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Unofficial Transcript: Hour 3 - Sen. Rand Paul Filibuster of Brennan Nomination

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Location: Washington, DC

Today, Sen. Rand Paul took to the Senate floor to participate in an active filibuster of President Obama's nominee for director of the Central Intelligence Agency, John Brennan. Sen. Paul's remarks began at 11:47 a.m. ET, and as of this release, he is still participating in the filibuster. Below is video and an unofficial transcript of his remarks between approximately 1:47 p.m.-2:47 p.m.

What we're talking about is noncombatants eating dinner, sleeping in their house, walking down the street, a large percentage of the drone strikes have been people who were not carrying arms or in combat. Now, were they bad people? I'm not positive that I can tell you one way or the other, but I don't want that sort of standard to be used in America. I don't want the standard to be that if you're close to a bad person and you're a male between the ages of 16-50, that you are no longer a civilian but that you are actually a militant. Is that the standard we're going to use in America? I don't want the standard to be sympathizing. You know, has anybody ever been on the Internet? Have you ever seen crackpots on the Internet who say all kinds of crazy things? If you're saying crazy things and they happen to be against your government, is that enough for a Hellfire missile to come down on your house? Is sympathizing enough? People have written about this and talked about the idea that during the Vietnam War, there were many people - and some of them frankly were treasonous and should have been tried for treason - but even having said that, I would never be for killing them without some sort of due process or trial. The idea of the right to trial by a jury is something that really we have based our history for hundreds and hundreds of years have been basises of a foundational principle for our country. I can't imagine that we would be so cavalier as to let it go.

As we move forward with this nominating process, I have decided to occupy as much time as I can on the floor to bring attention. Ultimately, I can't win. There's not enough votes. There would be if truly there was an uprising of bipartisan support who would come to the floor and say, you know what? It's not really about John Brennan. It's about a Constitutional principle, and we're willing to delay this until the President can explicitly answer that noncombatants in America won't be killed with drone strikes. I think it's a pretty simple answer, but it's been like pulling teeth. I have written letter after letter for weeks and weeks trying to get an answer on this, and we haven't had much luck.

There have been people who have written about the lawfulness of these lethal operations directed against citizens, and there is a question both in the country and outside the country, there is a question of what the standard will be, will it be the same standard? Now, some say there is no standard once you get outside the country, that anybody can be killed whether they are an American citizen or not. I frankly don't like the idea of no standard. I think, for example, the most prominent American that has been killed overseas was Awlaki. He was on a list and his name was publicly known to be on a kill list for months. I see no reason why he couldn't have been tried in a federal court, expeditiously, if he didn't return home he'd still be tried, but given representation and tried for treason. These aren't real frequent cases overseas that have occurred, so I see no reason why we wouldn't use federal courts. The federal courts are adapted such that they can go into secret session, if there is classified material. Federal courts in Washington, Philadelphia, and New York have done this on occasion.

And I think we could do this in federal court. We have tried and convicted quite a few terrorists, I think, number into the several hundreds in the United States in our courts. The main thing is that, I object to people becoming so fearful that they cavalierly give up their rights. We had two terrorists in Bowling Green, Kentucky. My town is 50,000 people. Who would have thought we would have two terrorists? And they were conspiring to either buy or send Stinger missiles to Iraq, and I'm glad they were caught and I'm glad they were punished. They were done so in a court. But many people said oh, let's just send them to Guantanamo Bay forever, it's like - once we go down that path that we're not going to have any due process - our courts have done a pretty good job. In fact, I think we have not let off anybody from one of our courts that should have been kept here and tried. I do have some questions how these terrorists got to the country, and it goes back to while we don't want terrorism to occur, how we should combat it. Whether it's most - best combated by being in Yemen, Mali, Somalia, Afghanistan and Pakistan or whether some of the way we ought to combat terrorism is to do a better job of knowing who comes into our country and who leaves. For example, we have allowed 60,000 people from Iraq to come into this country in the last two or three years. I think that's a lot, frankly. They come here under asylum. The problem with asylum is, see, I thought asylum was when you were escaping dictatorship, when you were going to be persecuted by a dictator. Well, we won the war in Iraq. It's a democratic government over there, and I wouldn't understand why you would be trying to leave a democratic government. Also, the 60,000 you leave, other than maybe the two we captured in Bowling Green, you would presume that most of them are pro-Western if they want to come over here, those are the people we want running Iraq. There are all kinds of reasons why they should stay in Iraq to run the country. But in letting so many people come in, we didn't do a very good job, because the two terrorists we let in in Bowling Green, their fingerprints were on an I.E.D., And the I.E.D. was in a warehouse somewhere, and the interesting thing about it is they didn't find the fragments that their fingerprints was on matching up in a database. After we caught them and were trying them and we knew their name and had their fingerprints, we went and directed towards some fragments that had been in a warehouse for years and years and had not yet been checked for fingerprints. So we're really not quite doing the job.

