Rand Paul

Mr. PAUL

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. 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. PAUL. Without yielding the floor, I would be happy to yield.

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 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.

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. 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-- 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. 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. 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. PAUL

Mr. PAUL. Well, there has been a white paper that was released that goes through a series of things. They do have a step or a process they go through in determining whom to kill. The problem I have is that in foreign countries--I do not know the exact number because it is classified, but in foreign countries many of the people being killed are not actively engaged in combat. I am not saying that is right or wrong or making an opinion on that matter. But I am saying that is not a standard I can live with in the United States. So let's say one-third of the drone strikes are going against people who are eating dinner with their family or walking down the road or sleeping in their house. If that is our standard and we are going to do drone strikes in America, I could not tolerate or live with myself if I would accept a standard in the United States that would allow that to happen.

Mr. PAUL. Mr. President, reserving the right to object, I would be happy with a vote now. I have talked a lot today. But the only thing I would like is a clarification. If the President or the Attorney General will clarify that they are not going to kill noncombatants in America-- he essentially almost said that this morning. He could take his remarks, that he virtually agreed ultimately with Senator Cruz, and put it in a coherent statement that says the drone program will not kill Americans who are not involved in combat. I think he probably agrees to that. I do not understand why we could not put that into words. But if he does, I want no more time. If not, I will continue to object. If the administration and the Attorney General will not provide an accurate answer, I object.

Mr. PAUL. Mr. President, at this time, without yielding the floor, I would like to entertain a question from the Senator from Pennsylvania.

Mr. PAUL. Mr. President, in late January we sent a letter to John Brennan, the nominee for the CIA, asking a bunch of questions. Included among those questions was, Can you kill an American in America with a drone strike? We got no response and no response and no response. Thanks to the intervention of the ranking member on the Intelligence Committee, as well as members from the opposite aisle on the Intelligence Committee, we finally got an answer about 2 days ago. The answer from John Brennan was that he acknowledges the CIA cannot act in the United States. That is the law. That was nice. But the Attorney General responded and said they do not intend to. They have not yet, but they might.

Mr. PAUL. Mr. President, that is the only direct response I have gotten. I have also read the testimony from the Judiciary Committee where the Senator from Texas cross-examined the Attorney General, who responded indirectly to my question by saying: It was inappropriate, we probably would not do that. But he would not answer directly whether it was unconstitutional. It appears at the end that he may have said that it would be unconstitutional, say, to kill noncombatants. It should be a pretty simple answer really. That is all I am asking. I can be done anytime if I could just get a response from the administration or the Attorney General saying they do not believe they have the authority to kill noncombatants in America.

Mr. PAUL. Well, the interesting thing about this is for many years, no one would talk about the drone strike program at all. Then, recently, one of the former spokesmen for the President said he was instructed to never say it existed. But now that it is in the open, the President, a week ago, was asked at Google when he was there for an interview: Can you do this? His answer: Well, the rules would probably have to be different inside than outside. That implies he thinks he can do it in America. Then the question becomes, What are those rules? This is as much about the checks and balances of--you know, they say we have the ability to advise and consent. This is some friendly advice I am giving to the President today that he ought to think about or we should think about as a body whether we are a check and balance to the power of the Executive, whether it is Republican or Democratic. I think it is immaterial. No President should have the power to make these decisions unilaterally.

