David R. Henderson  

Rand Paul's Filibuster

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Every once in a while, I depart from strictly economic education and information, the purpose of Econlog, to comment on important things that are happening in the political world. My latest article on antiwar.com discusses the Rand Paul filibuster. This one falls under Public Choice, broadly defined. One of the things I found interesting in researching it was how little some of commenters knew about the content of the filibuster. Here's my most important paragraph addressing the content:

The question of drone strikes on Americans was an important one to address. But, like a salesman who gets his foot in the door so he can persuade you to buy, Rand Paul used the "drone strike on Americans" issue as his foot in the door to get people to think beyond that narrow issue. How far beyond? Rand Paul quoted Glenn Greenwald and Conor Friedersdorf, two people whose work often appears on antiwar.com. He questioned so-called "signature strikes," that is, shooting Hellfire missiles from drones at people who fit the profile of a terrorist, on foreigners abroad. He challenged the war on terror, pointing out that much of what the U.S. government does abroad creates more terrorists. And he called for ending the war in Afghanistan and pulling out. Not bad for a day's, or actually, 13 hours', work.

My favorite part of the filibuster, and the part where Rand Paul's humanity really came out, was the part where he criticized former Obama Press Secretary Robert Gibbs, who claimed that Anwar al-Awlaki's 16-year-old son, had he wanted to avoid being killed by Obama, "should have [had] a far more responsible father."



COMMENTS (26 to date)
Bostonian writes:

The U.S. is at war with Islamic extremists. If killing their leaders cannot be done without killing some of their family members, that is unfortunate but should not stop us. What if the only way to kill
Osama bin Laden were to bomb his home and also kill his family members. Would Mr. Henderson desist?


Tim writes:

@Bostonian

You do realize that the son was killed in a different and later strike, right?

To this day I cannot believe that Gibbs wasn't raked over the coals for that statement. It barely got any play outside of libertarian and far-left circles.

David R. Henderson writes:

@Bostonian,
I'm not sure why you raise the bin Laden issue, since I wasn't discussing that. That is a tougher issue. However, since you raised it, my view was never that the U.S. government should have been trying to kill bin Laden. It was that the U.S. government should have tried to capture him.
Also, although you may be right that the U.S. government is at war with Islamic extremists, it shouldn't be. Rather, it should be trying to capture or kill those who are attacking us. There are a lot of Islamic extremists, that is, extreme believers in Islam, who have no such desires, let alone engaging in attacks.

Bostonian writes:

http://abcnews.go.com/Blotter/awlaki-family-protests-us-killing-anwar-awlakis-teen/story?id=14765076
"Anwar al-Awlaki, an al Qaeda leader linked to multiple terror attacks in the U.S. and Britain, was killed along with al Qaeda propagandist Samir Khan in a Sept. 30 CIA drone strike in Yemen. Abdulrahman al-Awlaki died in a separate U.S. drone strike on Oct. 14 along with six others, including Ibrahim al-Bana, an Egyptian whom U.S. officials identified as an operational al Qaeda leader. Anwar al-Awlaki, his son and Samir Khan were all U.S. citizens."

If the purpose of the drone attack that killed the son was to kill an al Qaeda leader, I think it was justified.


Ted Levy writes:

Are you happy, Bostonian, when the local police shoot and kill a dozen bystanders to kill a criminal?

If members of the military came to this country and killed a few dozen Americans to rid themselves of a threat they claimed one of the dead represented to their country, would you be as understanding as you seem to expect civilians in Pakistan, and Yemen, and Somalia, and Afghanistan, and Iraq to be?

[Note to Econlog editor; Professor Henderson chose to introduce a political, non-economic topic; I hope you find these provocative yet civil political questions acceptable.]

MingoV writes:

@Bostonian:
The second strike targeted the 16-year-old boy; he was the target on Obama's hit list. The missile killed the boy and multiple female relatives. The unverified claim that the man killed in the strike was a terrorist was just window dressing. Obama admitted that the boy was the target. Not surprising since the White House previously said that any male 15 years or older who is killed by a drone missile automatically is classified as a terrorist or enemy combatant.

