BREAK IN TRANSCRIPT
Mr. CRUZ. I thank the Senator from Kentucky, and I want to ask the following question: Is the Senator from Kentucky aware of the reaction the American people are having to his extraordinary efforts today?
Given the Senate rules do not allow for the use of cellular phones on the floor, I feel quite confident the Senator from Kentucky is not aware of the Twitterverse that has been exploding. So what I want to do for the Senator from Kentucky is to give some small sampling of the reaction on Twitter so he might understand how the American people are responding to his courageous leadership, to Senator Paul's doing something that in the last 4 years has happened far too little in this Chamber, which is standing and fighting for liberty.
So I will read a series of tweets.
So proud of Rand Paul standing up for what's right. Stand with Rand.
Rand Paul: a reason to be proud of your elected representatives again. Keep going, Rand.
Proud of Senator Rand Paul and all who have joined him in this effort. Stand today with Senator Rand Paul.
So happy with Rand Paul right now. Someone finally using the system to aid, not usurp, our rights.
Rand Paul filibusters Brennan nomination--over four hours now. Glad someone in the Senate has some spine.
That was tweeted a while ago.
Rand Paul is a hero today, a man with a backbone.
Today Rand Paul is my hero.
Kentucky Senator Rand Paul is a true constitutional hero in his filibuster against CIA nominee.
I can honestly say, I am proud to currently live in Rand Paul's State of Kentucky.
So proud of Rand Paul. He's bringing it. He's not going to let our constitution get trashed. A breath of fresh air. PRAY 4 THIS FIGHT 4 RAND.
I am so beyond proud of Rand Paul and the way he is standing up for each and every American citizen right now by filibustering the Senate.
I am VERY proud of Senator Rand Paul. This is an important moment when one person had the courage to yell STOP. Stand with Rand.
So proud of Rand Paul. We need more like him. Stand with Rand.
Rand Paul is now in hour 7 of his filibuster. He is standing up for our rights. Thank you. Stand with Rand.
It is frightening that Obama seeks to have an ever growing amount of power. Drone strikes are frightening. Stand with Rand.
Dear GOP. The base is crying out for more of you to stand with Rand. If you want the base's votes, get it together.
Stand with Rand. We need you now more than ever. This president has usurped his power. We can't say anything bad against him.
Stand with Rand. So long as Rand speaks, we'll be tuned in.
It is unconstitutional to target and kill Americans on American soil with a drone. Stand with Rand.
A retweet from Senator Rand Paul. I will commend the Senator from Kentucky. He was so flexible he was able to tweet while he was standing on the floor. A retweet from Senator Rand Paul's tweet: ``I will not sit quietly and let President Obama shred the Constitution,'' with the hashtags ``filiblizzard'' and ``Stand with Rand.''
Here is a more mixed one, but nonetheless demonstrating the respect the Senator from Kentucky is earning across the aisle.
I may not always agree with Rand Paul but he has my respect. He's very willing to do what he feels is right. Stand with Rand.
From Congressman Justin Amash:
Why won't President Obama simply state that it is unconstitutional and illegal for government to kill Americans in U.S. without due process? Stand with Rand.
Stand with Rand, because we deserve to know if American citizens should fear murder from our Government.
Everyone should be aware of this important moment in American history. Stand with Rand.
Proud to call Rand Paul my Senator. Stand with Rand.
It is unconstitutional to target and kill Americans on American soil with a drone. Stand with Rand.
The Federal Government does not have the power to kill its citizens whenever it wants. There is something called due process. Stand with Rand.
Fight for our constitutional rights and liberties. Stand with Rand.
Stand with Rand. I have gained a lot of respect for Senator Paul today. This is not a right or left issue, it is a civil liberties issue. Thank you Rand Paul and others who are taking a stand for patriotic Americans.
A great day for liberty when Senator Rand Paul and a handful of others stood up for liberty. Stand with Rand.
It is ironic that a Nobel Peace Prize winner won't guarantee that he won't use drones against Americans. Stand with Rand.
I will note to the Senator from Kentucky and ask his reaction to these--this is but a small sampling of the reaction in Twitter. Indeed, in my office I think the technical term for what the Twitterverse is doing right now is ``blowing up.''
I suggest to the Senator from Kentucky and then ask his reaction--I suggest that this is a reflection of the fact that the American people are frustrated. They are frustrated that they feel too few elected officials in Washington stand for our rights, are willing to rock the boat, are willing to stand up and say the Constitution matters. And it matters whether it is popular or not, it matters whether my party is in power or another party is in power. The Constitution matters. Our rights matter. And I think so many Americans are frustrated that they view elected officials as looking desperate to stay in power, desperate to be reelected to do everything except fight for the Constitution and fight for our liberties, and I think this outpouring the Senator from Kentucky is seeing is a reflection of that great frustration.
I join with the sentiments of these and many others on Twitter. I ask the Senator from Kentucky if he was aware of this reaction and what his thoughts are to the many thousands more--I haven't been able to read their tweets--and their words of encouragement as the Senator from Kentucky more than anyone is standing with Rand.
BREAK IN TRANSCRIPT
Mr. CRUZ. I thank the Senator from Kentucky for allowing me to ask him a series of questions and to address both what the Attorney General said and the substantive issue.
I wish to begin my questioning, though, with simply an observation. I would like to take a moment to thank the Senator from Kentucky. I have had the privilege of serving in this body 9 weeks, and today is the first day I have ever had the extraordinary privilege of speaking on the floor of the Senate. On my first time to speak on the floor of the Senate, I found myself being given the chance to read from Travis's letter from the Alamo. As I observed walking off the floor of the Senate, as they say in the beer commercial, it don't get no better than this. So I thank the Senator from Kentucky for giving me the opportunity to be welcomed to the floor of the Senate and having a chance to stand with him fighting for liberty.
