Wednesday March 6, 2013

2:57 PM

LEE

The issues that we’re discussing today are of profound importance to the American people for the reasons that Senator Paul has identified. American’s have every reason to be concerned. Any time decisions are made by government that impairs one of the fundamental God-given, protected rights that Americans have. Any time 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 that they’re not arbitrarily, capriciously deprived of any citizen. We’re talking here about the sanctity of human life. And 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. And so I think it’s important that 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.

 

IMMENENCE AND THE DOJ WHITE PAPER

So I — I was concerned, as — as were you, 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 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.

Now, the memorandum started out with certain somewhat predictable or familiar concepts. The memorandum started out by explaining an imminent standard, explaining that that certainly couldn’t 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 going on at the moment which — 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 citizens, use this kind of language, certainly in any legal or constitutional analytical context.

So if — if I could read from that memorandum, Senator Paul, I would point out that this condition of imminence is described as follows. It says, “The condition that an operational leader, an operational leader of — of a group presenting a threat to the United States, the condition that an operational leader presents an 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.” Now, Senator Paul, wouldn’t it be your understanding that if something is imminent, that it would need to be something occurring immediately?

And so if we’re dealing with something that is imminent, we are talking about something that’s about to occur, it’s urgent, and that typically is the standard. Any time government officials in other contexts, law enforcement, for example, sometimes regrettably and tragically law enforcement officers have to make a spur of the moment judgment call in order to protect human life. Sometimes in doing that, they have to do something that they wouldn’t ordinarily do. This always turns on some kind of an imminent standard. It always turns on some kind of an emergent threat, something that is about to occur that is occurring at the moment. And yet we’re told in black and white right here in this White Paper that this condition, that of imminence, 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. That begs the question, what then is the standard? Who then makes this determination?

Presumably it’s the President of the United States. Perhaps it’s others reporting up in the chain of command to the president of the United States. But if actual imminence isn’t required as part of this ostensibly imminent standard, what then is the standard? Is there any at all? And if there is a standard, why is it so broad that you could fly a 747 right through it? And if that’s the case, how that compatible with time-honored notions of due process, those notions deeply embedded in our founding documents, those notions that we understand come from god and cannot be revoked by any government.

 

FEASIBILITY OF CAPTURE

I wish I could say that the imminence standard problem in the Department of Justice White Paper is the only problem. It’s not. We look to the very next page, the page dealing with the feasibility of capture. One of the other standards outlined in the Department of Justice White Paper, outlining the certificates in which the government of the United States may take a human life using a drone in a case involving a united states citizen, is that the capture has to be infeasible, and the United States has to be continuing to monitor whether capture becomes feasible at some point. As to this standard, on page 8 of the Department of Justice White Paper, it says that as to the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact specific and potentially time-sense sieve inquiry. In other words, they are saying that it has to be — it has to be something that could not be physically effectuated during a relevant window. But what’s the relevant window?

The white paper makes absolutely no effort whatsoever to define what the relevant window is. Who then makes this determination? And according to what factors is that determination made? Here, yet again, we have a standard-less standard. We have a standard that is so broad, that is so malleable, that is so easily subject to so many varying interpretations, no one can reasonably look into this and decide who the government may kill with a drone, and who the government may not kill with a drone. That’s a problem and that it seems to me, Senator Paul, is fundamentally incompatible with time-horned notions of due process. Would you not agree with that assessment?

  

TRANSPARENCY AND THE OLC MEMO

If you will yield for a question, I would just ask whether you are aware of an exchange that some members of the Senate Judiciary Committee had with Attorney General Holder this morning on this subject?

And were you aware of the fact that some of us asked Attorney General Holder for a more robust analysis, that provided in a series of memoranda authored by the Office of Legal Counsel, the U.S. Department of Justice’s chief advisory body, and the fact that so far the Department of Justice has declined to make those available to members of the Judiciary Committee?

If I can supplement that question just by describing what I encountered in connection with that, I expressed frustration to the Attorney General over the fact that members of the Senate Judiciary Committee who have significant oversight responsibilities with regard to the operation of the U.S. Department of Justice have not had access to that memorandum, and this is part of our oversight responsibilities. This is something we ought to be able to see. So far not something we have been able to see. I encourage the Attorney General to make available to members of the Senate Judiciary Committee those very documents, which he claimed add some additional insight, and give us some additional analysis above and beyond what this White Paper is saying. I thought that might be relevant to you in addressing my question.

