Brennan played a critical role in the development and codification of the Obama Administration’s targeted killing program, so his nomination has become a flashpoint for Paul and others worried about the scope of the powers claimed in it. Publicly released documents, particularly the infamous CIA white paper outlining the legal thinking behind the strike on American citizen Anwar al-Awlaki, have not provided specific guidance on the territorial limits of the Presidential power to kill citizens. A more recent document, submitted to Congress by Attorney General Eric Holder, suggested that under “extraordinary” circumstances, such as Pearl Harbor or 9/11, the president could kill an American citizen on American soil. In testimony before the Senate Judiciary Committee on Wednesday, Holder specifically admitted that killing an American in the United States would be inappropriate and unconstitutional if the individual did not pose an imminent threat.
Throughout his filibuster, Paul repeatedly said that he would be willing to move to a vote on Brennan’s nomination if the Obama administration translated Holder’s reply into a written response and stated that it did not believe that the executive branch could target and kill Americans on American soil in most instances.
Paul acknowledged that it was unlikely that Obama would launch a drone strike against someone sleeping in their bed, but demanded clarification of what criteria the administration had for conducting targeted killing. While he initially questioned the principles behind so-called “signature strikes” against suspected terrorists not currently fighting,” Paul later shifted his focus to whether tactics used overseas could be transferred to American citizens within the U.S.
Sen. Ron Wyden (D-OR), who referred to himself and Paul (both whom have strong records on civil liberties issues) as the “checks and balances caucus,” also joined the questioning. He emphasized the need for public disclosure of classified documents about the legal authorization of targeted killings, arguing that “every American has the right to know when their government believes it is allowed to kill them.” “I’ve had four sessions now with the classified documents and I still have questions,” Wyden said, concluding that “there’s a very strong case for being able to declassify” said documents.
Wyden parted with Paul only on the forthrightness of Administration officials, suggesting that Brennan’s testimony that the “the CIA does not have the authority to conduct those operations [targeted killings]” was an adequate answer to Paul’s questions about the scope of the targeted killing power. Wyden also suggested that “the Attorney General has moved in the direction of what we’d like to hear.” Paul responded by claiming that the Administration’s responses did not rule out targeted killings inside the U.S. and suggested that the administration should clarify its position.
The senators did not address the broader issues surrounding the targeted killing program, such as whether, under the Administration’s current understanding of law, the authority to conducted targeted killings against all suspected terrorists will ever expire.