Mr. PAUL. I thank the Senator from Pennsylvania for asking his questions and being part of the debate. I think that ultimately we could get this straightened out in the sense that it is not so much about the debate about the person as it is about the issue. If we could get the administration or the Attorney General to put their answer in a succinct form and simply say they believe they have the authority to repel an attack, which most of--I think all of us agree to that, but they do not have the authority to kill someone in a restaurant, to kill someone at home in their house, to kill someone when they are eating dinner; that, really, if you want to say that you can use drones in America to strike people, not only would it have to be remarkably different, it could not be anything like the way we use drones around the world, which brings up some other important questions. The thing is this has brought us to a much bigger and important debate. When people tell you that America is a battlefield, when they tell you the battlefield is here, realize what they are telling you. They are telling you your Bill of Rights do not apply because in the battlefield, you really do not have due process. I am not arguing for that. I am not arguing for some kind of silly rules for soldiers to ask for Miranda rights and do all this. War is war. War is hell. But we cannot have perpetual war. We cannot have war that has no temporal limits. We cannot then have war that is a part of our daily life in our country; that we are going to say from now on in our country, you do not have the protections of the Bill of Rights. So I think it is incredibly important. We have been kind of blase about this whole drone strike program. It should come home to where we can really think about it because that is what they are asking to do. They are asking to bring the drone strikes to the homeland. So I think we need to be careful. We need to ask important questions. I think at the very least we need to be asking the question: Can you do this with no due process? Are we not going to have an accusation? Are we not going to have a public accusation or charge? Are we not going to have a trial by jury? I started out today reading from ``Alice in Wonderland.'' I would like to go back to ``Alice in Wonderland,'' because it sort of points out the absurdity of where we are at this point. We think of Lewis Caroll as being fiction. Of course it is fiction. We think Alice never fell down a rabbit hole. Of course she did not. She is not real. The white queen and her caustic judgments are not really a threat to us. But there is a question: Has America the beautiful become Alice's Wonderland? We can hear the queen saying: No. No. But her response is, Sentence first, verdict afterwards. Well, that is absurd. How could we sentence someone without determining first whether they are guilty or innocent? Only in Alice's Wonderland would you sentence someone before you try them. Would you sentence someone to death before you accuse them? Do we really live in Alice's Wonderland? Is there no one willing to stand up and say to the President: For goodness' sake, you can't sentence people before you try them. You can't sentence people before you determine whether they are guilty. There has been discussion in our country about whether even the courts can sometimes make mistakes. Some States have gotten rid of the death penalty because they have made mistakes and through DNA testing they have found that sometimes they convicted the wrong person. Can you imagine, with all the checks and balances of our court system--which I think is the best in the entire world, with attorneys on both sides whether you can afford them or not. There is an argument back and forth, and there are all of these procedural protections, and you may appeal, and still sometimes we get it wrong. If we can get it wrong in the best system in the world, do you think one politician might get it wrong? You will never know because nobody is told who is going to be killed. It is a secret list. How do you protest? How do you say: I am innocent. How do you say: Yes, I e-mail with my cousin who lives in the Middle East, and I didn't know he was involved in that. Do you not get a chance to explain yourself in a court of law before you get a Hellfire missile dropped on your head? It amazes me that people are so willing and eager to throw out the Bill of Rights and just say: Oh, that is fine. Terrorists are a big threat to us, and I am so fearful that they will attack me that I am willing to give up my rights. I am willing to give up on the Bill of Rights. I think we give up too easily. The President has responded, and he said he hasn't killed anybody yet in America. He says he doesn't intend to kill anyone in America, but he might. I, frankly, just don't think that is good enough. The President's oath of office says ``I will,'' not ``I might'' or ``I intend to,'' the President says ``I will protect, preserve, and defend the Constitution.'' He doesn't say ``I will do it when it is practical'' or ``I will do it unless it is infeasible, unless it is unpleasant, people argue with me. I have to go through Congress, and I can't get anything done, then I won't obey the Constitution.'' It is out there. It is a rule. He doesn't get to choose. Recently he made some choices where it appears as if he believes he does have some sort of superpower, some power that sort of exceeds the other branches of government. Recently he told the body of the Senate that he decides when we are in recess, he decides when we are working. The court rebuked him. The court told him it is unconstitutional, and they reversed his decision. Do you know the people he appointed through a recess--do you know what they are doing right now? They are still at their post. They are still working in defiance of the court. This will have to go to the Supreme Court. I guess it will take another year or so to go up there, but he has been told what he did was illegal. I guess what disappoints me most about this, though, is that the President, when he ran for office, was actually someone for whom I had a great deal of respect on the issues of civil liberties. I work with many on the other side of the aisle because, frankly, many on the left and some on the right--we truly do believe in civil liberties and in protecting the individual. I think the President was one of those when he was in the Senate. The President, when he ran for office, often talked about, it isn't American to torture people. I agree with him. He said it isn't American to give up on the right to privacy, to say you don't need a warrant to tap someone's phone. I agreed with him, and I respected that about him. I can't for the life of me understand how he goes from that kind of belief where he believes so much in the constitutional protections to your phone, but he is not willing to stand up for the constitutional protection to your life? It doesn't make any sense at all. And if he does, why won't he say it? I have my own sort of theory on this, and this applies both to Republicans and Democrats. My theory is that it is sort of a contagion, it is sort of an infection that you get when occupying the Oval Office. They think, oh, I am a good person, so more power for me would be a good thing. Lord Acton said that power corrupts, and absolute power corrupts absolutely. There is a danger when someone has so much power that they think more power, more power and more power--I will do good with that power. The problem is that even if that is a good person, someday someone occupying that office may not be a good person. Someday you may get someone in the Oval Office who says: What about those people? They look different from us. What about those people? They have different color skin. What about those people? They have a different color ideology than I have. What about those people? The danger is also that we have already defined some of the people who we think might be terrorists. The Bureau of Justice came out with a list of characteristics, and they said: If you see this, report on it. If you see this, tell someone. They want you to inform on your neighbor, so you need to know which one of your neighbors is a terrorist. They gave you some descriptions of people to be worried about. They said people missing fingers, people with colored stains on their clothes, people who have weatherized ammunition, people who have multiple guns, people who like to use cash. If that is the criteria or the criterion for who is a terrorist, I would be a little bit worried if you are one of those people--you might have a drone attack in your bed tonight. This has gone on in more than one place. The fusion centers they developed were supposed to be a liaison between the Federal Government and the local government. In these fusion centers, for example, in Missouri, they also came up with some characteristics of people who might be terrorists. They actually send it out as a memo to all the police officers. Can you imagine if you are one of these people--people who are pro-life, people who are for secure borders, people who support third-party candidates? The big irony of all is people who belong to the Constitution Party. If you believe in the Constitution too much, you might be a terrorist. They say it was a mistake, and they eventually apologized. Now they don't--they try not to have their memos become public, I think. The point is, if this is what we are getting to and this is the criterion for who is a terrorist, you would think--you really would think you would be worried about giving your President the authority to kill Americans on American soil without any kind of due process. I find it quite alarming. I think the answer he could have given is pretty simple. I think there is a possibility he may actually even agree with some of the things we are saying here today. Why won't he give it? I think Presidents, Republican and Democratic, don't give the answer because they are afraid of constricting their authority. They believe in some sort of inherent power, which is not listed anywhere, but they think they have it. They don't want to give up any of it. They jealously guard this power. They have this power, and they don't want to give it up. That is why they won't answer us with a straight answer. You get things. The only word I can think of is gobbledygook. You get this craziness that comes from attorneys that doesn't make any sense. He was asked: What is an imminent threat? These people we are going to kill with drones have to be an imminent threat. His attorneys say ``imminent'' doesn't have to mean ``immediately.'' That is the only way he can justify this because probably half of these drone attacks are people who really aren't engaged in any kind of combat. That is a different debate. You can argue right or wrong whether we should be killing these people not involved in combat because there is evidence they are conspiring to hurt us and to attack us. That is another argument, but it is a pretty low standard. You can argue that, well, that is war over there, and that is a lower standard, and I can accept it, but for goodness' sake, could there be any question that in America we are going to accept a standard so low, a standard that basically says that if we think you might someday be engaged in hostilities, we can kill you? We need to be careful because the criteria for the drone strike program overseas really is something that I think most Americans wouldn't accept for their fellow citizens. Overseas, one of the most famous American citizens they killed was al-Awlaki. Before he was killed, he was primarily thought of as someone who they said was a sympathizer. I think there is no question he was a sympathizer. I think he denounced his citizenship. He was a bad guy. He sympathized with our enemies. I think he could have been tried for treason. I think if I were on a jury, from what I have read of nonclassified information, I would have voted his guilt and for his death. The thing is, some kind of process might be helpful. His son, though, 16 years old, was killed 2 weeks later in a separate drone strike, and he was on nobody's list that I know of; they won't respond. I think the response by the President's spokesman is reprehensible. It really should be called out. It is really sort of this flippant response that I think shows absolutely no regard for individual rights or for Americans. He said: Well, the kid should have chosen a more responsible father. Think about that. Is that the standard you wish your government to operate on in America? We have a lot of criminals in our country. We have a lot of bad people. If you happen to be the son of a bad person, is that enough to kill you? The other thing is that people killed overseas who are not the target--they don't call them civilians because they say anybody between the age of 16 and 50 who is a male is a potential combatant. Are we going to use that same standard here in our country? Are we going to use the standard in our country that if you just happen to be a male and you happen to be standing near somebody we have judged to be a problem, that we are going to go ahead, and, oh, I guess that is not even collateral damage; that person was probably a bad person because he was standing close to this person? I think there are different standards for war than there are within our country. It is not always going to be perfect, and there is a legitimate debate over what the rules should be in a war, where a war is overseas, and exactly what happens. I think good, honest people can disagree on some of that. What I worry about are the people who say America is a battlefield because when they say America is a battlefield, they say they want the laws of war to apply here. The reverse of that is basically, if you reverse the laws of war, they are talking about martial law, is what they are talking about, law that is acceptable under extreme circumstances. I don't think what we have in our country right now is a circumstance where I would accept martial law, but we have already instituted some of the things you will see in other countries under martial law. In Egypt, they have indefinite detention. That is their emergency decree that occurred back in the 1970s, and it went on and on to the present. They have martial law, and they are very unhappy about having martial law, indefinite detention. You saw it last year. We have indefinite detention in America. The President's response again was inadequate. What did the President say to having indefinite detention in our country? He said: Well, I don't intend to use it. I would rather have a President who has the chutzpa to not sign the legislation and send it back and say: Take it out or I won't sign it. I would have a lot of respect for someone like that. Mr. President, without yielding the floor, I would be happy to entertain a question from the Senator from Texas.

Mr. PAUL. Mr. President, the question from the Senator from Texas is a very good one, and there does seem to be a double standard going on here. There seems to be one standard for wiretapping of phones or interrogation, but there seems to be much less a standard for actually killing. It seems to be hypocritical and one would wonder why. With regard to releasing the memos and how they come about their process, some of that was leaked. It is always curious to me that it is as if the leaks come out on purpose; as if they are intentional. The leaks happen right before a nomination process. I don't know the truth of that, but I do think that not only should we get the memos, but if there is going to be a drone strike program in America, perhaps we should actually be writing the rules and sending them to the President. That would be our job--not to listen to him and what he is going to do on drone strikes in America, but actually spelling out and having an open discussion. Because in America I don't think that should be a secret--how we are going to go about this in America. I see no reason not only to get the drone memos, and I think it would be more consistent with their earlier position, but I think what we should do is be a part of the process of determining how we go forward, with whether we are going to have drone strikes in America and what the rules would be.

Mr. PAUL. Mr. President, piecing together what I have heard of some of his testimony, I actually think he did finally admit to some things that I think are consistent with what I am saying. They haven't put it in writing previously. I would think he could almost take his testimony today--where he almost at some point seems to agree that it would be unconstitutional to kill noncombatants, people not actively engaged in combat--and if he would say that, I think he would answer my question, basically. Because I have never been talking about people engaged in lethal force. You don't get much due process there. If you are engaged in lethal force, lethal force is used against you. So one would think he could answer that simple question, similar to what he actually stated in his testimony today, but they won't give us a succinct answer, or any answer, really. So that is the answer we have been trying to get to all along.