Sometimes we want to analyze so much information that we get overwhelmed with the information, too. We collect millions and millions and billions of pieces and bits of information, but it can't possibly all be analyzed, and some of it I fear goes against your rights to privacy. Any of your e-mails over six months can be looked at. We found out about this recently when we had an adultery affair in our military, and it's like, I think your third party records are yours. So I had an amendment recently on this, and I told people that my Visa bill is pretty private. Just because I use my Visa card doesn't mean I have given up that information and that the government should get to look at my Visa bill every month. But that's what we have done. This has been going on, a lot of these things have been slipping away from us for a long time. They are not President Obama. They are 40 or 50 years of court cases. So like 30, 40, 50 years ago, we decided that, once a third party had your records, they weren't yours and they weren't private anymore, which I think is an absurd notion.

Think about the age we live in now and how a lot of people don't use cash at all. Your Visa card has everything on it. You can look at a person's Visa card, find out if they see a psychiatrist, what kind of medicines they are on sometimes. You can find out what kinds of magazines they get, what kind of books they get, where they buy them from. You can look at a person's Visa bill and find out if they drink alcohol, or if they gamble. You can find out their travel patterns. There is a lot - you can find out a ton of information about someone's Visa bill. Should people be able to look at your Visa bill without asking a judge and saying, we think he's involved in this? And see, I'm not saying you can't do this for a terrorist, but what you should do is you should go to a judge, you should present some evidence to say we think he's a terrorist, we want to look at his Visa bill. Instead of saying everybody in America, your Visa bill is open to scrutiny. That's basically what we have now. Your banking records, your Visa statements, all of your records that are held by a third party are not protected. You may have heard some about they want to have cybersecurity. Everyone wants their computers to be secure, including the computer companies. They work nonstop trying to keep these hackers out of our computers. But the law they want to pass wants to give immunity to the computer companies. Well, a lot of us don't think much of it. We check off that confidentiality button and we hope that we have signed the contract and they are not going to share our stuff. They share it in a way, but in an anonymous way but with people you buy stuff from and we put up with that in order to get a great search engine. And I'm okay with that, that's a private contract. What I'm concerned with is all of a sudden when we pass this cybersecurity all of a sudden its going to be, oh well, you really can't sue them if they breach your privacy. So then we become everybody's computer, everybody's searches, everybody's reading habits are open to the federal government. It's once again because we are fearful of people coming at us and fearful of attacks, we give up our rights.

But I thought we were fighting to preserve our rights. So then what are we fighting for? These battles are going on throughout government. The interesting thing about these battles is they are not really always Republican versus Democrat. These are battles that are sometimes really coalitions of people from the right and people from the left who have gotten together and fought on these things. On trying to get the President to acknowledge that he won't do drone strikes, there have been people on the Democratic side of the aisle who have allied with me and helped me to get some of this information. In fact, the President would have refused probably until hell froze over of giving me anything, but the fact that we got a few Democrats on there to ask for the information also, all of a sudden we had a coalition and we were able to get some information. But it hasn't been easy, and that's what's worrisome. The fact that they don't want to acknowledge limitation to the presidential power worries me that they believe in an incredibly expansive presidential power.