There are a number of things I would like to address and ask the views of the Senator from Kentucky. I will begin by observing, as I did the last time the Senator from Kentucky and I had a colloquy, that Twitter never sleeps, and we heard from a number of tweets across the country. But those have not ceased. So since the Senator from Kentucky is still prohibited from looking at his cell phone, I wanted to prevent him from going into technology shock and withdrawal and provide an in-person feed for him.
This is about The Constitution. Stand with Rand. Get it together GOP.
Stand with Rand. Rand praising Dem OR Sen Ron Wyden for raising the same questions and concerns he has. Where are all the other Dems?
Sad day when killing Americans is up for debate. Sad day that every Senator is not up there with him. Stand with Rand. We are watching you guys.
I don't know how Sen Rand Paul does it ..... I'm tired just from WATCHING him. ..... a tip of the cap to you, sir. Thank you. Stand with Rand.
Sen Rand Paul is extemporaneously giving a better human rights speech than Barack Obama ever has. Stand with Rand.
And I am pretty certain that for the record I can confirm that no teleprompter was in front of the desk of the Senator from Kentucky.
Sen Rand Paul, Jimmy Stewart would be proud, sir.
Sen Rand Paul, look what's trending. Stand with Rand.
It's been awhile since I could say I am a proud American. Thank you, Rand Paul. Stand with Rand.
Rand Paul might be waiting a long time for an answer from The White House. Stand with Rand.
I would note that it has been 10 hours, so that would indeed be a correct observation of fact.
Democrats--Why not just agree that the POTUS cannot use drones to summarily kill US citizens on US soil? Stand with Rand.
Sen. Rand Paul crosses 8 hr threshold of filibuster. Stand with Rand.
Stand with Rand, please.
Sen Rand Paul did not filibuster for the right or the left, he did it for every person in this country. Stand with Rand.
Once you give up your rights, you will not get them back. Believe that. Stand with Rand.
We should all go to the U.S. Capitol and Stand with Rand.
I would note that quite a few Members of the House of Representatives have crossed over the Capitol and joined us precisely to stand with Rand, as have the men and women in the gallery who have been here throughout this long and historic stand.
Finally able to sit and watch the Rand Paul filibuster. Just epic. Stand with Rand.
Read the constitution and explain why each sentence is relevant to today. Not worthless and outdated.
7 hours and counting for Sen Rand Paul in the filibuster. This can end, Brennan, just say u won't unilaterally kill us. Stand with Rand.
America is watching. Stand with Rand.
I get the feeling that a more libertarian stance is the only thing which can bring about a fresh start for the GOP. Stand with Rand.
I stand with Rand in his 9th hr awaiting the President saying he doesn't have the power to kill Americans at will.
``I haven't killed anyone yet and I have no intention of killing Americans, but I might''--Barack Obama. Stand with Rand.
The federal government was closed today. Yet Sen Rand Paul working overtime. YouDaMan.
D-a-M-a-n is the precise spelling of that.
Sen Rand Paul, 100% support you. Keep going. Stand with Rand.
This isn't a filibuster. This is a line in the sand drawn with a quill pen that penned the constitution.
I think that one is particularly cool.
Do you agree with your colleague, Rep Justin Amash? Stand with Rand.
Almost always the answer to that one should be yes.
Do you stand with Sen Rand Paul and demand an answer from the WH on extra-judicial assassinations of Americans?
There is a word we do not hear too often within our own borders--assassinations. Yet that is exactly what we are talking about here tonight.
Don't think I've ever been quite so proud to say I'm from Kentucky. Stand with Rand.
Sen Rand Paul getting to the heart of issues. Not partisan politics, but a question of due process.
He's just about 8 hours away from having the 5th longest filibuster.
I apologize to the Senator from Kentucky if that is less than encouraging.
Stand with Rand.
I have a renewed sense of hope for our leaders in Washington today. Thank you, Sen Rand Paul, for standing by We The People. Stand with Rand.
I am a strong liberal supporter and two time Obama voter. I Stand with Rand.
Dr. Rand Paul, Excellent, excellent work today. We stand with Rand, too.
I hope Sen Rand Paul Can keep them up all night. There hasn't been a real filibuster on the Senate floor in years. Stand with Rand.
And I would note, as I was walking in, that this is certainly the least well-shaven I have been on the Senate floor. And it is particularly ironic that the desk at which I am standing, in addition to having been the former desk of a great hero of mine, Senator Barry Goldwater, was also the former desk of Senator Richard Nixon. So perhaps that spirit is animating the 5 o'clock shadow that I find myself at 10 o'clock at night sporting.
Stand with u I do. Stand with Rand.
I wonder if that one was from Dr. Seuss.
Stand with Rand because you have the freedom to do so.
Obama is going to have to address the points raised by Paul. Stand with Rand.
I stand with Rand ..... best line of the filiblizzard thus far. RT--
Yet another of Senator Rand Paul's miraculous tweets that he did from the floor of the Senate, a tweet of Senator Rand Paul--
``They shouldn't just drop a hellfire missile on your cafe experience.''
I would suggest to the Senator from Kentucky that at the end of what I am sure will be a long and very distinguished career in politics, fighting for every American, that with statements such as that, a subsequent career at Starbucks may indeed be promising.
The fight for liberty has a real hero. May the spirits of past patriots fuel you.
Until you get an answer, Rand, keep on going. Let's take it into tomorrow.
Is suspicion enough? Obviously not. Sen Rand Paul.
If you have family or friends in the Middle East, you might be a terrorist. Stand with Rand.
For the first time since November, I feel like I see a light at the end of the tunnel. It is a long tunnel. Stand with Rand.
Sen Rand Paul: If you have no bounds, you have an unlimited imperial presidency. So true.
Sen Rand Paul, eight hours, and still going strong. Thanks for standing for the Constitution. God bless you. Stand with Rand.
Thank you, Rand Paul, for standing up for our Constitution. We are behind you. Stand with Rand.
Go get 'em, Rand Paul. Great way to end my birthday. Stand with Rand.