Mr. PAUL. Mr. President, here is the interesting thing about saying it is hypothetical and it wouldn't happen. I could buy that, except for the fact that our foreign drone strike program--a significant amount of the drone strikes--are on people not actively engaged in combat. Whether that is right or wrong is another question, but since we already have an example of a significant amount of those being used on those not engaged in active combat, it is hard for him to say this is a rare, unusual, hypothetical thing that could never happen, because it seems as though it is a big part of the drone program overseas.

Mr. PAUL. Mr. President, the questions and points the Senator from Texas has made are very good points, and it also shows we are not that far apart in trying to find an answer to this, because, there is no ultimate ability for me to stop this nomination. I am already getting tired and I don't know how long I will be able to do this, so I can't ultimately stop the nomination. But what I can do is try to draw attention to this and try to get an answer. That would be something, if we could get an answer from the President. And I think we would all sleep better and feel more comfortable if he would say explicitly that noncombatants in America won't be killed with drones. The reason it has to be answered is because our foreign drone strike program does kill noncombatants. They may argue they are conspiring or they may some day be combatants, but if that is the same standard we are going to be using in the United States, it is a far different country than I know about. Ours is a country where dissent, vocal dissent, even vehement, vociferous dissent as far as whether our country should go to war, whether our country should raise taxes, lower taxes, has always been allowed. We allow a great deal of dissent in our country. But some of the people whom we have said we are targeting have been dissenters, probably traitors too, but they have also been people who have been vocalizing it more than they have been shooting anybody. That is not to say you can't be a traitor even if you don't shoot anybody. But if you are going to be accused of treason or of being a traitor in the United States, I would think you would get your day in court, probably. It is particularly troublesome since some of the descriptions of who might be a terrorist are such that I would be a little bit concerned about the slippery slope to who is and who is not a terrorist. I can't imagine in America we would do that without an open accusation, without a trial by a jury, without a verdict. I think it is important this discussion go on, and I am not ultimately setting the goal that I can stop this nomination. I am here today to draw attention to a constitutional principle, to try to get the administration to admit publicly they will not kill Americans who are not involved in combat. But it hasn't so much to do with Brennan or his nomination, it has to do with a constitutional principle. Ultimately, Brennan will be approved. He will be the head of the CIA. This will be a blip in his nomination process. I hope people will see it more as an argument for how important our rights are; that no one, no branch of government, no individual politician should be above the law, should be able to dictate and say what they think the law is. We had some of this even under a Republican President. I was critical of President Bush for saying he had the ability to interpret the law; he had the ability to put signing statements, which were extensive sometimes, which gave his interpretation of what the law was or what he thought the law was. So I have been critical of both sides thinking they have more power than they have. Our Founding Fathers were brilliant in the sense that they separated the powers and had these coequal powers of government, these branches of government that were somewhat pitted against each other. And by having equal power and by being able to judge the power of the other branch, no one branch could accumulate too much power. But in our country it has been going the other way for a long time. It hasn't been just Democratic Presidents or just Republican Presidents, it has frankly been both. For maybe 100 years or so power has been gravitating and gravitating and gravitating to the Presidency. And not just the Presidency. When people talk about the bureaucracy, these are people who are within the executive branch--millions of them. When we passed ObamaCare, it was 2,000-some-odd pages, but there have been 9,000 pages of regulations written since. ObamaCare had 1,800 references to ``the Secretary of Health shall decide at a later date.'' We gave up that power. We gave up power that should have been ours, that should have been written into the legislation. We gave up that power, and as a consequence we gave it to the executive branch. We gave it to people-- many of them we call bureaucrats--who are unelected. So we gave away power. It is a struggle, and it should be a perpetual struggle, but we shouldn't give in on that struggle and give up that power. There was mention the President should reveal to us drone memos on how he is making the decisions. We have had some leaks about that, but I would go one step further. Not only should the President let Congress know what he is doing, maybe we should tell him what to do. Maybe the Congress should be setting the rules for how we do drone strikes. Maybe the Congress should be protecting the American people from their government. That sounds terrible, protecting you from your government. That is what the Constitution was about. The Constitution wasn't written to restrain your behavior, it was written to restrain your government's behavior. A lot of people get confused when we talk about religion and the first amendment. But if you read the first amendment, it says Congress shall make no law. It doesn't say anything about your religious preferences. It is not supposed to limit your involvement in government. It is really not supposed to limit so much religious involvement in government or even religion. We have a prayer every morning in the Senate. You can't have it in your public school, but we have a prayer every morning. Explain that to me. We have the Ten Commandments around here. So does the Supreme Court. But you can't have it in your local school. I think we have gotten confused on things. It was really about government getting involved in your religion. We didn't want to establish a church. We thought it was a bad idea to have an official church, and I still think it is a bad idea to have an official church because then the government would be telling the church what to do. But it is really all about the documents that we have protecting you from an overbearing government. Your government was given a few defined powers, the enumerated powers. There are 17, 19--depends on how you want to count them--but there are not very many. They are few and defined. But your liberties are many--basically, unlimited and undefined. When you read the ninth and tenth amendment, it says those rights not explicitly given to government are left to the States and the people. They are yours. They are not to be disparaged. These are important debates we are having. When Montesquieu talked about the separation of powers and the different checks and balances, he said: There can be no liberty when you combine the executive and the legislative. Likewise, I would add to that there can be no liberty when you combine the executive and the judiciary. So if you allow the President to tell you he can have drone strikes on Americans, on American soil, you are allowing him to be not only the executive, you are allowing him to be the judiciary. If he makes it secret, nobody can object. I remember one time I was complaining to another Senator about these things called suspicious activity reports. Your bank is required to file them on you. In fact, if you pay your Visa bill through your bank, over the phone, you have done a wire transfer, and you can be part of a suspicious activity report. If you turn cash in to the bank or get cash out of the bank over a certain amount, you can get a suspicious activity report. I was concerned about this because there have been 8 million filed since 9/11, and the Senator's response is he has never heard anybody complain about it. The reason nobody complains is they are secret. They don't tell you they are doing this. So if you get on the kill list, it is a little hard to complain. We might have a kill list for a couple of years in the United States, on American citizens, and nobody might complain because it is secret. You don't know you are on the list. So I think it is important that we have a big debate and discussion over this; that we let the President know he doesn't get to write all of these rules on killing American citizens; that the Constitution still applies in our country. The reason this is a big debate is that when you are in a war, the Constitution doesn't always apply on the battlefield in another country. There is a debate over whether the Constitution is here or whether it extends beyond the borders. But the practical matter is we can't really enforce the Constitution beyond our borders. You sort of consent to your Constitution, you sort of consent to your government by voting. We have that arrangement in our country, but it doesn't happen in Mexico, Europe, or Afghanistan, and it certainly doesn't happen in the middle of hostilities. So you don't really get due process over there. That is the real danger. That is the problem. That is the rub. This whole thing is about the use of authorization of force that was passed after 9/11 to go to war in Afghanistan. If you had voted on that--you didn't; your leaders did. But had you voted on that, you would have thought: I am going to war in Afghanistan to get the people who attacked us on 9/11. I was all for it. I still am. I think that was something we needed to do. We couldn't let people attack us, but I don't think you would have thought, when you voted for that, you were voting for a worldwide war with no end that included America as part of the battlefield. That is the real problem. The administration, John Brennan, who wants to be head of the CIA, and Eric Holder, the Attorney General, they all believe--and many here believe this also--there is no geographic limit to the war. It is not in Afghanistan. They say it is everywhere, but they say everywhere includes here. Here is the problem: If you don't think you can apply due process in the middle of a war, what happens if they say the war is here? That means you don't get any protection. So if you are accused of a crime, I guess that is it. I can't imagine that is what we want as Americans. I just can't imagine we would believe or acquiesce or allow the President to basically say he is going to make the decisions for us; that he basically would kill noncombatants in America. I, frankly, think eventually he will admit--it would be nice if he would admit it tonight--that he is not going to do it. If anybody has a phone, give him a call. Let him know we would like to know an answer. And I think it would be appropriate. When the Attorney General came this morning to the Judiciary Committee to answer questions, he was asked repeatedly this question: Can you kill noncombatants if they are sitting and having tea somewhere in America? He kind of weebled and wobbled and went around the issue. Finally, we said: We want to know, is it constitutional? Do you think you can do this? Instead of saying we might not, we don't intend to--and it sounds like he finally admits at the end that it is unconstitutional. But then why can't we get them to issue a statement? Why can't we get them to say explicitly: We are not going to do this? I see no reason. It would take them 5 minutes to jot this down on a piece of paper. If they don't intend to do it, why not tell us? When your government won't tell you they are not going to do something, when they won't answer, no, they don't have the power, they are saying to you, yes, they have the power. If they will not answer your question and say: No, I will not kill Americans who are not involved in combat here at home, if they cannot tell you that, they are saying, yes, they will kill Americans not involved in combat. It is a simple question. Conor Friedersdorf writes for the Atlantic, and he writes: Does President Obama think that he has the power to kill American citizens on U.S. soil? If he accuses a guy in the Arizona desert or rural Montana of being an Al Qaeda terrorist, is it ever kosher to send a drone over to blow him up, as was done to-- People overseas-- Or is it never okay to drone strike an-- American citizen to death here in America? It's an easy question. Answering it wouldn't jeopardize national security in any way. So why do Obama administration officials keep dodging it? When the President was asked this question in a Google Plus interview last week, he said: Well we might have different rules inside the country than outside the country. Well, that sort of assumes he thinks he can kill Americans here, and he might have different rules. He might have more protections, but he is not going to tell you. He says it is secret. I, for one, am not very comforted. When the President says he hasn't killed any Americans yet and he doesn't intend to kill any Americans--but he might--that doesn't really comfort me so much. I don't think that is strong enough language. The Presidential oath of office says, ``I will preserve, protect, and defend the Constitution.'' It doesn't say: I intend to. It doesn't say: I intend to preserve, if it is convenient; I intend to preserve, protect, and defend the Constitution if it is convenient. In his memo, he says he is only going to kill people if it is infeasible. To me, that sounds a little bit like, yes, it is tough. It is inconvenient, so I am going to preserve, protect, and defend the Constitution as long as it is feasible. It just doesn't inspire me. Friedersdorf goes on to say with regard to the President's answer in Google: ``But he still didn't give a straight