It took Rand Paul thirteen hours—following months of letters and requests—to get an answer to a simple question. Did the Obama administration believe it had the authority to use drones to kill American citizens on U.S. soil?
Attorney General Eric Holder’s initial answer was a definite maybe. “The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront,” Holder wrote in a letter to Paul, suggesting it might take something like the 9/11 terrorist attacks or the Japanese bombing of Pearl Harbor for such a “hypothetical” to occur.
“Does the president want to bomb people in restaurants?” asked Sen. Carl Levin, the Democrat who chairs the Senate Armed Services Committee. “No. I don’t think the president wants to.”
But the question isn’t what the president wants to do. The question was what the president had the legal authority to do. The president’s power isn’t limited by his desires and goodwill. It is limited by the Constitution.
During his old-fashioned talking filibuster, Paul allowed that the president probably agreed with the substance of his positions domestic drone strikes. But the junior senator from Kentucky suspected Obama wanted to reserve certain powers for the presidency.
Then the administration finally buckled, as Holder sent Paul another terse letter. “It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’” the attorney general wrote. “The answer is no.”
Although there remain questions as to how the government defines “engaged in combat”—the glossary itself is kept as a state secret—Paul replied, “Under duress and under public humiliation, the White House will do the right thing.”
The problem isn’t the White House’s alone. Members of Paul’s own Republican Party publicly said the senator, an elected member of a constitutional branch of the federal government, wasn’t entitled to an answer to his queries. There has been a bipartisan consensus against puncturing the veil of secrecy, even when necessary to ascertain whether certain policies are really protecting national security.
It’s said that there’s a dearth of bipartisan cooperation in Washington, but that isn’t always true. At the same time Congress was barely able to avoid going over the “fiscal cliff” at the end of last year, strong majorities of Democrats and Republicans passed legislation that would arguably permit the indefinite detention of American citizens charged with—but not convicted of—terror-related offenses.
The same Congress that couldn’t agree to specific spending cuts that might have ultimately stopped sequestration gave overwhelming bipartisan support to extensions of the warrantless wiretapping program that was controversial under President Bush but seems unassailable under President Obama. Senate Majority Leader Harry Reid said that enacting it was more important than Christmas. The Senate rejected modest amendments that would have given lawmakers some sense of how the Foreign Intelligence Surveillance court interprets the law, even though information that would potentially endanger ongoing investigations would remain classified.
House Speaker Nancy Pelosi said Congress needed to pass Obamacare so we could find out what’s in it. With surveillance law, even after it’s passed legislators don’t want to know what’s in it.
The two parties can’t come together to straighten out the federal government’s increasingly messy finances. But they work together just fine when it comes to spying, throwing people in jail, and putting together secret presidential kill lists.
It used to be a scandal when President Nixon kept lists of people he wanted to prevent from dining at the White House.
That is the bipartisan nature of big government. And like most of what big government does, it starts with good intentions. Keeping Americans safe is the most important constitutional duty Washington has. But like every other power, it must be exercised with respect for constitutional safeguards.
Limits on government power and reasonable transparency are important checks and balances, just like the Founding Fathers understood.
Perhaps the bipartisan consensus will change as liberal Democrats like Oregon Sen. Ron Wyden work with conservative Republicans like Paul to restore those checks and balances. In the meantime, it’s vital to draw lines and ask questions.
That’s the purpose of standing with Rand.
W. James Antle III is editor of the Daily Caller News Foundation and author of Devouring Freedom: Can Big Government Ever Be Stopped?