Harold Cockerill writes:

If they run, they are VC. If they do not run they are well disciplined VC.

Mark Bahner writes:

"If the purpose of the drone attack that killed the son was to kill an al Qaeda leader, I think it was justified."

The U.S. sees--or thinks it sees--an al Qaeda leader in Toronto. It takes out the car. Is that justified?

Tom E. Snyder writes:

@Mark Bahner:

Better yet, Boston.

Bedarz Iliaci writes:

I do not understand the focus on "American citizens". How is "citizenship" a relevant factor here?

The fifth amendment talks of "persons" not citizens. So the due process applies to all persons on American territory, not merely to citizens.

So either the President can order a hit on a person on American territory or he can not. How and where is citizenship coming into picture, I can not understand.

Hopaulius writes:

"So the due process applies to all persons on American territory, not merely to citizens." I don't think this is correct. If a foreign army were to invade the US, are you arguing that its soldiers would be subject to 5th amendment protections because they were "persons on American territory?" Is the only alternative to kill them before they arrive?

Ted Levy writes:

Hopaulis, Bedarz is correct on the point of constitutional law, I think. The problem with your counter-example is that the non-citizen people under 5th amendment protection are those here legally, which excludes invading armies.

ivvenalis writes:

Look at what a great idea jus soli is.

Bedarz Iliaci writes:

Ted Levy,
I would put it slightly differently. The illegals are law-breakers, and not necessarily enemy combatants. The illegals have due process, I think.

Thus, it is the fact of their being enemy combatants, that is, being actively engaged to kill people on American soil in an organized way, that is what rules out due process.

That someone is an enemy combatant and not a law-breaker, this determination must be made by the Executive and by the logic of a republican system, the executive determination must be deferred to.

That is, if you do not trust your Govt to correctly determine who is enemy and who is not, then you could hardly trust them in anything else. Thus you de-legitimatize the Govt and that contradicts the republican system.

Tim writes:

I don't think saying that "the authority to determine who does and does not get due process rights, should not rest solely with the executive" is a de-legitimization of government.

Why can't the government prove its case in a transparent way? That's what we have courts for. As to the matter at hand, Paul specifically suggested in his filibuster that the government could have at least tried al-Alwaki in absentia for treason before reigning hell upon him.

Instead, what we have now is the President as judge, jury and executioner. Vesting that serious power in one man (and yes, being able strip a citizen of his right to due process is a very serious power) is opening a door to tyranny, because that is a power that can be abused, and abused in secret.

Lest anyone forget, the government denied the very existence of a drone killing program even when it was very much an open secret. If they were to do something that a larger portion of Americans might find appalling, there is no doubt that greater lengths would be taken to avoid it becoming public knowledge.

Bedarz Iliaci writes:

The confusion between the concept "law-breaker" and "enemy combatant" arises because many people do not see the State as an irreducible entity.

The answer is intuitive: An enemy seeks to subvert the State. A law-breaker does not. And an enemy combatant is actively engaged in subversion though he may not be engaged in killing individuals.

But if you try to reduce the State to a collection of Individuals, you get into muddle between an enemy and a law-breaker. And thus get into muddles over "imminent attack" and who is combatant and where.

The State, through the Executive is authorized in dealing with the enemies and in particularly with enemy combatants i.e. enemies actually and actively engaged in subversion against the State.
It is immaterial that they seek to do so through killing individuals. All that matters is that they are actively engaged to overthrow the State.

Bostonian writes:

Mark Bahner writes:
"The U.S. sees--or thinks it sees--an al Qaeda leader in Toronto. It takes out the car. Is that justified?"