answer.'' Counterterrorism adviser John Brennan--whose nomination we are talking about--won't answer either. He finally did answer, but only under duress. His answer was actually the appropriate answer. He said the CIA can't do this in America. But it begs the question--because the CIA is not in charge of the drone program; the Department of Defense is. So we need an answer from the Department of Defense, and we get an answer from Eric Holder that says they haven't done it yet, they don't intend to do it, but they might. He doesn't say specifically that they will not. These answers have been out there for a while, and we have been through this and around this and asked questions. These are simple questions. These are questions I can't imagine why we can't get an explicit answer to--unless the answer is no. Unless the answer is that they don't want limitations on their power. Unless the answer is that they don't want to be constrained by the Constitution. Unless their answer is that the Bill of Rights doesn't apply to them when they think it doesn't apply to them. And that is the real danger. Eric Holder--your Attorney General--was asked about this and asked about the fifth amendment. He was asked: Does it apply? He said: Well, it applies when we think it applies. What does that mean? I know it is a debatable question--overseas, American citizens, this and that--but I don't think it is a debatable question. In our country, does the fifth amendment apply? I don't know how you can argue the fifth amendment doesn't apply. I don't know how you can argue we have an exemption to the Bill of Rights when we want to. But this is the President--the same President who argued he gets to determine when the Senate is in recess because he didn't get a few of his appointees last year, also argued that the Senate was in recess and said he could appoint anybody he wanted--and he did. It went to court, and the court rebuked him. The court said: You don't get to decide all the rules for all of government. The Senate decides when they are in recess; you decide when you are in recess, but you don't get to decide the rules for the Senate. They struck him down. Has he obeyed the ruling? Has he listened to what the court did? Has he been chastised and rebuked by the court? The people he appointed illegally are still doing that job. All of their decisions are probably invalid. So for the last 2 or 2\1/2\ years--however long these recess appointments have been out there--all of these decisions are going to be a huge mess. They have made all these decisions, and it is going to be uncertain whether the decisions are going to be valid. All of this happened because for some reason he thought he had power he doesn't actually have. I think there are some analogies to what we are talking about. Now, one of the rules he said he would adhere to, as far as the drone strikes overseas, was that there has to be an imminence to the threat. Then his team of lawyers followed up and concluded: Well, it has to be imminent, but it doesn't have to be immediate. I think only a gaggle of government lawyers could come together and say ``imminent'' doesn't mean ``immediate.'' Spencer Ackerman wrote, in Wired, about this. The title is, ``How Obama Transformed an Old Military Concept So He Can Drone Americans.'' ``Imminence'' used to mean something in military terms; namely, that an adversary had begun preparations for an assault. In order to justify his drone strikes on American citizens, President Obama redefined the concept to exclude any actual adversary attack. It is important to get that and to register that he has defined a potential imminent attack to mean that it excludes any actual adversary attack. So you are under imminent attack but there is no attack. It is a bizarre logic, but it is done to widen what they can do to grant them more power. Ackerman goes on to say: That's the heart of the Justice Department's newly leaked white paper-- These drone memos-- first reported by NBC News, explaining why a ``broader concept of imminence'' (.pdf) trumps traditional Constitutional protections American citizens enjoy from being killed by their government without due process. It's an especially striking claim when considering that the actual number of American citizens who are ``senior operational leader[s] of al-Qaida or its associated forces'' is vanishingly small. As much as Obama talks about rejecting the concept of ``perpetual war'' he's providing, and institutionalizing, a blueprint for it. This is what we are talking about. Don't think if you give the President the power to kill Americans, that it is a temporary power. The use of authorization of force, they say, has no geographic limit and no temporal limit. There is no end to the war. There is no end to the lessening or the abrogation or the giving up of your rights. If you give up your rights now, don't expect to get them back. Ackerman goes on: Imminence has always been a tricky concept. It used to depend on observable battlefield preparations, like tanks amassing near a front line, missile assemblage, or the fueling of fighter jet squadrons. Even under those circumstances, there has been little consensus-- internationally about various wars that we have had in the past. President George W. Bush contended that the U.S. had to invade Iraq not because the government knew Saddam Hussein was about to launch an attack upon America, but because it didn't. Because it was unknown, because we fear things we don't know--we don't know so we conclude yes, and we preemptively attack. Bush contended that the uncertainty about Saddam's weapons of mass destruction augmented by 9/11's warnings of shadowy terrorist groups plotting undetectable attacks redefined ``imminence. . . . '' So when I say this is not a partisan battle, I am true to my word. President Bush started this. President Obama is expanding this. The real irony, though, is President Obama ran as the anti-Bush candidate. He ran as the guy with the real moral umbrage at what President Bush was doing and in the end he is taking Presidential power to a new level beyond what President Bush could have ever imagined. So Bush contended that they could invade because they were uncertain about what Saddam could do. He: . . . redefined ``imminence'' to mean the absence of dispositive proof refuting the existence of an unconventional weapons program. . . . Imminence is the absence of proof that you don't have something. So you have to prove a negative, you have to prove you don't have something, or you are an imminent threat. That would be sort of like saying to Mexico: Prove to us you don't have a nuclear weapon or we are going to bomb Mexico City. It is a bizarre notion of imminence. So Mexico is now an imminent threat to the United States because they are unwilling to prove they don't have a nuclear weapon. You can see the convoluted logic that occurs here. But when U.S. troops invaded, they learned that Saddam did not possess what Bush or Condoleezza Rice famously termed a smoking gun that could come in the form of a mushroom cloud. The undated Justice Department white paper, a summary of a number of still-classified legal analyses, redefines imminence once again. Al-Qaida leaders are ``continually planning attacks,'' the undated white paper says, and so a preemptive attack ``does not require the United States to have clear evidence that a specific attack on U.S. persons and interests in the immediate future.'' Realize what this means. First of all, nobody has an al-Qaida card. I think we say every terrorist in the world is in al-Qaida because then they have to prove otherwise. So nobody has an al-Qaida card. Everyone is in al-Qaida. So we say that unless you can prove that you are not attacking us, because we know the history of al-Qaida is to continue to attack us, we can preemptively attack you. But now we are talking about bringing that kind of gobbledygook, jumbled logic to the United States. Are these going to be the standards by which we kill Americans? Ackerman goes on: For an adversary attack to be ``imminent'' and a preemptive U.S. response justified, U.S. officials need only ``incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on America.'' So if we say al-Qaida is always attacking us and we say you are part of al-Qaida, then we can kill you. But the thing is, that is an accusation. If you are a U.S. citizen, you live in San Francisco or Houston or Seattle and someone says you are a member of al-Qaida, should not you get a chance to defend yourself? Shouldn't you get to go to court? Shouldn't you get a lawyer? Are these not things that we would want in our country? Ackerman goes on. He says: There is a subtlety at work in the Justice Department framework. It takes imminence out of the context of something an enemy does and places it into the context of a policymakers's epistemic limitations. So really we are not looking to say someone has a rocket launcher on their shoulder. We are saying because we think that these people do not like us and will continue to attack us, we can preemptively kill them. Realize that this kind of logic is being used overseas, and that is debatable. But now they are going to bring this logic to America. So when you read stuff like this, that imminence is out of the equation and in its place we are going to put a ``policymaker's epistemic limitations'' or estimation--that is how we are going to decide who is going to be killed in America? All we know is what we have in the foreign drone program. We have no evidence yet because no one has told us. They just told us they have not killed anyone yet, they don't intend to, but they might-- but they haven't told us what the rules are they are going to use in this context--what rules are going to be used in America? If you are going to kill noncombatants, people eating dinner in America, there have to be some rules. Does the Constitution apply? When Eric Holder was asked about the fifth amendment, he said the fifth amendment applies when they think it applies. He says the executive branch is very careful and they are very conscious of the fifth amendment and they do try to apply the fifth amendment when they can. I mean, it is a different story when you are talking about a war overseas and you are talking about people who live in our country. You don't get the option of determining when the fifth amendment applies. Ackerman goes on to say: If there is a reasonable debate about what imminence means in an era of terrorism, and what standards ought to be accepted for defining it as an international norm, that framework-- where they talk about that they are thinking about what the terrorist is thinking rather than what the terrorist is doing basically preempts the whole idea of determining or trying to discuss or figure out what imminence really means. Ackerman goes on: All that matters to justify a drone strike attack is for the U.S. to recognize that it can't be all-knowing. So interestingly it's not intelligence that drives the attack, it's you saying I don't know but I am worried that these people do attack us continuously, so by me not knowing their plans, that is a justification for an attack. Realize, that could be the standard in the United States. It's the logical equivalent of the CIA's signature strikes, which target anonymous military-age males in areas where terrorists operate-- This should be the thing that should just scare the you-know-what out of you. If we are killing people overseas who we don't know their name because we think they are in a caravan going from a place where we think there are bad people to another place where there are bad people, that is a fairly loose standard. So, let's say there are people going from a Constitution Party meeting to a Libertarian Party meeting. Both these groups don't like big government. They hate big government. They are opposed to government. They are nonviolent as far as I know, but they were on the Fusion List for potential terrorists. Are we going to kill people in a caravan going from one meeting to the next? Are we going to have to name the person we kill in the United States? You say, oh, that is absurd. We would never do that. Well, what about whose phone we tap? Do we have to name that person? It used to be the requirement. It has gotten less so over time. We have gotten to the point where the fourth amendment protections to name the person, place, and what you want to look at have become looser over time. I think it is a legitimate question. If you are going to target Americans on American soil, are you going to name them first? Are you going to tell us who is on the list? The list overseas is secret so the question is, is the list going to be secret in the United States? How do you get your due process if you don't know you are on the list? It is a little bit late after the drone attack to say: Hey, it wasn't me. I didn't really mean what I said in that e-mail. I should not have made that comment on line. Some liberals think they have had a double standard on this and haven't been very good. Some have been more honest in their criticism of the President being hypocritical. The President seemed to be concerned at one time about warrants for wiretaps. He seemed to be concerned about Americans and torture. He seems to have lost a little bit of that when we talk about whether to kill Americans on American soil. Eugene Robinson, whom I would consider a liberal pundit, wrote an article printed in the San Antonio News called ``Judicial Review Needed For Drone Hits Of Citizens.'' He begins this way. He says: If George W. Bush had told us that the ``war on terror'' gave him the right to execute an American citizen overseas with a missile fired from a drone aircraft, without due process or judicial review, I'd have gone ballistic. These are Eugene Robinson's words. If he had heard this about George Bush, he would have gone ballistic. To his credit he says: It makes no difference that the president making this chilling claim is Barack Obama. What's wrong is wrong. Robinson goes on to say: The moral and ethical questions posed by the advent of drone warfare are