Due Process

Rand Paul wants answers on Obama’s drones program

Rand Paul speaks at Heritage

During the Tea Party response to the State of the Union address, Sen. Rand Paul (R-KY) mentioned the drones issue that has recently been the subject of deserved controversy. In a list of grievances against the Obama Administration, Sen. Paul said, “We will not tolerate secret lists of American citizens who can be killed without trial.”

The reference was a response to a recent memo from the Department Justice outlining the legal case for drone strikes against American citizens. There hasn’t been any attempt from the Obama Administration to sell the program to Americans, though it has certainly made neo-conservatives quite happy.

Sen. Paul, who is a strict constitutionalist, is doing more than talking about the issue, even though his concern over the drones program is being dismissed by some in the media. He wants answers from the Obama Administration. In a recent letter to John Brennan, who is President Obama’s nominee to lead the CIA, Sen. Paul asked a series of questions about the drones program — ranging from the use of drones against both American and non-American targets to the CIA and Posse Comitatus to the killing of Anwar al-Awlaki’s 16-year-old, American-born son to the issue of privacy.

You can read the letter in full here, but here are some of the questions that Sen. Paul asked Brennan:

Obama discusses drone policy in Google+ Hangout

Barack Obama

During a Google+ Hangout yesterday, Lee Doren, a good guy and libertarian, asked President Barack Obama about his administration’s use of drones against American citizens.

“A lot of people are very concerned that your administration now believes it’s legal to have drone strikes against American citizens and whether or not that specifically with citizens within the United States,” Doren stated. “And if that’s not true, what will you do to create a legal framework to make American citizens within the United States know that drone strikes cannot be used against American citizens?”

“There has never been a drone used on an American citizen, on American soil. We respect and have a whole bunch of safeguards in terms of how we conduct counter-terrorism operations outside of the United States,” President Obama replied. “The rules outside of the United States are gonna be different from the rules inside the United States — in part because our capacity to capture a terrorist inside the United States are very different than in the foothills or mountains of Afghanistan or Pakistan.”

Noting oversight of the program, President Obama explained he was going to work with Congress to provide “mechanisms to make sure the public understands” the drones program. Obama added, “I am not somebody who believes that the president has the authority to do whatever he wants — or whatever she wants — just under the guise of counter-terrorism.”

Julian Sanchez discuss the DOJ drones memo


The recently leaked drone memo has received a lot of attention from civil liberties advocates. The memo, which was written lawyers at the Department of Justice, outlines the case for drone strikes on Americans if they are merely suspected of illicit, terrorist activites, thus giving a president the power to assassinate anyone he wants at virtually any time while avoiding that pesky due process clause in the Constitution .

In a new video from the Cato Institute, Caleb Brown, host of the Cato Daily Podcast, discussed the memo with Julian Sanchez, who explained in detail how the Obama Administration is further eroding civil liberties by attacking the right to due process:

Drone Strikes: Questionably Legal, Certainly Not Ethical, and Most Unwise

Above, watch Obama Administration Press Secretary Jay Carney explain that the drone strikes are “legal”, “ethical”, and “wise.” This has got to be one the biggest loads of crap I have heard since Obama was elected in 2008.

The legality of these drone strikes is highly questionable, as Doug Mataconis notes over at OTB. I fully expect court challenges to these strikes. Whether or not they succeed is a matter of speculation for people far more trained in the arcane arts of the law than I.

They are certainly not ethical. There have always been deep ethical qualms about killing human beings. In the modern era, we have notions such as due process, trials, courts of appeal, and judicial oversight, as well as punishment for those who kill wrongly. In combat situations, we accept homicide as par for the course, with both sides shooting at each other to kill. But this is not the same situation. This is picking an individual and raining missiles on him via robot death kites. This is not war. This is assassination. There are no restraints nor oversight. If you have a code of ethics that allows you to just kill people, on a whim, without any restraint whatsoever, you are a deeply troubled person and should be committed to a mental hospital. When will Obama go?

They are most definitely not wise. If anything, the drone strikes have only hardened al-Qaeda against us, and have turned us into enemies to the locals there, killing and maiming at will. Is it wise to “double-tap” targets and blow up emergency responders? Is it wise when only one in fifty of our victims are actually bad guys? No, this is not wise. This is most certainly unwise.

Sen. Rand Paul on NDAA and indefinite detention

Rand Paul

As noted this morning, a conference committee is expected to remove language passed via the Feinstein-Lee Amendment, protecting Americans against indefinite detention by military without trail.

Sen. Rand Paul (R-KY), who voted for the amendment and has been pushing for great protection of civil liberties, just released the following statement. As you can see, Paul does not hide who he blames for the removal of the language protecting the due process rights of Americans:

The decision by the McCain led conference committee to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional.

The Feinstein-Lee amendment that passed with a 67-29 vote last month was designed to guarantee citizens the right to due process and a jury trial. These are basic and core American legal privileges enshrined in our Bill of Rights and that have been observed since our nation’s founding. Removing these indefinite detention protections now means that NDAA is in violation of the Fourth and Fifth Amendments.

I voted against NDAA in 2011 because it did not contain the proper constitutional protections. When my senate colleagues voted to include those protections in the 2012 NDAA through the Feinstein-Lee Amendment last month, I supported this act.

But removing those protections now takes us back to square one and does as much violence to the Constitution as last year’s NDAA. When government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity.

Senators are missing the mark on gun amendment

Oklahoma’s Sen. Tom Coburn has put forth an amendment on the new NDAA (not to be confused with last year’s NDAA that we have written about a lot here at United LIberty).  The proposal deals with veterans gun rights, and it’s definitely churned the waters a bit in the senate:

Sen. Tom Coburn, Oklahoma Republican, wants veterans who have been deemed “mentally incompetent” to have their cases adjudicated by a judge — rather than the Department of Veterans Affairs, as happens currently — and argued that veterans who simply cannot support themselves financially are needlessly given the label and, as such, cannot buy or possess firearms.