In order to stop that, we have got to be protective of our rights. You know, we have got to be able to not so easily give up on our rights. There is a white paper that was written and the title of it was the lawfulness of a lethal operation directed against a U.S. Citizen who is an operational leader of al-Qaida or an associated force. This is from the Department of Justice. This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force. One of the things that they do in the document - and some of this was leaked recently - is they tell you the criteria for when they can kill people overseas. Now, we don't know the criteria for killing people in this country. They make a contention that the rules will be different but no one's really acknowledging exactly who they can kill or what the rules will be. For the people who were killed overseas by drone strikes, the thing that they come up with is that they say that it has to be an imminent threat but it doesn't have to be immediate.

Well, you know, to my thinking, only a bunch of government lawyers could come up with a definition for imminent that says it isn't immediate. So that's the first problem with it. Is that going to be the standard that's used in America? That has to be an imminent threat but it doesn't have to be immediate, because then my next question, what does that mean? Does that mean noncombatants who you think might someday be combatants are an imminent threat? I mean, it is a pretty important question, what is imminent? No, there is no question what is imminent lethal force. Someone aiming a gun at you, a missile, a bomb, any of these things is imminent, and no one questions that. No one questions using lethal force to stop any kind of imminent attack. But we become a little bit worried when the President says imminent doesn't have to mean immediate. And when that happens and then when you see, from what we can tell from the unclassified portion of the drone attacks overseas, many of these people are not involved in combat. They might someday be involved in combat, they might have been involved in combat, but when we kill them, most of them are not involved in combat. So even overseas, there is some question of this program, but my questions are primarily directed towards what we do in this country. Now, it says that the U.S. government can use lethal force in a foreign country outside the area of active hostilities. That's once again the point. We're not talking about a battlefield, but because the battlefield has no limits, since the battlefield is not just Afghanistan, the battlefield has no geographic limits, so the battlefield is the whole world, including many in this body who say the battlefield is the United States. So once you acknowledge and admit that the battlefield is the United States, this whole idea of what's imminent versus what is immediate becomes pretty important because we're talking about your neighbors now.

The other thing about this is, is you need to try to understand who - who are these terrorists? Members of al-Qaida. There are no people walking around with a card that says "al-Qaida" on it. There are bad people and there were bad people associated with the terrorists. We've killed a lot of them who were in Afghanistan training and part of the group that attacked us. But there are terrorists all over the world that are unhappy with their own local governments. Some of them are unhappy with us, too. But to call them al-Qaida is sometimes a stretch, and sometimes open to debate, who is and who isn't. But then they use other words, and words are important. They're either a member of al-Qaida or associated forces. I don't know what that means.

Do you have to have talked to al-Qaida or do you just have to be committing terrorism? Do you have to be in a country where we're supportive of the government and people are attacking the government? It's not always clear. The other question you get to when it's either al-Qaida or people associated is that now we get to the United States and we have the government defining what they say is terrorism. So the government has put out some documents, one by the Bureau of Justice, to warn you of who might be a terrorist. In fact, the government has programs, they want you to inform. They say, see someone, tell someone. If you see these people, you're supposed to inform on them. So some of the characteristics of people who might be terrorists - and I don't know, they don't have to be an imminent threat so I don't know, it doesn't have to be immediate but some of these people might be terrorists. I don't know. If the President's going to kill these people, he needs to let them know.

Some of the people who might be terrorists are people who are missing fingers. Some people have stains on their clothing. Some people who have changed the color of their hair. Some of the people who have accumulated guns. Some people who have accumulated weatherized ammunition, which might be half the hunters in the South this time of year. Or, people who might like to pay in cash. Or, people who have seven days of food on hand. Well, I know people just for religious reasons, they are taught to keep food on hand. In fact, the government web sites sometimes tell you to keep food on hand for hurricanes. If you live along the coast, one government web site says keep food on hand. The other government web site says, if you do, you might be a terrorist. Now, not saying you are but if these are the characteristics of terrorism, would you not be a little concerned that if the government's putting this list out, that we're going to drop Hellfire missiles from drones on people in America who might be on this other list? I'm - I'm particularly concerned about that. So I think we can't be sloppy about this. We can't allow ourselves to, you know, be so, I guess, afraid of terrorism or afraid of our enemies that we give up on what makes us Americans. What makes us Americans are, you know, are our constitutional rights, that these are enshrined in our Constitution. It's why we've gone to wars to defend these rights. You know, when we think the war still has purpose if we're no longer able to enjoy these rights at home?

