether you are a danger? Who gets to determine whether you are guilty 
or innocent? It sort of begs the question of what our court system is 
set up to do, which is to try to find guilt or innocence. Guilt or 
innocence isn't always apparent, and sometimes an accusation is a false 
accusation. Sometimes accusations are made because people politically 
don't like your point of view. So the question becomes, should we have 
a process where we try to determine innocence or guilt?
  So in the national defense authorization bill, there was an amendment 
that said you can be indefinitely detained, an American could be sent 
to Guantanamo Bay, and we had a big fight over it. We lost the first 
time around in 2012. We had an amendment that tried to protect American 
citizens. This was a good example of bipartisanship on our side. We had 
45 votes, and I would say it was probably about 38 Democrats

[[Page S1160]]

and about 7 Republicans. So that was an example of both sides kind of 
working together. But we fought and we lost.
  The next year, we came back and we fought for the same amendment 
again and we beat them. Interestingly, we beat them. We had 67 votes to 
say that you cannot detain an American. An American can't be sent to 
Guantanamo Bay without a trial, without an accusation, without a 
jury, without the Bill of Rights. You can't do that to Americans. We 
won the battle with 67 votes. So the bill passes, the House passes 
their version without our amendment in it, it goes to the conference 
committee, where they work out the differences, and they strip out our 
language. So sometimes when you win around here, you lose.

  But with the 67, there was a pretty good mix--maybe 35, 40 Democrats 
and 15, 20 Republicans. So there is some emerging consensus or some 
kind of emerging group. One of the other Senators has called it the 
checks and balances caucus, and I think that is a very accurate term 
because that is part of what we are arguing for. We are arguing that no 
one person should get too much power or no one body will get too much 
power.
  Some people see all that fighting and disputing between the different 
branches of government, and they see it in a bad light. They say: Oh, 
with all that fighting and bickering, that is gridlock. But in some 
ways, our Founding Fathers weren't too opposed to a little gridlock, 
particularly if it were gridlock that said: You know what, we are not 
going to make it easy to get rid of the first amendment.
  It is not easy to get a constitutional amendment in our country. We 
have added some through the years, but it is not easy to do. We make it 
hard to amend the Constitution. In fact, we make it such that we are 
not really a country that is majority rule. And I am sort of a stickler 
for talking about the differences between a democracy and a republic. I 
think some people are sloppy with their words and they love the idea 
that America is a democracy. Woodrow Wilson said we were going to war 
in the world war to make the world safe for democracy. Well, No. 1, we 
are not a democracy, and we were never intended to be a democracy.
  When Franklin came out of the Constitutional Convention, a woman went 
up to him and asked him: What will it be? Will it be a monarchy or a 
democracy? And he said: It is a republic. It is a constitutional 
republic, if you can keep it. He was already worrying about whether 
democratic action would lead to people straying away and giving a 
government too many powers.
  So we are a republic, and it is important to know the differences 
between a republic and a democracy, particularly with our history and 
our country. In our country, we had a period of time where majorities 
passed some very egregious and unfair and unjust laws. These were 
called the Jim Crow laws. They passed laws based on race or the color 
of your skin, and these were passed by majorities.
  The important thing about the Constitution and about rights and one 
of the reasons I am here today talking about the fifth amendment and 
how it gives you the right not to be committed to prison or be killed 
without due process is that our Founders thought it was very important, 
this whole concept between a republic and a democracy, and also 
considering the idea that majority State legislatures were voting on 
things such as the Jim Crow laws that would say that a White person 
can't sell a house to a Black person or vice versa. Those laws were 
passed by majority rule.
  So any time someone comes up to me and says they want a democracy, 
this is my first question to them: You are OK with Jim Crow, then? 
Because democracies did bad things. But if you believe that rights are 
protected and that rights should be protected and that these individual 
rights are not something a democracy can overturn, then you do truly 
believe in a protection that is more important than any democratic 
rule.
  There has been some dispute over this. There was a Supreme Court case 
by the name of Lochner back in 1905. The President doesn't like Lochner 
at all. He is very much opposed to it. But the one thing about Lochner 
I like is that Lochner really expands the 14th amendment. The 13th, 
14th, and 15th amendments were passed after the Civil War and usually 
over Democratic objection.
  In my State, the Democrats ruled the State legislature in Kentucky 
for many, many years, and they voted against the 13th amendment, the 
14th amendment, and the 15th amendment. The great champions of 
emancipation, of voting rights, of all of the postwar amendments were 
the Republicans.
  Every African American in the country was a Republican before 1930--
virtually every African American. In 1931, in Louisville, there were 
25,730 Black Republicans, and there were 129 Black Democrats. Every 
African American was a Republican at one point in time.
  I try to tell people, even though the numbers have been, 
unfortunately, reversed, we are the party that believes in the 
immutability of rights. We don't believe that the democracy can take 
away your rights, that a majority rule can take away your first, your 
second, or your fourth amendment rights. And I think if we got that 
message out, we might change some of what is going on.
  But the President is an opponent of the Lochner decision. In the 
Lochner decision, a State legislature decides something, and it is not 
really of importance what the decision is so much as that it is about 
judicial deference, about whether the courts should say: Well, the 
State legislature decided this, and majorities should get to rule.
  Many believed as Oliver Wendell Holmes did, who was a dissenter in 
the Lochner case. He basically said majorities should get to rule.
  Herbert Croly, one of the founders of the New Republic, wrote that we 
can get trapped up in all of this support for Bill of Rights and all 
these ancient individual rights. If we get too carried away with this 
whole idea of rights thing, we will have a monarchy of the law instead 
of a monarchy of the people.
  It was for good reason that we established a republic and not a 
democracy. One of the best contrasts--it may not be a perfect contrast, 
but I think it has some truth and validity--is that our Revolution 
worked. In our Revolution we established a constrained government. In 
France, the mob came into power. They had mob rule. The French 
Revolution was a disaster.
  Now, we had some things going for us. We had a colonial government 
with English common law and adjudication, and we had adopted practices. 
We were Englishmen, and we believed in the rights of Englishmen. We had 
that for several hundred years in our country, so it was easier for us 
to have a revolution. They didn't quite have that going on in France, 
so it was different.
  But one of the differences I see between America and France is that 
we established a republic, and we weren't going to have majority rule 
where the majority was setting up a guillotine. Ours wasn't perfect, 
obviously. The Founders left and allowed slavery to still occur. 
Interestingly, though, if you read the Constitution, I think they were 
embarrassed by it. The word ``slave'' doesn't occur in our 
Constitution. In fact, there were many abolitionist writers, one by the 
name of Lysander Spooner, who actually wrote about the 
unconstitutionality of slavery even before the war. And if you read the 
Constitution and acknowledge that there is no word in there for 
``slavery'' and nothing that says you have to be consigned to slavery--
there are things in there that say you can't be kept without being 
presented with charges. ``Habeas corpus'' means ``present the body.''
  In the old days in England and in different monarchies, they just 
snatched you up. If you were next in line to be King or you made them 
mad, they snatched you up and put you into the tower. So we came up 
with the right of habeas corpus. You had to present the body and say: 
He has been arrested, and these are the charges against him. We have 
gotten to where there is some concern in our country about that, but we 
have had that right all along.
  So Lysander Spooner wrote and said: Why shouldn't a slave come 
forward and say, this guy is keeping me; he is telling me I have to 
work for him, but I haven't been charged with anything. What is my 
crime?
  Eventually, one court case did come forward, and it was ruled 
incorrectly. I am not sure exactly how the arguments were, but in Dred 
Scott they ruled that you can't make the argument. I don't know if 
habeas corpus

[[Page S1161]]

was part of that case, but it should have been.
  What I am trying to say, though, is that the rights of the 
Constitution--the rights of the individual that were enshrined in the 
Constitution--are important things that democracies can't overturn.
  When you get to the Lochner case, which was in 1905, the majority 
ruled five to four that the right to make a contract is part of your 
due process. Someone can't deprive you of determining how long your 
working hours are without due process. President Obama is a big 
opponent to this. But I would ask him--among the other things I am 
asking him today--to rethink the Lochner case because the Lochner case 
really is what precedes and what the case Buchanan v. Warley is 
predicated on.
  Buchanan v. Warley is a case from 1917--interestingly, it comes from 
my State, Louisville, KY. There was a young African-American attorney 
by the name of William Warley. He was a Republican, like most African 
Americans were in Louisville in those days. He was a founder of the 
NAACP and, like most founders of the NAACP, a Republican.
  What they did in 1914 was they sued because the Kentucky 
Legislature--by a majority rule, by democratic action--passed a law 
that said a White person couldn't sell to a Black person in a White 
section of town or vice versa. This was the first case the NAACP 
brought up.
  Moorfield Storey was the first president of the NAACP, a famous 
attorney. He and an attorney by the name of Clayton Blakely went 
forward with this case, and they won the case. It actually passed 
overwhelmingly. But, interestingly, this case to end Jim Crow was based 
on the Lochner decision. So those who don't like the Lochner decision, 
I would say go back. We need to reassess Lochner. In fact, there is a 
good book by Bernstein from George Mason talking about rehabilitating 
Lochner.
  The thing is, with majority rule--if you say we are going to give 
deference to majority rule or we are going to have judicial restraint 
and we are going to say that whatever the majority wants is fine, you 
set yourself up for a diminishment of rights.
  I go back to the discussion of the Constitution limits power that is 
given to Congress, but it doesn't limit rights. The powers are 
enumerated; your rights are unenumerated. The powers given to the 
government are few and defined; the freedoms left to you are many and 
undefined. And that is important.
  What does this have to do with Lochner? The case in Lochner is 
whether a majority rule--a State legislature--can take away your due 
process, your due process to contract. Can they take away your life and 
liberty without due process? And the Court ruled no. I think it is a 
wonderful decision. It expands the 14th amendment and says to the 
people that you have unenumerated rights.
  Now, there is some dissension on how we look at these cases. But when 
you go forward to Buchanan v. Warley, the case about Jim Crow laws and 
housing segregation, one of the people who was going to dissent--and I 
think he thought better of it when he thought about that he would be 
the first Justice in probably 70-some-odd years to say that he believed 
in the Jim Crow laws and was upholding the Jim Crow laws--was Oliver 
Wendell Holmes. He actually writes an opinion that has been found but 
was never presented to the Court, and he ended up voting to get rid of 
the Jim Crow laws, but he actually wrote an opinion in favor because he 
believed so strongly in majority rule.

  Some may think these are idle questions. I don't think it is an idle 
question whether or not you have a democracy or a republic. I think 
these questions--from Lochner, from Buchanan v. Warley, all the way 
through to the present--are important.
  In the last couple years, we had two cases on gun rights, the second 
amendment, called Heller and McDonald. I think both of them can be seen 
as, once again, an expansion of the 14th amendment to say: Your 
privileges and immunities which are part of the 14th amendment include 
the second amendment, and they include certain rights. In fact, I think 
any power or any right not given up to the government or limited by the 
enumerated powers is yours. So when they say the privileges and 
immunities of the 14th amendment, I believe that means everything else. 
What does that mean? It means I believe in a very circumscribed view 
for the government.
  One of the side benefits of having a circumscribed view of the 
government would be that a government that is not allowed to do much 
wouldn't get in many problems. For example, if your government wasn't 
allowed to spend money it didn't have or if your government wasn't 
allowed to spend money on programs that were not enumerated as being 
within the purview of the Federal Government, you wouldn't have these 
massive deficits. We would have never gotten in this fix if we believed 
in a republic and not a democracy.
  Now, what proof do I have that the current officials believe in 
democracy versus republic? When ObamaCare came forward, the comments 
from then-Speaker of the House Nancy Pelosi were: A majority passed 
this. We passed this by majority. It is the law. Why would anybody 
question the constitutionality?
  The President said the same thing. The President said: A majority 
passed this. What right has the court to overturn this?
  The question has been written about by many brilliant scholars who 
have looked at the Constitution and looked at what it means. Some of 
this has to do with whether you presume liberty--and Randy Barnett has 
written about restoring the Constitution--whether you have a 
presumption of liberty or whether you have a presumption of 
constitutionality. That may sound a little esoteric, but what does that 
mean? It is whether or not, when they pass a law up here, you just 
presume it is fine because it is the law and the judges should give 
deference to it because it is a law.
  It may sound confusing because you might think I am arguing for 
judicial activism. In a way, I kind of am because if the Congress 
usurps the Constitution, if the Congress takes away from your rights, 
the judges should stop them in their tracks. I am not arguing for 
deference to the legislature; I am arguing for deference to the 
Constitution.
  I am also arguing that there is a presumption of liberty. This goes 
back to the way we want to look at the 14th amendment. The 14th 
amendment says we have unenumerated rights. I guess, by extension, when 
you go from the 14th amendment to the 9th and 10th amendments is the 
best way to look at this.
  The 14th amendment talks about privileges and immunities, and when 
you look at what the 9th and 10th amendment do, they say those freedoms 
you didn't relinquish or those powers you didn't give to the government 
are left to the States and the people respectively, and it says they 
are not to be disparaged. I always loved the way that was worded--not 
to be disparaged. Not only is the Federal Government not to trample on 
your rights, they are not to be disparaged. But these rights are 
unlimited. They are yours. You got them from your Creator. These are 
natural-born rights, and no democracy should be able to take these away 
from you.
  Now, by changing the Constitution, they could literally take away 
your freedom of speech or your freedom to practice your religion. I 
don't think I will see that ever happen, and it is difficult to change 
our Constitution, but it is incredibly important that our Founding 
Fathers put it in there and made it difficult.
  I always kind of joke that if you go to a conservative meeting and 
you talk about the second amendment, everybody pats you on the back and 
they all love you--until you get to the fourth amendment. But if we are 
going to have the second amendment, I think you have to have the fourth 
amendment--the right to be free in your person from unreasonable 
searches and seizures, that a judge should have to have a warrant to 
come in your house. How are your guns going to be protected if they can 
come in your house without a warrant? You have to have the fourth 
amendment.
  But you also have to have the fifth amendment. We don't talk about 
the fifth amendment very much. Everything is about the second 
amendment.

[[Page S1162]]

It has been all over the news. You can't turn on a channel without 
hearing about the second amendment. But I think today is as good a day 
as any to talk about the fifth amendment.
  I have come here to filibuster the nomination of John Brennan because 
I think the fifth amendment is important. But I think we shouldn't be 
cavalier. I don't think we should be casual in our disregard for the 
Constitution.
  I think that to allow the President to trample on and shred the 
Constitution and say that the fifth amendment no longer applies is a 
travesty, and it is something we should not do lightly. So I think it 
is worth a discussion. So far, it is sort of a one-way discussion, but 
we will see. But it is worth a discussion that we talk about the fifth 
amendment. It says that no person shall be deprived of their life or 
their liberty. That is what it means. It is pretty clear, and it is 
pretty plain. You can't take away someone's life and liberty without 
due process or an indictment.
  So it should trouble every American. I can't imagine that there 
wouldn't be an American in our country who would not be troubled that 
we are talking about killing noncombatants in America with drone 
strikes. We have to get the President to respond to this. I don't think 
it is good enough for the President to say: I haven't done it yet. I 
don't intend to do it, but I might.

