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Rand Paul, Brennan and the Rule of Law

Senator Rand Paul is at this moment on his feet in the U.S. Senate rekindling memories of Jimmy Stewart and Frank Capra. The Kentucky senator is doing a filibuster the old fashioned way: non-stop talking and refusing to yield the floor in order to delay a vote on the confirmation of John Brennan as director of the C.I.A. Like the fictional Jefferson Smith in Frank Capra’s classic film “Mr. Smith Goes to Washington,” Paul will keep going until he literally drops. The C-Span feed from the Senate does not show the apple and the thermos of coffee that Mr. Smith relied upon to keep going but I imagine if, as Stewart did in the movie, the Kentuckian starts reading the Constitution of the United States very slowly, Majority Leader Harry Reid will forget about getting the Senate back to business anytime soon.

Whether you consider this is an edifying spectacle or merely a political sideshow may depend up on your point of view about the reason why Paul has decided to prevent a vote on Brennan. There are good reasons for senators to oppose his bid to run the intelligence agency. But Paul’s belief that the president’s determination to carry the fight against Al Qaeda via drone strikes is a threat to American civil liberties is misplaced. Attempting to hamstring the ability of the government to carry on a foreign war is not defending the rule of law.

Paul’s argument is that granting the president the ability to launch drone strikes on enemy combatants without first going through a legal process threatens our freedoms. Though he has been at pains to say that he doesn’t question the motives of the president, he worries that this power could be used wrongly in the future. The principle he is defending is a good one but he is confused about what is happening in the war against Islamist terrorism. It is not a police action or a civil investigation but a war that must be conducted and judged by very different standards that we would apply to criminal activity at home.

To buttress his view during his nonstop stream of rhetoric, Paul cited the experience of Weimar Germany as an example of an evil leader being democratically elected. Though he was careful not to call anyone in this debate a Hitler, he still claimed that the principle at stake is one in which our freedoms could be lost in a similar manner.

The mere mention of Hitler or of George Orwell’s “Big Brother” (as he did later in his speech) even with disclaimers is both foolish and inflammatory. The executive branch of the government has the responsibility to defend the people of the United States against their enemies. It would be nice if those tasked with fighting Al Qaeda could do so as if they were detectives on the beat, but such an expectation betrays a lack of understanding of this conflict.

The liberty that Rand Paul wants to defend is sacred. He does well to worry about the growth of government and the accretion of power in the hands of the executive without checks and balances provided by the law. But preserving that liberty requires an active defense. Stopping our armed forces and the president from killing the enemy wherever they can be found cannot preserve the rule of law.

There is good reason to fear that President Obama doesn’t have sufficient respect for the limits that the Constitution places on his power to act. But whatever we might think about his domestic power grabs, his willingness to order strikes on those plotting to kill Americans is not a threat to freedom. To use the example the senator repeatedly invoked, the president can’t wait until a plane is about to hit an American target. Waiting until the threat is imminent in that manner would be a dereliction of duty on the president’s part, not a defense of liberty.

 The only real analogy to Hitler and totalitarianism in this debate is to the ideology of those Islamists that the administration has targeted. Paul has every right to keep talking and Brennan is not a good choice to run the CIA but using this nomination to stop drone strikes abroad is ill advised.



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