Rand Paul filibustered the Senate confirmation vote of CIA Director nominee John Brennan for nearly 13 hours to get the White House to answer one question: "Do you believe that the president has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil and without trial?"
The Republican Senator from Kentucky said "it should have been an easy answer ... It should have been a resounding and unequivocal, ‘No,'" Paul said. "The president’s response? He hasn’t killed anyone yet. We’re supposed to be comforted by that."
An Executive Branch legal memo from the Bush administration, however, goes as far as to argue that the answer is yes.
The October 2001 memo from John Yoo, the Assistant U.S. Attorney General in the Office of Legal Counsel from 2001 to 2003, pertains to " the authority for the use of military force to prevent or deter terrorist activity inside the United States. "
The advice given is immensely relevant to Wednesday's filibuster because Paul's question is not whether the president has used lethal force against Americans in America but whether the president believes he has the authority at all.
The Bush White House asked Yoo's office about a law Paul brought up repeatedly on Wednesday: the Posse Comitatus Act of 1878 (PCA), which was passed to prevent U.S. military personnel from acting as law enforcement agents.
The response was that the PCA "does not apply to, and does not prohibit, a Presidential decision to deploy the Armed Forces domestically for military purposes."
The memo acknowledges that the said military operations, "taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law."
Nevertheless Yoo's office, which also wrote the infamous " torture memos ," argues that "Article II of the Constitution, which vests the President with the power to respond to emergency threats to the national security, directly authorizes use of the Armed Forces in domestic operations against terrorists."
As for what constitutes a "terrorist," the most informational answer is an interesting one:
"Like terrorists generally, Al-Qaeda's forces bear no distinctive uniform, do not carry
arms openly, and do not represent the regular or even irregular military personnel of any nation."
The memo cites precedents of U.S. presidents invoking Article II power against "terrorists" in America, specifically the Whiskey Rebellion, the War of 1812, the Civil War, and conflicts with " Indian tribes and bands."
It further argues, as does Holder's letter to Paul, that the attacks of 9/11 demonstrate "that in this current conflict the war front and the home front cannot be so clearly distinguished — the terrorist attacks were launched from within the United States against civilian targets within the United States."
After several pages of arguments citing the " text, structure, and history of the Constitution," Yoo's office concludes that "the President has both constitutional and statutory authority to use the armed forces in military operations, against terrorists, within the United States."
Paul's determination to get Obama to answer this question is even more significant in light the Bush administration's controversial response, especially since the current president has extended most of the Bush administration's policies .
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