  His oath of office says he will preserve, protect, and defend the 
Constitution. The oath of office doesn't say: Well, I intend to when it 
is convenient. I have never seen a President go out on the lawn with 
the Chief Justice and say: I intend to follow the Constitution when it 
is convenient. Because what he says is he won't drop a Hellfire missile 
on you unless it is infeasible to capture you. That is what they are 
doing overseas. If that is going to be the standard for America, if you 
are not going to get a Hellfire missile dropped on you unless it is 
infeasible--to me, that sounds like unless it is convenient; if it is 
inconvenient. ``Not feasible'' sounds like inconveniency is the 
standard.
  I asked Secretary Kerry about this in his nominating process. I said: 
Can you go to war without Congress approving of it, without a 
declaration of war, like the Constitution says? And he said: No. I 
intend to obey the Constitution--except for when I don't intend to obey 
the Constitution. It is hard to get things through Congress, and it is 
Congress's fault. There are too many squabbles and so many fights. So 
most of the time we will come to Congress and we will ask for a 
declaration of war--which, by the way, we have not done since World War 
I, and when we did, it was voted on nearly unanimously.
  But this is the standard we get to: We don't intend to kill anyone 
and we don't intend to go to war without a declaration of war unless it 
is impractical to get your approval.
  That was the point. If you do not get the point of the Constitution, 
if you don't get the point of what kind of system our government set 
up, what kind of system our Founders set up, it was to make it 
impractical. It was to make it difficult to go to war. It was to make 
it difficult and make it important: There would be debate and checks 
and balances. If inconveniency is our standard for going to war without 
Congress, inconveniency is our standard for killing Americans on 
American soil with drones, I think we have sunk to a new low. I just 
cannot imagine as a country that is the standard you want to have.
  I want to reiterate. This doesn't have anything to do with the 
President being a Democrat. Whether he was a Democrat or Republican, I 
don't question his motives. I met the President several times. I really 
don't think he would do this. But the thing is, I am troubled by the 
fact he will not tell us he will not.
  If he is a good man and we believe him to be a good man who would 
never kill noncombatants in a cafe in Houston, sitting out in a 
sidewalk cafe smoking--oh, that's right, you are not allowed to smoke 
cigarettes anymore--let's say they are sitting out in a cafe. If the 
President is not going to kill them, why would he not say he is not 
going to kill them there? That is the troubling aspect of this, if the 
President will not acknowledge he is not going to kill noncombatants in 
America.
  The real problem with this is we are now engaged in a limitless war. 
A lot of Americans may not know this but people all the time up here 
are saying it. You have to read between the lines sometimes to hear 
what they are saying. They are saying there is no geographic limit to 
the war. That is what Brennan has said. What does that mean? I thought 
we went to war in Afghanistan. I really thought that even at the time. 
I was not here, but I would have voted to go to war. I thought they 
were voting to go to war to get the people who attacked us on 9/11. I 
was all for it. I still am all for that. But we are now using that 
resolution to go to war to have no geographic limit for drone strikes 
anywhere in the whole world; and not only no geographic limit, no 
temporal limit, which means no timeline. There is no end to the war in 
Afghanistan. The war will never end.
  If you have no geographic limit--many on my side say the battlefield 
is everywhere, and the battlefield is in the United States. It is one 
thing to say that, but realize what they mean by that. They say because 
the battlefield is here, the laws of war apply. That is what a drone 
strike is. A drone strike is not something you do domestically. They 
are saying the laws of war apply.
  If you change the words around, what are the laws of war? Martial 
law. I think if you ask Americans are you in favor of martial law by 
the President, I don't think many would be. But many in this body would 
gladly give up their power, would gladly say America is now the 
battlefield so the laws of war should operate.
  The laws of war are that there really is no due process in war. I am 
not arguing for due process in war; I think it is, frankly, impossible. 
If you have gone as an American to Afghanistan and you are fighting 
against us, you don't get due process. You don't get your Miranda 
rights. It is an impossibility to have the Constitution operating in a 
battlefield. So I am not for that.
  But I am against defining the battlefield as being everywhere, 
including my house, my office, including everywhere in America. If it 
is a battlefield, you have no rights. The war zone is a zone where you 
do not get due process, you do not get Miranda rights, you do not get 
an attorney. But it should be different in our country. If our country 
is a battlefield, if our country is a war zone, what is left? I thought 
we were fighting to preserve our way. I thought we were fighting to 
preserve and protect our Constitution. What are we fighting for if we 
are not going to protect our rights at home?
  The Bill of Rights is too important to scrap it. The Bill of Rights 
is too important to let any President, Republican or Democrat, simply 
come forward and say: Well, I have not broken the Constitution yet, and 
I do not intend to break the Constitution, but I might because they are 
everywhere and the battlefield is everywhere and we are so frightened 
that we must do anything.
  I think it is good to be angry, upset, really to want vengeance 
sometimes against people who attack you. I was all for punishing those 
who attacked us after 9/11. But I think, also, at the same time we need 
to not let that get in the way of what is our way of life and what we 
are protecting here. When we look at this and we look at what is going 
on with terrorism, we need to keep in perspective that these people can 
do us harm, but they are incredibly weak people. They are incredibly 
cowardly, in a way. You know, they have no armies. They have the 
ability to inflict terrorism, which is what weak people do. People who 
have no armies and no strength attack the civilians. It is a weak and 
cowardly way to attack your enemies. But it is not something that we 
should cower so much that we say: Gosh, someday they may come and blow 
up the Senate, which would be terrible.
  I think the things terrorists do are terrible, but I am not saying 
that because we are so frightened of them coming that we should say: 
Why don't we just have camps again, you know? Why don't we just round 
up--the Japanese Americans were a threat in the war and we just rounded 
them up and, guess what. No Japanese Americans attacked us, so it must 
have worked. I think it was an abomination what we did, one of the 
worst and most tragic episodes in our history, and the fact that the 
courts upheld it. But are we so frightened we are going to give up on

[[Page S1163]]

our Bill of Rights? Are we so frightened the next thing we are going to 
do is round up people of a different skin color because we think they 
have cousins who live in Lebanon?
  We cannot really give up on what makes America special. What makes 
America special is the Bill of Rights. What makes us special is really 
that we are not a democracy. There are a lot of democracies around the 
world. We are a republic. We are a constitutional republic. We are a 
country that enshrined our rights, took care and deliberation and wrote 
down our rights, and they are not supposed to be usurped by any 
majority. So it is important that we know we are not a democracy, we 
are a constitutional republic. It is important for me to know and say 
that my rights came from my Creator. You don't have to agree with me on 
that. Some people think they came naturally to them, but they think 
there is a natural state of being that is free.
  We do give up some freedom. We give up some freedom to pay taxes. If 
I work, all of my labor is mine, and I give up some of my labor and 
some of my wages to a government. To live in a civilized world you do 
give up a little bit. But what I have always argued for is that we 
should minimize what freedom we give up. That is why you should always 
minimize taxes. You should minimize the size of your government because 
everything you give up in taxes or everything you give up to your 
government is loss of your sweat equity, your labor. It is yours. It is 
nobody else's. So you give up the very minimum of it.

  There is another argument. That is sort of the freedom argument for 
why we should keep government minimized. The other argument for why we 
should keep government minimized is more of an efficiency argument. 
This comes from Milton Friedman, but I think he put it very succinctly. 
He said nobody spends somebody else's money as wisely or as frugally as 
you spend your own.
  It is a simple statement, but I think in one statement, one simple 
sentence, it sort of brings forward something about government that is 
very true. People up here just do not spend it wisely. The reason they 
don't spend it wisely is because it is not theirs. In fact, they have a 
perverse and wrongheaded incentive that says: I need to spend all of my 
money or I won't get it next year, so government agencies incredibly 
want to spend all the money and more to make sure there is nothing left 
at end of the year.
  If you listen to some people, they would say: Oh, no, government is 
just here to help people. Without government it would be--without this 
massive huge government--we have to have the debt because we need all 
the things we get from government. Will Rogers once wrote and said: 
``You're lucky you don't get all the Government you are paying for.''
  George Will recently wrote, and he sort of put a twist on it, and he 
said that used to be true, but now I think you are getting more 
government than you pay for. That is sort of the truth. We get a ton of 
government. Our taxes cover about 60 or 70 percent of what we spend up 
here. What kind of country gets rich borrowing 30 cents on every 
dollar? What kind of family can spend 30 percent more than comes in?
  Some things are pretty simple. Wealth accumulation for you or wealth 
accumulation for a country is by savings. You don't get wealthy by 
spending more money than comes in. So as we look to these things, I 
think we need to be cognizant of the reasons we would want to have 
smaller, not bigger, government. But we would have smaller government 
if we paid attention to the rules.
  The rules are very important, and when people talk about ``oh, that 
would be a monarchy of the law,'' or they say ``that would be too rigid 
to live under the laws, we need a living, breathing, evolving 
Constitution,'' I think things change over time. You get new 
technologies; drone strikes and things are new technologies. But I 
think what does not change are certain freedoms that are going to be 
the same now as they will be in 10,000 years.
  I think the freedom for people to worship is something that I don't 
want majority rule to decide. You say: What does the freedom to worship 
have to do with drone strikes? It is hard to worship after a Hellfire 
missile has been launched on you.
  So all of our rights--there is a panoply of rights that are all 
interconnected, and they come from the basic right to life. If you 
don't have the right to be secure in your person, you don't have any 
other rights. So as we diminish one right we attack at the foundation. 
But if we are at a foundation where we are saying we can strike a 
person in America with no trial, with no accusation, I think we have 
come a long way from where we began.
  I worry about it. I worry about it not just in the abstract sense, 
not just in the sense that these are a right in abstract and that we 
lose something we cannot actually touch or feel. I worry really about 
it in the sense that I don't know how you continue to exist as a 
country if you do not believe in some fundamental right, some 
fundamental right and wrong.
  After ObamaCare passed and there were some questions about its 
constitutionality, they asked a Representative from the House side--he 
was asked: What about constitutionality? He said: Why would I care? 
Most of the things we do up here have no constitutional justification.
  We have gotten to the point where people care more about having 
enough votes. They think it is right if you have a majority vote as 
opposed to that there are certain immutable rights and wrongs; that 
there are certain immutable rights that were there at the founding of 
our country that will be there in 100 years or 1,000 years from now: 
Your right to be secure in your person, the right that the government 
cannot take away these privileges.
  This is not a new fight. Really, from the beginning of time there has 
been a struggle with the people versus the leaders. The leaders always 
want more. The amazing thing is it is sort of like a contagion. Not 
many people get to be President in this country. One person gets to be. 
We have had in the forties--44 or 45 Presidents. We have not had many 
Presidents. But there is something contagious about the office. It is 
that power corrupts, I think.
  Lord Acton said it is not just that power corrupts, but that absolute 
power corrupts absolutely.
  I think people can become intoxicated with power. I don't know if 
that is the explanation for President Obama's about-face. He was one 
who at a time when he was in this body believed in some restraint, 
believed in Senate authority, believed in--actually he did not even 
believe in raising the debt ceiling when he was here. The thing is, 
what we would hope for is someday we have a President who believes, 
even after assuming office, that the powers of the office should be 
protected. I think we run the risk, as we allow more and more power to 
gravitate to the President, we run the risk of living under an imperial 
Presidency.
  I have said some inflammatory statements: that the President is 
acting like a king. Some of that is inflammatory and provocative, but 
some of it has some ring of truth to it or I would not get so much 
push-back. Kings operate by edict. They say it is so; make it so. There 
is no give-and-take. There are no checks and balances between the 
legislature and the Presidency.
  This has been going on for a long time. It is a titanic struggle and, 
frankly, I wish more people were interested in it. I wish we had a 
dozen people down here saying: No President should assume such 
authority. No President has the right to say he is judge, jury, and 
executioner. No President should be allowed to say that.
  It is not enough for him to say: My motives are good. I don't intend 
to do so. I haven't done so yet, but I might.
  If that is the standard we are going to live under, we have a great 
danger in our country. It is not enough. We live under the rule of law, 
and the law is quite explicit. The fifth amendment says no person shall 
be detained without an indictment or without due process.
  I find the answer to be incredibly easy. I have asked the President 
an easy question. My question is, Can you kill an American on American 
soil, a noncombatant, with a drone strike? It should be an easy answer.
  (Mr. HEINRICH assumed the chair.)
  When a President will not answer a question or when they answer the 
question and it is an evasive answer, our

[[Page S1164]]

concern is if they answer yes. I thought they would never answer the 
question, but they finally did. They said: Yes, we can conceive of 
situations when we might. The situations they conceive of, though, are 
attacks on the country, which I don't disagree with, so they are 
talking about things that are not controversial.
  If planes are attacking the Twin Towers, New York or DC, there is not 
any question on either side of the aisle among almost anybody in the 
country or the universe who doesn't believe we can repel lethal 
threats. What we are talking about are the noncombatants who are either 
eating dinner, sleeping in their house or walking down the street. A 
large percentage of the drone strikes have been people who were not 
carrying arms or in combat.
  Were they bad people? I am not positive I could say one way or the 
other, but I don't want that sort of standard to be used in America. I 
don't want the standard to be that if someone is close to a bad person 
who happens to be a male between the ages of 16 and 50, that they are 
no longer a civilian but actually a militant. Is that the standard we 
are going to use in America?
  I don't want the standard to be sympathizing. Has anybody ever been 
on the Internet? Has anyone ever seen crackpots who are on the Internet 
and say all kinds of crazy things? If someone is saying crazy things 
and they happen to be against our government, is that enough for a 
Hellfire missile to come down on their house? Is sympathizing enough? 
People have written and talked about this. During the Vietnam war there 
were some people who probably were treasonist and probably should have 
been tried for treason. Having said that, I would not kill them without 
some sort of due process or trial. The idea of a right to trial by jury 
has been the basis of our history for hundreds and hundreds of years. 
It is the basis of a foundational principle for our country. I cannot 
imagine we would be so cavalier as to let it go.
  As we move forward with this nominating process, I have decided to 
occupy as much time as I can on the floor to bring attention to this 
issue. Ultimately, I cannot win. There are not enough votes. There 
would be if there was truly an uprising of bipartisan support that 
would come to the floor and say: It is not about John Brennan. It is 
about a constitutional principle and we are willing to delay this until 
the President can explicitly say noncombatants in America will not be 
killed with drone strikes. I think that is pretty easy to answer, but 
it has been like pulling teeth.
  I have written letter after letter for weeks and weeks trying to get 
an answer on this and we have not had much luck. There have been people 
who have written about the lawfulness of these lethal operations 
directed against citizens, and there is a question both in the country 
and outside the country of what the standard will be. Will it be the 
same standard? Some say there is no standard once we get outside the 
country and that anybody can be killed whether they are an American 
citizen or not.
  Frankly, I don't like the idea of no standard. For example, the most 
prominent American who was killed overseas was al-Awlaki. His name was 
publicly known to be on a kill list for months. I see no reason why he 
could not have been tried in a Federal court expeditiously--if he 
didn't return home, he would still be tried--given representation, and 
tried for treason. These are not frequent cases that occur overseas, so 
I see no reason why we would not use a Federal court. The Federal 
courts are adapted in such a way that we can go into secret session if 
there is classified material. The Federal courts in Washington, DC, 
Philadelphia, and New York have done this on occasion. I think we could 
do this in Federal court. We have convicted quite a few terrorists--I 
think that they number up to several hundred--in the United States in 
our courts.
  The main thing I object to is people becoming so fearful they 
cavalierly give up their rights. We had two terrorists in Bowling 
Green, KY, my hometown, which has 50,000 people. Who would have thought 
we would have two terrorists? They were conspiring to either buy or 
send Stinger missiles to Iraq. I am glad they were caught and punished. 
They were tried in a court.
  Many people said let's just send them to Guantanamo Bay forever. Once 
we go down that path where we are not going to have any due process--
our courts have done a pretty good job. In fact, I think we have not 
let off anybody from one of our courts that should have been kept here 
and tried.
  I do have a question as to how the terrorists got into the country. 
That goes back to the issue of not wanting terrorism to occur, but how 
should we combat it? Is it best if we combat it in Yemen, Mali, 
Somalia, Afghanistan, Pakistan or should we combat terrorism by knowing 
who is coming into and leaving our country?
  For example, we have allowed 60,000 people from Iraq to come into 
this country in the last 2 or 3 years. Frankly, I think that is a lot. 
They come here under asylum. The problem with asylum is I thought 
asylum is when a county was escaping a dictatorship. We won the war in 
Iraq. They have a democratic government over there, and I would not 
understand why they would want to leave a democratic government. Also, 
the 60,000 who leave--other than maybe the two we captured in Bowling 
Green, we presume that most of them are pro-Western--are the people we 
want to run Iraq. There are all kinds of reasons to stay in Iraq to run 
the country.
  In letting so many people come in, we didn't do a very good job 
because the two terrorists who were allowed to go to Bowling Green had 
their fingerprints on an IED that was in a warehouse somewhere. They 
did not find a match on any of the fragments with their fingerprints on 
a database until after we caught them. Once we knew their names and had 
their fingerprints, we checked some fragments for their fingerprints 
that had been in a warehouse for years and years. So we are not quite 
doing the job.
  Sometimes we want to analyze so much information that we get 
overwhelmed with the information too. We collect millions and millions 
and billions of pieces and bits of information, but it cannot all be 
analyzed. Some of it, I fear, goes against our rights to privacy. Any 
of our e-mails that are over 6 months old can be looked at. We found 
out about this recently when we had an adulterous affair in our 
military.
  I believe our third-party records are ours. I had an amendment 
recently on this, and I told people my Visa bill is pretty private. 
Just because I use my Visa card doesn't mean I have given up my 
information and that the government gets to look at my Visa bill every 
month, but that is what we have done. A lot of these things have been 
slipping away from us for a long time. It is not just President Obama; 
it is 40 or 50 years of court cases.
  Thirty, forty or fifty years ago, we decided that once a third party 
had your records, they were not private anymore. I think that is 
absurd. Think of the age we live in and how a lot of people don't use 
cash at all. Our Visa cards have everything on it. We can look at a 
person's Visa card and find out if they have seen a psychiatrist, what 
kind of medicines they are on, what kind of magazines they get, what 
kind of books they get. We can look at a person's Visa bill and find 
out if they gamble or drink or what their travel plans are. We can find 
out a ton of information on a person's Visa bill.
  Should people be allowed to look at a Visa bill, without asking a 
judge, and then say: We think he is involved in this. We are not saying 
we cannot do this for a terrorist, but what we should do is go to a 
judge and present some evidence and say we think he is a terrorist and 
we want to look at his Visa bill. People in America should not be able 
to have their Visa bill open to scrutiny, and that is basically what we 
have now. Our banking records, our Visa statements, and all our records 
that are held by a third party are not protected.
  Some people may have heard about how they want to have cyber 
security. Everybody wants their computers to be secure, including the 
computer companies. They work nonstop trying to keep hackers out of 
computers, but the law they want to pass gives immunity to the computer 
companies. A lot of us don't think much of it. We check off the 
confidentiality button and hope that after we have signed the contract, 
they will not share it. They share it in a way that is anonymous, and 
we put up with that in order to get a search engine. I am OK with that.