I hope we do not make it to that individual's next birthday.
Best TV I've seen in a while. Stand with Rand.
Sen Rand Paul, I'm superproud of my Senator today. I have always been proud of him, but today I'm more proud than ever. STAND WITH RAND.
My kids--watching Rand Paul give a lesson to the country--on their own, without me telling them to. Stand with Rand. Thank you, Sen Rand Paul.
Why won't Obama say that he won't use drones to kill noncombatant U.S. citizens on U.S. soil? Seems a simple question. Stand with Rand.
Senator Rand Paul, thank you. Be encouraged and stay strong. Would stand there with you if we could. We are no longer free. Thank you for standing up for freedom.
``Stand with Rand'' is trending worldwide. That is pretty darn cool.
Rand Paul goes into his 9th hour of filibuster over drones. Watch it here.
I will not read the link to C-SPAN.
Senator Rand Paul, I am so proud of you. Way to stand tall. Stand with Rand.
Senator Rand Paul, your loyalty and dedication to we the people are not going unnoticed. Stand with Rand.
If you give back your rights, don't ever expect to get them back. Stand with Rand.
Call the White House. 202-456-1111. Take a stand.
For some reason, I feel compelled to read that tweet a second time.
Call the White House. 202-456-1111.
Rand Paul, standing for liberty and freedom. God bless you. Stand with Rand.
Rand Paul, the 21st century version of Washington, Jefferson and Madison.
No matter how you fall politically, you have to admire Rand Paul's absolute conviction.
I cannot stop watching Senator Rand Paul filibuster. Greatness. Stand with Rand.
Are you going to retweet Stand with Rand all night? I am. Liberty. Rand Paul.
And the final one.
Senator Rand Paul, I am a grandma who just learned how to Twitter tonight so that I could stand with Rand and the Constitution.
The first question I will ask of the Senator from Kentucky--and I have several more--is simply: What would you say to these millions of Americans and people worldwide who are coming together to stand with Rand?
BREAK IN TRANSCRIPT
Mr. CRUZ. Mr. President, I thank the Senator from Kentucky. I do indeed have additional questions. The heart of what the Senator is standing for, what some of the other Senators tonight are standing for, is liberty. I think that has always been the foundational value in the United States of America.
Our country was founded by Framers who understood that concentrated power is always inimical to liberty, that any time great power is undivided the freedom of the people is at jeopardy. As Lord Acton observed: Power tends to corrupt, and absolute power corrupts absolutely. It is for that reason that the Framers of our Constitution did what the Supreme Court has described as splitting the atom of sovereignty, taking what used to be one discrete indispensable concept of power and sovereignty and breaking it up, breaking it up between the three branches of the Federal Government and breaking it up between the Federal Government and the 50 States and the local government as well.
The purpose of doing all that is to prevent what James Madison in Federalist No. 10 described as factions. Today we would call them special interests that might take control of one branch of government. If all power were concentrated in the Executive, and one faction, one special interest was to gain influence in that Executive, then the liberty of the people would be at peril.
In Federalist 10, Madison explained the factions are never going to go away. Human nature is such that we will divide into factions with different interests. The genius of the Framers was not to imagine human nature was somehow different than it was but to recognize that it was. As the Federalist Papers explained: If men were angels, no government would be necessary. The great challenge in forming a government is to enable the governed to do what it must. Yet at the same time oblige it to govern itself.
For that reason, splitting the atom of sovereignty, separating power prevents any one branch of government from acquiring unchecked power. It is, indeed, the responsibility of this body to do what we are doing now. If a President of the United States decrees the power to take the lives of U.S. citizens on U.S. soil without due process of law, I would suggest it is integral to the oath of office of every Member of the Senate and every Member of the House of Representatives to stand and say: Mr. President, respectfully, no, you may not. The Constitution gives you no such power. Each of us on entering office--in my case just a few weeks ago standing on those steps, the Vice President asked me to raise my hand and take an oath to honor and defend the Constitution. Every Member of this body took that oath.
It is our responsibility, especially when one branch of the government is overreaching, is usurping power that the Constitution forbids him and that is threatening to the liberty of the people, it is the responsibility of all of us to stand and resist that.
One of my alltime heroes, Ayn Rand in ``Atlas Shrugged,'' described how the parasitical class would put into place arbitrary power, standardless rules precisely so the productive citizens in the private sector would have to come on bended knee to those in government seeking special dispensation, seeking special favors, because that arbitrary and standardless rule empowers the political class and disempowers the people.
I could not help but think about Ayn Rand's observation this morning as I heard the Attorney General over and over refuse to say it would be unconstitutional for the Federal Government to kill a U.S. citizen on U.S. soil. He would say it would be inappropriate. He said that three times in response to direct questioning. It would be inappropriate and we should trust him. The Federal Government would not do so.
I found myself thinking of those arbitrary standards Ayn Rand talked about; that if the only protection we the people have against the Federal Government choosing to take the life of a U.S. citizen on U.S. soil is our trust that they would refrain from doing what is inappropriate rather than the protections of the Constitution, then I would suggest our liberty is fragile indeed.
Indeed, when we think about the concentration of power, no judicial opinion is more important than Justice Robert Jackson's concurring opinion in the Youngstown Steel seizure case. Justice Jackson, as the Senator from Kentucky knows, was a giant on the U.S. Supreme Court. My former boss, Chief Justice William Rhenquist, served as a law clerk to Justice Robert Jackson.
Indeed, Justice Jackson took time off from serving on the U.S. Supreme Court to serve as the chief prosecutor at the Nuremberg trials, during which he made the powerful observation following World War II, when the United States brought to trial the horrific war criminals in the Nazi regime.
Justice Jackson observed at Nuremberg that four great nations, flushed with victory and stunned with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law, is one of the most significant tributes that power has ever paid to reason.
I would suggest to the Senator from Kentucky, and I feel confident he would agree, that what we are talking about right now is the tribute that power must and should pay to reason and that unchecked power is always a threat to liberty.
