Mr. Paul goes to Washington

Mr. Paul goes to Washington

Speaking out.
Speaking out.

There are a lot of things going on in America today, from inclement weather in northern Virginia to the uneasy high-fiving over the record Dow close of yesterday, to my own efforts to refinance my house (a fax-intensive operation, to say the least).  But the most important thing may well be the filibuster Senator Rand Paul (R-KY) is conducting in the U.S. Senate right now.  Officially, Paul is holding up the confirmation vote for John Brennan as director of central intelligence –

which is, in its own right, a foolish and ill-judged appointment, but Paul has already endorsed the appointments of both John Kerry and Chuck Hagel, because he thinks the president should have as much latitude in that area as possible.  Paul’s real concern is, rather, to protest the Obama administration’s refusal to acknowledge that it is unconstitutional – an abuse of the rights of Americans – for a federal government agency to kill a U.S. citizen in a drone strike, when the citizen is not posing an imminent danger to anyone.  The “hook” or connection with the CIA appointment is the use of CIA drones to assassinate terrorists.Paul and others (e.g., Ted Cruz, questioning Eric Holder) make the distinction as to whether the citizen in question is attacked on U.S. soil versus being attacked overseas.  But I’m not convinced that makes any difference.

Michael Ramsey, writing in the U.-San Diego School of Law Originalist blog, offers the basis for a good case that it doesn’t.  His approach is mainly deductive; mine adds to that the perspective of military necessity, given America’s security circumstances (as opposed to, say, Israel’s, or Colombia’s).  And the conclusion is this:

There is no military necessity to assassinate terrorists.

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This is because:

Assassinating terrorists is not a useful method of prosecuting the war on terror.

Read it again:

Assassinating terrorists is not a useful method of prosecuting the war on terror.

The important distinction here is between, on the one hand, militant combatants like the Taliban who use terrorism (as well as other guerrilla methods) to fight U.S. forces – and, on the other hand, terrorists who are hiding out in third-party nations, engaged in plotting or training but posing no imminent threat to U.S. forces or entities (like Anwar al-Awlaki).

The Taliban should be subject to attack – including death – whenever we have the opportunity, and U.S. citizens who operate with the Taliban should be treated like Taliban.  Killing the Taliban in the course of pacifying Afghanistan doesn’t even qualify as “assassination,” any more than killing the Viet Cong was “assassination” in South Vietnam.

But there is no strategic, military, or utilitarian necessity to kill terrorists, of any nationality, when they are living hunkered down in compounds in third-party nations.  There are usually, in fact, more useful things to do with them, if we know where they are and can track their communications and movements.  Killing them on principle can rarely, if ever, be justified as a military necessity – as an important element of strategy or an operational plan.  It isn’t one.

Those who think vaguely that it is necessary, and that it’s no big deal if it’s done routinely, have a mistaken view of what war is.  War isn’t about killing; it’s about achieving your political purpose.  It typically involves killing, but killing isn’t the objective, nor is killing uniformly necessary, even in the application of force.  The war on terror isn’t about killing terrorists; it’s about defeating terrorists and making them give up their purpose.  Sometimes, in situations where killing is inherently necessary – such as regime-changing terror-sponsoring states and reclaiming their territory – killing will be required.  But it isn’t necessary in every facet of the war on terror, and it is definitely not necessary in the case of any particular terrorist “mastermind” or planner.

This is why the president does not need the executive discretion to assassinate terrorists who happen to be U.S. citizens: because assassinating them is not a military necessity.  Whether the president should assassinate foreign terrorists is a separate question.  The question of a U.S. citizen is special, because of the guarantees in the U.S. Constitution.

No situation involving a terrorist can ever trump the enduring importance to America of restraining the executive’s armed hand against the American people.  Constitutional protections for U.S. citizens do not tie our hands in this matter in any way that is problematic for prosecuting the war on terror.  We will not lose the war on terror – we will not even be slowed down in fighting it – because U.S. citizens are off-limits for drone assassinations.  Period.

There are significant things I disagree with Rand Paul on, but I support his filibuster and I am increasingly disgusted with Americans who are so cavalier about our constitutional protections as to snicker at him.  Paul shouldn’t be a lone voice on this matter.  No presidential administration can be entrusted with the power to assassinate the citizens using drones.  The authors of the Bill of Rights knew precisely that; the weapons have changed since 1789, but the shortcomings of human nature haven’t.

Obama and his appointees ought to acknowledge, explicitly and categorically, that they are prohibited by the Constitution from assassinating the citizens.  In the matter of drone strikes, no consideration of any kind is higher than that one.

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J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.

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