[[Page S1165]]

  What I am concerned about is when we pass the cyber security bill, we 
cannot sue them if they breach the policy. So then everybody's 
computer, searches, and reading habits are open to the Federal 
Government. Because we are fearful of people coming at us and fearful 
of attacks, we give up our rights. I thought we were fighting to 
preserve our rights.
  So what are we fighting for? These battles are going on and on 
throughout the government. The interesting thing about these battles is 
that they are not always Republican v. Democrat. These are battles that 
are sometimes coalitions of people from the right and people from the 
left who have gotten together and fought over these issues.
  In the case of trying to get the President to acknowledge he will not 
do drone strikes, there have been people on the Democratic side of the 
aisle who have aligned with me and helped me get this information. The 
President probably would have refused until Hell froze over to give me 
anything, but the fact is we had Democrats ask to get information also. 
Suddenly we were able to get a coalition and get the information, but 
it has not been easy. The fact that they don't want to acknowledge 
limitations as to the President's power worries me that they believe in 
an expansive Presidential power. In order to stop that, we have to be 
protective of our rights. We have to be able to not so easily give up 
on our rights.
  There is a white paper that was written, and the title of it is ``The 
lawfulness of a lethal operation directed against a U.S. Citizen who is 
an operational leader of al-Qaida, foreign associated forces,'' and 
this is from the Department of Justice. This white paper sets forth a 
legal framework for considering the circumstances for which the U.S. 
Government could use lethal force. One of the things they do in the 
document--this was leaked repeatedly--is they tell of the criteria for 
when they can kill people overseas.
  We don't know the criteria for killing people in this country. They 
make a contention that the rules will be different, but no one is 
acknowledging exactly whom they can kill or what the rules will be. For 
the people who are killed overseas by drone strikes, the thing they 
come up with is that they say it has to be an imminent threat, but it 
does not have to be immediate.
  To my thinking, only a bunch of government lawyers could come up with 
a definition for imminent threat that says it is not immediate, so that 
is the first problem with it. Is that going to be the standard that is 
used in America, that there has to be an imminent threat, but it 
doesn't have to be immediate?
  My next question is: What does that mean? Does that mean 
noncombatants who we think might someday be combatants are an imminent 
threat? It is a pretty important question. What is imminent. There is 
no question of what imminent lethal force is. If someone is aiming a 
gun, a missile or a bomb at you, there is an imminent threat, and no 
one questions that. No one questions using lethal force to stop any 
kind of imminent attack. We become a little bit worried when the 
President says imminent doesn't have to mean immediate. When that 
happens--and then we see from the unclassified portion of the drone 
attacks overseas--many of these people are not involved in combat. They 
might someday be involved in combat, they might have been involved in 
combat, but when we kill them, most of them are not involved in combat. 
So even overseas there is some question of this program, but my 
questions are primarily directed toward what we do in this country.
  It says the U.S. Government can use lethal force in a foreign country 
outside the area of active hostilities. That is, once again, the point. 
We are not talking about a battlefield. But because the battlefield has 
no limits--since the battlefield is not just Afghanistan. The 
battlefield has no geographic limits so the battlefield is the whole 
world, and many in this body say the battlefield is the United States. 
So once we acknowledge and admit that the battlefield is the United 
States, this whole idea of what is imminent versus what is immediate 
becomes pretty important because we are talking about our neighbors 
now.
  The other thing about this is we need to try to understand who these 
terrorists are. Members of al-Qaida. There are no people walking around 
with a card that says ``al-Qaida'' on it. There are bad people. There 
were bad people associated with the terrorists--and we have killed a 
lot of them--who were in Afghanistan training and part of the group 
that attacked us. But there are terrorists all over the world who are 
unhappy with their own local governments--some of them are unhappy with 
us too--but to call them al-Qaida is sometimes a stretch and sometimes 
open to debate as to who is and who isn't.
  Then they use other words, and words are important. They are either a 
``member of al-Qaida'' or ``associated forces.'' I don't know what that 
means. Does one have to talk to al-Qaida or commit terrorism or does a 
person have to be in a country where we are supporting the government 
and people are attacking the government? It is not always clear.
  The other question we get to when it is either al-Qaida or people 
associated with al-Qaida is that now we get to the United States and we 
have the government defining what they say as terrorism. So the 
government has put out some documents, one by the Bureau of Justice, to 
warn us of who might be a terrorist. In fact, the government has 
programs where they want people to inform: If you see someone, tell 
someone. If you see these people, you are supposed to inform on them. 
So some of the characteristics of the people who might be terrorists--
and I don't know, they don't have to be an imminent threat or an 
immediate threat, but some of these people might be terrorists. I don't 
know. If the President is going to kill these people, he needs to let 
them know. Some of the people who might be terrorists might be missing 
fingers. Some people may have stains on their clothing or some people 
may have changed the color of their hair, some people may have 
accumulated guns, some people may have accumulated weatherized 
ammunitions, which might be half the hunters in the South this time of 
year, or people who might like to pay in cash, or people who have seven 
days of food on hand. I know people who just for religious reasons are 
taught to keep food on hand. In fact, government Web sites sometimes 
tell us to keep food on hand for hurricanes. If you live along the 
coast, one government Web site says keep food on hand, and another one 
says if you do, you might be a terrorist. They are not saying you are, 
but if these are the characteristics of terrorism, would you not be a 
little concerned that if the government is putting this list out, we 
are going to drop Hellfire missiles from drones on people in America 
who might be on this list? I am particularly concerned about that.
  So I think we can't be sloppy about this. We can't allow ourselves to 
be so I guess afraid of terrorism or afraid of our enemies that we give 
up on what makes us Americans. What makes us Americans are our 
constitutional rights that are enshrined in our Constitution. It is why 
we have gone to war, to defend these rights. Will we think the war 
still has purpose if we are no longer able to enjoy these rights at 
home?
  The problem as I see it as we go forward is that I wish I could tell 
people there is an end to this, that there would be a grand battle for 
our constitutional rights or for what rights we lose overseas, what 
rights we lose here if we travel. The problem is they don't see an end 
to the war. They see perpetual war, perpetual war without geographic 
limits, and they see the battlefield here, so they want the laws of war 
to apply not only there but here. In other words, what they are saying 
is the laws of war are martial law. These are the laws of war. These 
are the laws that are accepted in war.
  We accept a lot of things on the battlefield that we don't want to 
accept here. I acknowledge we accept that we don't get Miranda rights 
on the battlefield. We don't get due process. We don't get an attorney. 
If they are shooting at us, we shoot back and kill them. But the thing 
is if a person is sitting in a cafe in Houston, they do get Miranda 
rights, they do get accused of a crime, they do get a jury of their 
peers. That is what we are talking about here. The President should 
unequivocally come forward and state that noncombatants--people not 
involved with lethal force--will not have drones dropped on them.

[[Page S1166]]

  The other thing he should acknowledge is the law--not only the 
constitutional law but the law since the Civil War--has said the 
military doesn't operate in the United States. There is a reason for 
the military not operating in the United States. Why? The military 
operates under different rules of engagement than policemen. The rules 
are stricter for policemen. We do it because we are not in a war here 
so the policemen have to call judges. A lot of people don't think this 
through, though, and they will say, These people are terrible, awful 
people who would cut your head off. They are right; they really are bad 
people. We have really bad people in our country too sometimes. We have 
murderers and rapists. But tonight at 4 a.m. if there is a rapist going 
around the neighborhood and you get to a house and there isn't an 
imminent thing going on but you are told he might be in this house, 
before the door is broken down, they call on a cell phone, they get a 
judge out of bed, and they say, we have chased him into this 
neighborhood, no one is answering, we want to break the door down, can 
we have a warrant. Most of the time the police have to call for a 
warrant. We have a process. But when he is arrested, they don't just 
string him up. We don't have lynchings in our country. We don't let 
mobs decide who is guilty and who is not.
  I don't question the President's motives. I don't think the President 
would purposefully take innocent people and kill them. I really don't 
think he would drop a Hellfire missile on a cafe or a restaurant as I 
have been talking about. But it bothers me that he won't say he won't. 
It also bothers me that when he was a Senator in this body and when he 
was a candidate, he had a much higher belief and standard for civil 
liberties and he seems to have lost that since he has been the 
President.
  I think this is an important issue. It goes beyond John Brennan. It 
goes beyond the President. It goes to an issue that rises above I think 
all other issues we consider here. I have voted for three of the 
President's nominees, not because I agreed with them politically; in 
fact, I disagreed with the vast majority, but I disagree with the 
President on a lot of political issues. I voted for his nominations 
because I think the President does get some prerogative in deciding who 
his political appointees are. I have chosen to make a stand on this one 
and not so much because of the person but the principle of this. I have 
nothing personally against Brennan. I have nothing personally against 
the President. But I have a great deal of concern about the rights that 
were enshrined in the Constitution. I have a great deal of concern 
about this slippery slope of saying there won't be accusations, there 
won't be trials, that we will summarily execute people, and the 
question is, will we execute noncombatants. If he is not going to, he 
ought to say so.

  In this white paper that was released, they talked about the three 
different conditions. One of them was imminence, but then they 
qualified it by saying imminent doesn't have to be immediate. Another 
one was feasibility. They said it is not feasible to get some of these 
people overseas and so we kill them. But feasibility, to a certain 
extent, could be defined as convenience. So the question is, in 
America, what if they live up in the Rocky Mountains and there are no 
roads leading up to where they are; they are not very accessible; it is 
not very feasible; so we are going to do strikes based on convenience. 
Is that going to be the standard?
  When we talk about standards, they say they have a process in place, 
but the process is very important. The standard is important, but it is 
also important that one group of people, one political group of people 
or one politician doesn't get to decide that standard. And part of the 
way the process in our country works is that there are checks and 
balances between the three branches of government so that one branch of 
government doesn't get to unilaterally decide what these standards are. 
Because some of the standards are a little bit loose--whether you are 
near someone. Apparently, we are not counting civilians who are killed 
by drone strikes if they are males between the ages of 16 and 50. If 
they were close to the people we are targeting, we just count them as 
other militants. Are we going to do that in the United States?
  If you are eating with 15 of your family members and one of them may 
or may not be communicating by e-mail with somebody in a Middle Eastern 
country, can we kill all 20 of them, and because some of them are 
within the right age group, that is fine? Let's say you are eating with 
your cousin who is communicating with somebody in the Middle East and 
that person may or may not be a bad person, and then when you leave--
let's say you are going to a wedding and you are going from a preparty 
and there are 20 cars all going to the wedding and they know or they 
think they know there may be a bad person among the group; why don't we 
just strike the caravan? These are called signature strikes. The Wall 
Street Journal said that the bulk of our drone strikes overseas are 
signature strikes. That is a good question for the President: Are 
signature strikes going to be the standard for killing Americans in 
America?
  The President simply says the rules will probably be different for 
inside than outside. Well, I frankly don't think that is good enough. 
He says he has no intent to kill Americans in America. I frankly don't 
think that is good enough. I don't think it is good enough for the 
President to say I have no intention of breaching the fifth amendment. 
Intending not to is not the same as saying I won't. His oath of office 
says I will not--no, it says: I will protect, defend, and preserve the 
Constitution. It doesn't say I intend to protect, defend, and preserve 
the Constitution except for when it is infeasible or inconvenient. That 
is not what the rules are about. I think the rules are pretty absolute.
  The rules are the Bill of Rights and they are ours. We got them from 
our Creator. They were enshrined in the Constitution. Nobody gets to 
take them from us. Nobody. No President from any party gets to be 
judge, jury, and executioner.
  This decision to let this go, to let this nomination go without an 
answer is a big mistake for us. If we do this--if we let this 
nomination go without a debate, without significant opposition, without 
demanding more answers from the President--the problem is we are never 
getting any more answers. There will be some in this body who say, 
Well, just let it go. The snow is coming and we want to go home. The 
problem is that he is never going to answer these questions unless he 
is forced to. I suspect George Bush would have been the same. I suspect 
a lot of the Presidents would be the same. And I think it is 
unfortunate that they see their power and their sphere of power as 
being more important than our constitutional rights. But we won't get 
this by just the glad hand and the winning smile. That is not going to 
get any information from the President.
  The only way this President would ever give us information is if we 
were to stop this nomination. I am not even saying stop it personally. 
My objection really is not so much to Brennan being in charge of the 
CIA as my objection is to the program and to the President not 
admitting that he can't do drone strikes in America.
  I will continue to do what I can to draw attention to this and we 
will see where things lead. But I am disappointed in the President. I 
am one who while I am a Republican--I didn't vote for him in 2008 or 
2012--I am one who has admired certain aspects of his policy. I admired 
his defense of civil liberties. I admired him in 2007 when he said 
Americans shouldn't be involved in torture. I admired him when he said 
we should follow the rule of law and we should have warrants before we 
tap people's phones and that we shouldn't be trolling through people's 
records. But I find a great irony and, frankly, a great hypocrisy in 
someone who would defend getting warrants before we tap your phone but 
won't defend a trial before we kill you. Tapping one's phone is a 
breach of privacy and it should only be done if a person has been 
accused of a crime and evidence has been presented and a judge grants a 
warrant. But killing someone with no due process, with no judicial 
oversight--some are saying, Oh, we will get to it. We are eventually 
going to set up a court, maybe a FISA court. Unfortunately, a FISA 
court probably won't be good enough because it will be in secret and a 
person should have a chance to confront their accusers and have a 
public trial if a person is going to be killed.

[[Page S1167]]

Typically what I am talking about is American citizens, but there needs 
to be some oversight. But the problem of waiting to do this and saying, 
Oh, we will do this sometime, we will get to it eventually, never 
happens. The same way with saying, Oh, we will get to--we will keep 
asking the President for more information, but it never happens. If we 
do not take a stand for something we believe in, it is going to slip 
away from us. I think our rights are gradually eroding. I think they 
are gradually slipping away from us. I think the understanding of the 
Constitution as a document that restrains the government, that 
restrains the size and scope of the government, has been lost on a lot 
of people. I think it is something we shouldn't give up on.
  When the President goes through his three different items that were 
leaked through this memo, he says there has to be an imminent threat. 
He says their capture has to be inconvenient or infeasible. And he says 
the operation of killing the person has to be conducted within a manner 
consistent with the applicable law of war.
  Here is the problem. That sounds fine if you are in Afghanistan and 
in the mountains fighting a war. But I am talking about downtown 
Washington, DC. I am talking about living in the suburbs of Houston or 
Atlanta. Are we going to have drone strike programs in America 
consistent with the applicable law of war?
  See, the other way to put ``law of war''--and this is not a stretch, 
this is just turning the words around--``martial law.'' Now people, if 
you put it that way, might have a little different impression. Do we 
want martial law in our country?
  If you go back to the battle we had over indefinite detention last 
year, where they are saying they can take a citizen without a trial and 
actually send them from America to Guantanamo Bay if they are accused 
of terrorism--accused, not convicted; accused of terrorism--you start 
to worry about some of the stuff happening in our country, that this 
could actually happen.
  One of the sort of ironies of looking at different governments and 
looking at what makes people unhappy--in Tahrir Square in Cairo, there 
have been hundreds of thousands of people protesting. It is interesting 
what they are protesting. One of the large things they are protesting 
is something called an emergency decree, which I believe went in place 
by Mubarak 20-some-odd years ago. So you get leaders who come in, and 
they use fear to accumulate power, and you get a decree. So you get 
martial law. The martial law, ironically enough, in Egypt allows 
detention without trial. They do have the right to trial, but there is 
an exception, and it has been accepted for the last 20-some-odd years, 
and the people are hopping mad over it. So we get involved in their 
country and their politics and give them money and weapons, and we have 
some of the same debate and problems here at home--whether or not you 
can indefinitely detain.
  The President's response to this was also pretty disappointing. It 
would not have become law without him. I think he threatened to veto 
it, and then he signed it anyway. Empty threats are of no value, and he 
struck no great blow for America or for American freedoms by not 
vetoing this. But when he signed it, he said something similar to what 
he is saying now. He said: Well, I have no intent to indefinitely 
detain people.
  Am I the only one in America who is a little bit underwhelmed by the 
President saying he has no intent to detain somebody but he is going to 
sign it into law saying he has the power to? That is the same thing we 
are getting now in this drone strike program: Don't worry. Everything 
is OK. I am your leader, and I would never detain you. I would never 
shoot Hellfire missiles at noncombatants. I will not do that.
  I can take him at his word, but what about the next guy and the next 
guy? In 1923, when they destroyed the currency in Germany, they elected 
Hitler. I am not saying anybody is Hitler, so do not misunderstand me. 
I am saying there is a danger, even in a democratic country, that 
someday you get a leader who comes in, in the middle of chaos, and 
says: Those people did it. Those people are the mistake. Those people 
are who we need to root out.
  If the laws have been removed that prevented that from happening, if 
the laws have been removed and they say: We can indefinitely detain--in 
Hitler's case, he said: The Jews, those bankers, the Jews did this to 
us. And they were indefinitely detained. Now, am I saying this is going 
to happen in our country? Unlikely. I cannot imagine any of our 
leaders, for all of our disagreements, doing that. But if you do not 
have the law to protect you, you do not have that protection because 
you do not know who the next guy is and the next guy or the next woman.
  When Madison wrote about this, he was very explicit. He said: We have 
these rules in place because we do not have a government of angels. If 
we had a government of angels, we would not need these rules.
  I will never forget the discussion with somebody about the Kelo case. 
The Kelo case was a case where the government took private property and 
gave it to a richer person who had private property who wanted to 
develop it. Ironically, the justification they used was blight. So they 
take it from one middle-class person and give it to a rich corporation, 
and they say they are doing that to rectify blight. But when they did 
that and when they came down with the ruling, it was concerning the 
logic of the way they get to this ruling, that basically they really do 
not have this right to your property.
  When the Kelo decision came down, it really bothered me. But I 
remember we started having the battle in our local government. In our 
local government, there was a battle over a resolution. The resolution 
said--it was in the city council--the resolution said the local city 
government cannot take private land and give it to another person. It 
was really like so many other things. The intention of eminent domain 
was to have highways and thoroughfares that you might not get 
otherwise, but it was never intended to take from a private owner and 
give to a corporation. That is what they did with the Kelo decision.
  So, anyway, local governments began talking about this, and I was 
talking to one of my local government officials--this is probably 20 
years ago, 15 years ago--and their response was, but I would never do 
that. I would never take private land through eminent domain and give 
it to another corporation. I would never do that.
  And I believed that person. And I really, frankly, give the President 
the benefit of the doubt. I do not question his motives. I do not think 
he probably will kill noncombatants. But I certainly do not want him to 
claim that he has the authority to kill noncombatants. So this is a big 
deal. It is a huge deal.
  So with the eminent domain, we finally passed it in our local 
commission. It was like 3 to 2, but in my town in Kentucky, you cannot 
take private property with eminent domain and give it to another 
private individual, because it is not about the individuals involved, 
it is about the fact that we do not always have angels running our 
government. We do not always know whom we are going to get.
  If we ask the question, Do you want a government that is run by 
majority rule or a government that is restrained by its documents, it 
is a pretty important question. Ultimately, there are ramifications to 
majority rule, to basically whatever the majority wants.

