Brennan Nomination

Floor Speech

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Mr. LEE. The issues we are discussing are of profound importance to the American people for the reasons Senator Paul has identified. Americans have every reason to be concerned anytime decisions are made by government that impair one of the fundamental God-given protected rights that Americans have.

Anytime 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 they are not arbitrarily, capriciously deprived of any citizen.

We are talking about the sanctity of human life. 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. So I think it is important 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.

I was concerned, as was 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.

The memorandum started out with certain somewhat predictable or familiar concepts. The memorandum started out by explaining an imminent standard, explaining that certainly could not 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 that is going on at the moment, 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 imminence as something far different than we normally think of, than we as American citizens use this kind of language, certainly in any legal or constitutional analytical context.

If I could read from that memorandum, I would point out this condition of imminence is described as follows.

It says: The condition that an operational leader--an operational leader of a group presenting a threat to the United States--presented 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.

Wouldn't it be the Senator's understanding if something is imminent, it would need to be something occurring immediately?

Mr. PAUL. Yes. I think there is really no question about using lethal force against an imminent attack. I think that is why we need to make the question we are asking the President very clearly. The question is if planes are attacking the World Trade Center, we do believe in an imminent response. We do believe in an imminent defense for that. The problem is we are talking about noncombatants who might someday be involved. If they are in America, I see no reason why they shouldn't be arrested.

Mr. LEE. If we are dealing with something that is imminent, we are talking about something that is about to occur, and it is urgent. That typically is the standard any time government officials in other contexts, law enforcement, for example--sometimes regretfully and tragically, law enforcement officers need to make a spur-of-the-moment judgment call in order to protect human life. Sometimes in doing that they have to do something they wouldn't ordinarily do. It 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.

Yet we are told in black and white right here in this white paper this condition, 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 is the President of the United States. Perhaps it is others reporting up in the chain of command to the President of the United States.

If actual imminence isn't required as part of this ostensibly imminent standard, what then is the standard? Is there any at all? If there is a standard, is it so wide, is it so broad you could drive a 747 right through it? If that is the case, how is that compatible with time-honored notions of due process, those notions deeply embedded in our founding documents, those notions we understand come from God and cannot be revoked by any government?

I wish I could say the imminence standard problem in the Department of Justice white paper is the only problem. It is not. We look to the very next page, the page dealing with feasibility of capture. One of the other standards outlined in the Department of Justice white paper outlining the circumstances in which the government of the United States may take a human life using a drone in a case involving a U.S. citizen is that the capture must be infeasible, and the United States must 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:

Second, regarding 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 could also be relevant. Feasibility would be a highly fact-specific and potentially time-sensitive inquiry.

In other words, they are saying it has to be something that could not be physically effectuated during the relevant window. What is 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 standardless standard. We have a standard that is so broad, so malleable, 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 is a problem, and that, it seems to me, is fundamentally incompatible with time-honored notions of due process. Would the Senator not agree with that assessment?

Mr. PAUL. Absolutely. I think that is where the crux comes down to this, talking about having an imminent standard. This is part of the problem in the sense he doesn't want to talk about it. If we are going to do something so dramatic as to no longer have the fifth amendment apply in the United States, to have no accusation, to have no arrest, no jury trials for folks who are to be killed in the United States, it is such a dramatic change that you would think we would want to have a full airing of a debate on this.

Mr. LEE. Would the Senator from Kentucky yield for a question?

Mr. PAUL. I won't yield the floor, but I will allow the Senator to make comments.

Mr. LEE. If the Senator will yield for a question, I will ask if the Senator was aware of the exchange some members of the Senate Judiciary Committee had with Attorney General Holder this morning on the subject.

Mr. PAUL. Yes.

Mr. LEE. Was the Senator aware of the fact some of us asked Attorney General Holder for a more robust analysis than the 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?

Mr. PAUL. Yes, I am aware of that. I think we have a transcript of some of the conversation from this morning.

Mr. LEE. If I may supplement that question 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. This is part of our oversight responsibilities. This is something we ought to be able to see, and so far it is not something we have been able to see. I encouraged the Attorney General to make available to members of the Senate Judiciary Committee those very documents, which he claimed add some additional insight and would give us some additional analysis above and beyond what this white paper is saying. I thought that might be relevant to the Senator in addressing my question.

Mr. PAUL. Absolutely. At this point, I will entertain comments from Senator Cruz and a question.

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Mr. LEE. In response to Senator Paul's question, I would like to add to the Senator's remarks and those of the junior Senator 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 is 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 imminent standard that leaves out anything imminent--in other words, it is not just peanut butter without the jelly; it is peanut butter without the peanut butter. There is no ``there'' there--they define out of existence the very imminent standard they purport to create and follow. That is not due process. It is 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--and the memo says:

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 is 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 the American people, or those who serve in this body--at a minimum, those who serve on the Senate Judiciary Committee--be given an opportunity to review the wholesale legal analyses identified by the Attorney General today that have been prepared by the Office of Legal Counsel of the Department of Justice. 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 would make those available, I was surprised and a little frustrated when he declined to offer them immediately. He said he would check in with those he needed to consult with. I reminded him he is the Attorney General, and he does, in fact, supervise those who work in the Department of Justice.

I hope that is satisfactory and in response to the Senator's question.

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