Thursday, March 7, 2013


It was just like the old days, when Senators spoke with passion and somebody listened.

Yesterday, the whole nation was in the gallery.

We saw a tired, determined, intelligent and principled gentleman from Kentucky standing up in our computers.

Standing up for America.

Standing up for the Constitution.

The Wall Street Journal gave him a haughty negative review. The Washington Post, no fan of conservatives, acknowledged that Rand Paul is a man of principle, concluding that the Senator staked out a stance on the ‘principle principle,’ their cutesy way of saying that you have to admire someone who stands for something, even if you disagree.

Senator Paul was filibustering against the nomination of John Brennan, no kin of this old Judge. His complaint focused on Brennan’s support for the Holder defined authority of the President to dispatch deadly drones domestically.

The issue? When can the President order a hit on an American Citizen on American soil?

That issue ought to be a slam dunk question on a first year law student’s Criminal Law exam.

The President can order a hit when, and only when a police officer would be justified in shooting someone.

You can’t kill a perp for planning a crime. You can’t even kill him for making preparations.

Of course, once he starts to shoot, he is fair game.

But a preemptive strike is always a dicey business, whether the target is a nation or putative criminal.

The catch phrase of the day is “enemy combatant.” That’s what makes it O.K. to kill a guy who is wearing the uniform of the other country.

Even there, you are supposed to play by the Marquis of Queensbury Rules.

When the enemy is a rag tag army, without uniforms and without a fortress, identifying an enemy combatant will depend on what he is doing or attempting to do.

An American citizen who gives aid and comfort to the enemy is guilty of treason and can be sentenced to death upon conviction, provided the conviction is based upon a confession in open court or the testimony of two witnesses to the same overt act.

That’s what the constitution says. Nothing there about a “high government official” identifying someone who is thought to present an imminent threat.

What determines the difference between a political enemy and a military enemy? Just when does opposition become combat?

Does hanging the President of the United States in effigy earn someone a place on the executive kill list? Does joining an organization that advocates the overthrow of the federal government forfeit a citizen’s constitutional rights?

No doubt in all of this debate some folks will point to Abraham Lincoln and insist that Old Abe authorized the killing of lots of Americans on American soil.

The Confederates adopted a constitution and elected a President and Congress. They believed that they were a separate nation at war with the United States.

Lincoln never saw it that way. To him, they were rebels. Surely he authorized and sanctioned the killing of those who took up arms against the Union.

But would he have commissioned an assassin to murder Jefferson Davis?

Or would he have authorized a drone attack to level Davis’s home and everyone in it?

I doubt it.

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