  One, the majority can vote upon minority rules they do not pass on 
themselves. In fact, Martin Luther King wrote--this is one of my 
favorite quotes from him--he said: An unjust law is any law that a 
majority passes on a minority but does not make binding on themselves. 
I thought it was a great statement because you could probably almost 
apply that to any law written on any subject. If the law excludes 
certain people and is not applied to everyone, then by definition it is 
an unjust law. What a great way to put it succinctly and a great way 
that we should look as far as trying to write rules.
  But you have to decide as a country whether you want majorities or 
politicians to decide things or whether you want reliance on documents 
and on a process and on a rule of law that protects you.
  If we rely on, basically, the whims of politicians, I think it is a 
big mistake. If we are going to rely on the politician basically 
sitting in the Oval Office going through flashcards and a

[[Page S1168]]

PowerPoint presentation to make the decision on life and death for 
Americans in America, I think it is a huge mistake.
  Any people who watch trials and court cases realize that even courts 
are not perfect. It is actually amazing how we even get it wrong with 
courts and trials and juries. Many States and even many people who were 
for the death penalty have questioned their support of the death 
penalty because of the imperfection of our courts. Through DNA testing, 
we have found we do not always get it right even with that. I think in 
Illinois they stopped the death penalty after having so many DNA 
testings that showed there was an incorrect diagnosis of who had 
committed the crime.
  So the question becomes, even with all the checks and balances of the 
court, are you worried at all about having one politician accuse, 
secretly charge, I guess--if you can call it a charge--and then execute 
Americans? I am incredibly troubled by that. I cannot imagine we as a 
free country would let that stand. I think it is an insult to every 
soldier in uniform fighting for American freedom around the world that 
we would just give up on ours at home, that the President would 
cavalierly or incorrectly or without forethought, without sufficient 
forethought, not tell us, not go ahead and explicitly say: This will 
never happen in America.
  His answer to me should not have been, no, we will not kill 
noncombatants. It should be, never--no, never. We will never in America 
come to that. Under my watch, we will never, ever allow this to happen 
in America.
  It is incredibly disappointing. It should be disappointing to all 
Americans or anyone who believes in this. We have to realize that 
trying to figure out guilt or innocence is very complicated. Anybody 
who has ever served on a jury realizes how difficult it is to determine 
guilt. And sometimes you are unsure. Some cases are actually decided 
by, gosh, the evidence was so equal, but there was not a preponderance. 
I could not become completely convinced, and this person is going to be 
put to death?
  Contrast the feeling a juror has and what a juror is trying to do in 
finding innocence or guilt and letting someone be punished by death 
with our current standard. Our current standard for killing someone 
overseas is that you can be sympathizing, you can be close to people 
who we think are bad, you can be in a caravan that we say bears the 
signature of bad people.
  Now, there is another debate that can be had about whether those are 
sufficient standards for war. And the standards are different for war 
in our country. But we have to adamantly and unequivocally stand up and 
say to those who would say this is a battlefield: The hell it is a 
battlefield. This is our country. If you want to say this is a 
battlefield--if you say we are going to have the laws of war here, we 
are going to have martial law here--by golly, let's have a debate about 
it. Let's have a discussion in the country. Let's have everybody 
talking about, are we the battlefield? Is this a battlefield? Is our 
country a battlefield? Because what that means is that you get no due 
process in a battlefield.
  I am not here to argue and say that you get due process in a 
battlefield. I am here to argue that we cannot let America be a 
battlefield because we cannot say that we are no longer going to have 
due process, that we are no longer going to have trial by jury, that we 
are no longer going to have presentment of charges and grand juries. It 
is impossible in a battlefield. In Afghanistan, it is impossible to 
say: Hey, wait a minute, can I read you your Miranda rights? It is 
impossible. We are not arguing for that. We are not arguing for a judge 
or a jury or anything else. If people are shooting at our troops, they 
can do everything possible, including drone strikes. It is not even the 
technology so much that I am opposed to, but the technology opens doors 
that we need to be concerned with.
  Defense of our soldiers in war--there is no due process involved with 
that. But realize the danger to saying America is at war, America is 
the battlefield, because also realize the danger that these people--
they are Republicans and Democrats--these people do not believe there 
is any limit to the war, there is no geographic limit, and there is no 
temporal limit. It is a perpetual war. And many of them--if you prompt 
them or provoke them--will open up and say: Oh, yes, America is a 
battlefield. We need the laws of war. And you ask them: When is the war 
going to end, When will we win the war, they will admit it--some of 
them will frankly admit it. They will say the war may go on for a long 
time. Some have talked about a 100-year war, 100 years being in these 
countries. But basically we are talking about perpetual war. We are 
talking about a war with no geographic limit, no temporal limit, and a 
war that has come to our country.

  There will be bad people who come to our country whom we need to 
repel. We are not talking about that. If planes are being flown into 
the Twin Towers, we have the right to shoot them down with our 
military. That is an act of war. No one questions that. If someone is 
standing outside the Capitol with a grenade launcher, we have a lot of 
brave Capitol policemen. I hope they kill the person immediately. 
Lethal force to repel lethal force has never been questioned by anybody 
and is not even controversial.
  But they want to make the debate about that and not about killing 
noncombatants driving in their car down Constitution or sitting in a 
cafe on Massachusetts Avenue. There may be bad people who are driving 
in their car, and there may be bad people sitting in cafes around the 
country. If there are, accuse them of a crime, arrest them and try 
them.
  The battlefield coming to America or acknowledging that is an 
enormous mistake. So there are some big issues, some issues that we as 
a country gloss over. We watch the nightly news. There is sometimes so 
much hysteria about so many issues, so many people yelling back and 
forth. But this is an issue that I think if we could get a frank 
discussion--I have proposed to the leadership--I have not had much luck 
with this--but I proposed for a constitutional debate or a debate of 
importance that everybody come, and instead of hearing me all day, we 
take 2 or 3 minutes and we go around the room and everybody speaks, it 
is limited, but there is some kind of debate and discussion--less 
speechmaking and more debate.

  I proposed we have lunch together. I have asked to come to the 
Democratic lunch. I have not gotten the invitation secured yet. It has 
only been 2 years so it may happen, but there are many reasons for 
discussion. There are many reasons why we should have civility. There 
are reasons why people on both sides of the aisle can agree to this. If 
we were to have a vote, maybe not on the nomination but a vote on 
restricting drones--there is a bill out there that we are working on 
that would restrict drones to imminent threats. It does not even get 
into the distinction of the military--things in the country would be 
the FBI; it would not be the military because that is the law. There is 
an important reason for the law.
  But we have a bill we are going to come forward with that we are 
working on that would simply say there has to be a real imminent lethal 
threat, something we can see. Then I think people could agree to that 
because it is not so much the drone we object to. If some guy is 
robbing a liquor store 2 blocks from here and the policemen come up and 
he comes out brandishing a gun, he or she can be shot. Once again, they 
do not get Miranda rights. They do not get a trial. They do not get 
anything. If you come out brandishing a weapon and people are 
threatened by it, you can be shot.
  So it is important to know what we are talking about. We are not 
talking about the guy coming out of the liquor store with a weapon. 
Even a drone could kill him if the FBI had drones. So my objection to 
drones is not so much the technology. There may be a use for law 
enforcement here, but there is also potential for abuses.
  Many government agencies have drones. These hopefully will remain 
unarmed drones. This is a different subject. But it is a subject that 
sort of dovetails from this into the next subject, which is, should you 
have protection from the government snooping--from the government 
looking through your bedroom windows? I remember that issue when I read 
``1984'' when I was in high school. It bothered me, but I could not 
quite connect. I felt somewhat secure in the sense that we did

[[Page S1169]]

not have two-way televisions. This was back in the 1970s. We did not 
have the ability to look at people. The government could not look at me 
in my house 24 hours a day.
  So you kind of get the feeling for how terrible it would be for that 
to happen. But technology was behind that. Actually ``1984'' was 
written, I think, in 1949. So talk about--he was truly being able to 
foresee the future. But now fast forward another 30 or 40 years and 
look at the technology we have now. We have drones that are less than 
an ounce, presumably with cameras--it is hard for me to believe that--
but less than an ounce with a camera. It is not impossible to conceive 
that you could have a drone fly outside your window and see what your 
reading material is.
  It is not impossible to say they could not send drones up to your 
mailbox and read at least what kind of mail you are getting or where it 
is from. It is not inconceivable that drones could follow you around. 
We had an important Supreme Court case last year, though, that was a 
blow for privacy. This was a Supreme Court case that had to do with GPS 
tagging. Everyone knows what GPS is. But what they were doing is the 
police were shooting them to cars or tagging them when you were not 
with your car and then following you around waiting for you to commit a 
crime. If you tag everybody's car and wait for them to speed, we are 
going to have a big deal on fines. There is going to be a problem. 
There is also a problem with following people around waiting for people 
to commit a crime. So the Supreme Court ruled, I think it was 
unanimously, that you have to have a warrant to do that.
  The thing about surveillance is those of us who believe in privacy 
are not arguing against any surveillance. What we are arguing is that 
you have to have a reason to do it and you have to ask a judge for 
permission. So it is not a society where there is no surveillance or a 
society where you have absolute privacy. If you commit a crime, the 
police go to the judge and ask for permission to do this.
  But there are some worrisome things about the direction of drones. 
For example, the EPA now has drones. The EPA is flying drones over 
farmland. I think some of this may be even in the defecation patterns 
of the cows. I do not know exactly what they are looking for because 
manure in streams is said to be a pollutant and, actually, frankly, 
thousands of animals might.
  But the whole idea, if you think someone is dumping anything in a 
stream--I am not opposed to having laws stopping that, get a warrant, 
search them or get a warrant and spy on them with a satellite or drone 
or whatever you want to do. But you have to have some kind of probable 
cause they are committing a crime. Because you can imagine that we 
would devolve into a society where every aspect of our life would just 
be open to the government to watch what we are doing.
  They say there is something called an open spaces concept. They say: 
You have 40 acres. The land is open so it is not private anymore. I 
think that is absurd. I think that is sort of analogous to the whole 
banking secrecy, such as you gave your records to your bank so you do 
not care if anybody looks at them. That is absurd. I have a 40-acre 
farm. I go hunting out there. I am supposed to not care if people watch 
me, everything I do once I am outside my house. My privacy is only in 
my house and not in open spaces?
  I disagree with that. One of the interesting things about the right 
to privacy, and you actually get some disagreement from people on the 
right about this. There was a case called the Griswold case. It had to 
do with birth control. A lot of conservatives objected to it because 
they saw it as a building block for Roe v. Wade. I am pro-life and did 
not like the decision in Roe v. Wade, but I actually do not mind the 
decision in Griswold so much. The reason is, going back to a little bit 
of the discussion we had earlier on Lochner, is that with Griswold, 
what I see is they talked about a right to privacy.
  Some said--the conservatives who are worried about the judiciary 
coming up with new things or creating things--they thought the right to 
privacy was not in the Constitution so you do not have it. I think that 
is a mistake in notion. Because, for example, the right to private 
property, that is not in the Constitution either, but I do not think 
any of the Founding Fathers or most of us today would argue you do not 
have a right to private property. In fact, I think it is one of the 
most important parts. In fact, there was some debate about having it in 
there. But I think the right to privacy, the right to private property, 
they are part of what I would call the unenumerated rights. The 
unenumerated rights are basically everything else not given to the 
government.

  You gave the government--or we give the government, through the 
compact of the Constitution, we give the government enumerated powers. 
There are about 17 to 19, depending on how you count them. But as 
Madison said, they are ``few and defined.'' When you talk about the 
rights, though, the 9th and 10th amendment will say those rights not 
specifically delegated to the Federal Government are left to the States 
and the people respectively. They are not to be disparaged.
  So the interesting thing about your rights is there is not sort of a 
list of your rights. In fact, when the Founding Fathers were putting 
together the Bill of Rights, one of the objections to the Bill of 
Rights was they said if we put the Bill of Rights together, everybody 
will think that is all of their rights. They will say, if it is not 
listed, you do not get it.
  So the 9th and 10th amendments were an important part of it. In fact, 
I do not know I would have voted for the Bill of Right's inclusion if 
you did not have the 9th and 10th. I like all the others, of course. 
But then the 9th and 10th protect all those not mentioned.
  So it is an interesting thing that some on the right disagree. In 
fact, the majority does not like the Griswold decision. But I actually 
kind of like it because I think your right to privacy is yours, the 
same as I think your right to private property is yours. It was not 
delegated, it was not taken, it was not given to the Federal 
Government. It is yours.
  It gets back to the sort of the primacy of liberty, the primacy of 
your individual freedom that you did not get that, you were not given 
your freedom by government. It was yours naturally or, as many of us 
believe, it is comes from your Creator. So your rights are national and 
inborn. They were enshrined in the Constitution, not given to you but 
enshrined and protected. As Patrick Henry said, it is not that the 
Constitution was instituted among men to protect the government, they 
were to protect the people from the government.
  It was to limit the size of government, to try to restrain the size 
of government, to try to allow for a government that lived under a rule 
of law. When Hayek said nothing distinguishes an arbitrary government 
from a constitutional government more clearly than this concept of the 
rule of law, the important thing about the rule of law is also that the 
rule of law is something that--it gives a certainty. Businessmen have 
talked about certainty.
  Without relinquishing the floor, I would like to hear a few comments 
from Senator Lee.
  Mr. LEE. The issues we are discussing are of profound importance to 
the American people for the reasons Senator Paul has identified. 
Americans have every reason to be concerned anytime decisions are made 
by government that impair one of the fundamental God-given protected 
rights that Americans have.
  Anytime the government wants to intrude upon life or liberty or 
property, it must do so in a way that comports with time-honored, 
centuries-old understandings of due process. The rule of law, in other 
words, must operate in order to protect those God-given interests to 
make sure they are not arbitrarily, capriciously deprived of any 
citizen.
  We are talking about the sanctity of human life. When the interest at 
stake is not just liberty or property but life itself, we have to 
protect it. We have to take steps to protect that. So I think it is 
important we carefully scrutinize and evaluate any government program 
that has the potential to deprive any American citizen of his or her 
life without due process of law.
  I was concerned, as was Senator Paul, recently, when the Obama 
administration leaked what was characterized as a Department of Justice 
white paper outlining the circumstances--outlining the legal criteria 
that this administration would

[[Page S1170]]

use in deciding when and whether and under what circumstances to snuff 
out human life, the human life of an American citizen no less, using a 
drone.
  The memorandum started out with certain somewhat predictable or 
familiar concepts. The memorandum started out by explaining an imminent 
standard, explaining that certainly could not happen absent an imminent 
threat to American national security, an imminent threat to American 
life, for example. When we think of imminence, we think of something 
that is emergent, we think of an emergency, something that is going on 
at the moment, which unless interrupted presents some kind of a 
dangerous threat.
  Significantly, however, this is not how the Department of Justice 
white paper actually read. Although it used the word ``imminence,'' it 
defined imminence as something far different than we normally think of, 
than we as American citizens use this kind of language, certainly in 
any legal or constitutional analytical context.
  If I could read from that memorandum, I would point out this 
condition of imminence is described as follows.
  It says: The condition that an operational leader--an operational 
leader of a group presenting a threat to the United States--presented 
imminent threat of violent attack against the United States does not 
require the United States to have clear evidence that a specific attack 
on U.S. persons and interests will take place in the immediate future.
  Wouldn't it be the Senator's understanding if something is imminent, 
it would need to be something occurring immediately?
  Mr. PAUL. Yes. I think there is really no question about using lethal 
force against an imminent attack. I think that is why we need to make 
the question we are asking the President very clearly. The question is 
if planes are attacking the World Trade Center, we do believe in an 
imminent response. We do believe in an imminent defense for that. The 
problem is we are talking about noncombatants who might someday be 
involved. If they are in America, I see no reason why they shouldn't be 
arrested.
  Mr. LEE. If we are dealing with something that is imminent, we are 
talking about something that is about to occur, and it is urgent. That 
typically is the standard any time government officials in other 
contexts, law enforcement, for example--sometimes regretfully and 
tragically, law enforcement officers need to make a spur-of-the-moment 
judgment call in order to protect human life. Sometimes in doing that 
they have to do something they wouldn't ordinarily do. It always turns 
on some kind of an imminent standard. It always turns on some kind of 
an emergent threat, something that is about to occur, that is occurring 
at the moment.
  Yet we are told in black and white right here in this white paper 
this condition, imminence, does not require the United States to have 
clear evidence that a specific attack on U.S. persons and interests 
will take place in the immediate future. That begs the question, what 
then is the standard. Who then makes this determination? Presumably it 
is the President of the United States. Perhaps it is others reporting 
up in the chain of command to the President of the United States.
  If actual imminence isn't required as part of this ostensibly 
imminent standard, what then is the standard? Is there any at all? If 
there is a standard, is it so wide, is it so broad you could drive a 
747 right through it? If that is the case, how is that compatible with 
time-honored notions of due process, those notions deeply embedded in 
our founding documents, those notions we understand come from God and 
cannot be revoked by any government?
  I wish I could say the imminence standard problem in the Department 
of Justice white paper is the only problem. It is not. We look to the 
very next page, the page dealing with feasibility of capture. One of 
the other standards outlined in the Department of Justice white paper 
outlining the circumstances in which the government of the United 
States may take a human life using a drone in a case involving a U.S. 
citizen is that the capture must be infeasible, and the United States 
must be continuing to monitor whether capture becomes feasible at some 
point.
  As to this standard on page 8 of the Department of Justice white 
paper, it says:

       Second, regarding to the feasibility of capture, capture 
     would not be feasible if it could not be physically 
     effectuated during the relevant window of opportunity or if 
     the relevant country were to decline to consent to a capture 
     operation. Other factors such as undue risk to U.S. personnel 
     conducting a potential capture operation could also be 
     relevant. Feasibility would be a highly fact-specific and 
     potentially time-sensitive inquiry.

