Today Americans were treated to a stirring display of commitment to the Constitution in the United States Senate, and the stakes could not be higher. Over the past several weeks, Republicans and Democrats have come together to condemn one of the most egregious overreaches attempted against constitutional government in this country’s history: the Obama Justice Department’s authorization of drone strikes against Americans on American soil. Today, opposition to this legal opinion was taken to a new level by two courageous freshman Senators: Rand Paul of Kentucky and Ted Cruz of Texas. In two separate but linked events on Capitol Hill, Senator Cruz grilled US Attorney General Eric Holder, while Senator Paul began a filibuster of the President’s nominee to head the CIA.
The reason Senators Paul and Cruz directed their opposition at Attorney General Holder and CIA Director-Designate John Brennan is that these two men are the authors of the Administration’s policy on domestic drone strike authorization. Attorney General Holder was unwilling to answer Senator Cruz’s question as to whether or not a domestic drone strike against an American on American soil – who is not actively engaged in terrorism against the United States – was Constitutional. At the same time Senator Paul, frustrated with the Administration’s refusal to clarify the constitutionality of their drone strike policy, decided to block a vote on John Brennan. Brennan is reportedly the key architect of the domestic drone policy, which was outlined in a “white paper” issued by Holder’s Department of Justice.
Sensing a major departure from constitutional rights afforded all Americans, Senators Paul, Cruz and others, including Senator Tim Scott from here in South Carolina, have sought the Administration’s clarification on this policy change. The specific clarification sought is whether the Administration holds the position that a citizen on American soil, who does not present an imminent threat, may be killed by a military strike. While most conservatives maintain that anyone actively engaged in military action or terrorism against the United States forfeits their citizenship protections, the Obama Administration policy is open-ended.
The open-endedness of the Obama DOJ’s policy paper does not provide specific guidelines for the use of lethal force against American citizens suspected of terrorism. In effect, in the absence of clear guidelines on what constitutes an imminent threat against the United States, this policy gives the President the power to designate citizens “enemies of the state,” and thus subject to lethal action. While some may argue that such a conclusion to the policy is an exaggeration, it is a logical conclusion. Allowing such a directive to stand unchallenged is an affront to the Due Process Clause of the Fifth Amendment to the Constitution, which states that no citizen of the United States may be “deprived of life, liberty or property, without due process of law.”
While most conservatives, including me, support measures to grant executive authority to combat terrorism against the United States, there must be clearly defined circumstances. In other words, if an American citizen is going to be killed by the US government, he or she must be actively engaged in warfare against the United States in a theater of war, or in an unfolding threat (i.e. – in the act of attacking) against America. Such clarification could alleviate this constitutional crisis, and would have likely averted today’s filibuster by Senator Paul. Nevertheless, the Administration has flatly refused to clarify their policy position, which is a violation of the civil liberty protections provided all citizens by the Constitution in general, the Fifth Amendment in particular.
For this reason, the actions taken by Senators Paul and Cruz today in the US Senate deserve the respect of all freedom-loving Americans. Their display of courage is what it will take to restore free and responsible government in this country, as they stood for the Constitution that makes such government possible.