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Mike L.
Republican UT

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  • Unanimous Consent Request—Executive Calendar

    by Senator Mike Lee

    Posted on 2013-03-06

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    LEE. Senator Paul recently sent a letter requesting some information from the Obama administration relating to drone strikes.

    It is significant that on March 4, 2013, just a couple days ago, Senator Paul received back from the administration a letter signed by Eric H. Holder, Jr., which reads as follows: Dear Senator Paul: On February 20, 2013, you wrote to John Brennan requesting additional information concerning the Administration's views about whether ``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.'' As Members of this Administration have previously indicated, the U.S. government has not carried out drone strikes in the United States and has no intention of doing so. As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our Federal courts.

    The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront. 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. For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

    Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.

    Sincerely, Eric H. Holder, Jr., Attorney General.

    It is good to have this letter as a response to Senator Paul's inquiry. I believe the inquiry Senator Paul raised is a legitimate one. It is also essential we have some clarity with regard to the administration's position on this type of an attack. It is important for us to remember every time government acts, it does so at the expense of the liberty of individual Americans.

    This doesn't mean government action is bad. This simply means government action always has to be weighed. It always has to be counterbalanced against the impact it has on the citizenry. It is very important we approach these things delicately. Nowhere is this balancing act more necessary than where we have circumstances in which our government action threatens not just the liberty but also the property or, most important, the life of an individual American. Where life is threatened, the concerns of the Constitution are at their highest where life is threatened as a result of government action.

    Government owes it to the citizens to undertake all its activities with utmost caution. It owes it to its citizens never to deprive human beings of their lives, particularly American citizens, [[Page S1205]] unless it has done so through operation of law with what we call due process of law.

    It is on this concept, due process of law, that the 5th and 14th amendments of our Constitution focus so intently. Due process of law is a familiar phrase to many Americans. We have heard this phrase over and over. We understand on some level what it means, but I would like to talk for a few minutes in response to Senator Paul's question about the fact that in order to have due process of law, you need to have a familiar legal standard or at least a legal standard. You have to have a law that is capable of being applied in a way that American citizens can understand.

    They can read the law. They can review it. They can understand what the law requires of them. They can understand what it is that the law demands and what it is that the law authorizes the government to do. In the absence of such a law, a law that can be applied, a law that can be understood in advance of its application, you run a very real risk of arbitrary and capricious government action, where government action is arbitrary, capricious and where it threatens to underline life, liberty or property but especially life. There is the greatest level of concerns where the greatest level of detail must be examined with regard to what the government wants to do.

    In this circumstance, where the question relates to under what circumstances, to what extent the government may take an American life, the government may snuff out the life of an individual American citizen, the government has an obligation to see to it and to assure its citizens that it will not ever undertake such an action without due process of law. To have due process of law, you need to have a discernible legal standard. A discernible legal standard is not entirely evident on the face of this letter. That is understandable. It is just a brief response to Senator Paul's inquiry.

    It is, however, a little troubling Eric Holder doesn't do more to assure Senator Paul in this response to his letter that these kinds of actions wouldn't be necessary to undertake on American soil, that these kinds of actions would be fraught with constitutional problems when undertaken on American soil.

    It is difficult to understand why the Attorney General wouldn't just say we will not do this. This would be fraught with constitutional problems. This is not something we would do.

    Also troubling is the related point that the Attorney General has apparently relied on some legal analysis provided by the chief advisory body within the U.S. Department of Justice. The U.S. Department of Justice is something one might loosely describe as the largest law firm in the United States. It is the law firm of the Federal Government.

    Within any law firm you have lawyers who do different things. There are lawyers who specialize primarily in litigation, lawyers who specialize primarily in attracting agreements or in giving advice to people.

    The Office of Legal Counsel within the U.S. Department of Justice is the chief advisory office within DOJ. It was the Office of Legal Counsel which drafted one or more memos outlining the circumstances in which the Obama administration might consider undertaking actions involving lethal force against American citizens.

    Sadly, most of us in the Senate have been unable to review those. The American people generally have been unable to review them, but it is particularly frustrating those of us who are members of the Senate Judiciary Committee and, therefore, have an oversight responsibility over the U.S. Department of Justice, have not been fortunate enough to review the memoranda upon which the Obama administration has apparently relied in undertaking this legal analysis.

    I had the opportunity to question and did question this morning Eric Holder with regard to these memoranda. I explained to him the great need we have to be able to review these memoranda, particularly as members of the Senate Judiciary Committee. I explained to him this is part of our oversight responsibilities. This is our duty. It is our right to see such documents, and it is very frustrating we have not been allowed to see such documents.