  In other words, they are saying it has to be something that could not 
be physically effectuated during the relevant window. What is the 
relevant window? The white paper makes absolutely no effort whatsoever 
to define what the relevant window is. Who then makes this 
determination, and according to what factors is that determination 
made?
  Here yet again we have a standardless standard. We have a standard 
that is so broad, so malleable, so easily subject to so many varying 
interpretations, no one can reasonably look into this and decide who 
the government may kill with a drone and who the government may not 
kill with a drone. That is a problem, and that, it seems to me, is 
fundamentally incompatible with time-honored notions of due process. 
Would the Senator not agree with that assessment?
  Mr. PAUL. Absolutely. I think that is where the crux comes down to 
this, talking about having an imminent standard. This is part of the 
problem in the sense he doesn't want to talk about it. If we are going 
to do something so dramatic as to no longer have the fifth amendment 
apply in the United States, to have no accusation, to have no arrest, 
no jury trials for folks who are to be killed in the United States, it 
is such a dramatic change that you would think we would want to have a 
full airing of a debate on this.
  Mr. LEE. Would the Senator from Kentucky yield for a question?
  Mr. PAUL. I won't yield the floor, but I will allow the Senator to 
make comments.
  Mr. LEE. If the Senator will yield for a question, I will ask if the 
Senator was aware of the exchange some members of the Senate Judiciary 
Committee had with Attorney General Holder this morning on the subject.
  Mr. PAUL. Yes.
  Mr. LEE. Was the Senator aware of the fact some of us asked Attorney 
General Holder for a more robust analysis than the series of memoranda 
authored by the Office of Legal Counsel, the U.S. Department of 
Justice's chief advisory body, and the fact that so far the Department 
of Justice has declined to make those available to members of the 
Judiciary Committee?
  Mr. PAUL. Yes, I am aware of that. I think we have a transcript of 
some of the conversation from this morning.
  Mr. LEE. If I may supplement that question by describing what I 
encountered in connection with that, I expressed frustration to the 
Attorney General over the fact that members of the Senate Judiciary 
Committee--who have significant oversight responsibilities with regard 
to the operation of the U.S. Department of Justice--have not had access 
to that memorandum. This is part of our oversight responsibilities. 
This is something we ought to be able to see, and so far it is not 
something we have been able to see. I encouraged the Attorney General 
to make available to members of the Senate Judiciary Committee those 
very documents, which he claimed add some additional insight and would 
give us some additional analysis above and beyond what this white paper 
is saying. I thought that might be relevant to the Senator in 
addressing my question.

  Mr. PAUL. Absolutely. At this point, I will entertain comments from 
Senator Cruz and a question.
  The PRESIDING OFFICER (Mr. Coons). The Senator from Texas.
  Mr. CRUZ. Would the Senator from Kentucky yield for a question?
  Mr. PAUL. I will not yield the floor, but I will acknowledge a 
question to the Chair.
  Mr. CRUZ. I wish to ask the Senator's reaction to the testimony 
Attorney General Eric Holder gave the Senator this morning in the 
Senate Judiciary Committee. I wish to describe that testimony for the 
Senate and ask the Senator's reaction to that testimony.
  I would begin by saying that Senator after Senator on the Judiciary 
Committee invoked the leadership of the Senator from Kentucky on the 
issue of

[[Page S1171]]

drones and asked Attorney General Holder about the standards for drone 
strikes in the United States. Indeed, although the Senator does not 
serve on the Judiciary Committee, it was as if he were serving in 
absentia, because the Attorney General was forced over and over again 
to respond.
  I would note the Senator's standing here today, like a modern ``Mr. 
Smith Goes to Washington,'' must surely be making Jimmy Stewart smile. 
My only regret is there are not 99 of our colleagues here today 
standing with the Senator in defense of the most fundamental principle 
in our Declaration of Independence and our Constitution; namely, each 
of us is endowed with certain unalienable rights by our Creator and 
that first among them is life, the right to life, and the right not to 
have life arbitrarily extinguished by our government without due 
process of law.
  At the hearing this morning, Attorney General Holder was asked about 
the letter he sent the Senator in which the Senator asked him whether 
the U.S. Government could use a drone strike to kill a U.S. citizen on 
U.S. soil. As the Senator knows, Attorney General Holder responded in 
writing he could imagine a circumstance where that would be 
permissible. The two examples he gave were: No. 1, Pearl Harbor; and 
No. 2, the tragic attacks on this country on September 11, 2001. In the 
course of the hearing, Attorney General Holder was asked for more 
specifics. In particular, both of those were military strikes on our 
country with imminent and, indeed, grievous loss of life that flowed 
from it. Few, if any, disagree that the U.S. Government may act swiftly 
to prevent a military attack which would mean immediate loss of life. 
The question Attorney General Holder was asked three different times 
was whether the U.S. Government could take a U.S. citizen, who was 
suspected of being a terrorist, on U.S. soil, who was not engaged in 
any imminent threat to life or bodily harm, simply sitting at a cafe--
could the U.S. Government use a drone strike to kill that U.S. citizen 
on U.S. soil.
  Three times when asked that direct question, Attorney General Holder 
responded that in his judgment that was not ``appropriate.''
  The first question--and if I may, I wish to ask a series of 
questions--does it surprise the Senator the Attorney General would 
speak in vague, amorphous terms of appropriateness and prosecutorial 
discretion rather than the bright lines of what the Constitution 
protects, namely, the right of every American to have our life 
protected by the Constitution?
  Mr. PAUL. Mr. President, I am quite surprised, although I guess I 
shouldn't be, that we don't get direct responses. It is a pretty direct 
question. It is the question I have been asking all morning. It is the 
question I have been asking for a month and a half. I am talking about 
situations where you have a noncombatant, someone not posing an 
imminent threat, who they think make may someday pose an imminent 
threat because that is what we are doing overseas. If that is the 
standard overseas, I am asking is that going to be the standard here? 
It amazes me.
  Part of the reason we are here today in the midst of a filibuster is 
because they won't answer the question directly. I applaud the attempts 
to try to get a more specific question. I am not terribly surprised we 
have had trouble getting a direct answer.
  Mr. CRUZ. Would the Senator yield for additional questions?
  Mr. PAUL. As long as I do not yield the floor.
  Mr. CRUZ. After three times declining to answer a direct question, 
would killing a U.S. citizen on U.S. soil with a drone strike when that 
U.S. citizen did not present an imminent threat, would that be 
constitutional--after three times of simply saying it would not be 
appropriate, finally, the fourth time Attorney General Holder responded 
to vigorous questioning--in particular during the course of the 
questioning, the point was made that Attorney General Holder is not an 
advice columnist giving advice on etiquette and appropriateness. The 
Attorney General is the chief legal officer of the United States. I 
will note I observed it was more than a little astonishing the chief 
legal officer of the United States could not give a simple one-word, 
one-syllable, two-letter answer to the question: Does the Constitution 
allow the Federal Government to kill with a drone strike a U.S. citizen 
on U.S. soil who is not posing an immediate threat? The proper answer I 
suggested at that hearing should be no. That should be a very easy 
answer for the Attorney General to give.
  Finally, the fourth time around, Attorney General Holder stated: Let 
me be clear. Translate my appropriate to no. I thought I was saying no. 
All right? No. Finally, after three times refusing to answer the 
question whether it would be constitutional to do so, the fourth time 
the Attorney General answered.
  The question I want to ask is the Senator's reaction to this 
exchange. In particular when Attorney General Holder on the fourth time 
finally stated his opinion--and I assume the opinion of the Department 
of Justice--that it is unconstitutional for the Federal Government to 
kill a U.S. citizen on U.S. soil who does not pose an imminent threat, 
when he stated that, my response was I wish he had simply said so in 
his letter to the Senator at the beginning. I wish John Brennan in his 
questioning the Senator provided had said so in the beginning.
  Indeed I then said: The Senator from Kentucky and I are going to 
introduce legislation in this body to make clear that the U.S. 
Government may not kill a U.S. citizen on U.S. soil if that individual 
does not pose an imminent threat of death or grievous bodily harm. I 
observed that if the Attorney General's view was that it was 
unconstitutional for the U.S. Government to do so, then I assumed he 
would be supporting that legislation. I would welcome the Senator's 
reaction to that exchange.

  Mr. PAUL. Well, Mr. President, the response is a little bit 
troubling; that it took so much work and so much effort of cross-
examination to finally get an answer.
  I will note, in his final answer, I don't ever see the words 
``constitutional'' or ``unconstitutional.'' He is responding to Senator 
Cruz's word of ``constitutional'' when he says: Let it be clear and 
translate my ``appropriate'' to ``no.'' I thought I was saying no. All 
right. No.
  Well, words do make a difference, and I would feel a little more 
comfortable if we would get in writing a letter that says he doesn't 
believe killing people not actively engaged in combat with drones in 
America, on American soil, is constitutional. That sure would have 
short-circuited and saved quite a bit of time.
  I will say, though, that I will believe a little more of the 
sincerity of the President and of the Attorney General if we get a 
public endorsement of the bill that says drones can't be used except 
under imminent threat, and define that as an imminent threat where you 
actually have a lethal attack underway. If we could get to that, I 
think this is something that both parties ought to be able to unite by. 
It is such a basic principle, I can't imagine we couldn't unite by 
this. And it would have gone a long way to getting these answers.
  But what still disappoints me about the whole thing is that it takes 
so much work to get people to say they are going to obey the law. It 
takes so much work to get the administration to admit they will adhere 
to the Constitution. This should be a much simpler process.
  I commend the Senator from Texas for not letting go and for trying to 
get this information. I would welcome any more comments that he has.
  Mr. CRUZ. If the Senator would yield for one final question, is the 
Senator from Kentucky aware of any precedent whatsoever--any Supreme 
Court case, any lower court case, the decision of any President of the 
United States, beginning with George Washington up to the present, the 
stated views of any Member of this Senate, beginning with the very 
first Congress up to the present--for the proposition that this 
administration seems willing to embrace, or at least unwilling to 
renounce explicitly and emphatically, that the Constitution somehow 
permits, or at least does not foreclose on, the U.S. Government killing 
a U.S. citizen on U.S. soil who is not flying a plane into a building, 
who is not robbing a bank, who is not pointing a bazooka at the 
Pentagon, but who is simply sitting quietly at a cafe, peaceably 
enjoying breakfast?

[[Page S1172]]

  Is the Senator from Kentucky aware of any precedent whatsoever for 
what I consider to be the remarkable proposition that the U.S. 
Government, without indicting him, without bringing him before a jury, 
without any due process whatsoever could simply send a drone to kill 
that U.S. citizen on U.S. soil?
  Mr. PAUL. Mr. President, I am aware of no legal precedent for taking 
the life of an American without the fifth amendment or due process. 
What is troubling, though, is that Attorney General Eric Holder is on 
record as actually arguing that the fifth amendment right to due 
process is to be determined and is to be applicable when determined 
solely by the executive branch.
  I would appreciate the comments and opinions of the Senator from 
Texas on the idea that the executive branch gets to determine when the 
Bill of Rights applies.
  Mr. CRUZ. If I may give my views on that question and then ask for 
the Senator's response to my views on whether the executive may 
determine its own limitations, I would suggest the genesis of our 
constitution is found in the notion that the President is not a king, 
that we are not ruled by a monarchy, and that no man or woman is above 
the law. Accordingly, no man or woman may determine the applicability 
of the law to himself or herself.
  For that reason, the Framers of our Constitution won not one but two 
revolutions. The first revolution they won was a bloody battle for our 
independence from King George, and a great many of them gave the 
ultimate sacrifice so that we might enjoy the freedom we do today. But 
the far more important war they won was the war of ideas, where for 
millennia men and women had been told that rights come from kings and 
queens and are given by grace, to be taken away at the whim of the 
monarch. What our Framers concluded, instead, is that our rights don't 
come from any king or queen or president; they come from God Almighty, 
and sovereignty does not originate from the monarch or the president, 
it originates from we the people.
  Accordingly, the Constitution served, as Thomas Jefferson put it, as 
chains to bind the mischief of government. And I would suggest that 
anytime power is arrogated in one place--in the Executive--that liberty 
is threatened. And that should be a view that receives support not just 
from Republicans, not just from Democrats or Independents or 
Libertarians, that should be a view that receives support from 
everybody; that none of us should want to live in a country where the 
President or the Executive asserts the authority to take the life of a 
U.S. citizen on U.S. soil without due process of law and absent any 
imminent threat of harm.
  I would suggest the idea that we should simply trust the Attorney 
General, trust the Director of the CIA, or trust the President to 
exercise an astonishing power to take the life of any U.S. citizen, in 
my judgment, is fundamentally inconsistent with the Bill of Rights. And 
I would, therefore, ask the Senator from Kentucky for his reaction and 
whether he shares my understanding that our rights are protected not at 
the whim or grace of the Executive, but they are protected by the 
Constitution and, ultimately, they are rights that each of us was given 
by our Creator, and we are obliged to protect the natural rights to 
life, liberty, and property that every man and woman in America enjoys?
  Mr. PAUL. Well, Mr. President, this is what makes this debate so 
important. This debate is about the fundamental rights that we--most of 
us, or many of us--believe derive from our Creator and that it is 
important we not give up on these; that we not allow a majority vote or 
one branch of government to say we have now decided you don't get all 
these rights anymore.
  Our Founders really wanted to make it difficult to change things, to 
take away our rights. So this is an important battle and one in which I 
think we should engage because the President needs to be more 
forthcoming. The President needs to let us know what his plans are, if 
he is going to overrule the fifth amendment and if the Attorney General 
is going to decide when the fifth amendment applies. That is a pretty 
important distinction and change from the history of our country.
  Mr. President, at this time I would like to ask for any comments, 
without yielding the floor, from the Senator from Utah.
  Mr. LEE. In response to Senator Paul's question, I would like to add 
to the Senator's remarks and those of the junior Senator from Texas the 
fact that in the concluding paragraph of the Department of Justice 
white paper on this issue, the Department concludes as follows:

       In sum, an operation in the circumstances and under the 
     constraints described above would not result in a violation 
     of any due process rights.

  It is a rather interesting conclusion, in light of the fact that two 
out of the three analytical points outlined above in the memorandum, in 
the white paper are themselves so broad as to be arguably meaningless 
or, at a minimum, capable of being interpreted in such a way as to 
subject American citizens to the arbitrary deprivation of their own 
right to live.
  First, as I mentioned earlier, by proposing an imminent standard that 
leaves out anything imminent--in other words, it is not just peanut 
butter without the jelly; it is peanut butter without the peanut 
butter. There is no ``there'' there--they define out of existence the 
very imminent standard they purport to create and follow. That is not 
due process. It is the opposite of due process.
  Secondly, they outline a set of circumstances in which this attack 
may occur, where capture is infeasible, and then they define an 
understanding of feasibility that is so broad as to render it virtually 
meaningless.
  So at the conclusion of the memo--and the memo says:

       In sum, an operation in the circumstances and under the 
     constraints described above would not result in a violation 
     of any due process rights.

  It is describing constraints that are not really constraints, and 
that is a problem. That amounts to a deprivation of due process.
  In light of these circumstances, I think it really is imperative the 
American people, or those who serve in this body--at a minimum, those 
who serve on the Senate Judiciary Committee--be given an opportunity to 
review the wholesale legal analyses identified by the Attorney General 
today that have been prepared by the Office of Legal Counsel of the 
Department of Justice. This is the chief advisory body within the U.S. 
Department of Justice. It is the job of the fine lawyers in the Office 
of Legal Counsel to render this advice, and we ought to have the 
benefit of that. At a minimum, we ought to have the benefit of that 
within the Senate Judiciary Committee.
  So when I asked the Attorney General this morning whether he would 
make those available, I was surprised and a little frustrated when he 
declined to offer them immediately. He said he would check in with 
those he needed to consult with. I reminded him he is the Attorney 
General, and he does, in fact, supervise those who work in the 
Department of Justice.
  I hope that is satisfactory and in response to the Senator's 
question.
  Mr. PAUL. Yes, I agree with the comments of the Senator from Utah.
  The whole problem is that if the President says my plan has due 
process, that would be sort of like me saying I have passed my law, and 
I think it is constitutional. Well, the same branch of government 
doesn't get to judge whether it is constitutional. That is the whole 
idea of the checks and balances.
  We pass a law in the Senate and the Supreme Court can rule on whether 
it is constitutional. So the President gets to decide that he is going 
to abrogate the fifth amendment or abbreviate the fifth amendment or do 
certain things, and then he says: Oh, I am really not because the way I 
interpret it, I am applying the fifth amendment to my process.
  Well, he can't do that. He can't be judge, jury, executioner, and 
Supreme Court all rolled into one. That is an arrogation of power we 
cannot allow.
  Mr. President, at this time I would like to entertain comments or a 
question from the Senator from Kansas without yielding the floor, if I 
may.
  Mr. MORAN. Mr. President, I thank the Senator from Kentucky, and I 
would like to ask a series of questions.
  The PRESIDING OFFICER. The Senator from Kansas.