painfully complex. We had better start working out some answers because, as an administration spokesman told me recently, drone attacks are the ``new normal'' in the ongoing struggle against terrorist groups such as al-Qaida. These attacks have become normal. They have become commonplace. They have become the rule rather than the exception. But at least Eugene Robinson is someone who is consistent in his application of criticism. He says he would have gone ballistic had George W. Bush done exactly what President Obama is doing and his response is, ``It makes no difference that the president making this chilling claim is Barack Obama. What's wrong is wrong.'' The question of when we get due process, whether it applies to you here or overseas, is a big question. But under our concept of government, it is not a question that should be left up to one branch of government. You know, should one branch of government get to decide that you don't get due process? That the fifth amendment doesn't apply to you? This is an incredibly important question. John Brennan and the nomination today pale in comparison to that question. Does the President alone, unilaterally, get to decide whether the fifth amendment applies to you? Or can he say that he is going to secretly accuse you of a crime and that the fifth amendment doesn't apply to you? This is worrisome because the Attorney General has been asked about the applicability of the fifth amendment to the drone program. He said the fifth amendment applies when they think it applies. He says they try to give some kind of process. It is not due process. Due process involves a jury and a judge and public trial and an accusation. By process, they mean they get together and look at a PowerPoint presentation. They go through some flash cards and they decide who they are going to kill. That is the process. They may say you are demeaning the process by treating it flippantly, about whether they are serious about the process. Is that the process you want for someone in America? Do you want in America, for the process for you being accused of a crime, to be a PowerPoint presentation by one branch of government, maybe in a political party you are part of, maybe in a political party you are not part of? There are things in politics that are partisan. I don't think I would want Americans to be subject to any partisanship with determining whether you get the fifth amendment, whether you get a jury trial. I can't imagine anybody would. I don't care whether it is a Republican or Democrat, I don't want a politician deciding my innocence or guilt; it is as simple as that. The President should say unequivocally we are not going to kill noncombatants, we are not going to do PowerPoint presentations in the Oval Office on Tuesdays. We are not going to have Terrorist Tuesdays for Americans. He should say that. I don't think it is that hard. It is an easy question to the President. Mr. President, are you going to have Terrorist Tuesdays for Americans? Are they going to put flashcards of Americans up and pass them around the table in the Oval Office with pictures of Americans on them and decide who is going to die and who is going to live? Are they going to publicly charge people or are they going to secretly charge people? Are they going to have any kind of trial or any kind of representation? Does anybody get a chance to say: Hey, it wasn't me. I didn't do it. Does anybody get a chance to represent or have representation? This is an article we found interesting also by Noah Shachtman. This was also printed in ``Wired.'' It is called ``U.S. Drones Can Now Kill Joe Schmoe Militants in Yemen.'' This is not quite about the domestic issue so much and a little bit about the foreign issue. However, there is a linkage between the foreign drone attacks and what will become the domestic drone attacks. Why? Because those are the only drone attacks we know and we have not been told that there will be an American plan for killing Americans and a foreign plan for killing Americans or foreigners overseas. We have not been told that. We have not been told anything. We have been told to go and sit in a corner--including the Senate and Congress--and be quiet. They have a process. They have a PowerPoint presentation, and they have flashcards. I don't think that is adequate. Noah Shachtman writes in ``Wired'': In September, American-born militant Anwar al-Awlaki was killed by a U.S. drone strike in Yemen. In the seven months since, the al-Qaida affiliate there has only grown in power, influence, and lethality. The American solution? Authorize more drone attacks-- It kind of brings me back to that quote from the CIA agent. He said drone attacks are like a lawnmower, but when you quit mowing the lawn, the terrorists come back; sometimes they may be more numerous. The question is, Can they kill them all? Can they kill every terrorist in the world? For every terrorist they kill, maybe 3 or 4 pop up--maybe 10 pop up. What happens to the families who happen to be the ones whom we make mistakes on or happen to be in the wrong place at the wrong time? I know the President's spokesman found it cute to say: Oh, they should have chosen more responsible parents. I don't find that endearing or cute. I find it reprehensible to say that is the standard. We have to ask the question: Is that going to be the standard in the United States? Are we going to kill people because they are related to bad people and then flippantly say they should have chosen better parents after we kill a 16-year-old? Shachtman goes on to write: The American solution? Authorize more drone attacks--and not just against well-known extremists like Awlaki, but against nameless, faceless low-level terrorists as well. A relentless campaign of unmanned airstrikes has significantly weakened al-Qaida's central leadership in Pakistan. I am not saying we should not use drones. I am not saying they are not a valuable weapon that has helped us to decimate our enemies. I am just saying it is different in a warzone than it is in our country. If the President cannot acknowledge that being in battle somewhere is distinctly different than walking down the street in Washington or Baltimore or Philadelphia, it is beyond me how we can let him get away with that. . . . militants were chosen for-- These drone strikes-- robotic elimination based solely on their intelligence ``signatures''--their behavior, as captured by wiretaps, overhead surveillance and local informants. We don't know the names of the people who were killed in these drone strikes except to know it was largely in the tribal areas of Pakistan. We are targeting people and we do not know their names. We cannot know much about them if we don't know their names. We are targeting them by their signatures, where they go, and whom they visit. Probably, inevitably, the milkman or the doctor has to go to the terrorist camp. Maybe some of them are complicit, but some of the people who may not be quite the people we think we are after are in a caravan going from city to city. Maybe they are in the local food distribution business and make good money selling it. But the question is whether that is the kind of standard we would like to have in America. Would a signature strike be acceptable in America? These are questions that ought to be asked and the President ought to answer. These people are being targeted by their signature. Their behavior is captured by wiretaps, overhead surveillance, and local informants. Shachtman goes on to say: A similar approach might not work in this case, however. In Yemen, where we have a lot of drone strikes, he says: Every Yemeni is armed. It is going to be kind of hard to tell who is friend or foe when they are all fighting and they are all mad at each other. So how can they differentiate between suspected militants and armed Yemenis? Shachtman goes on to say: What's more, al-Qaida in the Arabian Peninsula--the Yemeni affiliate of the terror collective--``is joined at the hip'' with an insurgency largely focused on toppling the local government, another official told the Washington Post last week. So there's a very real risk of America being ``perceived as taking sides in a civil war.'' The Yemeni drone campaign--actually, two separate efforts run by the CIA and the military's Joint Special Operations Command--will still be more tightly restricted than the Pakistani drone war at its peak. Potential targets need to be seen or heard doing something that indicates they are plotting against the West, or are high up the militant hierarchy. ``You don't necessarily need to know the guy's name. You don't have to have a 10-sheet dossier on him. But you have to know the activities this person has been engaged in,'' a U.S. Official tells the Journal. Gregory Johnsen, a Yemen specialist at Princeton University, believes that these ``signature'' strikes--``or something an awful lot like them''--have actually been going on for quite a while in Yemen. He goes on to say that he thinks that ``Awlaki's son was killed just a month after his dad,'' in a signature strike. He says he thinks `` . . . there have been 13 attacks in Yemen in 2012.'' When we talk to people around here, they say there are no signature strikes. What are we supposed to believe? A lot of people are saying they have evidence and have heard there are signature strikes. Those in power who have the secret say we are not. It is hard to know what to believe. I think one thing that is easy to understand, though, is that I cannot imagine we would allow such a standard in the United States where we don't name whom we are killing and that we kill people involved in a caravan. I think it should be pretty easy for the President to say there will be no signature strikes in America. Shachtman goes on to say: Many of them have hit lower-level militants, not top terror names. This authorization only makes targeting killings legally and bureaucratically kosher. But despite the increased pace of strikes--those 13 attacks are more than they were in all of 2011--al-Qaida in the Arabian Peninsula. . . . In fact, White House counterterrorism adviser John Brennan last week called it the terror group's ``most active operational franchise.'' All of which leads Micah Zenko at the Council of Foreign Relations to wonder where this drone campaign is going. ``By any common-sense definition, these vast targeted killings should be characterized as America's Third War since 9/11,'' he writes. ``Unlike Iraq and Afghanistan--where government agencies acted according to articulated strategies, congressional hearings and press conferences provided some oversight and timelines explicitly stating when the U.S. combat role would end--the Third War is Orwellian in its lack of cogent strategy, transparency, and end date.'' ``Since these attacks are covert, the administration will offer no public defense, he adds. But ``it begs [CIA director David] Petraeus' haunting question at the onset of the Iraq war in 2003: ``Tell me how this ends?'' That is a question I have for the President: How does the war end? How do we win? How do we declare victory and when will the war end? The problem is we have come up with a scheme that basically has no geographic limitations on where the war is fought. It is harder to defeat an enemy if the entire war is the battlefield. It is not only a problem with determining victory, it is a problem with ultimately coming home. The other problem with having no geographic limitations to this is saying that war is here; the war is in America and the battlefield here at home is one where we are going to have rules or the laws of war are going to apply in our everyday life. Before we were talking about drone strikes in America, the Center for Constitutional Rights has been concerned even about American citizens overseas. On September 30, they put out this release which said: Today, in response to the news that a missile attack by an American drone aircraft had killed U.S. citizen Anwar Al- Awlaki in Yemen, the Center for Constitutional Rights, which had previously brought a challenge in federal court to the legality of the authorization to target Al-Awlaki in Yemen, released the following statement: ``The assassination of Anwar Al-Awlaki by American drone attacks is the latest of many affronts to domestic and international law'' . . . ''The targeted assassination program that started under President Bush and expanded under the Obama Administration essentially grants the executive the power to kill any U.S. citizen deemed a threat, without any judicial oversight or any of the rights afforded by our Constitution. If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law.'' Now what they have said there is not completely noncontroversial, and I might even take some issue with the fact that they are saying the Constitution applies everywhere. Some argue it applies to U.S. citizens whether here or at home, and I think there is some debate as to that. I think the only place we can guarantee that the Constitution applies is in our country. The only border we ultimately control is in our country. The courts we ultimately control are here. However, the entity doing the killing is the American military killing a citizen overseas. So I personally have been of the belief that what we should do is try people for treason. It is one of the four crimes in the Constitution that is actually labeled, displayed, and given to the Federal courts. There are specifics on what is actually treason. I personally don't think it would be that hard to try people for treason. I think we could do it without--we could start at the very top court and not have appeal after appeal. I think there was evidence that al-Awlaki could have been tried in Federal court for treason and then targeted. People say: Why would we want to give any protection to people who have denounced their citizenship, who hate America, and who are conspiring with the enemy? I guess the way I would respond is that I don't like murderers and rapists either. I don't like violent people who commit crimes in our country. But because we prize our system so much and because we