by Audrey Pietrucha
A few weeks ago it looked like the Constitution of the United States might actually be starting to mean something again to the American populace and at least some of the government servants in whose care the words and principles of that great document have been placed.
It came out of nowhere – Senator Rand Paul, R-Kentucky, seized an opportunity and began a filibuster of President Obama’s nomination for CIA Director, John Brennan. Thirteen hours, many words and many tweets later, Paul ended his filibuster when his bladder could no longer accommodate the demands placed upon it. Those of us who care about civil rights hope it was only the end of the beginning of a national discussion on Constitution protections and why they exist.
Paul began the filibuster out of frustration with the administration’s refusal to answer a simple question: Does the President of the United States have the right to kill American citizens on American soil without charging them with a crime and affording them a jury trial, as per the Fifth Amendment?
“I will speak as long as it takes,” Paul said, “until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”
The Fifth Amendment protects Americans from abuses by the government in legal proceedings and is rooted in English common law and the Magna Carta. Paul was specifically concerned with the guarantees to a grand jury hearing and that no person shall “be deprived of life, liberty, or property, without due process of law…” Unfortunately, his worries are not without foundation.
“When I asked the president, can you kill an American on American soil, it should have been an easy answer,” Paul said. “It’s an easy question. It should have been a resounding and unequivocal, ‘no.’ The president’s response? He hasn’t killed anyone yet. We’re supposed to be comforted by that. The president says ‘I haven’t killed anyone yet.’ He goes on to say, ‘and I have no intention of killing Americans. But I might.’ “
The issue arises from the domestic use of unmanned drones. These aerial vehicles, which are becoming smaller and smaller, can be used for targeted attacks and have made it terribly easy to kill people without getting our hands dirty. Drones have been used to kill enemy combatants and civilians, an ethically-suspect practice itself, but U.S. citizens have also been targeted while on foreign soil. American-born Anwar Al-Awalki, an al Qaeda propagandist and operative who was most probably not a good guy, was killed by a drone-launched bomb while sipping tea in a Yemen café. More disturbing, his 16-year-old son, also an American citizen, was killed two weeks later in a separate attack. When asked the justification for that killing then Press Secretary Robert Gibbs said the younger al-Awaki “should have [had] a far more responsible father.”
Such a flippant answer is not comforting. That an American was killed on foreign soil without an attempt at capture and extradition is cause for concern but becomes even more worrisome when government leaders talk of the United States as part of the battlefield in the war on terror. The rules of society change under martial law and the Bill of Rights is not exactly given top priority.
Apparently, that attitude change has already seeped in. The answer to the question of whether the president has the power to act as prosecutor, judge and jury in cases where Americans are suspected of criminal behavior should have been a no-brainer, yet it took an awfully long time for Attorney General Eric Holder to admit such a flagrant violation of the Fifth Amendment would be illegal rather than “inappropriate.” The right answer finally came hours after Paul’s filibuster ended.
Throughout this 13-hour ordeal Paul received widespread support. Some came from his colleagues and such disparate groups as the ACLU and the Heritage Foundation but mostly it came from the American people. #Standwithrand became the top-trending tweet of the night and the longer he stood, the more excited the twittersphere grew. An awakening of sorts was happening.
There were detractors too, of course. Paul was attacked by members of both parties for taking his stand in defense of the Fifth Amendment. Apparently many have forgotten the oath they took upon taking office, the one in which they swore to preserve, protect and defend the Constitution of the United States. A few in the media criticized him as a “show boater” or said he had taken valuable time from the business of governing. Huh? During Rand Paul’s filibuster the American people were treated to a rare spectacle – a political representative who actually takes the Constitution and his oath to protect it seriously. It was a sight for sore eyes.
The Constitution, Patrick Henry said, “is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.” Few could argue the federal government no longer dominates our lives and interests. It was time for a little push-back. That it came from a Republican senator with libertarian leanings should be a cause for chagrin among Democrats, who claim to care about civil rights. Perhaps that is only when the other party is in power, not when their guy is in office.
Audrey Pietrucha is member of the executive board of Vermonters for Liberty. She can be reached at firstname.lastname@example.org.