[[Page S1173]]

  Mr. MORAN. First, let me outline a thought I had in listening to this 
conversation and ask the Senator a question about it.
  We have seen the actions of our President to be determined 
unconstitutional in a recent case in the court of appeals in the 
District of Columbia--a case in which the President made the 
determination he could determine the definition of a recess in the 
Senate--and so we now have a court that has declared the President's 
conclusion in that regard to be unconstitutional.
  I don't know that we want to get into the magnitude or evaluating 
what constitutional violations are most damaging to the American people 
or to our rights and liberties, but I would ask the Senator to compare 
the consequences of the President being wrong once again in regard to 
the constitutionality of utilizing a drone strike to end the life of an 
American citizen. Again, I am suggesting that we have seen precedent 
where the President acts unconstitutionally. Fortunately, the legal 
process is there to make certain a determination is made as to the 
constitutionality of that act.
  In this case, what would be the consequences of a drone strike as 
compared to whether an appointment to an administrative body under the 
recess clause is constitutional?
  Mr. PAUL. Mr. President, I think the analogy is apt. The difference 
is a recess appointment you get to make your appeal to a court while 
still living, which makes a big difference. In the case of the recess 
appointments, the President decided he could determine when the 
legislative branch was in session or out of session. So you have the 
same sort of conflict again.
  The President has a sphere and we have a sphere, but now he is saying 
he controls our sphere also; that he can tell us when we are in session 
or out of session, and he can basically do what he wishes. The Supreme 
Court rebuked him pretty sternly.
  So I agree with the Senator from Kansas. There is a great deal of 
similarity between the two because it is, once again, the executive 
branch or the President acting as if the checks and balances between 
the Legislative and the executive branches don't exist; that he 
basically made the decision for us that he has decided we are in 
recess.
  But the Senator is correct, the Supreme Court gave him a pretty stern 
rebuke and said that would be unconstitutional.
  Mr. MORAN. Mr. President, to the Senator from Kentucky, what is the 
logical extension of a decision that it is constitutional to utilize a 
drone by our military to strike at the life of an American citizen in 
the United States?
  And I would say, if the Senator would agree with me, most Americans 
would find it repulsive, unconstitutional, and a terrible violation of 
public duty if a military officer on the streets of Wichita, KS, pulled 
a gun and shot an American citizen.
  Really, is that not the logical extension of the idea that a drone 
strike from above results in the death of a U.S. citizen without due 
process? Is that any different than the ability to kill somebody in any 
other manner that I think most Americans would recognize today as 
prohibited without due process of law by our Constitution?
  Mr. PAUL. Mr. President, the analogy that the Senator from Kansas 
brings up I think is appropriate.
  We have had rules on the books since the Civil War saying the 
military doesn't act in our country. So it is not just a drone; it is 
any sort of law enforcement in the United States. We recognize that.
  We respect our soldiers. We are proud of our soldiers. But we have 
limited their sphere to the sphere of war. Within the United States, 
for our security we have the police and we have the FBI. It is because 
the rules of engagement are different. It is different being a soldier. 
It is a tough job being a soldier. But it is just not the same on the 
streets of Wichita or the streets of Bowling Green, KY. So we have 
different rules and we have made it different.
  But the Senator is right. I think people would understand that it 
would be wrong for a military officer to shoot someone on the streets 
in America. It is prohibited for a good reason; not because our 
soldiers are bad people, but it is because there are different rules 
for soldiers. That is what is most troubling about many of these people 
who say, oh, Wichita is the battlefield. And if it is the battlefield, 
they don't understand why the military can't act in Wichita or Houston 
or Bowling Green, KY. So it does delve into the problem that we have to 
debate: Is there a limitation to where the battlefield is?
  If the Senator has another question, I would yield for a question 
without yielding the floor.
  Mr. MORAN. Mr. President, I have an additional question, and I 
believe it is my final question.
  I would ask the Senator from Kentucky, through the President--we are 
here at this point in time in the juncture of the Senate with the issue 
of whether to confirm a particular individual to a particular office, 
an administrative appointment. I would ask the Senator if he doesn't 
believe the issue of the due process rights of American citizens is of 
such a magnitude that the real issue that ought to be before the Senate 
is not the confirmation of an individual, but we ought to resolve the 
issue of whether the Senate believes it is constitutional for the due 
process rights of an American citizen to be taken by a drone strike in 
the United States, and the opportunity now presents itself that it 
would be a reason not to grant cloture.
  Let me ask it as a question. Would it not be a reason to grant 
cloture on this nomination until we resolve this issue?
  Mr. PAUL. Mr. President, I think it is very reasonable. It is more 
important than just the nomination of one individual.
  When we are talking about whether the Bill of Rights is going to be 
changed, when we are talking about whether you will have the due 
process to be tried in a court, or whether you could be killed--
summarily executed without a trial--that is an important change in the 
history of our country.
  The Senator's response also made me think of something else. Another 
way to resolve this, where we could conclude this debate and get on to 
the nomination, would be for the majority party to come forward with a 
resolution that says: You know what. We are not going to kill 
noncombatants in America with drone strikes; we are not going to use 
the military; we are going to reaffirm the law.
  So there is a resolution that both parties could come forward--and it 
would be a wonderful resolution to this process to say: The Senate goes 
on record in a bipartisan fashion as saying we are not going to 
overturn the fifth amendment. If you are an American and you live in 
America, you will not be killed without being accused of a crime, tried 
by a jury, and convicted by a jury. I think that would be a reasonable 
resolution to this, and I would entertain it if the other side were 
interested.
  Mr. MORAN. I thank the Senator from Kentucky for responding to my 
questions.
  Mr. CRUZ. Mr. President, would the Senator from Kentucky yield for a 
question?
  Mr. PAUL. Mr. President, without relinquishing the floor, I yield to 
the Senator from Texas for a question.
  Mr. CRUZ. Mr. President, I ask the Senator his reaction as to the 
possible justification for the administration's repeated reluctance to 
answer what should be a very straightforward question.

  I find myself genuinely puzzled that both Mr. Brennan and Attorney 
General Holder, when asked whether the U.S. Government may kill a U.S. 
citizen on U.S. soil with a drone strike, absent an imminent threat of 
harm to life or grievous bodily injury--I find it quite puzzling that 
both of them did not simply respond: Of course not. Of course we can't. 
We never have in the history of this country, and we never will. The 
Constitution forbids it.
  In my understanding of the Constitution, that was not a difficult 
question the Senator asked, and I find it quite remarkable that they 
treated it as a difficult question.
  To be clear, there is no dispute--at least no serious dispute--that 
if an individual poses an imminent threat of harm--if an individual is 
robbing a bank, there is no dispute that law enforcement, a SWAT team, 
can use deadly force to prevent the imminent threat to life or limb.
  What this issue is about is an individual who is not posing an 
imminent threat--a U.S. citizen on U.S. soil--and

[[Page S1174]]

the administration's continued reluctance to say: The Constitution 
forbids killing that U.S. citizen without due process of law.
  So what I want to ask the Senator about is efficacy.
  Let's take a hypothetical individual whom the U.S. Government 
believes to be a terrorist, who is sitting at a cafe enjoying a cup of 
coffee, not posing an imminent threat to anybody. The question I would 
like to ask about efficacy--and if I might, I would like to ask a 
couple of questions.
  No. 1, if it turns out the intelligence is incorrect, that this 
individual the U.S. Government suspects of being a terrorist is not in 
fact a terrorist, that they have the wrong guy; and if a drone strike 
is used and that individual is killed, is there an effective remedy to 
correct that tragic mistake?
  Mr. PAUL. Mr. President, I think the question is well put.
  The first aspect of the question is, What is the President thinking? 
Why would the President not respond to us? Why would the President not 
answer a pretty easy question and say that noncombatants in the United 
States will not be killed with drones?
  I think the reason is complicated--and it is conjecture because I 
can't get in his mind. But I would say it is sort of a contagion or an 
infection that affects Republicans and Democrats when they get into the 
White House. They see the power the Presidency has. It is enormous. 
They see themselves as good people, and they say: I can't give up any 
power because I am going to do good with that power.
  The problem they don't see is that the power itself is intoxicating, 
and the power someday may be in the hands of someone else who is less 
inclined to use it in a good way. I think that is why the power grows 
and grows, because everybody believes themselves to be doing the right 
thing.
  With regard to exactly what would happen in the situation when there 
is not an imminent threat, it boggles the mind when we can't answer 
that question. And I don't have a good understanding as to why exactly 
we can't get a response.
  I would yield for a response from the Senator from Texas.
  Mr. CRUZ. Mr. President, if I could ask the second question, in the 
instance where the intelligence was wrong and a U.S. citizen was killed 
by his or her government without due process of law, there obviously 
would be no remedy. But I would ask about the alternate scenario.
  If it were the case that this individual was in fact a terrorist, was 
involved in a plot to threaten the lives and threaten the safety of 
other Americans; if this U.S. citizen sitting in a cafe is killed with 
a drone strike--focusing on efficacy--once he is killed, am I correct 
that you can't interrogate him further; you can't find out who else was 
in the terrorist plot with him; you can't find out what methods he had 
put in place; you can't find out if there is an imminent threat planned 
that he may know about? But if a drone from the sky simply kills him, 
that knowledge perishes with him at that cafe and so undermines the 
legitimate efforts of our government to protect the safety and security 
of all Americans.
  Mr. PAUL. Mr. President, I think it is an excellent question and 
really gets to the root of the whole problem we are talking about 
because we are talking about people who may not all be good people. 
They may be bad people and they may be plotting to do something bad to 
America, and they may be in a cafe. So there may be all kinds of 
reasons to arrest and punish them, but there may be all kinds of 
reasons to try to get more information from them. Particularly if they 
are not involved in combat, it is hard to imagine why you would want to 
kill them. If they are not involved in combat, why not capture them and 
try to get some useful information out of them?

  So it is a little bit difficult to understand why the President 
wouldn't say what is obvious: Why would we want to kill noncombatants 
in America?
  The reason we keep asking the question is, of the drone strikes 
overseas--which we are not privy to all of the details because some of 
it is classified. But the details that have been in the press are that 
a lot of these people being killed overseas are not in combat.
  So the real question is, If you are going to take this drone strike 
overseas and it has no geographic limitations, and you are bringing it 
home to America, does the President not think it is incumbent upon him 
to say: Well, yes, we are bringing it home, but we are not going to 
kill noncombatants?
  What an important question. I think the Senator has phrased it 
appropriately and I would anticipate or respect any other response he 
would like to give.
  Mr. CRUZ. One final question for the Senator from Kentucky.
  I am aware the Senator from Kentucky is originally from the great 
State of Texas. As the Senator is no doubt aware, today is the 177th 
anniversary of the fall of the Alamo.
  One hundred eighty-two men were stationed at the Alamo, and after 13 
days of a bitter siege, fighting an army of thousands, those patriots 
gave their lives for freedom. They put everything on the line to stand 
against tyranny and to stand for the fundamental right of every man and 
woman to breathe freely, to control our own lives, our own autonomy, to 
make decisions about what our future would be.
  If I may presume to speak on behalf of 26 million Texans, I would say 
I have no doubt that Texans are proud to see the distinguished Senator 
from Kentucky, as a native-born Texan, fighting so valiantly for 
liberty and serving as such a clarion voice for liberty at a time when 
sometimes liberty has few champions.
  Indeed, I would suggest if those brave patriots of the Alamo were 
here, William Barrett Travis and Davy Crockett and Jim Bowie and each 
of the others who gave their lives for freedom, they would be standing 
side by side with the Senator and would be proud to call him brother.
  Mr. PAUL. Mr. President, I would like to say that I appreciate the 
remarks of the Senator from Texas. If the filibuster goes on long 
enough, we would like to hear a recitation of William Barrett Travis's 
last words at the Alamo. We had to memorize that as a kid, and I am 
afraid my memory has gone a little dusty. But the Senator is younger 
and may remember that for us.
  The issue at hand is an issue that goes beyond party politics. It 
goes beyond nominations. It goes beyond the President is a Democrat and 
I am a Republican. I voted for three of the President's nominations, 
much to the chagrin and much to the criticism of some on my side. But I 
have done so because I think the President does have some 
prerogatives--that is just my personal viewpoint--on choosing 
appointees. This is a political appointee, but I do not consider this 
debate to be about the appointee. I think this debate is more about a 
constitutional issue, and I think it rises to a level above the 
individual and it is something to which we need to draw attention and 
about which we need to have a good healthy discussion in our country.

  I don't think it has to be a bitter partisan battle. I have met the 
President personally. I have flown on Air Force One with him. I respect 
him, I respect the office. I think he and I could have a reasonable 
conversation on this issue. In fact, I think if he were here today, he 
might actually agree with much of what I am saying. What I am 
disappointed in--and I do not know if it is the muddle of a large 
government and not getting a message forward, but what I am 
disappointed in is that it is so hard to get him to agree with what I 
think he should already and probably already agrees with. But when we 
are talking about doing something so different, when we are talking 
about changing the way we adjudicate guilt, changing the way we decide 
someone's life or death, it is too important to just say: Oh, Mr. 
President, go ahead and do it. As long as you tell me you have no 
intent of breaking the law or no intent to kill Americans, that is 
enough.
  It just simply is not enough. It is not enough to say: I have not 
done it yet. I do not intend to kill anybody, but I might.
  He came up with some circumstances where he might use the drone 
strikes in America. Then, in the cross-examination of Senator Cruz in 
the committee, we have gotten him to admit--under duress, I think, but 
to admit that they are not talking about people in a cafe.
  Some might say he has never mentioned people in a cafe. The reason it

[[Page S1175]]

comes up, of people not involved in combat, is that a lot of the people 
who have been the victims or have been killed by these drone strikes 
were not involved in combat when they were killed. They were riding in 
cars, walking down the street, traveling in caravans. I am not saying 
they are good people. I am just saying, regarding the standard for whom 
we kill overseas, we have to ask the question, and I don't think we are 
doing our job if we do not ask the President: Are you going to use the 
same criteria for how you kill people overseas? Is that the same 
criteria over here?
  And it should not be: I will tell you later. It shouldn't be, I don't 
intend to do it and I probably won't, but I might.
  That is just not enough.
  We are talking about basic protections that we fought our Revolution 
over and really, in a way, when I see the wars that we have gone to--
and not every war has been perfectly justified or that we should have, 
but when our soldiers fight, I see them fighting for the Bill of 
Rights, and I think they say that too. No matter where they are around 
the world, I see them fighting for the Bill of Rights and our 
Constitution. But if we are giving that up, if we are not going to 
adhere to the fifth amendment, it takes the wind out of the sails.
  Can you imagine being a soldier in Afghanistan or Iraq or in far-
flung places around the world and you are told you were fighting for 
the Bill of Rights minus the fifth amendment? Or when we say we are 
going to indefinitely detain people, we are going to fight for the Bill 
of Rights minus the sixth amendment? It is pretty important. These 
things are what we are fighting for, so we really should at least have 
a robust debate over the magnitude of these changes, over how these 
will be set up, over exactly what will happen, how this process is 
going to work. I am just saying that ``I am not intending to do so'' is 
not enough.
  Mr. President, I, without yielding the floor, would like to allow a 
question from the Senator from Texas.
  Mr. CRUZ. If the Senator from Kentucky would allow this question, I 
would like to respond to his very gracious invitation and ask if the 
following letter gives the Senator from Kentucky encouragement and 
sustenance as he stands and fights for liberty? This letter was written 
February 24, 1836, and it begins as follows:

       To the People of Texas and All Americans in the World:
       Fellow citizens and compatriots;
       I am besieged, by a thousand or more of the Mexicans under 
     Santa Anna. I have sustained a continual Bombardment and 
     cannonade for 24 hours and have not lost a man. The enemy has 
     demanded a surrender at discretion, otherwise, the garrison 
     are to be put to the sword, if the fort is taken. I have 
     answered the demand with a cannon shot, and our flag still 
     waves proudly from the walls. I shall never surrender or 
     retreat. Then, I call on you in the name of Liberty, of 
     patriotism & everything dear to the American character, to 
     come to our aid, with all dispatch. The enemy is receiving 
     reinforcements daily and will no doubt increase to three or 
     four thousand in four or five days. If this call is 
     neglected, I am determined to sustain myself as long as 
     possible and die like a soldier who never forgets what is due 
     to his own honor & that of his country. Victory or Death.
       William Barret Travis

  My question is, Does that glorious letter give you encouragement and 
sustenance on this 177th anniversary of the Alamo?
  Mr. PAUL. Mr. President, I think what Travis's letter at the Alamo 
talks about is that there are things bigger than the individual. At the 
time he wrote that, I don't think they had much hope of surviving, and 
he died at the Alamo, as well as other volunteers, some from my State 
of Kentucky. But there was an issue bigger to them at the time, that 
they saw as bigger than the issue of the individual. I think that is 
what this debate is about.
  This is not really about the person of John Brennan. This really is 
not about the person of Barack Obama. This is about the body of the 
Constitution, it is about our respect for it, and it is about whether 
we will hold these principles so dear and we will hold these principles 
so high that we are willing to try to enjoin a debate, to try to get 
both sides to talk about this and to try to admit it, because we don't 
want innocent people to be killed in America. We want to have the 
process that has protected our freedoms for a couple of hundred years 
now to remain in place, and we are unwilling to diminish that simply 
because of fear.
  FDR said, ``There is nothing to fear but fear itself.'' I think we 
should also say that we should not let fear be so great that we allow 
the loss of our freedoms. I think that is where we are, that sometimes 
terrorists are everywhere and they are trying to attack us, but we need 
to remember that it is our freedom that is precious, and we need to try 
to do everything we can to uphold that.

