Last year, Sen. Rand Paul of Kentucky opposed the nomination of CIA director John Brennan with a 13-hour speech against the Obama administration’s drone policies. The filibuster, a carefully calculated opening move for Paul’s 2016 presidential campaign, garnered massive media attention. So it should not be a surprise that he planned another filibuster, this time against today’s scheduled Senate consideration of appeals court nominee David Barron. As an attorney in the White House Office of Legal Counsel, Barron worked on memoranda providing a legal justification for the killing-by-drone of American Al-Qaeda strategist Anwar Al-Awlaki in Yemen.
Paul’s latest grab for media attention has been rolled out with political precision: an op-ed in last week’s New York Times, followed by strategic media leaks of his planned filibuster remarks. In the Times, Paul implied that his opposition was a form of information-seeking leverage, saying he would fight Barron’s nomination “until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history.”
But in the week since then, Paul has moved the goalposts. In remarks provided in advance to Breitbart News, Paul says, “This isn’t a debate about transparency.” Instead, it is reported, he plans to say:
"I rise today to oppose the nomination of anyone who would argue that the President has the power to kill American citizens not involved in combat. I rise today to say that there is no legal precedent for killing American citizens not directly involved in combat and that any nominee who rubber stamps and grants such power to a President is not worthy of being placed one step away from the Supreme Court.”
Georgetown University Law Professor David Cole, a civil libertarian and himself a drone policy critic, urged senators not to accept Paul’s effort to block Barron’s judicial nomination as a means to pressure the White House. Barron’s confirmation “would put in place a judge who will be absolutely vigilant in his protection of civil liberties and his insistence that executive power be constrained by the rule of law,” Cole wrote in response to Paul’s op-ed. “That long-term value should not be sacrificed because of a short-term battle over memos that every Senator already has the opportunity to review.” Cole noted that, “as head of the Office of Legal Counsel in 2009, Barron himself withdrew five OLC memos written during the prior administration to authorize controversial interrogation techniques such as waterboarding.”
Americans from across the political spectrum have legitimate concerns about the use of drones, and in particular the use of drones to kill American citizens. But Paul is peddling false information designed to inflame the Obama administration’s critics. In his New York Times op-ed, Paul claimed: “The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada.” That is a lie, or as law professor Ben Wittes more politely puts it, “factually wrong.” According to Wittes:
The legal standard for targeting a U.S. citizen the administration has embraced is limited to U.S. citizens (1) who are operational leaders of AUMF [Authorization for Use of Military Force]-covered groups, (2) who pose an imminent threat, (3) whose capture is not feasible, and (4) whose targeting is consistent with the law of armed conflict. Suspects in Germany or Canada or any other governed space would almost surely be feasible to capture and if not, because in a hostage-like situation, would be dealt with by law enforcement, including using law enforcement’s powers at times to use lethal force. The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person—Al Awlaki—whom the administration has claimed the authority to target.
It’s not the first time Paul has gone into rhetorical overdrive on the drone issue. Adele M. Stan, now the Prospect's digital editor, last year pointed out that Paul played to the paranoid politics of the far right by suggesting that Obama would be sending drones against right-wing survivalists. That rhetoric has taken root on the far right, whether at the Bundy ranch or among the “patriots” who organized last weekend’s failed attempt to oust Obama with Operation American Spring.
Stan also argued that it was “horrifying” to see self-described progressives adopting Paul’s #StandWithRand hashtag during last year’s filibuster, given Rand’s abominable record on civil rights, abortion, LGBT equality, economic issues, and his affiliation with far-right Christian Reconstructionists—and his clear intention of using his Senate grandstanding as a vehicle for promoting his presidential ambitions.
Writing in The New Republic this week, Sam Kleiner’s message to liberals is “don’t fall for Rand Paul’s latest filibuster.” Kleiner calls Paul’s filibuster a “farce” that is “designed to rev up support for his 2016 campaign and to keep an incredibly qualified progressive off of the federal bench.” He notes that Paul has not been exactly consistent regarding the lethal use of drones, saying he would be fine with a drone killing someone who is robbing a liquor store.
Barron’s nomination is being supported by progressive advocates at People For the American Way, the NAACP, the Alliance for Justice, the Constitutional Accountability Center, and others. He is being opposed by right-wing groups that denounce what they say is Barron’s “politicized” and “activist” approach to the law. But even conservative law professor Michael McConnell, a former appeals court judge, has dismissed those charges.
Progressive activists, including those with legitimate concerns about civil liberties and the use of drones, should urge their senators to confirm David Barron to the appeals court rather than leave that seat vacant. And they should think twice about giving oxygen and a veneer of bipartisan respectability to Rand Paul’s presidential bid.