As Justice Jackson opined in Youngstown Steel seizure ``that comprehensive and undefined Presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as a legal adviser to a President in a time of transition and public anxiety.''
Those words could have been written as easily tonight as they were half a century ago. Justice Jackson continued:
While the Constitution diffuses power to better secure liberty, it also contemplates that practice will integrate the dispersed power into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress.
When a President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.
Justice Jackson explains:
No. 2: When the President acts in absence of either a congressional branch or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which the distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent Presidential responsibility. In this area, any actual test of power is likely to depend upon the imperatives of events and contemporary imponderables, rather than on abstract theories of law.
Now, perhaps, prior to 11:45 today, Eric Holder and John Brennan would have argued they fall into this second category, a category where Congress has been silent and, accordingly, they might presume some Presidential power. But as of 11:45 today, they can no longer claim that.
Justice Jackson explained the third category of Presidential powers.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain executive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
As we stand here tonight, later than the typical hour for the Senate being in session, indeed, later than many Members of this body had anticipated being in Washington, DC--many Members of this body had envisioned being on planes and returning home by now--it occurs to me that those Senators who have heeded the encouragement of the twitterers to stand with RAND, those Senators who have come here today, I am reminded of Henry the Fifth, as Shakespeare observed:
What's he that wishes so?
My cousin Westmoreland? No, my fair cousin;
If we are mark'd to die, we are enow
To do our country loss; and if to live,
The fewer men, the greater share of honour.
God's will. I pray thee, wish not one man more.
By Jove, I am not covetous for gold,
Nor care I who doth feed upon my cost;
It yearns me not if men my garments wear;
Such outward things dwell not in my desires.
But if it be a sin to covet honor,
I am the most offending soul alive.
No, faith, my coz, wish not a man from England.
God's peace. I would not lose so great an honour
As one man more methinks would share from me
For the best hope I have. O, do not wish one more.
Rather proclaim it, Westmoreland, through my host,
That he which hath no stomach to this fight,
Let him depart; his passport shall be made,
And crowns for convoy put into his purse.
We would not die in that man's company
That fears his fellowship to die with us.
This day is call'd the feast of Crispian.
He that outlives this day, and comes safe home,
Will stand a tip-toe when this day is nam'd,
And rouse him at the name of Crispian.
He that shall live this day, and see old age,
Will yearly on the vigil feast his neighbours,
And say ``To-morrow is Saint Crispian.''
Then he will strip his sleeve and show his scars,
And say ``These wounds I had on Crispian's day.''
Old men forget; yet all shall be forgot,
But he'll remember, with advantages,
What feats he did that day. Then shall our names,
Familiar in his mouth as household words--
Harry the King, Bedford and Exeter,
Warwick and Talbot, Salisbury and Gloucester--
Be in their flowing cups freshly remembered.
This story shall the good man teach his son;
And Crispin Crispian shall ne'er go by,
From this day to the ending of the world,
But we in it shall be remembered--
We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne'er so vile,
This day shall gentle his condition.
And gentlemen in England now-a-bed
Shall think themselves accurs'd they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon St. Crispin's day.
I would observe to the Senator from Kentucky that those glorious sentiments expressed centuries ago are precisely applicable to the stand here tonight because it is a stand against, indeed it is a stand against an administration that refuses to acknowledge limits on its power. It is a stand for the same purpose, for liberty.
There is a frustration across this country, a frustration not with Democrats or Republicans, not with one party or another, a frustration with entrenched politicians in Washington who don't seem to work for anybody.
I am convinced there is something credible happening in this country when the people are standing and reminding the men and women of this body that every one of us works for ``we the people.'' It is our principal task to stand and defend liberty, especially when liberty is threatened.
Indeed, that St. Crispin's Day speech had a saying--and even in some ways a different manifestation. In one of the greatest movies of all time, Patton, the opening scene of Patton, I will confess to the Senator of Kentucky I have more than once in preparation for an oral argument in court simply watched George C. Scott marching out in front of a flag the size of North Dakota. Standing in front of the flag, General Patton observed in a tribute to that very same speech I just read--I am going to modify it slightly to make it PG.
I want you to remember that no ``fellow'' ever won a war by dying for his country. He won it by making the other poor ``fellow'' die for his country.
Men, all this stuff you've heard about America not wanting to fight, wanting to stay out of the war is a lot of horse dung. Americans traditionally love to fight. All real Americans love the sting of battle.
When you were kids you all admired the champion marble shooter, the fastest runner, big-league ball players, the toughest boxers.
Americans love a winner and will not tolerate a loser.
Americans play to win all the time. I wouldn't give a hoot in hell for a man who lost and laughed. That's why Americans have never lost and will never lose a war because the very thought of losing is hateful to Americans.
George C. Scott continues as Patton:
Now there's another thing I want you to remember. I don't want to get any messages saying we are ``holding our position.'' We're not ``holding'' anything. Let the Hun do that. We're advancing constantly. We're not interested in holding on to anything except the enemy. We're going to hold on to him by the nose and kick him in the ``posterior.'' We're going to kick the ``heck'' out of him all the time and we're going to go through him like crap through a goose.
Thirty years from now when you're sitting around your fireside with your grandson on your knee and he asks you, ``What did you do in the great World War II?'' You won't have to say, ``Well, I shoveled 'manure' in Louisiana.''
That same sentiment, the same sentiment in St. Crispin's Day speech, talked about a tradition that has been a tradition in America for centuries, of men and women rallying against hard odds, rallying against challenging obstacles.
(Ms. HEITKAMP assumed the chair.)
I would observe that fight should not be a partisan fight. This is not a question of Republican or Democrat, liberty, the right to life of every American citizen. Arbitrary taking at the hands of the Federal Government should not simply be a value that one side or another of this Chamber embraces.
