Supposedly, we're in the middle of a titanic intellectual debate over our government's counterterrorism strategy and drone program. And the two sides of this debate are supposedly personified by President Barack Obama and Sen. Rand Paul.
Paul won headlines for protesting America's drone program by leading a symbolic 13-hour filibuster that delayed the confirmation of the president's nominee to head the CIA. The president, in his counterterrorism address last week, pushed back against some of the claims that he has violated civil liberties, arguing that there already is "strong oversight of all lethal action" and that "citizenship should no more serve as a shield" for terrorist plotters "than a sniper shooting down on an innocent crowd should be protected from a SWAT team." Soon after, Paul mocked the process used to identity terrorist targets as "looking at some flash cards, and a PowerPoint presentation on Terror Tuesdays in the White House."
But all the hot rhetoric over the constitutionality, legality, and morality of the use of drones to kill terrorists masks this fact: President Obama and Rand Paul largely agree.
First, both believe the federal government should use drones to kill terrorists, even when they are American citizens. In April, Paul said "I have never argued against any technology being used when you have an imminent threat, an act of crime going on. If someone comes out of a liquor store with a weapon and $50 in cash, I don't care if a drone kills him or a policeman kills him."
Two days later, he less glibly asserted, "If the twin towers are being attacked, that's deadly force being used against America and Americans. There is the right to defend ourselves with deadly force."
Paul actually used the very same example that Attorney General Eric Holder used in his famous March letter to the senator. Holder, after explaining that the federal government has no policy to use drones to kill terrorists on American soil, offered that "it is possible, I suppose, to imagine an extraordinary circumstance" in which such lethal force on American soil would be legal and necessary, and cited Pearl Harbor and 9/11 as such circumstances. Oddly, Paul decided to launch his filibuster after that letter, even though he apparently holds a similar view.
Second, both Paul and Obama believe that traditional due process does not extend to active terrorists who are American citizens.
President Obama personally approves drone targets after lengthy discussion and debate with White House and Pentagon advisors. Obama says key congressional committees are briefed about all strikes, and Congress has chosen not to exercise its legislative power to check the president's authority. But there's no traditional due process in the judicial branch before kill orders are carried out.
On Sunday, after Paul's "flash cards" swipe, he offered his preferred approach: "If you are conspiring to attack America and you are a traitor, I would try you for treason. If you don't come home for the trial, I would try you in absentia. And then the death penalty has been used repeatedly throughout our history for treason."
However, is a trial in absentia really that much closer to traditional due process than what the president does now? If you think about it, it's only physically closer: Paul's solution would take place in a courtroom where other people are granted due process and fair trials. But there's a phrase for a trial where you get the death penalty without the ability to offer a defense: a show trial.
And since the only way the death penalty is going to carried out after a trial in absentia is by a drone, the result of the Paul approach would be the same as in the Obama approach… except that the Obama approach would actually kill the terrorist, while the production of a show trial would be a bit of a tip off for the terrorist that it was time to find a good hiding place.
Third, not even Paul thinks that the diversion of a show trial is necessary when the threat of a terrorist attack is "imminent." In fact, his own two-page bill banning the use of drones on American citizens makes an exception for any "imminent threat":
The Federal Government may not use a drone to kill a citizen of the United States who is located in the United States. The prohibition under this subsection shall not apply to an individual who poses an imminent threat of death or serious bodily injury to another individual.
The president's standard is only different in its constriction and precision:
America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. [But] we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat.
What's fascinating about the overlap between Paul and Obama is that we've learned about it because Paul insists on answering lots of questions, putting himself in the position of explaining what he would do differently as president. Watching Paul's attempts at intellectual gymnastics and legislative craftsmanship has only shown that 1) he hasn't really thought through what he would do differently, and 2) the barest of questioning can quickly pressure a libertarian critic to end up in the same basic place as President Obama. The First Amendment is not so rigid that it would allow "fire" to be shouted in a crowded theater, nor is the Fifth Amendment so rigid that it would allow terrorists blanket protection to plot mass murder.
Perhaps we can shelve the hysterical hypotheticals about random Americans being killed in cafes, and return to calmer deliberation about how to refine a counterterrorism strategy that has already proved to be successful.