United Liberty

While the nation was fully focused on the NSA scandals and Edward Snowden, Congress passed the National Defense Authorization Act of 2014. Republicans who voted no on H. R. 1960, the National Defense Authorization Act of 2014, included Rep. Justin Amash (MI-03),and Rep. Thomas Massie (KY-04).

Out of the nearly 200 NDAA amendments introduced to the House for voting, only one could have prevented the mandatory military custody of an American citizen without charge or trial: the Smith-Gibson Amendment would eliminate the indefinite military detention of any person taken into custody under the authority of the 2001 Authorization for Use of Military Force (AUMF). This amendment failed by receiving 200 ayes and 226 nays. Out of the 226 votes in opposition to this article, 213 came from Republican congressmen.

Through the NDAA, the U.S. Congress determines how much of the budget can be dedicated to military spending. With the passing of the NDAA of 2014, Congress kept policies that have been in effect since the Bush administration without challenging the request for $614 million required for military construction and civilian infrastructure projects for Guam.

With all the scandals today – namely, at the IRS, AP, and NSA – many believe our government’s actions are violating our natural rights: mostly, our freedoms of speech, press, due process, and privacy. These “natural rights” are fundamental basic human rights, not based on man-made positive law. Many of these rights were codified by our founders in the Bill of Rights… but not without tumult.

There are those today - even within the liberty movement - willing to compromise on many issues that would infringe on the natural rights of others, in both domestic and foreign policy. I think they are wrong. In this brief history of how our Bill of Rights came about, I encourage you to look for parallels between today’s struggles and our country’s founding.

A Constitution Without Rights

John Locke, regarded as the Father of Classical Liberalism, grounded the premise for his 1690 Second Treatise of Government on the idea of natural rights. This idea, while revolutionary at the time, provided a template for subsequent political theory. Merging Locke’s idea with the British Bill of Rights of 1689, George Mason, a member of the Virginia delegation, penned the Virginia Declaration of Rights in May of 1776 - preceding both the Virginia State Constitution and the Declaration of Independence. In its Article 1, he penned these words:

In advance of the President’s counterterrorism speech today at the National Defense University in Washington, D.C. – where it’s anticipated he will lay out new restrictions for America’s drone programs - Attorney General Eric Holder released a 5-page memo disclosing that, since 2009, America has assassinated four of its own citizens in “counterterrorism operations” - more specifically, via drone strike.

Unfortunately, the memo’s admissions create more questions than answers.

1) The memo asserts that targeting and killing of citizens can only happen outside the U.S., tacitly readdressing the concerns Senator Rand Paul addressed in his 13 hour filibuster. But the right to due process is not contingent on geography; like it or not, these rights extend to citizens overseas. The fundamental assertion in the memo is, as Spencer Ackerman points out, that “Holder defended killing Americans the administration believes to be members of al-Qaeda without due process, a constitutionally questionable proposition.”

“We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power.” — George Orwell, 1984

On May 5th, speaking at Ohio State University, Barack Obama lamented that “Unfortunately, you’ve grown up hearing voices that incessantly warn of government as nothing more than some separate, sinister entity that’s at the root of all our problems. Some of these same voices also do their best to gum up the works. They’ll warn that tyranny always lurking just around the corner. You should reject these voices. Because what they suggest is that our brave, and creative, and unique experiment in self-rule is somehow just a sham with which we can’t be trusted.”

Obama has it exactly wrong. It is not that our experiment in self-rule is a sham, or that it can’t be trusted, it is that the experiment has been undermined by the growing power of government in our lives, the very danger of which the Founding Fathers warned us. James Madison, the “Father of the Constitution” declared that “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” Obama tries to convince us of just the opposite; namely, that we should place our trust in a benevolent government which will take care of us, and all we have to do is give up a little freedom.

In a statement released via Facebook, Senators Lindsey Graham (R-SC) and John McCain (R-AZ) made the case for (1) denying the Miranda rights of the Boston marathon bomber and (2) to hold him without trial as an enemy combatant, regardless of his status as a US citizen.

“Nonsense!” you may say, “They don’t want to deny my rights, just those of Dzhokhar Tsarnaev.” While this Dzhokhar guy is truly a first class piece of crap, selectively denying the rights of one US citizen “just because two Senators say so” is an affront to the liberties we all enjoy.

The statement, posted on Senator Graham’s Facebook page, reads in full (with emphasis added in bold):

Just put out this statement with John McCain about the suspect captured in Boston and whether they should be held as an enemy combatant.