Indeed, I would note during the hearings this morning with Eric Holder, some of the most enthusiastic audience participants in that hearing were self-identified members of Code Pink, who I would suggest are not ordinarily individuals who would be described as card-carrying members of the Republican Party.
But liberty does not have a partisan affiliation. Indeed, to the Senator from Kentucky, I think it is an interesting question what the reaction in this Chamber and outside would be if the very same statements that have been made were made by a President who happened to be Republican. I think there is little doubt the outcry would be deafening, and rightly so. I will say to the Senator from Kentucky, if a President made the identical representations and happened to have an ``R'' behind his or her name, I have not one shadow of a doubt that the Senator from Kentucky would be standing here 10 hours protesting the arbitrary assertion of power by a President regardless of whether we share his party or not.
Indeed, I would note to the Senator from Kentucky this is a scenario which is not entirely hypothetical. Prior to serving in this body, I had the great privilege of serving my home State of Texas as the solicitor general of Texas. During that time, we faced a tragic and epic battle in a case called Medellin v. Texas.
Medellin began with a crime that shocked the conscience. Two little girls were horrifically abused and murdered by a gang in Houston. They were apprehended, confessed, and they were convicted by a jury of their peers, quite rightly.
At that point, the case took a very strange turn because the World Court, which is the judicial arm of the United Nations, issued an order to the United States to reopen the convictions of 51 murderers across this country, including one of the murderers in this case, Jose Ernesto Medellin.
I will tell you, Jose Medellin wrote a four-page handwritten confession in that case. It is one of the most chilling documents I ever had the displeasure of reading. In it he bragged about hearing those little girls beg for their lives. A tiny detail he included in those letters was in many ways the most haunting, and I know it will remain with me for the rest of my life. He described how the youngest of those girls was wearing a Mickey Mouse watch and how he kept it as a trophy of that night because he was so proud of the atrocities they had committed. It is truly sickening what those young boys did that evening.
And yet the World Court asserted a power that heretofore has never been asserted. It was the first time in history a foreign court has ever tried to bind the U.S. justice system. The World Court claimed the authority to reopen those convictions, so Texas stood up and fought the World Court.
I had the honor of arguing this case twice in front of the U.S. Supreme Court. On the other side, 90 foreign nations came in against the State of Texas--90 nations came in and argued the U.S. justice system should be completely subject to the authority of the World Court and the United Nations.
Also on the other side, most disturbingly, was the President of the United States. The President signed a two-paragraph order that attempted to order the State courts to obey the World Court. Again, that order, like the World Court's order, was unprecedented. It was the first time in history any President had ever attempted to order the State courts to do anything.
Unfortunately, the President at issue in that case was a Republican. It was President George W. Bush, a man for whom I worked, a man who, in many respects, I respect. Yet in that case, he asserted a power that could be found nowhere in the Constitution. And in consultation with my boss at the time, Attorney General Greg Abbott, I went before the U.S. Supreme Court and argued on behalf of the State of Texas that the President of the United States has no authority to give away U.S. sovereignty.
That was done notwithstanding the fact that he was a Republican, notwithstanding the fact the President was the former Governor of my home State of Texas. Because at the end of the day, defending liberty, defending sovereignty, defending the Constitution is not a partisan choice. It is not a game of dodge ball with shirts and skins; that if your team happens to have the ball, you stick together. Every one of us has taken an oath of office and we have an obligation to stand up.
So I stood before the U.S. Supreme Court representing the State of Texas and arguing that no President of the United States, be he Republican or Democrat, has the authority to give up U.S. sovereignty and make the State courts subject to the World Court.
I would note in that case the State of Texas had support from a number of unlikely sources. Indeed, we had a wide range of amicae--friends of the court--who came in and supported us. One brief was filed on behalf of law professors. It was joined by several law professors, one of whom, John Yoo, is widely considered the law professor with the most expansive view of Presidential authority. And, indeed, he was an individual who served in the Justice Department and had advocated under President Bush an expansive view of Presidential authority.
That very same brief was joined by Erwin Chemerinsky, the dean of the University of California at Irvine School of Law. Dean Chemerinsky is a very well-known and proud liberal academic. I suspect it may well be right that this is the only time ever that John Yoo and Erwin Chemerinsky joined a single brief before the U.S. Supreme Court. And both agreed, despite the fact they come from very different places in the legal academy, that unchecked power in the hand of the executive is fundamentally a threat to liberty.
Indeed, I would note for the Senator from Kentucky, in talking to both of them and asking for their support in Medellin, I made the point to each to imagine a President from the other side who might have the power that was being asserted.
To the friends of mine on the right, I suggested that if a President had the power to set aside State laws on grounds of international comity, which was the basis that was being asserted in that case--without any sanction from Congress, without any sanction from another branch of the Federal Government, but simply on his own unilateral authority--an activist President on the left could use that power to assert, for example, that in his or her judgment the marriage laws of all 50 States should be set aside.
It may well be that all 50 States will choose to set their marriage laws aside. That is a judgment right now that has been in the hands of the voters in each State. But regardless of what the 50 States decide--and I suspect they will not decide the same thing--it seems to me clear that no President has the authority unilaterally, with the flick of a finger, to remove laws from the State books of all 50 States.
Likewise, to my friends on the left, I asked them to envision their nightmare of a rightwing President. They each had slightly different incarnations, but they all managed to do that. And I said: If this assertion of power is correct, that any President can set aside any State law if he or she deems it inconsistent with international comity, even though no treaty requires this--and, indeed, in Medellin the Justice Department maintained no treaty required this, this was simply a power that was being asserted to further comity, to further our relationships with foreign nations--I suggested if the President has that power, what is to stop a President on the right from saying: I am setting aside the punitive damages laws in all 50 States? It upsets comity when foreign companies are subject to punitive damages awards; therefore, tort reform shall be the law of all 50 States.
And for that matter, there are States such as California that persist in putting in place incredibly restrictive environmental laws. If the President has the authority to flick aside State laws, what would prevent a President on the right from saying those environmental laws are no more?
