Senator Rand Paul of Kentucky performed a national service by filibustering the nomination of John O. Brennan to lead the Central Intelligence Agency — an old-fashioned, talk-’til-you-drop filibuster at that.
Mr. Brennan’s qualifications for the position are not at issue here. He is a dedicated public servant, and, as former CIA station chief in Riyadh, one with important experience in the intersection of Islamist terrorism with Middle Eastern politics. He has served both Democratic and Republican administrations, and his professionalism is not in question. Unlike the objections to Chuck Hagel’s appointment as secretary of defense, Senator Paul’s decision to stand in the way of this appointment is not about persons but about policy – specifically, the Obama administration’s claim that it has a legal and ethical mandate to carry out extrajudicial killings of American citizens overseas that are indistinguishable from assassinations, and, especially, the administration’s recent terrifying expansion of that policy to include the option of putting to death Americans in the United States without trial, proper legal process, or meaningful oversight. Given that the CIA has been the instrument entrusted with carrying out these killings in several cases already, holding up Mr. Brennan’s appointment is appropriate.
(I suppose I should acknowledge that I was both pleased and amused that part of Senator Paul’s filibuster consisted of sharing my National Review writings about the subject of drone strikes with the Senate, though my experience with senators suggests that they are impervious to argument, reason, evidence, and most other instruments save votes and campaign donations. I have never before to my knowledge been a passive participant in a filibuster.)
There are a few things about this debate worth considering. One is that we are too much focused on the instrument of these killings rather than on the moral and political context of them. “Drone” is a scary-sounding word, and the prospect of remote-control killings via robots circling invisibly overhead is of course ominous. But the technological means here are of no particular importance or interest — we could as easily be talking about slitting throats, tossing hand grenades through windows, or any other old-fashioned means of ending a life. The question is not about using unmanned aircraft to carry out killings, but about drawing up lists of Americans greenlit for assassination and then acting upon them, first abroad and now, according to Attorney General Eric Holder, at home, if the president judges doing so to be necessary.
We are suffering from the conflation of rhetoric and reality. Our “War on Terror” is not a war in any conventional sense of the word, and our insistence that in this war the “battlefield is everywhere” takes literally a phrase that is not literally true. Al-Qaeda and its sympathizers are savages who will kill when and where they can; they could strike anywhere, but it does not follow that everywhere is therefore a field of battle subject to the law of war. The Museum of Modern Art and the Mall of America might be possible targets for terrorists, but martial law is not in effect in those locations, nor should it be. If John Walker Lindh had been killed during a shootout at Tora Bora or during the prison uprising at Qala-i-Jangi, that would have been of no special concern. There is no question that killing an American citizen under arms in the course of battlefield combat is easily within the bounds of acceptable national-defense action.
But that is not the question before us. Instead, we are faced with an arrangement by which the president may designate any American, at home or abroad, as an “enemy combatant,” and place him on a list of people to be killed — not in the course of combat, but in targeted operations indistinguishable from assassinations. The legal justification for this is derived from the penumbras of the 2006 Military Commissions Act — but Congress has passed no law specifically authorizing the premeditated, targeted killings of American citizens abroad, to say nothing of American citizens at home. I very much doubt that such a law could pass Congress, even as defective and unreliable as our Congress can be. Passing such a law would not make these killings any less problematic, but it would introduce a much-needed balance-of-powers element to the situation.