want to make sure we arrest, convict, and possibly execute the right person, we have trials. So we think it is pretty important that we have trials. So I agree when people say these are bad people. Yes, these are bad people. Many of them deserve what they get. The problem is, if we give up on the process of how we do it, if we give up on the Constitution, or if we say that kind of standard is going to be brought back to the homeland, or if we say America is a battlefield, there is a real problem. There is a problem in doing that because I think if we do that, the standard becomes so loose, we really won't have what we really expect as Americans. The Center for the Constitutional Rights goes on with this comment by Pardiss Kebriaei, a senior staff attorney. They went to the court, and they asked for information on some of these drone strikes, and they were denied. She responds: In dismissing our complaint, the district court noted that there were nonetheless disturbing questions raised by the authority being asserted by the United States. There certainly are disturbing questions that need to be asked again and answered by the U.S. Government about the circumstances and the killing and legal standard that governs it. In October 2012 there was an article by Greg Miller in the Washington Post. It was entitled ``Plan for Hunting Terrorists Signals U.S. Intends to Keep Adding Names To Kill List.'' The editor notes that this project was based on interviews with dozens of current and former national security officials, intelligence analysts, and others who have examined and were examining the U.S. counterterrorism policies and the practice of targeted killings. This is the first of three stories that appeared: Over the past 2 years, the Obama administration has been secretly developing a new blueprint for pursuing terrorists, a next-generation targeting list called the ``disposition matrix.'' The matrix contains the names of terrorism suspects arrayed against an accounting of the resources being marshaled to track them down, including sealed indictments and clandestine operations. U.S. officials said the database is designed to go beyond existing kill lists, mapping plans for the ``disposition'' of suspects beyond the reach of American drones. Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation's counterterrorism ranks: The United States' conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years. Among senior Obama administration officials, there is a broad consensus that such operations are likely to be extended at least another decade. Given the way al-Qaida continues to metastasize, some officials said no clear end is in sight. ``We can't possibly kill everyone who wants to harm us,'' a senior administration said. ``It's a necessary part of what we do . . . We're not going to wind up in 10 years in a world of everybody holding hands any saying, ``We love America.'' That timeline suggests that the United States has reached only the midpoint of what was once known as the global war on terrorism. Targeting lists that were regarded as finite emergency measures after the attacks of September 11 are now fixtures of the national security apparatus. The rosters expand and contract with the pace of drone strikes but never go to zero. Meanwhile, a significant milestone looms: The number of militants and civilians killed in the drone campaign over 10 years will soon exceed 3,000 by certain estimates. We have heard an estimate recently by a Member of the Senate who said 4,700 have been killed. The Obama administration has touted its successes against the terrorist network, including the death of Osama bin Laden, as signature achievements that argue for President Obama's reelection. The administration has taken tentative steps toward greater transparency, formally acknowledging for the first time the United States' use of armed drones. Less visible is the extent to which Obama has institutionalized the highly classified practice of targeted killing, transforming ad-hoc elements into a counterterrorism infrastructure capable of sustaining a seemingly permanent war. Spokesmen for the White House, the National Counterterrorism Center, the CIA and other agencies declined to comment on the matrix. Privately, officials acknowledge that the development of the matrix is part of a series of moves, in Washington and overseas, to embed counterterrorism tools into U.S. policy for the long haul. White House counterterrorism adviser John O. Brennan is seeking to codify the administration's approach to generating capture/kill lists, part of a broader effort . . . CIA Director David Petraeus is pushing for an expansion of the agency's fleet of armed drones. The proposal, which would need White House approval, reflects the agency's transformation into a paramilitary force and makes clear that it does not intend to dismantle its drone program and return to pre-September 11 focus on gathering intelligence. The U.S. Joint Special Operations Command, which carried out the raid that killed bin Laden, has moved command teams into suspected terrorist hotbeds in Africa. A rugged U.S. outpost in Djibouti has been transformed into a launchpad for counterterrorism operations across the Horn of Africa and into the Middle East. The Joint Special Operations Command has also established a secret targeting center across the Potomac River from Washington. The current and former U.S. official said the elite command's targeting cells have traditionally been located along the front lines of its missions, including Iraq and Afghanistan. But the joint committee has now created a national capital region task force that is a 15-minute commute from the White House so it can be more directly involved in deliberations about the al-Qaida list. The developments were described by current and former officials from the White House as well as intelligence and counterterrorism agencies. Most spoke on the condition of anonymity because of the sensitivity of the subject. These counterterrorism components have been affixed to a legal foundation for targeted killings the Obama administration has discussed more openly over the past year. In a series of speeches, administration officials have cited the legal basis, including the congressional authorization to use military force. This really gets to the crux of the matter, which is that the authorizations for all of these activities around the world and then ultimately here at home all come from the use of authorization of force when we went to war against Afghanistan after 9/11. The problem is, how do we finally conclude war? Is perpetual war OK with everybody? How would we conclude the war in Afghanistan? The President said he is bringing troops home. It is actually another thing I admire about the President. I think it is time to come home. I think we have accomplished our battle. I think we have accomplished our plan. But the thing is, if we are going to end the war, why would we not end the war? I think it means we end that war and we go somewhere else. There is a question of whether we can continually afford perpetual war. There is a question of whether it is advisable. There is a question of whether or not we go so many places that maybe in the end we are doing more harm than good. The thing about the wars as they go on is we have to figure out a way to try to end war. We have to figure out a way to try to limit war. Our goal shouldn't be to expand war to proportions that have no limit. To say there are no geographic limits on war I don't think should be an admirable thing. I think it is a mistake in policy to say we can have perpetual war with no limits, with no geographic limits, with no temporal limits. It is hard to end a war anymore, though. It used to be easy. In the old days, you won a war and you came home. The problem is that we can't even end the Iraq war. The Iraq war has been over for a couple of years now--at least a couple of years. I tried to introduce a resolution to end the Iraq war, to deauthorize the war, and it was voted down. I think I got less than 15 votes. How do we end war? The problem is that people take these resolutions and they stretch them and they pull them and they contort them to mean things that really they were never intended to mean. I don't think being involved in a protracted war in Yemen or Mali or any of these other places was intended when we went to war in Afghanistan. I just don't think that was the intention. Critics contend that the justifications for the drone war have become more tenuous as the campaign has extended further and further beyond the core group of al-Qaida operatives behind the strikes on New York and Washington. Critics note that the administration still doesn't confirm the CIA's involvement or the identities of those who were killed. Certain strikes are now under legal challenge, including the killing last year of the son of al-Awlaki. Counterterrorism experts have said, though, that the reliance on these targeted killings is self-perpetuating, yielding undeniable short-term results that may obscure the long-term costs. I think that is a good way of putting it because when we think about it, obviously, they are killing some bad people. This is war, and there has been some short-term good. The question is, Does the short-term good outweigh the long-term costs not only in dollars but the long-term costs of whether we are encouraging a next generation of terrorists? This is a quote from Bruce Riedel, a former CIA analyst. He says: The problem with the drones is it's like your lawn mower. You got to mow the lawn all the time. The minute you stop mowing, the grass is going to grow back. Maybe there is an infinite number of terrorists. Maybe the drone strikes aren't the ultimate answer. There are a billion Muslims in the world. Maybe there needs to be some component of this that isn't just the killing fields. I am not saying that many of these people aren't allied against us and would attack us and they don't deserve to die; I am just not sure it is the ultimate answer, it is the ultimate way. I am also concerned that the people who are the strongest proponents of this are also those who want to bring the war to America and say that America is part of this perpetual battlefield. The United States now operates multiple drone programs, including acknowledged U.S. military patrols over conflicted zones in Afghanistan and Libya and classified CIA surveillance flights over Iran. Strikes against al-Qaida, however, are carried out under secret lethal programs involving the CIA and the CSOC. The matrix was developed by the NCTC under former Director Michael Leiter to augment those organizations' separate but overlapping kill lists. The result is a single, continually evolving database in which biographies, locations, known associates, and affiliated organizations are all catalogued. So are strategies for taking targets down, including extradition requests, capture operations and drone patrols. Obama's decision to shutter the CIA's secret prisons ended a program that had become a source of international scorn, but it also complicated the pursuit of terrorists. Unless a suspect surfaced in the sights of a drone . . . the United States had to scramble to figure out what to do. ``We had a disposition problem,'' said a former U.S. counterterrorism official. . . . The database is meant to map out contingencies, creating an operational menu that spells out each agency's role in case a suspect surfaces in an unexpected spot. ``If he's in Saudi Arabia, pick up with the Saudis,'' the former official said. ``If traveling overseas to al-Shabaab . . . we can pick him up by ship. If in Yemen, kill or have the Yemenis pick him up.'' There has been some discussion as to what to do with these people. It is a complicated situation, but I think the take-home message from all of this is that what we are stuck in is a very messy sort of decisionmaking, a type of decisionmaking that I do not think is appropriate for the homeland, for the United States. I think the idea that in the United States this is to be a battlefield, and you do not need an attorney, you do not need a court, or you do not get due process, is really repugnant to the American people, and should be. I think it is something we have given up on too easily if we let the President dictate the terms of this. If the President is unwilling to say clearly and unequivocally that he is not going to kill noncombatants in America, I do not think we should tolerate that. I think there should be a huge outcry and the President should come forward and explain his position. This discussion tonight is not so much about John Brennan, it is not about his nomination so much as it is about whether we believe that in America there are some rights that are so special that we are not willing to give up on these. So as we move forward into this debate, it is not about who gets nominated to be the head of the CIA. It is about principles that are bigger than the people. It is about something bigger and larger than the people involved. It is about constitutional principles that we should not give up on. I think we should all judge as inadequate the President's response when he says he has not killed Americans in America yet, he does not intend to, but that he might. I do not think that is a response that we should tolerate. So as we move forward in this debate, we need to understand and we need to fight for something that is classically American, something we are proud of and something our soldiers fight for; that is, our rights, our individual rights, our right to be seen as an American, to be tried in a court by our peers. I think if we are to give up on that it is a huge mistake. One of the things we have to ask is, What kind of standard will there be? If there is going to be a program in America, what kind of standard? If we are going to kill Americans in America, what kind of standard will there be? If the standard is to be sympathy, you can imagine the craziness of this. Mr. President, I would at this time yield for a question, without yielding the floor, from my colleague from Kansas.