I would note for the Senator from Kentucky that my view on all those questions was very clear and very straightforward. No President may do so, whether he or she is of the right or of the left. If the Federal Government is to set aside a State law, it may do so only through exercise of the supremacy clause. The Framers required that in order to set aside a State law that had been adopted by the democratically elected legislature in the State, that two branches had to work together in concert, either through legislation that passes the House of Representatives, passes the U.S. Senate and is signed into law by the President or through the form of a treaty that is signed by the President and ratified by two-thirds of the U.S. Senate. But in both instances the Framers required two branches to work together.
Why? The same reason we discussed before. The reason from Federalist 10, that you do not want power unified in one branch of government, where a faction, a special interest, may seize control of it. You want it divided.
I will note that it was an unusual position for the
State of Texas to appear before the U.S. Supreme Court and argue that an action by a Republican President and former Governor of the State of Texas was unconstitutional. Yes, I can tell you I was very proud to have the opportunity to do just that, and I was even more proud when the Supreme Court of the United States ruled by a vote of 6 to 3 in favor of the State of Texas, concluding, No. 1, that the World Court has no authority whatsoever to bind the U.S. justice system; and No. 2, the President has no authority under the Constitution to give away our sovereignty.
I would suggest that is the way our system is supposed to work; that all of us, regardless of party, should be standing together for liberty. And when I think of standing for liberty, some of the frustration people have across this country is they feel it doesn't do any good. It doesn't make a difference who they vote for. Whoever they vote for, they go to Washington and keep spending money, and spending more money, and more money, and more money, and the debt goes up and up and up, and the Federal laws get bigger and bigger and bigger and bigger, and the Federal regulations get more and more and more, and nothing seems to change. And I understand that frustration. It is a real frustration. It is a frustration I share, and I know it is a frustration the Senator from Kentucky shares.
I would suggest that part of the import of tonight is that the Senator from Kentucky is standing with millions of Americans who are frustrated by politicians in Washington who are unwilling to rock the boat, who are unwilling to stand for change. I am reminded that change can sometimes seem hopeless. Indeed, I mentioned that the desk I am standing at was previously occupied by Barry Goldwater. I have yet to acquire, but I intend to acquire, a leather-bound copy of ``Conscience of a Conservative,'' which I intend to keep in this desk.
When Barry Goldwater became a national leader, it was thought impossible for his views to receive a wide audience. The views that were in the ascendancy were the views of the left; that government control of the economy, of our lives, was the proper and right direction for our Nation.
I am reminded of someone else, as the Senator from Kentucky knows, who gave a speech on October 27, 1964. He said the following:
I have spent most of my life as a Democrat. I recently have seen fit to follow another course. I believe that the issues confronting us cross party lines. Now, one side in this campaign--
And here he is referring to the campaign in 1964 for President.
--has been telling us that the issues of this election are the maintenance of peace and prosperity. The line has been used, ``We've never had it so good.''
But I have an uncomfortable feeling that this prosperity isn't something on which we can base our hopes for the future. No nation in history has ever survived a tax burden that reached a third of its national income. Today, 37 cents out of every dollar earned in this country is the tax collector's share,
Ah, those were the days.
and yet our government continues to spend $17 million a day more than the government takes in.
Would that we could say today the government spends only $17 million a day more than it takes in.
We haven't balanced our budget in 28 out of the last 34 years. We've raised our debt limit three times in the last 12 months,
I will remind you this speech was given in 1964, not last week.
and now our national debt is one and a half times bigger than all the combined debts of all the nations of the world. We have $15 billion in gold in our treasury; we don't own an ounce. Foreign dollar claims are $27.3 billion. And we've just announced that the dollar of 1939 will now purchase 45 cents of its total value.
Again, a scenario with which we are quite familiar.
As for the peace that we would preserve, I wonder who among us would like to approach the wife or mother whose husband or son has died in South Vietnam and ask them if they think this is a peace that should be maintained indefinitely. Do they mean peace or do they mean we just want to be left in peace? There can be no real peace while one American is dying someplace in the world for the rest of us. We're at war with the most dangerous enemy that has ever faced mankind in his long climb from the swamp to the stars, and it's been said if we lose that war, and in doing so lose this way of freedom of ours, history will record with the greatest astonishment that those who had the most to lose did the least to prevent its happening. Well, I think it's time we ask ourselves if we still know the freedoms that were intended for us by the Founding Fathers.
This next section is a section particularly dear to my heart. It was given before I was born.
Not too long ago, two friends of mine were talking to a Cuban refugee, a businessman who had escaped from Castro, and in the midst of his story one of my friends turned to the other and said, ``We don't know how lucky we are.'' And the Cuban stopped and said, ``How lucky you are? I had someplace to escape to.'' And in that sentence he told us the entire story.
Turning and seeing the junior Senator from Florida, I know he and I both know, as I hope every Member of this body knows, just how precious and fragile the freedom is that we enjoy in this country.
As President Reagan continued in that speech:
If we lose freedom here, there's no place to escape to. This is the last stand on Earth.
This idea that government is beholden to the people, that it has no other source of power except the sovereign people, is still the newest and most unique idea in all the long history of man's relation to man. This is the issue of this election: whether we believe in our capacity for self-government or whether we abandon the American revolution and confess that a little intellectual elite in a far distant capitol can plan our lives for us better than we can plan them ourselves.
You and I are increasingly told that we have to choose between a left or right. I would like to suggest there is no such thing as left or right. There is only up or down--[Up] man's old-age dream, the ultimate in individual freedom consistent with law and order, or down, to the ant heap of totalitarianism. Regardless of their sincerity, their humanitarian motives, those who would trade freedom for security have embarked on this downward course.
Given the topic of this discussion, the asserted power of the President to take the life of a U.S. citizen on U.S. soil without due process of law, that last portion bears reading again. ``Those who would trade our freedom for security have embarked on this downward course to the ant heap of totalitarianism.''