“We’re not asking for anything big,” Mr. Coburn said Thursday evening on the Senate floor. “We’re just saying that if you’re going to take away the Second Amendment rights … they ought to have it adjudicated, rather than mandated by someone who’s unqualified to state that they should lose their rights.”

Sen. Charles E. Schumer, New York Democrat, objected to Mr. Coburn’s proposal once he found out it was part of a package of amendments to the 2013 National Defense Authorization Act the body was to vote on.

“I love our veterans; I vote for them all the time, they defend us,” Mr. Schumer said. “But if you are mentally ill, whether you’re a veteran or not, just like if you’re a felon, if you’re a veteran or not, and you have been judged to be mentally infirm, you should not have a gun.”

Rand Paul Follows Austin Scott’s Lead on Drone Issues

On Monday I wrote about Austin Scott, the Georgia Congressman who has taken up the issue of domestic drone usage in the House. Now Senator Rand Paul has introduced companion legislation to address the issue in the Senate.

Senator Paul’s press release gave more information about the legislation than I had when I wrote about Austin Scott’s bill earlier this week. According to Paul’s press release, the bill requires a warrant before drones can be used domestically, allows anyone to sue the government for violating it, and makes any information gathered in violation of the bill inadmissible in court.

As I said on Monday, all of that is great. It requires judicial review before a violation of privacy. Where it gets ugly is in the exceptions. The reports on the exceptions in Scott’s bill earlier this week were vague, but Paul’s press release sheds some light on the list of exceptions. The bill excludes national border patrol, instances where drone usage is required to save lives, and times of high risk of a terrorist attack.

We’ll have to see the full text of the bill before passing judgment, but I’m a little disappointed in Senator Paul on this. He’s been one of the few standing up to the exceptions lists that give government the ability to bypass the Fourth Amendment. It’s disheartening to see those loopholes in legislation coming from him.

I don’t know if this is an attempt to play nice with his GOP friends or if there’s something else going on here, but giving loopholes for big, vague, exceptions that allow the government to bypass the Fourth Amendment isn’t Rand Paul’s usual style.

Judge Napolitano slams Obama over secret “kill list”

The New York Times recently reported that President Barack Obama keeps a secret “kill list” of terror suspects. Given the uproar during the last several months over the NDAA, which allows for the indefinite detention of terror suspects, even those captured inside the United States, such a list is sure to send a chill down the spine of civil liberties advocates.

While apologists for Obama and neoconservatives will argue that this is part of the war on terrorism and claim legality for his actions due to the UAMF, Judge Andrew Napolitano recently explained that Obama’s “kill list” is blatanty unconstitutional:

We have known for some time that President Obama is waging a private war. By that I mean he is using the CIA on his own — and not the military after congressional authorization — to fire drones at thousands of persons in foreign lands, usually while they are riding in a car or a truck. He has done this both with the consent and over the objection of the governments of the countries in which he has killed. He doesn’t want to talk about this, but he doesn’t deny it. How chilling is it that David Axelrod — the president’s campaign manager — has periodically seen the secret kill list? Might this be to keep the killings politically correct?

Can the president legally do this? In a word: No.

Persons, Citizens, and Indefinite Detainment under NDAA

Late last week the House passed the 2013 NDAA. Last year during this process, allowances were made that allowed for the indefinite detainment – without trial – of people in the U.S. who were suspected of participating in terrorist activities or associating with people who did.

Keep in mind we’re talking about people merely suspected of a crime. Also keep in mind that the verbiage was so broad that it would be fairly easy for someone to accidentally fall into that category.

Cries came from civil libertarians over due process, and Michigan Congressman Justin Amash took the lead fighting the NDAA’s unconstitutionality on the Republican side of the aisle. He partnered with Democrat Adam Smith of Washington to offer an amendment to change the law to follow the Constitution. The GOP leadership pushed a competing amendment from Louie Gohmert of Texas. It passed the vote, and the Smith-Amash failed.

I asked my Congressman, Tom Graves, for an explanation of his opposition to the Smith-Amash amendment, and he referred me here. The concern from Graves was that “[the Smith-Amash] amendment would extend Constitutional rights and the right to judicial review to anyone apprehended in the United States,” something the Republicans are hesitant to do.

Except that’s how the process is supposed to work.

The concerns over the 2012 NDAA touched on a large portion of the Bill of Rights – arguably the First, Fourth, and Fifth Amendments,  and most definitely the Sixth Amendment. The disagreement between the GOP leadership and Amash’s position is whether the Constitution protects citizens or persons.

Consider these amendments. (The emphasis in these quotes is mine.)

Judge Rules NDAA Unconstitutional

Well, at least a part of it. From the Associated Press (via Newsday):

A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journalists, scholars and political activists facing the prospect of indefinite detention for exercising First Amendment rights.

U.S. District Judge Katherine Forrest in Manhattan said in a written ruling that a single page of the law has a “chilling impact on First Amendment rights.” She cited testimony by journalists that they feared their association with certain individuals overseas could result in their arrest because a provision of the law subjects to indefinite detention anyone who “substantially” or “directly” provides “support” to forces such as al-Qaida or the Taliban. She said the wording was too vague and encouraged Congress to change it.

“An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,” the judge said.

She said the law also gave the government authority to move against individuals who engage in political speech with views that “may be extreme and unpopular as measured against views of an average individual.

“That, however, is precisely what the First Amendment protects,” Forrest wrote.

In the words of our forefathers, Hallelujah.

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