  At this time, I would entertain a question, without yielding the 
floor, from the Senator from Oregon.
  Mr. WYDEN. Mr. President, the issue of American security and American 
freedom really does not get enough discussion here in the Senate. It is 
my view that the Senator from Kentucky has made a number of important 
points this day, and I would like to take a few minutes to lay out my 
views on this issue and then pose a question to my colleague from 
Kentucky. We have talked often about these issues. I always learn a 
great deal.
  Of course the Senate will be voting on the nomination of John 
Brennan, the Deputy National Security Adviser, to be the Director of 
the Central Intelligence Agency. I voted in favor of Mr. Brennan during 
Tuesday's Intelligence Committee meeting, and I intend to vote for Mr. 
Brennan on the floor. Virtually every member of the Intelligence 
Committee now, in my view, believes Mr. Brennan has substantial 
national security expertise and experience, and it is certainly my hope 
that he will be the principled and effective leader the CIA needs and 
deserves.
  I think Senator Paul and I agree that this nomination also provides a 
very important opportunity for the U.S. Senate to consider the 
government's rules and policies on the targeted killings of Americans, 
and that, of course, has been a central pillar of our Nation's 
counterterror strategy.
  For several years now, I and colleagues--Senator Paul as well--have 
been seeking to get more information about the executive branch's rules 
for conducting targeted killings of Americans. I am pleased that after 
considerable efforts--efforts really that should not have to have been 
taken to get documents that the Intelligence Committee has been 
entitled to for some time--the committee has now received those secret 
legal opinions.
  To be clear--and this is a point Senator Paul made in the course of 
this discussion--targeted killings of enemy fighters, including 
targeted killings that involve the use of drones, can be a legitimate 
wartime tactic. If an American citizen chooses to take up arms against 
the United States, there will absolutely be circumstances in which the 
President has the authority to use lethal force against that American.
  But I think it has been our view--a view that I hold and that I know 
Senator Paul holds--that the executive branch should not be allowed to 
conduct such a serious and far-reaching program by themselves without 
any scrutiny because that is not how American democracy works. That is 
not what our system is about. Our unique form of government is based on 
a system of checks and balances that will be here long after the 
current President and individual Senators are gone.
  From time to time, the Senator from Kentucky and I say we ought to 
have something that we call a checks and balances caucus here in the 
Senate. Those checks and balances depend upon robust congressional 
oversight, and frankly they depend on bringing the public into this 
discussion as well, that there be public oversight.
  We share the view that details about individual operations do need to 
be kept secret, but the Congress and the public need to know what the 
rules for targeted killings are so they can make sure, as the Senator 
has touched on in the course of this day, that American security and 
American values are both being protected. It is almost as if we have a 
constitutional teeter-totter: we want both our security and our 
liberty. This is especially true when it comes to the rules for 
conducting targeted killings of Americans.
  What it comes down to is every American has the right to know when 
their government believes it is allowed to kill them. Now the executive 
branch has gradually provided Congress with much of its analyses on 
this crucial topic, but I think more still needs to be

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done to ensure that we understand fully the implications of what these 
heretofore secret opinions contain and we have a chance to discuss them 
as well.
  In his capacity as Deputy National Security Adviser, John Brennan has 
served as the President's top counterterrorism adviser and one of the 
administration's chief spokesmen regarding targeted killing and the use 
of drones. He would continue to play a decisive role in U.S. 
counterterror effort if he is confirmed as Director of the CIA, and the 
Intelligence Committee is charged with conducting vigilant oversight of 
these particular efforts.
  A number of colleagues on the Senate Intelligence Committee of both 
political parties I think share a number of the views that Senator Paul 
and a number on this side of the aisle have been expressing today and 
in the past few days. I would especially like to express my 
appreciation to the former chairman of the Intelligence Committee, 
Senator Rockefeller. There is no one more committed to the principles 
the CIA stands for. There is no individual more committed to the 
principles the CIA stands for than Senator Rockefeller, and he believes 
more needs to be done to ensure that Congress has the power to do 
responsible oversight. Senator Udall, Senator Collins, and Senator 
Heinrich are all ones who share that view as well. In doing that, we 
recognize that we have a responsibility and that ultimately it is up to 
American voters to decide whether Congress is fulfilling its obligation 
to conduct vigorous oversight of the executive branch's actions and 
activities.
  Let me then turn to the question that has received most of the 
attention today and is really about what I would like to explore for a 
moment or two with my colleague from Kentucky. The President has also 
said--I was encouraged by a number of his comments, including the State 
of the Union Address--that with respect to counterterrorism efforts, no 
one should take his word for it that the administration is doing things 
the right way. As part of that, he said he was going to engage the 
American people in a discussion of these kinds of issues. When it comes 
to continuing the public debate about the rules for conducting targeted 
killings, there are a number of questions which need to be explored. 
One question I will address to Senator Paul involves the question he 
and I have been interested in for some time, and that is the question 
of the geographic limitation with respect to the use of lethal 
authority.

  Senator Paul and I--as well as others--have been asking for some 
time: What are the limits with respect to these lethal authorities, and 
in particular whether they can be used inside the United States?
  I have listened to a bit of the comments made by Senator Paul 
concerning the confirmation hearing tomorrow. The point the Senator has 
made this afternoon is an issue I and others have asked of the Attorney 
General for some time, and we have not been able to get an answer.
  In recent weeks Senator Paul has sent a number of letters on this 
topic. He has received two responses and he has shared them with me. 
For purposes of this question, I think the response from John Brennan--
and he stated his view on this quite clearly--was quite constructive. 
He said the CIA does not conduct lethal operations inside the United 
States, and most importantly--as per the conversations the Senator from 
Kentucky and I have had--Mr. Brennan said the CIA does not have the 
authority to conduct those operations.
  He was unequivocal with respect to what would happen if he was 
confirmed as the head of the CIA, that he would not have the authority 
to conduct those operations. So for purposes of anybody who is kind of 
keeping score, I just say that Mr. Brennan--on the questions the 
Senator from Kentucky and I have been interested in--was clear and 
forthright. I have been interested in this for some time. I am glad the 
Senator from Kentucky has asked the question. We have now gotten an 
answer that is unequivocal from Mr. Brennan.
  That brings us to the second response from Attorney General Holder. 
This letter repeated the statement that the U.S. Government has not 
carried out any drone strikes inside the United States and that the 
Obama administration has no intention of doing so. It goes on to say 
that the Obama administration ``rejects the use of military force where 
well-established law enforcement authorities in this country provide 
the best means for incapacitating a terrorist threat.'' I would 
certainly agree with this position. It is clear to me that prosecutions 
in Federal court provide tough effective means for dealing with 
terrorist suspects, which is why there are a great many terrorists who 
are now sitting in American prisons today locked behind bars and 
exactly where they belong.
  The Attorney General went on to state:

       It is possible . . . to imagine an extraordinary 
     circumstance--Such as Pearl Harbor or the 9/11 attacks--in 
     which it would be necessary and appropriate under the 
     Constitution and . . . laws of the United States for the 
     President to authorize the military to use lethal force 
     within the territory of the United States.

  This is what I wish to unpack a little bit with my colleague from 
Kentucky after asking this question a number of times and thinking a 
lot about what the answer ought to be. On this particular issue it 
seems to me the Attorney General has certainly moved in the direction 
of what we wanted to hear. I want to kind of outline it, and I think we 
agree on most of it, but I want to have a chance to exchange some 
thoughts.
  One of the core principles of American democracy is that we do not 
ask our military to patrol our streets. It was important to me to hear 
the Attorney General emphasize that principle. I know there are some 
who believe the military ought to be given more domestic counterterror 
responsibilities such as capturing and detaining terrorist suspects 
inside the country. I do not share that view, and I know the Senator 
from Kentucky does not share that view. I am grateful the Obama 
administration has now said they don't share that view either. In fact, 
as I have talked about with a number of colleagues, I actually voted 
against the annual Defense authorization bill for the past 2 years 
because I was concerned that those two bills didn't adequately address 
that particular principle.
  The Attorney General suggested what I think we would all consider an 
unlikely scenario, the Pearl Harbor and 9/11 attacks, in which it would 
be lawful and appropriate for the President to use military force 
inside the United States. As I read that statement--and this is the 
point of my question to my friend from Kentucky--it sounds a lot like 
the language that is in article 4 of the Constitution which directs the 
U.S. Government to protect individual States from invasion. In my 
judgment, if the United States is being attacked by a foreign power, 
such as the 1941 attack on Pearl Harbor, the President can indeed have 
the military power to use the military to defend our country.
  The reason I have been asking this question and have been interested 
in exploring it with my colleague from Kentucky is that I think it is 
extremely important to establish that unless we have an extraordinary 
situation, such as Pearl Harbor, the President should not go around 
ordering the military to use lethal force inside the United States. Our 
military--we are very proud of them--plays a vital role in efforts to 
combat terrorism overseas, but here at home we rely on the FBI and 
other law enforcement agencies to track down the terrorists, and they 
do their job well.

  I thought it was helpful to see the Attorney General, as part of what 
has been discussed here, clarify and establish that the President can 
only use military force inside the United States in extraordinary 
circumstances such as the Pearl Harbor attack. The Senator from 
Kentucky and I have had discussions over this, and I thought about it 
overnight and thought about our discussions. My sense is that the 
Senator from Kentucky doesn't believe the Attorney General's response 
was clear enough. I very much respect his view on this point.
  One of the reasons why I wanted to walk briefly through a little bit 
of history is that I think there are some issues still to be debated. 
My colleague has certainly been correct in asking valid questions 
because the Attorney General has left open the possibility of using 
military force inside the United

[[Page S1177]]

States outside of the extraordinary Pearl Harbor circumstance I have 
mentioned.
  So, through the Chair, I ask the Senator: I think the Senator is 
raising some important questions. In fact, my friend has asked some of 
the most important questions that we could be asking here on the floor 
of the Senate. It seems to me the Attorney General has ruled out using 
military force inside the United States except in cases of an actual 
attack by a foreign power. I understand why my colleague from Kentucky 
would say we ought to be engaging more with the administration and 
asking for additional insight. I want it understood that I have great 
respect for his effort to ask these kinds of questions and force them 
to be debated on the floor. Senator Paul has certainly been digging 
into these issues in great detail. Frankly, on the question of how we 
balance American security and American liberty, we have worked together 
often, and we are certainly going to be working together in the future 
on these issues in the days ahead.
  I wish to allow the Senator from Kentucky to respond to my question. 
I ask that my friend recognize that while we might differ a bit on the 
aspect of the Attorney General's response which I have cited this 
afternoon where there would be an instance of an extraordinary threat 
to our country, I do see--almost as part of what article 4 is about--
the President's ability to defend us in those kinds of situations. I 
know my colleague from Kentucky may see it differently, and, frankly, 
he is raising important issues. I am interested in his thoughts on that 
this afternoon.
  The PRESIDING OFFICER (Mr. Brown). The Senator from Kentucky.
  Mr. PAUL. Mr. President, I thank the Senator from Oregon for coming 
to the floor and being a champion for the Bill of Rights. We get a lot 
of grief in Washington about a lack of civility--people yelling and 
screaming at each other. In my dealings with Senator Wyden--who is on 
the other side of the aisle--I think it is evident that people can be 
from different perspectives, find common ground, and try to get to a 
point which is not a partisan point. I have tried to make it not so 
much about red as it is about principles. I voted for two or three of 
the President's nominations, and I think he deserves some latitude with 
his political nominees. I think the Senator from Oregon said it well 
when he said we have use of authorization of force in Afghanistan. Most 
people think that was going toward Afghanistan. It has been so broadly 
interpreted that it means worldwide war basically forever, and that is 
sort of why we get into some of these problems. Not only is it 
worldwide, which is a big debate in and of itself, worldwide means at 
home too. The battlefield is here.

  I agree with the Senator from Oregon that Brennan was very 
forthright. It was a little bit onerous getting the response, but once 
we got the response, it was exactly what was appropriate. He said he 
would obey the law, and the law was very clear: The CIA does not 
operate in the United States. The problem is not with his response but 
that the Department of Defense is the one directing the drone programs 
and it doesn't answer the final question.
  As far as Holder's response, if it would have been written as the 
Senator from Oregon states it, there probably wouldn't be much of a 
problem. I think maybe recounting the letter gives it a little more 
strength than the letter actually possesses in its own words. If he 
were to say we were ruling out all strikes other than extraordinary 
strikes, that would actually be a pretty good letter. Instead he says 
he can imagine this under certain circumstances, and he lists a couple 
of circumstances. The interesting thing is that a lot of us agree that 
in a situation such as Pearl Harbor and 9/11--probably the Senator from 
Oregon and probably me--we can repel a military attack. The reason we 
asked the next question, and the reason I am concerned about the next 
question--and I have only seen the unclassified version of these--but 
the unclassified versions of the drone attacks indicate that a 
significant amount of them are not killing people with a weapon. People 
like to talk about taking up arms. Well, a lot of people are not 
carrying around arms. It doesn't make them good people, but they are 
not carrying around arms. They are not actively shooting our soldiers 
or us. At the particular time they kill them, they look like 
noncombatants. If we have somebody sitting in a cafe in our country--
even if it is a bad person--most of us would probably rather arrest 
that person. If they were arrested, one, they would get the due process 
of our country; and two, if they were bad people, we might actually get 
information from them. So I wish to see a little bit better wording.
  The last thing I would say--and I would appreciate hearing the 
Senator's response--is the Attorney General was in the Judiciary 
Committee this morning. He was asked a bunch of questions on this. I 
looked through the transcript of a couple of them and it is still like 
pulling teeth. He was asked four times: Do you think it is 
constitutional to kill someone in a cafe in Seattle or Houston or 
Louisville? He kept saying it wasn't appropriate, but language is 
important when we are talking about this. Appropriate is not strong 
enough. It is sort of like the President is saying: I have no 
intention. We want him to say he won't, rather than not having 
intention.
  He didn't quite put it together in his response, but in his 
response--combined with the questioning--we can get the opinion that 
maybe he thinks it is not constitutional to kill noncombatants having 
dinner. Wouldn't it be easier if they just said that? At this point, I 
would entertain a question without yielding the floor.

  Mr. WYDEN. Mr. President, just responding to the point of the Senator 
from Kentucky and noting the fact he would not be giving up the floor 
in the process, I think the Senator from Kentucky is making an 
important point, and the way I read it, it would focus on ensuring that 
our country would be protected against those kinds of exceptional 
circumstances.
  I would just like to leave the discussion here by noting that I think 
both of us feel this is just the beginning of this debate. The nature 
of warfare has changed so dramatically--and I particularly appreciate 
the chance to work on this in a bipartisan way--we are going to have to 
be continually digging in and trying to excavate more information about 
how all of this actually works without in any way jeopardizing sources 
and methods and ongoing operations. I think we can do it.
  With respect to how I read particularly that part of the letter--and 
I thought a lot about it--I think the two of us and others can be part 
of what we can call the ``checks and balances caucus,'' so we can just 
make sure people understand this is about liberty and security, and I 
think we can flesh this out more in the days ahead. I know I have had 
four sessions now with the classified documents that were made 
available as a member of the Intelligence Committee and I still have a 
lot of questions. Some of those I think we will have to ask in a 
classified way, but I think others of them we can ask in a public way, 
and the two of us can work on that together.
  I also think there is a very strong case for beginning to declassify 
some of the information with respect to these drone policies, and I 
think that can be done as well, consistent with protecting our national 
security.
  So I think the Senator from Kentucky has made a number of important 
points this afternoon. I thank him for the chance to work with him on 
these issues and I look forward to continuing this discussion in the 
days ahead and I appreciate the time.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. PAUL. Mr. President, a lot of the process by which we are getting 
this information wouldn't have happened without the Senator from Oregon 
as well as the senior Senator from Georgia both working together to get 
information. It is the way the system ought to be working. One of the 
good things about the body is both Republicans and Democrats working 
together to get information from--not necessarily adversarial but in a 
way adversarial--another branch of government. We are a branch of 
government, but it is not partisan against partisan, it is bipartisan 
working for the power of the checks and balances to try to ensure a 
leveling. I thank the Senator from Oregon for helping to get the 
information to make this a much fuller debate.
  Without yielding the floor, I will entertain a question from the 
Senator from Florida.

[[Page S1178]]

  The PRESIDING OFFICER. The Senator from Florida.
  Mr. RUBIO. I thank my colleague for the opportunity. Let me begin 
by--I have been here a while. Let me give my colleague some free 
advice: Keep some water nearby. It is handy. Trust me.
  Anyway, I thank the Senator for entertaining my question. Let me just 
begin by saying my question is about the motivation for being here on 
the floor today. What brought me here is I have been reading some of 
the accounts of what is going on and people are talking about the 
involvement of the Senator from Kentucky in a filibuster and some are 
already characterizing it as another Republican filibuster of one of 
the President's nominees. Just to be clear because, as I understand, 
the only thing I have heard the Senator from Kentucky say leading up to 
now about the primary issue in coming to the floor today is that the 
Senator from Kentucky asked a very straightforward question on an issue 
of constitutional importance. Yet he has not received a straightforward 
answer. Not only has the Senator from Kentucky not received an answer, 
but we saw testimony earlier this morning that, quite frankly--I 
watched the video two or three times and I personally do not understand 
why it was so difficult to basically just say yes or no.
  So I wish to start out by asking, just to be clear, the motivation to 
be on the floor today is not to deny the President a vote on one of his 
nominees but the motivation is that the Senator from Kentucky has asked 
this administration a very important and relevant question and has been 
unable to receive a straightforward answer to that question?
  Mr. PAUL. Mr. President, my response to that is yes. In fact, I have 
actually voted for several of the President's nominations. My trying to 
draw attention to this issue is because I believe it is an incredibly 
fundamental issue; that is, how we would kill people--Americans--on 
American soil, whether the Constitution applies, whether the fifth 
amendment applies.
  So my motivation in doing this is not partisan. It is something that 
has to do--and I have said, frankly--and I truly mean this--if it were 
a Republican President today I would still be in the same place because 
the American people deserve answers on this.
  There are different rules in war than there are here. We need to 
acknowledge and separate ourselves and say we are not completely--we 
are not in the middle of a battle zone. We still do have Miranda rights 
and we still get an attorney in the United States. It is not the same 
as a battlefield, but if he is bringing battlefield strategy home, we 
need to know before he starts doing it and at least we need to know the 
rules. Does the Constitution apply?
  I would entertain a further question from the Senator from Florida 
without yielding the floor.
  Mr. RUBIO. Without yielding the floor, the followup question I have--
because I think this is actually a very useful exercise for the folks 
who have been snowed in today and there is nothing better to watch than 
C-SPAN and for the people who are able to be here today to actually 
understand the structure of our government and how it was designed, 
because it is my personal opinion we have gotten away from some of 
that.
  Let me describe for a second my position that leads up to the 
question I am going to ask. I am actually a member of the Intelligence 
Committee, which means we reviewed this nomination. I have questions 
that I care about that were somewhat different than the valid ones the 
Senator from Kentucky is raising. As a member of that committee, I 
asked those questions and I am going to seek answers to those 
questions.
  We have a job to do. I think that is important for people to 
understand. Members of the Senate have an important constitutional role 
to give advice and consent on these nominations. We have an obligation 
not just to pass these folks through but to actually ask serious 
questions to determine if they are qualified for the position they are 
going to hold. We want our Senators to be doing that in both parties, 
no matter who the President may be.
  So I undertook that effort as far as the Intelligence Committee. I 
asked my questions. I got answers to my questions. I believe the 
nominee is qualified and I believe the President has a right to his 
nominees, even if they are not the people we would nominate. I believe 
ultimately these nominees deserve a vote. That is why I voted yesterday 
to move this nomination on.

