Licenses to Kill

Wednesday night’s filibuster by Sen. Rand Paul was more than just political theater: it revealed a surprising congressional consensus in favor of the Obama administration’s drone warfare and targeted killing programs. Despite exhortations about the decline of civil liberties and repeated allusions to Nazi Germany, the senators present expressed support for most of the White House’s policy. Sen. Ron Wyden, the lone Democrat to join Paul’s filibuster, summarized it thusly:

Now, to be clear and this was a point that Senator Paul made in the course of discussion, targeted killings of enemy fighters, including targeted killings that involved the use of drones, can be a legitimate wartime tactic. And if an American citizen chooses to take up arms against the United States, there will absolutely be circumstances in which the President has the authority to use lethal force against that American.

Thus, if an enemy combatant is a foreign national on foreign soil, a foreign national on U.S. soil, or even a U.S. citizen on foreign soil in certain circumstances, neither Sen. Paul nor Sen. Wyden expressed a problem with the targeted use of military force against them. (Paul later expressed doubts about the efficacy and wisdom of signature strikes in Pakistan and Yemen, but did not call them illegal or unconstitutional.) Only targeted killings within U.S. borders and against American non-combatants — an outlandish scenario, to say the least — raised the senators’ ire.

This relative harmony on targeted killings between Barack Obama and Rand Paul, two otherwise ideologically-disparate politicians, isn’t as surprising as one might think. Before Rand Paul was elected to the Senate, his father Ron Paul had carved out a formidable reputation for himself on civil liberties in the House of Representatives. Within days of the September 11th attacks, the elder Paul even expressed doubts about the Authorization for Use of Military Force against Terrorists, or AUMF, for which he had voted. Rep. Paul worried about investing the President with broad authority to conduct foreign military operations, and so he proposed that Congress and the President avail themselves of another constitutional option:

Sadly we find ourselves today dealing with our responsibility to provide national security under the most difficult of circumstances.
To declare war against a group that is not a country makes the clear declaration of war more complex.
The best tool the framers of the Constitution provided under these circumstances was the power of Congress to grant letters of marque and reprisals, in order to narrow the retaliation to only the guilty parties. The complexity of the issue, the vagueness of the enemy, and the political pressure to respond immediately limits our choices.

Letters of marque and reprisal, derived from Congress’ enumerated powers, are an archaic legal means by which Atlantic nations empowered privateers to hunt down and bring pirates to justice. In modern terms, a congressional letter of marque and reprisal would give private individuals and corporations a legal license to capture or kill al-Qaeda members overseas (who would then be technically regarded as perpetrators of “air piracy”). One month after the September 11th attacks, Rep. Paul introduced the September 11 Marque and Reprisal Act of 2001, which would have empowered the president as follows:

 (a) The President of the United States is authorized and requested to commission, under officially issued letters of marque and reprisal, so many of privately armed and equipped persons and entities as, in his judgment, the service may require, with suitable instructions to the leaders thereof, to employ all means reasonably necessary to seize outside the geographic boundaries of the United States and its territories the person and property of Osama bin Laden, of any al Qaeda co-conspirator, and of any conspirator with Osama bin Laden and al Qaeda who are responsible for the air piratical aggressions and depredations perpetrated upon the United States of America on September 11, 2001, and for any planned future air piratical aggressions and depredations or other acts of war upon the United States of America and her people.

(b) The President of the United States is authorized to place a money bounty, drawn in his discretion from the $40,000,000,000 appropriated on September 14, 2001, in the Emergency Supplemental Appropriations Act for Recovery from and Response to Terrorists Attacks on the United States or from private sources, for the capture, alive or dead, of Osama bin Laden or any other al Qaeda conspirator responsible for the act of air piracy upon the United States on September 11, 2001, under the authority of any letter of marque or reprisal issued under this Act.

The act’s findings clearly delineate the powers within “the al-Qaeda conspiracy” as defined by Rep. Paul as “a continuing one among Osama bin Laden, al Qaeda, and others known and unknown.” As subsection (b) notes, the bounty is paid whether the target is “alive or dead,” allowing the privateers to take into account the feasibility of capture — much like the recently-leaked Department of Justice white paper on targeted killings. Under this proposed legislation, the president would also be explicitly authorized to target persons solely for “planned future actions,” a standard beyond even the Obama administration’s current definition of imminence. Letters of marque and reprisal, like the AUMF, do not have geographic limits, and although the act forbids them against persons in the United States, it would theoretically allow the pursuit of al-Qaeda members and affiliates anywhere in the world. Although the bill went nowhere in 2001, the bill received some media attention when Rep. Paul reintroduced it in 2007: POLITICO, scoffing at Ron Paul’s planned presidential bid, dismissed the legislation as “wacky.”

Even without the bounties and the requirement that the persons and entities empowered to hunt al-Qaeda be “privately armed,” this marque-and-reprisal program would have legal parameters wider than those currently claimed by the Obama administration’s targeted-killing program. Indeed, Rep. Paul intended for his legislation to be interpreted broadly. “Once letters of marque and reprisal are issued,” he stated while introducing it on the House floor, “every terrorist is essentially a marked man.”

Rand Paul and Ron Paul are different men and don’t share all of each other’s political positions, so it’d be unfair to extend the father’s rationale to the son.  Yet it does suggest a common approach between the elder Paul’s brand of libertarianism and Obama’s emergent foreign policy doctrines, forged simultaneously in the crucible of the Bush years. The two men, both wary of long-term, large-scale military operations in the Middle East, opposed the Iraq War and sought ways to bring the Afghan War to a close. Yet both the elder Paul and Obama also realized the imminent need to bring Osama bin Laden and the 9/11 perpetrators to justice.

To that end, each fashioned policies that would hunt down and eliminate al-Qaeda members wherever they hid, using what they viewed as the least-destructive methods available. For Ron Paul, this meant private actors and corporations. For Barack Obama, this meant government-led operations. In this alone, reflective of their worldviews, the two men diverged.