Mr. PAUL. Mr. President, I am hopeful that we have drawn attention to this issue; that this issue won't fade away; that the President will tomorrow come up with a response. I would like nothing more than to facilitate the voting and the continuation of the debate tomorrow. I hope the President will respond to us. We have tried repeatedly throughout the day, and we will see what the outcome of that is. I would like to thank my staff for being here for a long day, for their help. I would like to thank fellow Senators for being supportive of this cause. I would like to thank the Members of Congress who came over to support this cause, as well as the clerks, the Capitol Police, the staff of the Senate, the doorkeepers--who, apparently, I may have gotten in trouble--and anybody else who came to support us, and even the senior Senator from Illinois, for better or worse, for being here to support the cause. The cause here is one that I think is important enough to have gone through this procedure. I sit at Henry Clay's desk, and they call Henry Clay the ``Great Compromiser.'' When I came to Washington, one of my fellow Senators said to me: Oh, I guess you will be the great compromiser. I kind of smiled at him and laughed. I learned a little bit about Henry Clay and his career. People think some of us won't compromise, but there are many compromises. There are many things on which I am willing to split the difference. If the Democrats will ever come to us and say: We will fix and we will save Social Security, what age we change it to, how fast we do it--there are a lot of things on which we can split the difference. But the issue we have had today is one on which we don't split the difference. I think you don't get half of the fifth amendment. I don't think you acknowledge that the President can obey the fifth amendment when he chooses. I don't think you acknowledge that the fifth amendment, due process, can somehow occur behind closed doors. So while I am a fan of Henry Clay, I have often said I am a fan of Cassius Clay. Cassius Clay's weapons of choice were said to be his pen and his Bowie knife. He was said to be so good with the first, that he often had recourse to the latter. He was a fierce abolitionist. He didn't suffer fools, and he didn't compromise often. But what I would say is that it is worth fighting for what you believe in. I think the American people can tolerate a debate and a discussion. There has been nothing mean-spirited about this debate for 12 hours. I think, in fact, more of it would be even better. I wish we had more open and enjoined debate. The senior Senator from Illinois has brought up good points, and I think there is much discussion. I just hope that this won't be swept under the rug and that this isn't the end of this but that it is the beginning of this. I would go for another 12 hours to try to break Strom Thurmond's record, but I have discovered there are some limits to filibustering, and I am going to have to go take care of one of those in a few minutes here. But I do appreciate the Senate's forbearance in this, and I hope that if there are some on the other side of the aisle who have been listening and feel they may agree on some of these issues, they will use their ability to impact the President's decision and will, No. 1, say the Senate should be trying to restrain the executive branch, Republican or Democratic, and, No. 2, will use their influence to try to tell the President to do what I think really is in his heart, and that is to say: Absolutely, we are not going to be killing Americans not in a combat situation. We will obey the fifth amendment; that the constitution does apply to all Americans and there are no exceptions. I thank you very much for your forbearance, and I yield the floor.