  Just as the President has a right to his nominations and ultimately 
to have a vote on those nominations, so, too, do Members of the Senate 
have a right to their role and, in particular, to ask relevant 
questions on issues of important public policy and get answers from the 
administration. This is not--I think sometimes this is being lost. We 
have different branches of government, but they are coequal branches of 
government. The Presidency, the executive branch, is it important? 
Absolutely, it is important. It is the Commander in Chief. It is the 
top single office in the Nation. But the legislative branch is a 
coequal branch with a job just as important. In order to do that job, 
we have to have access to information, the ability to ask relevant 
questions, and to get straight answers. To be frank, sometimes I feel 
when we ask questions of this administration, they feel as though it is 
beneath them to answer questions from us, from time to time. I think 
that is very unfortunate.
  My question is--when the Senator from Kentucky is here today raising 
these issues, it is my opinion--and I would like to hear what the 
Senator has to say--this is more than just an issue of the 
constitutionality of this particular program, it is a defense of this 
institution. It is a defense of the legislative branch. It is a defense 
of the Senate as an institution. Irrespective of how one feels about 
the nomination or the program or where the Senator falls on this 
constitutional issue, it is a defense of this institution, and it is a 
constitutional--not a constitutional right, a constitutional obligation 
to ask relevant questions of public policy and to get answers, to ask 
questions so the people back home will know the answers to these 
questions. If we are not going to ask these questions, who is going to 
ask them? The press? Maybe in a press conference, but that is not what 
they are paid to do; that is what we are paid to do. That is what we 
were elected to do.
  So I would like to hear the Senator's views on that, because my 
belief and what I am picking up from everything Senator Paul is saying, 
the Senator is actually on the floor today standing for the obligation 
this institution has to ask questions such as this and to be able to 
get straight answers to these questions.
  Mr. PAUL. Mr. President, I think the Senator from Florida has it 
exactly right. This is about checks and balances, it is about the 
coequal branches of government, and it is about how we limit usurpation 
of power by checking and balancing each of the different powers.
  So when Montesquieu wrote that there can be no liberty when you 
combine the executive and the legislative, they were separated for a 
reason. When the Constitution says Congress declares war not the 
President, it was separated for a reason. So when we look forward to 
these things--and the Senator from Kansas brought this up earlier--when 
the President says, I have the ability to determine when you are in 
session or not and I can do recess appointments when I think you are 
out of session, that is a great usurpation of power to one branch and 
we should fight it as an institution, Republican and Democrat, and not 
make these partisan issues.
  So I agree with the Senator from Florida. I believe there is a need 
for those checks and balances. By the body not struggling to get as 
much information as they can--not even in this case as much about the 
individual as about the policy--then I think it is a mistake for the 
body not to. I agree with the Senator from Florida completely. It is 
something that should be defended. It is not something to be derided as 
partisan because I don't see it as partisan at all. I see it as a 
defense of the separation of powers and of the checks and balances.
  At this time I yield, without yielding the floor, for another 
question.
  Mr. RUBIO. This will probably be my last question. Before I get to 
it, let me say that all the other Senators--I know some of my 
colleagues have already come to the floor and some might be watching or 
some might be nearby. I would just say this, to think about this

[[Page S1179]]

for a moment. One may or may not agree with the position of the Senator 
from Kentucky on this issue. Maybe a Senator saw the Attorney General's 
answer and saw his testimony this morning and that Senator is satisfied 
with it. Maybe another Senator is not that concerned about this issue 
at all. I don't think that is the issue. I think what we need to 
remember is that all of us have something we care deeply about or 
multiple things we care deeply about, and the day will come when 
something you care about or some issue you are involved in or some 
question you have, you will try to raise that question, and it may be 
under a different administration. I think we have to remember the 
President will not be President forever. There will be a new President 
in 3\1/2\ years and after that and so forth and some folks may still be 
here. At some point in the future, all of us will have questions we 
want answered and we will have an administration or some other 
organization of government that refuses to give us straight answers. 
When that moment comes, you will want your colleagues to rally to your 
side, even if they don't agree with you, and defend your right as a 
representative of the people of your State to ask important questions, 
particularly questions of constitutional importance, and get straight 
answers to those questions.
  It is my feeling--and the Senator may comment on this--if he had just 
gotten a straight answer to that letter, if he had just gotten a 
straight answer in the testimony today, this would not have been 
necessary. If they would have taken in the question, which I think is a 
pretty straightforward question, and answered it in a straightforward 
way, all of this could have been avoided and this nominee could have 
had a vote. But, instead, they decided to go in a different direction 
and it baffles me.
  Here is a question I have. I think this is important also for the 
people watching back home. Often, they may say: Why do you have to do 
it this way? Why can't you just answer the question and not have to do 
this process of starting and stopping things from moving forward? My 
view is--and I want to share it with the Senator and get his 
impressions--twofold. No. 1, these are the tools that are at our 
disposal. That is why the system was created and designed this way. One 
of the things the Senate has at its disposal to preserve and protect 
its prerogative to ask important questions are the rules we have set up 
here. They don't protect just one Senator but every Senator here, even 
if I don't agree with others. One of the things that gives us the 
ability to ask and have questions answered is this role we have of 
confirming nominees.
  Secondly, I would say this is not the Secretary of the Treasury, this 
is not some other unrelated Cabinet position, this is the Central 
Intelligence Agency, which is directly related to the program the 
Senator from Kentucky has relevant questions about. So I guess I wanted 
to hear from him a little bit more about why he chose this particular 
nomination and why and how it is relevant to the larger question he is 
asking.
  Mr. PAUL. The answer to the question is that we have tried the normal 
channels and have been for a month. We sent the standard letters. We 
sent three different letters to John Brennan and we didn't get any 
response. But when the leverage became used or the leverage became 
apparent that both Republicans and Democrats on the Intelligence 
Committee were asking for more answers, then we finally began to get 
answers. The answers unfortunately didn't quite answer the question.
  As the days wore on, we have actually gotten more answers. Since I 
have been standing here this morning, we have now gotten the report of 
the Attorney General's testimony before the Judiciary Committee. In 
that, under withering cross-examination, I guess is the best way to put 
it, he finally owns up and says: Well, maybe somebody in a cafe, it 
wouldn't be appropriate to kill them in America.
  The Senator from Texas wanted to go one step further. We don't want 
you to say whether it is appropriate; we want you to say whether you 
think you have the power to do it, whether you think you have the 
constitutional authority to kill someone who is a noncombatant in a 
restaurant or in their house or in their church or wherever. Do you 
think you have the power to kill noncombatants? It is a pretty 
important question. I think we may have eked out some of the answer 
from Attorney General Holder.
  It would be nice if we would actually get that in clean language, 
where the Attorney General would now say this is our policy. But, see, 
this comes from allowing the executive branch so much power. If you 
allow them the power to make the rules, to make the decisions without 
any kind of oversight or scrutiny, the danger is that there will be no 
process. So the thing is right now we have a program going on where we 
kill people around the world with drone strikes, and there are criteria 
and standards for how we do it.
  The obvious question is: You are going to do that in America? Under 
what standards? We have had at least allegations, we have had some who 
have said the bulk of the drone strikes around the world have been 
signature killings, which means the people are not identified who are 
being killed, that it is a long line of traffic and we blow up the line 
of traffic.
  Now, we can debate whether in war we may have a looser criteria for 
whom we are blowing up, but I would think that in America we would not 
blow up a caravan going from a wedding to a funeral, from a church to a 
house, from a political meeting back to their home. We would have 
different rules in America. If you are accused of a crime, if they 
think you are somehow a terrorist, then they would arrest you, 
particularly if you are in a noncombat opportunity. Why in the world 
would the President take the position that if you are eating in a 
cafeteria, you are eating at a restaurant, you are at home asleep, that 
you could not be arrested?
  So it is a real easy question, and the President should, very 
frankly, answer the question: I will not kill noncombatants in America. 
I cannot imagine why the President cannot answer an easy question.
  There have been people on both the right and the left who have been 
asking these questions. Glenn Greenwald writes a lot about this issue. 
This is a pretty interesting proposition that he puts forward. He says:

       If you posit that the entire world is a ``battlefield,'' 
     then you're authorizing him to do anywhere in the world what 
     he can do on a battlefield. . . .

  That has been my point. If the United States is the battlefield, and 
we are going to have the laws of war--or another way it can be put is 
martial law--in America, if we are going to have that in America, you 
need to know about it because martial law--living under martial law--is 
the way they live in Egypt. That is why they just had a rebellion in 
Egypt and overthrew Mubarak. Because they had, by martial law, 
indefinite detention.
  So those who say the battlefield is here, we need to live under the 
laws of war in our country--and they tell you to shut up if you want an 
attorney--by golly, be careful about that. Be quite careful if you are 
going to let us go to that sense.
  So Greenwald says:

       If you posit that the entire world is a ``battlefield,'' 
     then you're authorizing him to do anywhere in the world what 
     he can do on a battlefield: kill, imprison, eavesdrop, 
     detain--all without limits or oversight or accountability. 
     That's why ``the-world-is-a-battlefield'' theory was so 
     radical and alarming (not to mention controversial). . . .

  He also quotes from Esquire, from Charles Pierce, who said:

       This is why the argument many liberals are making--that the 
     drone program is acceptable both morally and as a matter of 
     practical politics because of the faith you have in the guy 
     who happens to be presiding over it at the moment. . . .

  So you will remember, many of these people did not like George Bush, 
and they railed and railed about wiretaps, and now they are 
suspiciously quiet when we get to a killing program.
  But he says: If you have so much confidence because you like the guy, 
the President in charge of this--he says--that ``is criminally naive, 
intellectually empty, and as false as blue money to the future.''
  He goes on to say:

       The powers we have allowed to leach away from their 
     constitutional points of origin into that office have created 
     in the presidency a foul strain of outlawry that (worse) is 
     now seen as the proper order of things.
       If that is the case--

  And the author says he believes it is--


[[Page S1180]]


       then the very nature of the presidency of the United States 
     at its core has become the vehicle for permanently unlawful 
     behavior.

  This is coming from a liberal.

       Every four years, we elect a new criminal because that's 
     become the precise job description.

  So we have to ask some important questions. I am not asking any 
questions about the President's motives. I do not question his motives. 
I, frankly, do not think he will be killing people in restaurants 
tonight or in their house tonight. But this is about the rule of law. 
It is not so much about him. It is not so much about John Brennan. It 
is about having rules so that someday, if we do have the misfortune of 
electing someone you do not trust--electing someone who might kill 
innocent people or who might kill people whom they disagree with 
politically or they might kill people whom they disagree with 
religiously or might kill people of another ethnic group--we are 
protected. That is what these protections are about. But they are not 
so much about the individuals involved now.
  But there is a program that is going on around the world that is 
killing individuals with drones, and it is done in a warlike fashion. 
The thing is, in war you do not get due process. So these people around 
the world do not get Miranda rights, and I am not arguing for that. If 
you have a gun leveled at an American in Afghanistan, you are going to 
be killed with no due process. I am not arguing for that. But I am 
arguing it is different if you are in Afghanistan pointing a weapon at 
us or here pointing a weapon at us. It is different if you are eating 
dinner or if you are in your home at night.
  So I think there are clear and distinct differences, and there is no 
excuse for the President not giving us a clear-cut answer.
  There is a writer by the name of Conor Friedersdorf who writes for 
The Atlantic. I will get into that in just a minute.
  At this time, I would like to, without yielding the floor, stop for a 
question from the Senator from Georgia.
  Mr. CHAMBLISS. I thank the Senator from Kentucky.
  First of all, let me say, I appreciate the Senator's passion. I 
appreciate the fact that, as he knows--and he and I have had some 
discussions about this issue over the last several days and weeks--the 
Senator is bringing this to the forefront, as he has done.
  We have talked about the Senator's question that he submitted to Mr. 
Brennan for answering. This is not a rocket science question. This is a 
question that is perfectly reasonable, perfectly rational, and a 
question that ought to be able to be addressed by the administration in 
a very quick, simple, direct response. I have been dumbfounded, as the 
Senator from Kentucky knows, about the fact that he did not get a 
straightforward, simple answer immediately.

  But the fact of whether a drone attack--and I am one of those who 
thinks we need to detain and interrogate folks as opposed to just 
firing drones at everybody because we are losing a lot of valuable 
information from folks whom we take shots at versus folks whom we are 
able to detain and interrogate--but still, I know the Senator from 
Kentucky agrees with me that at the end of the day, we need to take out 
bad guys, guys who seek to do us harm. The Senator's position all along 
has been that with due process that ought to happen.
  My question to the Senator is, with the administration not giving him 
a straightforward answer--and I understand the Attorney General, in 
response to some questions today in the Judiciary Committee, again was 
very evasive on the question, in spite of having given the Senator a 
letter just yesterday on this issue--that there still is not a 
straightforward, black-or-white, as it appears to me they could give 
you, answer to this question; am I correct about that?
  Mr. PAUL. Mr. President, the Senator from Georgia is correct. I also, 
while he is on the floor, want to thank him for getting some of this 
information to come forward. Because it has been a very onerous task, 
and without his leadership on the Intelligence Committee, as well as 
Republicans and Democrats asking for more information, we would not 
have gotten anywhere. With that input, we have been able to get some 
answers.
  The answers have not all been good. Brennan has answered, with the 
appropriate answer: The CIA does not work within the United States. 
That should be pretty obvious because everybody knows that and that is 
the law. The problem is, it does not answer the final question because 
the drone program is under the Department of Defense, and if we are 
going to bring that home to America, I think the Intelligence 
Committee, as well as the whole body, ought to be not just waiting for 
the President to tell us how he is going to use it in America. We have 
civil law in America and we ought to be part of that process. But I do 
not think we can allow it to go on without our input.
  Mr. CHAMBLISS. Let me, Mr. President, if could, ask the Senator again 
a little different question to make sure I understand exactly what the 
Senator has asked for.
  The Senator's position, as I understand it, has been all along that 
if we have bad guys flying airplanes into a tower or if we have folks 
who are firing missiles or tanks or weapons of any sort in the United 
States, seeking to carry out an act of war, an act of terrorism, taking 
those guys out is not a problem.
  Mr. PAUL. Yes. Mr. President, the idea of combating lethal force I 
think is questioned by very few, if anybody. If planes are flying into 
the Twin Towers, we obviously send up F-16s. We have missiles. We do 
whatever we can to stop an attack on America.
  What I am concerned about--the same way if it is a domestic 
terrorist. If there is someone outside the Capitol with a grenade 
launcher, we do not give them Miranda rights. We kill them. That is the 
way it works. If you are exerting lethal force against American 
soldiers anywhere in the world or in our country, you use lethal force 
to stop that. Sometimes you cannot stop to even ask permission from 
Congress. You do that. Imminent threats are repulsed.
  But because of all the drone attacks--and I am not saying they are 
necessarily wrong the way they are done--it is just that they are done 
at people who are not in the middle of a battle. So if we transfer that 
to America, I do not think that is acceptable for America.
  It is a different debate on whether it is always a good idea, whether 
we should do it, what the rules should be overseas. But the rules we 
have currently I do not think are appropriate for the United States.
  Mr. CHAMBLISS. Again, Mr. President, if I could direct a question to 
the Senator: The fact is that from a pure oversight standpoint--Armed 
Services, Intel--these committees that have jurisdiction over the issue 
of fighting the war on terrorism need to have the right kind of 
information so we can ask the right questions. Getting the right kind 
of information out of this administration has been worse than having a 
root canal and more difficult than having a root canal.
  I again am appreciative of the Senator being forceful in asking the 
question, and I think at the end of the day, again, he has had no issue 
relative to ultimately having a vote on Mr. Brennan.
  I am not supportive of the nomination of Mr. Brennan, but I think he 
ought to have a vote, and I intend to express myself in much greater 
detail on it a little later. But from the standpoint of simply moving 
the issue forward, if the administration had come to the Senator with a 
direct answer days or weeks ago, when he asked the question, we 
probably would not be here now.
  Again, I thank the Senator for his comments on this issue.
  Mr. PAUL. Mr. President, I wish to thank the ranking member of the 
Intelligence Committee and also say this could come to a close anytime 
if the President will sort of say what Attorney General Holder was 
trying to say this morning, and put it into actual words, that he 
thinks he has the military authority to reject imminent attack. I think 
we all agree to that. But if he says he is not going to use drones on 
people who are not engaged in combat in America, I think we could be 
done with this debate--I think one phone call from the President to 
clarify what his position is or from the Attorney General to actually 
write out what his position is.
  But I guess the reason I am kind of alarmed is, we have a quote from 
the Attorney General saying the executive

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branch will decide when and if to use the fifth amendment.
  I understand in times of war and on battlefields that is a different 
story. I am talking about in the United States. I do not think the 
executive branch gets an option of whether to adhere to the fifth 
amendment in the United States. But if they could be more clear on 
that, I think we could be done with this debate at any time.
  I have never objected to a vote on Brennan, on the nominee for the 
CIA. But I have objected to the idea that basically we are just going 
to throw out the baby with the bathwater and the Bill of Rights becomes 
something of lesser importance.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, would my friend yield without losing for the 
floor for a unanimous consent request?
  Mr. PAUL. Without yielding the floor, I would be happy to yield.

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