Last week’s 13 hour, old-fashioned “talking” filibuster by Senator Rand Paul brought some much needed attention to the ever-growing list of radical powers claimed by the executive branch. Introduced by President Bush and expanded by President Obama, these powers are rooted in the government’s response to the terrorist attacks of September 11, 2001. The filibuster merely highlighted the President’s most shocking power that is derived from the logical conclusion of the legal basis for the “war on terrorism”.
Fighting Terrorists with a Traditional War?
Throughout history nations have attacked other nations, and individual(s) have attacked other individual(s). The aggressor, the one who initiated violence, is committing a crime. In the case of aggression by a government, this crime is referred to as war. As war is of a vastly larger scale than individuals committing crime, governments have always claimed extraordinary powers during periods of war.
Unfortunately, a major change to this long tradition occurred in the government’s response to the terrorist attacks of September 11th. Though terrorism is a federal crime, and has frequently been punished as such, the government took advantage of the extreme acts of terrorism committed on September 11th, and treated it as an act of war, rather than a crime.
Even though the terrorist attacks were the criminal acts of individuals and not acts of war by a government, President Bush responded with war- and not with just a war on the terrorists, but a “war on terrorism”. In other words, he not only declared war on individuals (as opposed to foreign governments), he declared a broader war on terrorism, a criminal tactic. Since criminal tactics always exist, the war is necessarily endless. Thus, the temporary, extraordinary powers government claims in times of war have ceased to be temporary. Further, as terrorism is not geographically limited, the size of the battlefield is not precise or restricted. Indeed, we have reached the point that now the whole world is considered the battlefield (including the United States).
An Endless Global War
Now we can, I trust, begin to see the dangers of the response to 9/11. It necessarily vests the government, specifically the President, with unlimited power to do anything he can do in a normal war, permanently and globally.
I cannot emphasize enough how extensive and radical the implications of this are. Constitutional lawyer Glenn Greenwald explains:
“Once you accept that the US is fighting a “war” against The Terrorists, and that the “battlefield” in this “war” has no geographical limitations, then you are necessarily vesting the president with unlimited powers. You’re making him the functional equivalent of a monarch. That’s because it is almost impossible to impose meaningful limitations on a president’s war powers on a “battlefield”.
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.”
We have long recognized that governments must be limited. History is riddled with examples of power being abused. Much blood and tears were expended over the past thousand years to establish these important checks on government power, and they are now being eroded at an alarming rate before our very eyes.
The 5th Amendment Is Undermined
The logical conclusion of granting the President unlimited war powers is that yes, an American citizen on American soil can be killed by the mere whim of the President, with absolutely no due process and no accountability.
This was the central question of Rand Paul’s filibuster. The administration, likely realizing these claims of power are too extreme to openly advocate, has repeatedly dodged the question, instead of transparently explaining what they believe their powers are. They say it hasn’t happened yet and they do not intend to do so. Neither of these non-answers are reassuring, given that the power is permanent and that both circumstances and the President’s mind can change at any time.
Even when Attorney General Eric Holder appeared to answer in response to the filibuster, he did not. The trained eye would spot trouble with the term “engaged in combat” and note that Holder dropped the word “actively” from the question. Guess who gets to determine who is engaged in combat? The President. How has this term been interpreted before? Very broadly. It’s terribly unfortunate that Rand Paul declared victory upon hearing the meaningless 43-word letter from the attorney general. He had them on the defensive, but upon cornering them he walked away without getting a clear answer.
What we must demand is an admission that the President lacks the power to ignore the 5th amendment and unilaterally kill (or indefinitely imprison) American citizens on U.S. soil. And, unless one somehow posits that only American citizens on American soil posses equal human rights, we must expand this demand to include citizens overseas, anyone residing on American soil, and everyone else. To really strike at the root, we must demand an end to the war on terror. It’s not a real war and is an improper response to a real but also relatively minor threat posed by terrorists.
Republicans and Democrats Are Responsible
President Obama, despite suggesting otherwise as a candidate, has fully embraced and expanded on President Bush’s war on terror. Both parties are equally responsible: Republicans, for introducing these radical executive powers, and Obama for institutionalizing and expanding them (e.g., Bush never claimed or exercised the power to target and kill American citizens without due process).
Neither Republicans or Democrats can shove the blame to the other side, as both have contributed and collaborated to create this monster. There are no credible excuses Obama supporters and Bush supporters can offer. In particular, because he is the incumbent, Obama’s supporters often try to “blame Bush” for starting this to absolve their leader from responsibility, but this is completely false as Obama is currently President, not Bush, and it is Obama that is exercising, institutionalizing, and expanding these powers.
Unfortunately some defenders of the status quo have tried to dismiss the filibuster as paranoia. If this is your mindset, what purpose is there for any laws to restrict government power? After you repudiate the Bill of Rights and such I will believe your argument is serious.
In reality, it is crucial to limit the powers of government. A glance at history, even modern history, reveals unspeakable horrors committed by governments, due to either malevolence or human error. Human nature is such that it cannot be trusted with unlimited power over others. This was a fundamental principle the government was founded on, as the following from Thomas Jefferson highlights:
“In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution”
Rand Paul’s filibuster was not a paranoid, partisan political stunt. It may well have been opportunistic, but also urgently needed as the first step to clarify what powers the executive branch holds and should hold. The only problem was Paul’s failure to go far enough: he should have broadened his critique of the other extreme executive powers claimed by Bush and now Obama (to his credit, he did to some degree during the filibuster; but not in follow-up media interviews), and most importantly, he should not have declared victory after receiving a cleverly worded non-answer from the Obama Administration.
Nevertheless, we should all applaud Rand Paul for bringing this issue out of the shadows. It’s now our responsibility to take it from here, and hopefully, reject war as a grossly inappropriate response to terrorism. At minimum, due process free assassination of Americans must be overwhelmingly repudiated. Will the supposedly civil liberties respecting ‘left’, and the supposedly limited government ‘right’ say enough is enough, or will they allow or support the undermining of one of the most basic checks on power that have been upheld for hundreds of years: due process?
The answer begins with you. It’s hard to think of a more important political issue than this, a matter of life and death, a matter of one of the most fundamental liberties ever. Now is the time to nip it in the bud, before it becomes further entrenched. I believe it is a “red line” issue, one that should break your support of any politician who stands on the wrong side.
For further reading, I highly recommend “Three Democratic myths used to demean the Paul filibuster” by Glenn Greenwald and “Rand Paul’s Misplaced Celebration” by Jacob Hornberger.