Brennan Nominationby Senator Mike Lee
Posted on 2013-03-06
LEE. The issues we are discussing are of profound importance to
the American people for the reasons Senator Paul has identified.
Americans have every reason to be concerned anytime decisions are made
by government that impair one of the fundamental God-given protected
rights that Americans have.
Anytime the government wants to intrude upon life or liberty or property, it must do so in a way that comports with time-honored, centuries-old understandings of due process. The rule of law, in other words, must operate in order to protect those God-given interests to make sure they are not arbitrarily, capriciously deprived of any citizen.
We are talking about the sanctity of human life. When the interest at stake is not just liberty or property but life itself, we have to protect it. We have to take steps to protect that. So I think it is important we carefully scrutinize and evaluate any government program that has the potential to deprive any American citizen of his or her life without due process of law.
I was concerned, as was Senator Paul, recently, when the Obama administration leaked what was characterized as a Department of Justice white paper outlining the circumstances--outlining the legal criteria that this administration would [[Page S1170]] use in deciding when and whether and under what circumstances to snuff out human life, the human life of an American citizen no less, using a drone.
The memorandum started out with certain somewhat predictable or familiar concepts. The memorandum started out by explaining an imminent standard, explaining that certainly could not happen absent an imminent threat to American national security, an imminent threat to American life, for example. When we think of imminence, we think of something that is emergent, we think of an emergency, something that is going on at the moment, which unless interrupted presents some kind of a dangerous threat.
Significantly, however, this is not how the Department of Justice white paper actually read. Although it used the word ``imminence,'' it defined imminence as something far different than we normally think of, than we as American citizens use this kind of language, certainly in any legal or constitutional analytical context.
If I could read from that memorandum, I would point out this condition of imminence is described as follows.
It says: The condition that an operational leader--an operational leader of a group presenting a threat to the United States--presented imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.
Wouldn't it be the Senator's understanding if something is imminent, it would need to be something occurring immediately? Mr. PAUL. Yes. I think there is really no question about using lethal force against an imminent attack. I think that is why we need to make the question we are asking the President very clearly. The question is if planes are attacking the World Trade Center, we do believe in an imminent response. We do believe in an imminent defense for that. The problem is we are talking about noncombatants who might someday be involved. If they are in America, I see no reason why they shouldn't be arrested.