In response to your — your question, I — I would like to add to your remarks and those of the Junior from Texas the fact that in the concluding paragraph of the Department of Justice White Paper on this issue, the Department concludes as follows. “In sum, an operation in the circumstances and under the constraints described above would not result in a violation of any due process rights.” it’s a rather interesting conclusion in light of the fact that two out of the three analytical points outlined above in the memorandum in the white paper are themselves so broad as to be arguably meaningless or, at a minimum, capable of being interpreted in such a way as to subject American Citizens to the arbitrary deprivation of their own right to live.

First, as I mentioned earlier, by proposing an imminence standard that leaves out anything imminent — in other words, it’s not just peanut butter without the jelly; it’s peanut butter without the peanut butter — there is no “there” there. They define out of existence the very imminence standard that they purport to create and follow. That is not due process. It’s the opposite of due process.

Secondly, they outline a set of circumstances in which this attack may occur where capture is infeasible and then they define an understanding of feasibility that is so broad as to render it virtually meaningless. So at the conclusion of the memo, when the memo says, “In sum, an operation of the circumstances and under the constraints described above would not result in a violation of any due process rights,” it’s describing constraints that are not really constraints. And that is a problem. That amounts to a deprivation of due process.

In light of these circumstances, I think it really is imperative that the American people and, at a minimum, those who serve in this body, or, at a minimum, those who serve on the senate judiciary committee, that — that we be given an opportunity to review the wholesale legal analysis identified by the attorney general today that have been prepared by the department of justice’s office of legal counsel. This is the chief advisory body within the U.S. Department of Justice. It is the job of the fine lawyers in the office of legal counsel to render this advice and we ought to have the benefit of that. At a minimum, we ought to have the benefit of that within the Senate Judiciary Committee.

So when I asked the attorney general this morning whether he’d make those available, I was surprised and a little bit frustrated when he declined to offer them immediately. He said that he would check in with those that he needed to consult with. I reminded him that he is, in fact, the Attorney General. He does, in fact, supervise those who work in the Department of Justice. I hope that’s satisfactory and responsive to your question.

You recently sent a letter — Senator Paul recently sent a letter requesting some information from the Obama Administration with regard to these issues relating to drone strikes. It is significant that on March 4, 2013, just a couple of days ago, Senator Paul received back a letter from the administration that reads as follows. It says, “Dear Senator Paul” — this is signed by Attorney General Eric Holder Jr. “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 legal force such as a drone strike against a U.S. Citizen on U.S. soil and without a trial.

As members of this administration 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.

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

This doesn’t mean that government action is bad. This simply means that government action always has to be weighed, has to be counterbalanced against the impact that it has on the citizenry. It’s very important that we approach these things delicately. Nowhere is this balancing act more necessary than where we have circumstances in which government, threatens not just the liberty, but also the property or, most importantly, 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, the government owes it to the citizens to undertake all of its activities with utmost caution. It owes it to its citizens never to deprive human beings of their lives, particularly American Citizens and unless it has done so through operation of law, with what we call due process of law.

 

DUE PROCESS

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’ve heard this phrase over and over and over again. We understand on some level what it means. But I’d 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 have 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.

You see, because 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 and capricious and where it threatens to undermine life, liberty or property, but especially life. You have the greatest level of concern where greatest level of detail must be examined with regard to what the government wants to do.

So in this circumstance, where the question relates to whether, 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 won’t ever undertake such an action without due process of law, to have due process of law you’ve got to have a discernible legal standard. A discernible legal standard is not entirely evident on the face of this letter. It’s understandable. This is just a letter of brief response to Senator Paul’s inquiry.

It is a little bit troubling that Attorney General Eric Holder doesn’t do more to assure Senator Paul in this response to his letter that these actions — kinds of actions wouldn’t be necessary to undertake on American soil, that these kinds of actions would be fraught with constitutional problems or when undertaken on American soil. It’s difficult to understand why the attorney general wouldn’t just say we won’t 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 that one might loosely describe as the largest law firm in the United States. It is the law firm of the federal government. And within any law firm, you’ve got lawyers who do different things. You’ve got lawyers who specialize primarily in litigation. You’ve got lawyers who specialize primarily in drafting 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 D.O.J. It was the Office of Legal Counsel that 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 United States Senate have been unable to review those. The American people generally have been unable to review them. But it is particularly frustrating that 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 memorandum upon which the Obama administration has apparently relied in undertaking this legal analysis. I had the opportunity to question and did question this morning attorney general Eric holder with regard to these memoranda, explaining to him the great need that we have to be able to review these memoranda, particularly as members of the Senate Judiciary Committee. I explained to him that this is part of our oversight responsibility, that this is our duty. It is our right to see such documents and that it’s very frustrating that we have not been allowed to see such documents.

I added to that my concern that what we do have is a different document, not the office of legal counsel memorandum, but instead something that is captioned simply 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 analysis or other important documents written on green paper or orange paper or any other colored paper. Nonetheless, they call it a White Paper.