“We truly appreciate the hard work and dedication of our law enforcement and intelligence communities.

“It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans.

Written by Julian Sanchez, a research fellow at the Cato Institute. Posted with permission from Cato @ Liberty.

As I wrote on Thursday, I’m not really losing sleep over the prospect of domestic targeted killing, mostly because it seems as though it would be so manifestly politically radioactive even within the intelligence community that I doubt it could be done secretly, and would almost certainly provoke a constitutional crisis if it became public. That said, as Marcy Wheeler notes, if we look closely at the precise wording of Attorney General Eric Holder’s response to Sen. Rand Paul disavowing any such presidential prerogative, it’s actually phrased in a way that seems calculated to preserve a fair amount of wiggle room:

It has come to my attention that you have now asked an additional question. “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

Lindsey Graham has declared war on the Constitution (on the same day Kim Jong Un declared war on his enemies… hmm…). What’s especially funny is that he couldn’t have chosen a less popular time to do so, as the Constitution — courtesy of #StandwithRand — is trending. With overwhelming support for Rand Paul’s filibuster coming from conservatives, libertarians, and even many Democrats; Graham, joined by John McCain, has decided that the possibility of the government killing Americans on American soil without due process is a non-issue.

Graham told POLITICO:

“I do mind our party taking a position completely different than we had with President Bush. I didn’t hear any of these people say anything during the Bush administration. Where were they? I just think it’s politics. I think it’s creating a straw man, creating a situation that doesn’t exist.”

First of all, let’s look at the issue of droning under President Bush. Not once did Senator Paul praise President Bush during his filibuster. Unlike his colleague, Senator Graham, Paul is able to look at an issue based on constitutionality instead of on which political party is at stake. If Senator Graham cared to remember those “good old days”, he might remember the huge anti-war movement that arose during Bush’s War on Terror. Much of that movement was directed at tactics such as waterboarding and use of drones, but the movement was against a Republican president. As a party-line opportunist, I guess it’s not all that surprising that there’s a bit of a memory gap for the senator.

“Epic,” “inspirational,” and “historic” are three words that best describe what I watched transpire on the floor of the United States Senate yesterday. At 11:47am, Sen. Rand Paul (R-KY) began his filibuster of John Brennan, President Barack Obama’s nominee to lead the Central Intelligence Agency, largely due to the lack of transparency from the Obama Administration on its drone program — specifically the targeted killing of Americans inside the borders of the United States.

The reasons that this gained so much interest was because it was an actual filibuster. This wasn’t a situation where Brennan couldn’t get 60 votes for cloture. Sen. Paul performed an old school filibuster, something that has become all too rare.

There was also another point that made this filibuster unique — Sen. Paul, along with several of his colleagues, spent nearly 13 hours talking substantive policy. There was no reading from a phone book or any other manner of time-buying tricks. Sen. Paul and others spent their time relaying a very pointed message about the Constitution, limits on executive power, and civil liberties.

For nearly 13 hours, Sen. Paul gave one of the most eloquent defenses of the Constitution that I’ve ever witnessed. He was joined at various times by Sens. Mike Lee (R-UT) and Ted Cruz (R-TX), both of whom spoke at length on the constitutional concerns over the policy.

This post has been updated. Scroll down to view the latest.

Sen. Rand Paul (R-KY), who has become the fiercest of President Obama’s drone program, is currently in the middle of a traditional filibuster against the nomination of John Brennan. He been at it for a just over two hours, having started at 11:47am.

You can watch it live here.

Brennan, who was nominated by President Obama to serve as director of the CIA, was asked some very direct questions by Sen. Paul over the drones program. Sen. Paul wanted to know whether or not the White House could perhaps target American citizens who are merely suspected terrorist activities inside the borders of the United States.

Attorney General Eric Holder responded to the questions raised by Sen. Paul about the drone program. “The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront,” Holder wrote. “It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.”

Sen. Paul recognizes that he won’t be able to keep going for a prolonged period of time, but he is using the time to highlight the various issues problems with the use of drones against American citizens, thus denying them due process.

Since the first armed drone strike in Yemen 2002, the United States has been leveraging the Authorization for the Use of Military Force Against Terrorists, signed on September 18, 2001, presumably for use in Afghanistan, to justify the use of drone warfare in numerous countries.  Drones have since been used in Yemen, Somalia, Libya, and Mali, but mostly in Pakistan, where strikes began in 2004, and accelerated in 2009; with more than 300 strikes, there have been six times more drone strikes in Pakistan under Obama than under Bush.