In this vote-harvesting time, they use terms like the ``Great Society,'' or as we were told a few days ago by the President, we must accept a greater government activity in the affairs of the people. But they've been a little more explicit in the past and among themselves; and all of the things I now will quote have appeared in print. These are not Republican accusations. For example, they have voices that say, ``The cold war will end through our acceptance of a not undemocratic socialism.'' Another voice says, ``The profit motive has become outmoded. It must be replaced by the incentives of the welfare state.'' Or, ``Our traditional system of individual freedom is incapable of solving the complex problems of the 20th century.'' Senator Fullbright has said at Stanford University that the Constitution is outmoded. He referred to the President as ``our moral teacher and our leader,'' and he says he is ``hobbled in his task by the restrictions of power imposed on him by this antiquated document.'' He must ``be freed,'' so that he ``can do for us'' what he knows ``is best.'' And Senator Clark of Pennsylvania, another articulate spokesman, defines liberalism as ``meeting the material needs of the masses through the full power of centralized government.''
Well, I, for one, resent it when a representative of the people refers to you and me, the free men and women of this country, as ``the masses.'' This is a term we haven't applied to ourselves in America. But beyond that, ``the full power of centralized government''--this was the very thing the Founding Fathers sought to minimize. They knew that governments don't control things. A government can't control the economy without controlling people. And they know when a government sets out to do that, it must use force and coercion to achieve its purpose. They also knew, those Founding Fathers, that outside of its legitimate functions, government does nothing as well or as economically as the private sector of the economy.
Now, we have no better example of this than government's involvement in the farm economy over the last 30 years. Since 1955, the cost of this program has nearly doubled. One-fourth of farming in America is responsible for 85 percent of the farm surplus. Three-fourths of farming is out on the free market and has known a 21 percent increase in the per capita consumption of all its produce.
I am going to skip further along, to the end of the speech which, I will confess, not unlike the speeches given on this floor, was not a short speech. I will move to the end where President Reagan continued and said:
Those who would trade our freedom for the soup kitchen of the welfare state have told us they have a utopian solution of peace without victory. They call their policy ``accommodation.'' And they say if we will only avoid any direct confrontation with the enemy, he will forget his evil ways and learn to love us. ..... We cannot buy our security, our freedom from the threat of the bomb by committing an immorality so great as saying to a billion human beings now enslaved behind the Iron Curtain, ``Give up your dreams of freedom because to save your skins we are making a deal with your slave masters.'' Alexander Hamilton said, ``A nation which can prefer disgrace to danger is prepared for a master, and deserves one.'' Let's set the record straight. There is no argument over the choice between peace and war, but there is only one guaranteed way you can have peace--and you can have it in the next second--surrender.
Admittedly there's a risk in any course we follow other than this, but every lesson of history tells us the greater risk lies in appeasement, and this is the specter that we face. You and I know and do not believe that life is so dear and peace so sweet as to be purchased at the price of chains and slavery. If nothing in life is worth dying for, when did this begin?
You and I have the courage to say to our enemies. ``There is a price we will not pay. There is a point beyond which they must not advance.'' And this, this is the meaning in the phrase of Barry Goldwater's ``peace through strength.''
Winston Churchill said, ``The destiny of man is not measured by material computations. When great forces are on the move in the world we learn we are spirits--not animals. And he said, ``There is something going on in time and space, and beyond time and space which, whether we like it or not, spells duty.''
You and I have a rendezvous with destiny.
We will preserve for our children this, the last best hope of man on Earth or we will sentence them to take the last step into 1000 years of darkness.
We will keep in mind and remember that Barry Goldwater has faith in us, he has faith that you and I have the ability and the dignity and the right to make our own decisions and to determine our own destiny.
That path, the path of standing and fighting for freedom, even when it seems daunting, even when it seems the gestalt of the moment is on the other side, is a path with many honorable forebears.
I can tell you, speaking and echoing the sentiment of the millions on twitter, of the people following this stand for principle tonight, if the 100 Senators in this body stand together and say regardless of party, liberty will always prevail; regardless of party, the Constitution is the governing body, the governing document in this Nation, then we will be doing our jobs.
I commend Senator Paul for a lonely stand that, as the night has worn on, has not proven quite so lonely. Indeed, were he the only Senator standing at his desk this evening, it would not be lonely in that circumstance either because he would be standing shoulder to shoulder with millions of Americans who do not wish the Federal Government to assert arbitrary power over our lives, over our liberty, over our property, but who, instead, want a government that remains a limited government of enumerated powers that protects the God-given rights each of us is blessed to have.
The question I ask: What in the Senator's judgment is America without liberty? Who are we, if we are not a free people?
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Mr. CRUZ. I thank the Senator from Kentucky.
I would point out that the questions of imminence, I don't think, are difficult as has been suggested. Indeed, I would like to thank the senior Senator from Illinois for braving this long evening and for expressing his equal and heartfelt concerns about the limitations on the power of the executive to take the lives of U.S. citizens on U.S. soil.
I would point out that at the hearing we had yesterday with the Attorney General there was a series of questions exploring in further depth what the position of this administration was because, in response to the inquiry of the Senator from Kentucky, Attorney General Holder put in writing that he could imagine circumstances in which it would be permissible to take the lives of U.S. citizens on U.S. soil.
The two examples he gave were Pearl Harbor and 9/11. As the Senator for Kentucky responded, and I think everyone here agrees, those examples are unobjectionable. Both of those instances were instances of grievous military attacks. I think nobody doubts that if Kamikazi planes are coming down on our ships in Pearl Harbor, the United States can use lethal force to take out those planes and to save the lives of our service men and women. There is no question about that, legal or otherwise.