This paper was leaked by the Obama administration to the news media. And this particular paper purported to contain some analysis perhaps in summary form, the same type of analysis in what was used in the still secret Department of Justice legal memorandum. There were a couple of things I found disturbing about the white paper.

First the white paper focused on the fact that the U.S. 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 some of sort, an imminent threat that the lethal — the use of lethal force by the government on the U.S. citizen in question is designed to confront. Well, that is somewhat familiar legal term; it’s used in other contexts to identify a circumstance in which one thing has to occur in order to prevent something else even worse from happening. An individual, for example, when confronted with an imminent threat to his or her own life, his entitled to use lethal force in defending or herself in order — him or herself in in order to avoid death. But it has to be an imminent threat.

There are other examples. When a person argues that certain action was undertaken under duress, there does have to be some degree of imminence. And it is appropriate in this circumstance, and we’re talking about authorizing the government, the federal government of the United States of America to use lethal force on an American citizen. There ought to be some sort of imminent threat to American national security that necessitates and fully justifies that action. But the strange thing the White — thing about the White Paper leaked by the Obama Administration to the news media is that it redefined “imminence.” it redefined it completely, it defined it sabot something else, something that bears no resemblance to what you or I would call an imminent threat and it seemed to suggest that an imminent threat may occur even when there was 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. So this is a problem.

You see, 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’s something that’s 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. Their needs to be something that has the capacity to restrain government action, and it needs to be on the basis of and operation of generally applicable standard, generally applicable rules of law. That’s what we mean when we say due process. And, 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 is another part of the memo that was also a little bit disturbing. The other part of the memo suggested that, you know, it would, of course, be necessary in order to carry out an action involving lethal force against an American citizen, that efforts to capture 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 menders’ life — American citizen’s life could be made somewhat ash are trail, capriciously. This is a problem. 

You don’t want somebody siting there one day having the authority to say, you know, so and so is a troublemaker. So and so shouldn’t be there. So and so has been involved in 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 planning attacks on the United States. 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 aksz that are designed — actions that are designed to bring an end to a human being’s life, won’t be undertaken lightly. You see that’s what it means to live in a society that operates under the rule of law as opposed to the rule of individual human beings. Is that we have standards, we reduce those standards to writing, those standards that are rules that are generally accepted and generally applicable that govern the conduct of individuals in society, both the governors and the governed, will themselves determine the behavior of those involved in our society.

And 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 to that very purpose. Wise men who understood human nature, wise men, men who understand 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, checks and balances that will ensure that no one person, no one group of people will become so powerful as to become a law unto themselves. That you see, is what this document, our constitution, the constitution of the United States, was designed to ensure. That we as Americans would live free, we would live free because our laws would govern us, not the whims, the caprice of individuals.

 

THE BRENNAN LETTER

Now, I do have here another letter that I’d 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’s dated March 5, 2013. Here’s 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 power. I can, however, state unequivocally that the agency I’ve been nominated to lead, the C.I.A., does not conduct lethal operations inside the united states, nor does it have any authority to do so.

Thus I am fortunate — if I am fortunate enough to be confirmed as C.I.A. director by have no power to authorize such operations. In addition I’ve asked the scripted cite to respond — C.I.A. To respond to your Elisabeth of February 5, 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, government official who has been nominated to head the Central Intelligence Agency who acknowledged that if he is confirmed to this position, he would have no authority as the director of the C.I.A. to order lethal drone strikes within the United States and that’s helpful it is still significant, I think, that we be allowed to ask from time to time what the C.I.A. might do with regard to other persons, other persons, including U.S. citizens outside the united states, 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. Notice one phrase that he uses in this letter. When he says such as a drone strike against a U.S. Citizen on U.S. soil and without a trial. 

Whenever we’re talking about any person within our jurisdiction, whenever we’re talking about an American citizen regardless of where that American citizen might be found, it seems to me that we do owe that person certain responsibilities. We owe that person the duty of following the law, of following our most fundamental law, the U.S. Constitution, and following other statutory authorities that 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’re told that 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, normally we entitle that person to a trial, and this is where our constitutional protections overlap a little bit and they complement each other. So 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, and there again that entails at a bare minimum 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, so 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 protection 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. And frequently what due process entails among other things is the provision 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 competition — 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. You see, this is how our constitution protects us. It 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’re able to see our rights protected.

So Senator Paul, in response to your question, I do think that there are some problems that we confront as a society. I think that the security of the United States is, of course, of paramount importance. We need to protect American national security, to protect Americans and 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 of, of course, much older than that. They are centuries, indeed, they are millennia old. We must continue to honor them.