    I added to that my concern what we do have is a different document, not the Office of Legal Counsel memorandum but something simply captioned as the ``Department of Justice White Paper.'' I always thought that was an interesting phrase, ``white paper.'' I don't know why they feel the need to call it that, why they don't just call it a paper. Normally, we don't have legal analyses or other important documents which are written on green paper, orange paper or any other color of paper. Nonetheless they call it a white paper.

    This paper was leaked by the Obama administration to the news media. This particular paper purported to contain some analysis, perhaps in summary form, the same type of analysis of what was used in the still secret Department of Justice Office of Legal Counsel memorandum.

    There were a couple things I found very disturbing about the contents of the white paper. First, the white paper focused on the fact that the U.S. Government may use lethal force to kill an American citizen only where there is an imminent threat of some sort. Where the other conditions outlined in the memorandum are satisfied, there still has to be an imminent threat of some sort. There needs to be an imminent threat that the use of lethal force by the government on the U.S. citizen in question is designed to confront.

    That is a somewhat familiar legal term. It is used in other context to identify a circumstance in which one thing has to occur in order to prevent something else even worse from happening.

    (Mr. SCHATZ assumed the Chair.) An individual, for example, when confronted with an imminent threat to his or her own life, is entitled to use lethal force in defending him or herself in order to avoid that attack--in order to avoid death. But it does have to be an imminent threat. There are other examples. When a person argues that a certain action was undertaken under duress, there does have to be some degree of imminence. And it is appropriate in this circumstance, where we are talking about authorizing the Federal Government of the United States of America to use lethal force on an American citizen, that there ought to be some sort of imminent threat to American national security that necessitates and fully justifies that action.

    The strange thing about the white paper, this white paper that was leaked by the Obama administration to the news media, is that it redefined ``imminence.'' It redefined it completely. It defined it to be something else, something that bears no resemblance to what you or I would call an imminent threat. It seemed to suggest that an imminent threat may occur even when there is nothing that is about to occur on an immediate basis that would involve a loss of American life or an attack on an American compound or installation or any kind of a loss or a deprivation to American national security.

    This is a problem because, as we discussed just a few minutes ago, in order to have due process of law, you have to have law operating, and you have to have law operating as something other than a tool to justify arbitrary and capricious behavior by government. You have to have a discernible, judicially manageable legal standard. Even if it is something that is never going to go through a court, it needs to be a legal standard that means something, that has teeth to it, that doesn't just say government officials may undertake action X, Y, or Z if the government official in question feels moved upon to take such action. There needs to be something that has the capacity to restrain government action, and it needs to be--and the basis of and by operation of generally applicable standards--generally applicable rules of law. That is what we mean when we say due process.

    Again, due process and the restrictions that accompany it are at their highest when government wants to take an action that is designed to or could lead to the ending of a human life. The sanctity of human life requires nothing less than that.

    Now, there was another part of the memo that was also a little bit disturbing. The other part of the memo suggested it would, of course, be necessary in order to carry out an action involving lethal force against an American citizen; that efforts to capture [[Page S1206]] that individual would somehow prove to be futile; that those efforts wouldn't work. But there, again, the definition supplied by the white paper suggested something else. The language of the white paper suggested almost that the government official in question, in charge of this decision to end an American citizen's life, could be made somewhat arbitrarily, somewhat capriciously. This is a problem.

    You don't want someone sitting there one day having the authority to say so-and-so is a troublemaker, so-and-so shouldn't be there, so-and- so has been involved with some very bad actors. So-and-so may in fact be a bad individual, may in fact be associated with people who want to harm the interests of the United States or may even have been involved in the planning of attacks on the United States, but you don't want the government official in question to be able to end that American citizen's life just on the basis of flimsy analysis, on a toothless legal standard. You want the American people to continue to be able to live under the rule of law and with an understanding that actions of government, particularly those actions designed to bring an end to a human being's life, won't be undertaken lightly.

    That is what it means to live in a society that operates under a rule of law as opposed to the rule of individual human beings. It is that we have standards and we reduce those standards to writing. Those standards are rules that are generally accepted and generally applicable, that govern the conduct of individuals in society, and both the governors and the governed will themselves determine the behavior of those involved in our society.

