Rand Paul on why he fillibustered

March 28, 2013

Dear Pastor Mitchell,

Thank you for contacting me regarding my filibuster of John Brennan's nomination to be Director of the Central Intelligence Agency (CIA). I appreciate hearing your thoughts on this issue.

My filibuster was the culmination of several months of bipartisan efforts to demand accountability and transparency from the Obama Administration regarding its use of drone strikes. Since taking office, President Obama has greatly expanded the use of unmanned drones to kill suspected terrorists abroad, even going so far as to maintain a "kill list" of suspected terrorists-including some American citizens. This issue first gained prominence in September 2011, when Anwar al-Awlaki, an American citizen by birth, was killed in Yemen by a missile strike from an American drone. He had been targeted for months--long enough and publicly enough that his father actually protested in court but was not heard.

I have no sympathy for Americans who denounce their citizenship to fight against the United States, as al-Awlaki allegedly did. According to the evidence revealed to the press, al-Awlaki was by all accounts a traitor. However, he should have been tried as a traitor first.

The issue of the constitutionality of drone strikes was raised again in January 2013, when President Obama nominated Mr. Brennan to be Director of the CIA. Mr. Brennan has served as President Obama's Deputy National Security Advisor since 2009, during which time he was one of the chief architects of the Administration's kill list and policy on drone strikes.

Following Mr. Brennan's nomination, a leaked 16-page Department of Justice paper shed some additional light on the Administration's use of targeted drone strikes. The memo claimed that it is legal for the government to kill U.S. citizens abroad under three conditions: that a "high-level official" of the U.S. government determines that the individual poses an imminent threat of violent attack against the United States; that capture is not "feasible"; and that the operation would be conducted in a manner consistent with applicable law of war principles. However, the memo raised more questions than it answers, including the Administration's claim that a threat can be considered "imminent" even without evidence that it may take place "in the immediate future."

A number of my Senate colleagues and I continued to press for answers, but the Administration repeatedly refused to release details about the frequency of drone strikes and the policies that govern their use. On Jan. 25, 2013, I sent a letter to Mr. Brennan, asking detailed questions about the Administration's views on the use of lethal force against U.S. citizens, especially on American soil. In a February Senate Intelligence Committee hearing on his nomination, Mr. Brennan sidestepped many of these important questions, instead emphasizing that the Administration "has not carried out" drone strikes on U.S. citizens on American soil and "has no intention of doing so."

I was not satisfied with this response. The question that I and many others were asking was not whether the Administration had or intended to carry out drone strikes inside the United States, but whether it believed it had the authority to do so. This remains an important distinction that should not be ignored. On Feb. 20, I sent a follow-up letter to Mr. Brennan raising this very question.

On March 4, Mr. Brennan responded to my letter, stating that the CIA does not conduct lethal operations within the United States, and therefore would not have the authority to conduct drone strikes on American soil. However, a separate letter from Attorney General Eric Holder reiterated that, while the U.S. government has no intention of carrying out drone strikes on U.S. soil, that it is possible "to imagine an extraordinary circumstance in which it would be necessary and appropriate...for the President to authorize the military to use lethal force within the territory of the United States."

I was dismayed to read the Attorney General's response. His refusal to rule out the possibility of drone strikes on American citizens on American soil was frightening, and an affront to the Constitutional due process rights of all Americans. Subsequently, I took to the Senate floor to filibuster Mr. Brennan's nomination in order to sound the alarm and pressure the Administration to clarify its position and take a definitive stance on the issue.
My decision to filibuster Mr. Brennan's nomination was not about partisanship. I believe the President has discretion in whom he appoints to serve in his cabinet, and have voted in favor of several of his nominees with whom I have had serious policy disagreements. The issue at hand was much broader. There can be no ambiguity surrounding Americans' due process rights under the Constitution. If the President finds it necessary to kill people in the United States, we need rules to govern the process, and we need to know what the rules are. Anything less is a blurring of the constitutional separation of powers and an abdication of Congressional authority. There can be no liberty when we combine the legislative, executive, and judicial branches. We cannot allow the President to set the rules, and then become both judge and jury in authorizing the killing of American citizens without due process.

I was humbled and honored that such a large number of my colleagues-on both sides of the aisle-came to the Senate floor to support my efforts and join the fight to demand answers from the Administration. On March 7, the morning after my 13-hour filibuster, Attorney General Holder sent a new letter clarifying the Administration's position on the use of drones on American citizens. His letter stated that with respect to the question "'Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?' The answer to that question is no."

Although long overdue, the Administration's response represents a step toward victory for due process. My filibuster led the Administration to finally go on the record and unequivocally state that it does not have the authority to kill noncombatant American citizens on American soil. While it is disconcerting that there was any ambiguity about this issue in the first place, the statement is an important affirmation of the Administration's views on our constitutional rights.

The Senate proceeded to confirm Mr. Brennan on March 7, by a vote of 63-34. However, the debate over our civil liberties and constitutional rights is far from over. The Administration needs to definitively state that it will not kill American noncombatants, regardless of geographic location. The Fifth Amendment applies to all Americans--at home and abroad--without exception. I hope my efforts continue to spur dialogue about the limits and scope of executive power and the defense of our essential liberties.
Please be assured that as I serve the Commonwealth of Kentucky in the U.S. Senate, I will continue to defend the Constitutional rights of all Americans. Thank you again for again for your message and please feel free to contact me again regarding any other federal issue.

Sincerely,

Rand Paul, MD
United States Senator