Likewise, I think nobody doubts if terrorists have taken over an airliner and are steering it into a building, that tragic a decision would be as heartrending as the decision on 9/11 must have been for the President to give the order to shoot down that fourth commercial airline--if it began approaching yet another target where it could inflict thousands of deaths--I think nobody disputes that stopping an imminent, immediate, act of violence, and indeed, a military act of war is fully within the authority of the Federal Government.
The question posed to the Attorney General was the question Senator Paul had asked originally--not that question--rather, it was if there is an individual, a U.S. citizen on U.S. soil who is suspected of being a terrorist, and for whom we can say arguendo there is abundant evidence to demonstrate this individual as a terrorist, and if this individual is on U.S. soil and is not currently an imminent threat of violence--if he or she is sitting in a cafe in rural Virginia having a cup of coffee, the question I posed to the Attorney General is, in those circumstances, would it be constitutional for the U.S. Government to send a drone to kill that U.S. citizen on U.S. soil with no due process of law if that individual did not pose an imminent threat?
In my judgment that was not a difficult question. I think the answer, frankly, I expected was, of course not. Of course the Federal Government cannot kill a U.S. citizen on U.S. soil who does not pose an imminent threat. That has been the state of the law from the day our Constitution came into effect and from before.
Instead, the first response of the Attorney General was it wouldn't be appropriate to use lethal force there, and we wouldn't do so. I pressed the question again on the Attorney General and said: With respect, the question is not whether it is appropriate, it is not a question of prosecutorial discretion. Do we trust you would not choose to exercise lethal force in those circumstances? Rather, it is a question would it be constitutional to kill a U.S. citizen on U.S. soil with a drone if that individual did not pose an imminent threat?
The second time the Attorney General said: I don't believe it would be appropriate. Yet a third time I asked the Attorney General: I am not asking about appropriateness. As the Attorney General of the United States, you are the chief legal officer for this Nation. Does the Department of Justice have a legal opinion as to whether it is constitutional for the U.S. Government to kill a U.S. citizen on U.S. soil if he or she does not pose an imminent threat? Yet a third time the answer was it wouldn't be appropriate.
Then, finally, when asked a fourth time, the Attorney General said: When I say ``appropriate,'' I mean it wouldn't be unconstitutional.
Finally, after asking four times, the Attorney General agreed.
My response to that questioning was: General Holder, I am very glad you have stated that position. I emphatically agree with that position. I don't understand why it took such gymnastics to get to that position. I wish you had simply said that in response to Senator Paul now 2 days ago. It would have been a very straightforward and simple thing to say.
What I also said to the Attorney General is Senator Paul and I have drafted legislation which will make explicitly clear the U.S. Government may not kill a U.S. citizen on U.S. soil who does not pose an imminent threat.
I hope, based on the Attorney General's representations, the Department will support that legislation. That ought, in my judgment, be legislation which should be bipartisan legislation that should pass this body 100 to 0 because it is truly phrased with as unobjectionable a legal truism as I could come up with.
I will admit I have been flabbergasted as these days have gone on why John Brennan, when asked by Senator Paul this question, did not simply say no. Why didn't Eric Holder, when asked repeatedly, simply say no--at least not at the first. Why now, over 12 hours since this filibuster has proceeded, the White House has not put in writing the absolutely correct statement of constitutional law the Federal Government cannot kill U.S. citizens on U.S. soil if they do not pose imminent threats.
I would note, with the hypothetical that the Senator from Illinois posed to Senator Paul, even in that situation, Osama bin Laden was a horrible enemy of the United States who committed a grievous act of terror and was the mastermind behind it. I am very glad that after a decade-long manhunt, we were able to find him and we were able to, on a military battlefield, take him out.
I would suggest that if he were not in Pakistan, if he were living in an apartment in the suburbs of Chicago, and if he were asleep in bed--and even if he were Osama bin Laden, a really, really, really bad guy--there is nothing in the Constitution that gives the Federal Government the authority to fire a missile at an apartment with a sleeping person in it in the United States of America if that individual was a U.S. citizen. And if he was in the United States, what we would do is what we would expect to do with any other really, really, really bad guy, which is go in and apprehend him.
Behind enemy lines, you can't always do that. There are things that happen on the battlefield that we would never do at home. But I would suggest that any argument that says someone sleeping at home in bed presents an imminent threat is an argument that stretches the bounds of the word ``imminence'' beyond where its natural meaning should lie.
If an individual is pointing a bazooka at the Pentagon or robbing a bank or committing another crime of violence, there is no doubt that force--and lethal force--can be used to stop that crime of violence. But I think that there likewise should be no doubt that the Federal Government lacks the authority to kill U.S. citizens on U.S. soil if there is no imminent threat of death or grievous bodily harm.
So I am hopeful that the results of this extended discussion will be several. I am hopeful, No. 1, it will prompt the White House to do what the White House has heretofore refused to do, which is, in writing, explicitly answer the question posed by Senator Paul now over a week ago and expressly state as the position of the United States of America that the Federal Government cannot kill a U.S. citizen on U.S. soil if that individual does not pose an imminent threat of death or grievous bodily harm.
I also hope that a consequence of this extended discussion is that we will find widespread agreement in this body behind passing legislation to make clear that the Constitution does not allow such killings. I am hopeful that legislation will command wide support on the Republican side of the aisle but likewise wide support on the Democratic side of the aisle.
I would hope for and would certainly welcome the support of the senior Senator from Illinois and, indeed, every Member of the Democratic caucus. And should this body come together in a bipartisan way or, even better, in a unanimous manner and clarify that the Constitution prohibits killing U.S. citizens on U.S. soil absent an immediate threat, I would suggest this debate will have accomplished a great deal because it will have made clear the limits of the Executive power, and it would be, indeed, carrying out the finest traditions of this body--serving as a check on unchecked government power.
So I would ask the Senator from Kentucky, does he agree that if those were the outcomes of these proceedings, this would have indeed been a beneficial proceeding for helping focus the American people on these issues and helping draw a line that the Executive cannot cross consistent with the Constitution?
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