    So our law of laws, our rule of rules, our most fundamental law, is the U.S. Constitution--this 225-year-old document that I happen to believe was written by the hands of wise men raised up by their Creator for that very purpose. These were wise men who understood human nature, wise men who understood that whenever you put an individual in charge of a lot of other individuals, there are risks--risks that are inherent in human nature, risks that can be managed if you put certain checks and balances in place, and those checks and balances will ensure that no one person, no one group of people, will become so powerful as to become a law unto themselves.

    You see, that is what this document, our Constitution, the Constitution of the United States, was designed to ensure; that we, as Americans, would live free, and we would live free because our laws would govern us, not the whims or the caprice of individuals.

    Now, I do have another letter that I would like to share. This is a letter that was sent to my friend, Senator Paul, from Mr. John Brennan, currently serving as Assistant to the President for Homeland Security and Counterterrorism. This letter is dated from just earlier this week. In fact, it is dated March 5, 2013, and here is what it says: Dear Senator Paul: Thank you for your February 20, 2013, letter regarding the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial.

    The Department of Justice will address your legal question regarding the President's authorities under separate cover. I can, however, state unequivocally that the agency I have been nominated to lead, the CIA, does not conduct lethal operations inside the United States--nor does it have any authority to do so. Thus, if I am fortunate enough to be confirmed as CIA Director, I would have no power to authorize such operations.

    In addition, I have asked the CIA to respond to your letters of January 25 and February 12, 2013, which raise a number of important questions regarding issues pertaining to the advancement of America's strategic priorities around the globe.

    Sincerely, John O. Brennan.

    This is helpful. This is a helpful indication from a government official who has been nominated to head the Central Intelligence Agency, and who acknowledges if he is confirmed to this position, he would have no authority as Director of the CIA to order lethal drone strikes within the United States. So that is helpful.

    It is still significant that we be allowed to ask from time to time what the CIA might do with regard to other persons--other persons including U.S. citizens outside the United States--and under what circumstances a lethal drone strike or a different type of lethal force might be appropriate when directed toward an American citizen outside the United States.

    I notice one phrase he uses in his letter, when he says: `` . . . such as a drone strike against a U.S. citizen on U.S. soil, and without a trial.'' Whenever we are talking about any person within our jurisdiction, whenever we are talking about an American citizen, regardless of where that American citizen might be found, it seems to me we do owe that person certain responsibilities. We owe that person a duty of following the law, of following our most fundamental law--the U.S. Constitution--and following other statutory authorities we have in place specifically to protect the rights and the interests, the life and the liberty and the property of the American people.

    We are told those things cannot be taken by the government without due process of law. Now, normally, when we take away someone's life or their liberty or their property, we entitle that person to a trial. This is where our constitutional protections overlap a little bit and they complement each other. We have in the fifth amendment this protection that says that no person shall be deprived of life, liberty, or property without due process of law. There, again, at a bare minimum, that entails the operation of these generally applicable laws that actually have some standards to them. It typically also involves, quite necessarily, an opportunity on the part of the person being acted upon by government to have a trial.

    We have elsewhere in the Constitution other protections that guarantee this. We have protections indicating that if a person is charged with a crime by our government, under the sixth amendment they have a right to a jury trial, and they have a right to counsel in connection with that trial. They have a right even to counsel paid for by the government if they can't afford an attorney in connection with that. The seventh amendment, likewise, protects the right to a trial in the context of civil disputes.

    So these and other protections overlap to guarantee that Americans will have due process. Frequently, what due process entails, among other things, is the privation of a jury trial. You see, juries do perform an important function. Juries are there to help protect our rights. When we have a jury of our peers deciding critical questions with regard to our interests in life, in liberty, in property, we see to it that a panel of lay persons, a panel of nongovernment officials, a panel of citizens who have sworn an oath to do justice will do precisely that, and they will not shrink from the obligation to enforce the demands of the Constitution. They will not shrink to enforce the demands of the law. They will not shrink from their duties, and they will not see themselves as part of a government establishment.

    This is how our constitution protects us and insulates us from the government because we are the people; and we, the people, control the government. We, the people, have the right to a jury trial. And when we actually get a jury trial, we are able to see our rights protected.

    So, in response to the Senator's question, I do think there are some problems that we confront as a society. I think the security of the United States is, of course, of paramount importance. We need to protect American national security. We need to protect Americans. As we do so, we also need to protect the inalienable rights of individual Americans to the due process guarantees that are hundreds of years old, that extend at least as far back as the drafting and ratification of our constitution, and are, of course, much older than that. They are centuries, indeed, they are millennia old. We must continue to honor them.

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