By Charles Krauthammer
Thursday, March 14, 2013
In choice of both topic and foil, Rand Paul’s
now-legendary Senate filibuster was a stroke of political genius. The topic
was, ostensibly, very narrow: Does the president have the constitutional
authority to send a drone-launched Hellfire missile through your kitchen — you,
a good citizen of Topeka to whom POTUS might have taken a dislike — while
you’re cooking up a pot roast?
The constituency of those who could not give this
question a straight answer is exceedingly small. Unfortunately, among them is
Attorney General Eric Holder. Enter the foil. He told a Senate hearing that
such an execution would not be “appropriate.”
“Appropriate” being a bureaucratic word meaning nothing,
Holder’s answer was a PR disaster. The correct response, of course, is: Absent
an active civil war on U.S. soil (of the kind not seen in 150 years) or a
jihadist invasion from Saskatchewan led by the Topeka pot-roaster, the answer
is no.
The hypotheticals being inconceivable, Paul’s performance
was both theatrically brilliant and substantively irrelevant. As for the
principle at stake, Holder’s opinion carries no weight in any case. He is
hardly a great attorney general whose words will ring through history. Nor
would anything any attorney general says be binding on the next president, or
for that matter on any Congress or court.
The vexing and pressing issue is the use of drones
abroad. The filibuster pretended not to be about that. Which is testimony to
Senator Paul’s political adroitness. It was not until two days later that he
showed his hand, writing in the Washington Post, “No American should be killed
by a drone without first being charged with a crime.” Note the absence of the
restrictive clause “on American soil.”
Now we’re talking about a larger, more controversial
issue: the killing by drone in Yemen of al-Qaeda operative Anwar al-Awlaki.
Except on American soil, the Constitution does not rule, no matter how much
Paul would like it to. Yet Paul’s unease applies to non-American drone targets
as well. His quarrel is with the very notion of the War on Terror, although he
is normally too smart to say that openly and unequivocally. Unlike his father,
who implied that 9/11 was payback for our sins, Paul the Younger more gingerly
expresses general skepticism about not just the efficacy but the legality of
the entire war.
That skepticism is finding an audience as the war grinds
through its twelfth year, while our hapless attorney general vainly tries to
define its terms and the administration conducts a major drone war with defiant
secrecy. Nor is this some minor adjunct to battle — an estimated 4,700 have
been killed by drone attacks.
President George W. Bush was excoriated for waterboarding
exactly three terrorists, all of whom are now enjoying an extensive retirement
on a sunny Caribbean island (although strolls beyond Gitmo’s gates are
prohibited). Whereas President Barack Obama, with thousands of kills to his
name, evokes little protest from yesterday’s touch-not-a-hair-on-their-head
zealots. Of whom, of course, Senator Obama was a leading propagandist.
Such hypocrisy is the homage Democrats pay to Republicans
when the former take office, confront national-security reality, feel the
weight of their duty to protect the nation — and end up doing almost everything
they had denounced their predecessors for doing. The beauty of such hypocrisy
is that the rotation of power creates a natural bipartisan consensus on the
proper conduct of this war.
Which creates a unique opportunity to finally codify the
rules. The war’s constitutional charter, the 2001 Authorization for Use of
Military Force (AUMF), has proved quite serviceable. But the commander-in-chief’s
authority is so broad — it leaves the limits of his power to be determined,
often in secret memos, by the administration’s own in-house lawyers — that it
has spawned suspicion, fear, and now filibuster.
It is time to rethink. That means not repealing the
original AUMF but, using the lessons of the last twelve years, rewriting it
with particular attention to a new code governing drone warfare and the
question of where, when, and against whom it should be permitted.
Necessity having led the Bush and Obama administrations
to the use of near-identical weapons and tactics, a national consensus has been
forged. Let’s make it open. All we need now is a president willing to lead and
a Congress willing to take responsibility for the conduct of a war that, however
much Paul and his acolytes may wish it away, will long be with us.
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