Canada is an ally of the U.S. and cooperates with us to fight Islamic terrorists. If Canada became a breeding ground for terrorism, from which many attacks against the U.S. were launched, then our respect for Canadian sovereignty would end, and we would use drones in Toronto if necessary.

egd writes:

Bedarz Iliaci writes:

I do not understand the focus on "American citizens". How is "citizenship" a relevant factor here?

Citizenship and location are relevant factors because the combination affords the highest level of protection and is the easiest case. It allows us to focus on the immediate issue - does the Government have the authority to unilaterally assassinate - without clouding the issue.

When you introduce other factors - illegal resident, legal resident, foreign country - then the answer to the question is not as clear cut.

If the government were to assert (as it implicitly did with Anwar Al-Awlaki): "The U.S. government has the authority to kill, without due process, a U.S. citizen overseas who is a suspected terrorist."

Does that mean the government has the authority to kill, without due process, a U.S. citizen? Anyone overseas? Suspected terrorists?

RAH writes:

What's so special about drones compared to other kinds of killing? Jut because drones are new?

Peter writes:

+1000 RAH, I've been saying that for years.

Nobody seems to question the fact DOJ authorizes shoot on site orders for American citizens in America suspected of crimes when it's inconvenient to arrest them and has for decades at least, probably longer.

And before I start catching flak, go read some actually ROE's for Federal or State LEO paramilitary raids.

Bedarz Iliaci writes:

Why can't the government prove its case in a transparent way? That's what we have courts for.

Courts decide this matter in peacetime.
When the Congress has declared war, or in modern conditions, authorized military force in a particular area, then it is the Executive that is tasked with waging war. To wage war requires that enemy be identified. Thus the Executive must identify the enemy and deal with him appropriately.

In this, the courts defer to the Executive. So in wartime, the Govt does not have to prove anything and that people are asking it so either means that people are unaware of the ongoing war(s) or that the citizenry is alienated from the Govt which is not a good sign for the continuing health of the republican system.

Simply put, civic solidarity means that you need to trust the Govt to correctly identify the enemy in wartime.

Tim writes:

If the health of the republican system requires that we trust the executive to kill without oversight from properly separated powers, then down with the republic. My right to live supersedes the convenience of the government not needing to prove that it can kill me during war time. Period.

Ken B writes:

DRH

my view was never that the U.S. government should have been trying to kill bin Laden. It was that the U.S. government should have tried to capture him.

I believe policy was to capture if feasible and kill otherwise. This is the right policy and the only one I can justify asking our military forces to achieve. We cannot impose upon them, to their danger, any stricter rules, nor second guess their judgments on operational matters. I understand Libertarians are unhappy with this kind of trust and delegation; issues like this are why I do not describe myself as a Libertarian.

David R. Henderson writes:

@Ken B,
I believe policy was to capture if feasible and kill otherwise.
I'm not sure that that's true, but you might be right.
This is the right policy and the only one I can justify asking our military forces to achieve.
I agree.
We cannot impose upon them, to their danger, any stricter rules, nor second guess their judgments on operational matters.
That's too blanket a statement--there are the Geneva Conventions, after all, and they impose many restrictions--but in this case I agree that if he or others were pointing guns at them, they were justified in shooting him.

Ken B writes:
I believe policy was to capture if feasible and kill otherwise. I'm not sure that that's true, but you might be right.
I should clarify. I don't know if the goal of the strike on the compound was to kill or capture. The operation may have, for reasons of time and practicality, been just to kill. (That I will not second guess.) But I meant the more general policy. Had OBL been living incognito in Paris with few bodyguards he would have been snatched.
Ken B writes:
Why can't the government prove its case in a transparent way? That's what we have courts for.
It is 1944 and the British have a spy who tells them about where Werner von Braun and his closest staff are staying for a weekend. Can they send a bomber or a commando squad, or must they first expose their knowledge and the identity of their source in open court?

You can dispute whether we should be militarily engaged with these people, and I'm keen to see you make the case we should let known terrorists have free reign, but once you grant we are then the differences with peacetime law enforcement in our own territory seem pretty plain.

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