Mr. PAUL. Madam President, I would say touche, a good response, I think well worth thinking about and difficult in the sense that I don't think there are any of us who really were opposed to getting bin Laden. There is a question, you are right, exactly whether there was imminence involved. I think, though, when we start talking about standards, whether we have standards in battlefields, standards overseas, and standards at home, I think the standard at home has to be incredibly high. I don't believe we are involved in a battlefield here. I don't believe you have given up due process here. I don't know that bin Laden had any due process. I yield for a question from the Senator from Texas.

Mr. PAUL. Mr. President, I think it is a good question because, ultimately, the question is, Who gets to decide? Does the President get to decide unilaterally that he is going to do this? And how would you challenge it? If you are dead, you have a tough time challenging, basically, his authority to do this. But, no, I cannot imagine in any way that you can usurp and go beyond the constitutional requirements in the United States. I see no way he can do that, and I cannot imagine that he would even assert such a thing. But it still boggles the mind that he will not explicitly say he will not do this.

Mr. PAUL. Madam President, this is exactly what I understand. It is a significant problem. I will be happy to yield if there is a question from across the aisle or a question that is in the form of an explanation as well on his understanding, if we understand this incorrectly, this is a real problem. Because the idea of imminence that people think of is someone leveling a weapon at you, you are in a battlefield, and all of these things which none of us disagrees there should be a response. The problem is it really is. I am not an attorney, so it is easy for me to disparage attorneys even though I am standing among two I admire--more, probably. The whole point is that sounds like a bunch of government attorneys got together and tried to write some gobbledygook no one could understand and doesn't make sense; that imminence now means something that is not immediate. I would be happy to entertain a question without yielding the floor.

Mr. PAUL. Madam President, at this point I would like to recognize for a question, without yielding the floor, the Senator from Utah.

Mr. PAUL. Mr. President, I think it is a good point. I think also a point to be made is that one resolution to this impasse would be to have a resolution come forward from the Senate saying exactly that; that our understanding is--and this has been something that Senator Cruz and I have discussed: whether we should limit the President's power by legislation or by resolution, basically saying that repealing an imminent threat is something the President can do, but killing noncombatants is not something that is allowed under the Constitution. I think the courts would rule that way should the courts ever have to rule on this. But it would be much simpler and more healthy for the country if the President would simply come out and say that.