The problem as I see it, as we go forward, is that I wish I could tell you that there was an end to this, that there would be a grand battle for your constitutional rights or for what rights you lose overseas, what rights you lose here if you travel. The problem is, they don't see an end to the war. They - they see perpetual war, perpetual war without geographic limits, and they see the battlefield here. So they want the laws of war to apply not only there but to apply here. Another way of saying the laws of war is martial law. These are the laws of war, these are the laws that are accepted in war. We accept a lot of things on the battlefield that we don't want to accept here. I acknowledge, we accept it, you don't get Miranda rights on the battlefield. You don't get due process. You don't get an attorney. If you're shooting at us, we shoot back and kill you. The thing is, if you're sitting at a cafe in Houston, you do get Miranda rights, you do get accused of a crime, you do get a jury of your peers. That's what we're talking about here. The President should unequivocally come forward and state that noncombatants, people not involved with lethal force, will not have drones dropped on them.

The other thing you should acknowledge is the law. Not only the constitutional law but the law since the Civil War has said the military doesn't operate in the U.S. There's a reason for the military not operating in the U.S. Why? The military operates under different rules of engagement than policemen. The rules are stricter on policemen. We do it because we're not in a war here. So the policemen have to call judges. A lot of people don't think through this, though, and they'll say, well, these people are terrible, they're awful people who would cut your head off. You're right, they're really bad people. We have really bad people in our country too sometimes. We have murderers and rapists. But tonight at 4:00 a.m., if there's a rapist going around the neighborhood and you get to a house and there isn't an imminent thing going on but you're told he might be in this house, before the door's broken down, they call on a cell phone, they get a judge out of bed and they say, we have chased him into this neighborhood, no one's answering, we want to break the door down, can we have a warrant? And sometimes you don't need it in that situation, but most of the time in our country the police have to call for a warrant. We have a process. But definitely when he's arrested, they don't just string him up. We don't - we don't have lynchings in our country. We don't let mobs decide who's guilty and who's not.

I don't question the President's motives. I don't think the President would purposely take innocent people and kill them. I really don't think he would drop a Hellfire missile on a cafe or a restaurant like I'm talking about. But it bothers me that he won't say that he won't. And it also bothers me that when he was a Senator in this body and when he was a candidate, he had a much higher belief and standard for civil liberties, and that he seems to have lost that as he's become President. So I think this is an important issue. It goes beyond John Brennan. It goes beyond really the President. It goes to an issue that rises above, I think, all other issues that we consider here. I voted for three of the President's nominations, not because I agreed with them politically. In fact, I disagreed with the vast majority. But I disagree with the President on a lot of political issues, but I voted for his nominations because I think the President does get some prerogative in deciding who his political appointees are. I've chosen to make a stand on this one, and not so much the person, but the principle of this. I have nothing personally against Brennan, I have nothing personally against the President. But I have a great deal of concern about the rights that were enshrined in the Constitution. I have a great deal of concern about this slippery slope of saying that there won't be accusations, there won't be trials, that we will just summarily execute people. And the question is, will you execute noncombatants? If he's not going to, he ought to say so.

In this white paper that was released, they talked about the three different conditions. One of them was imminence. But then they qualified it by saying imminent doesn't have to mean immediate. Another one was feasibility. They said, you know, it's not feasible to get some of these people overseas and so we kill them. But feasibility is to a certain extent could be defined as convenience. And so the question is, in America, you know, what if they live up in the Rocky Mountains and there are no roads leading up to where they are? They're not very accessible, it's not very feasible. And so are we going to do strikes based on convenience? Is that going to be the standard? When we talk about standards, they say they have a process in place, but the process is very important. The standards are important. But it's also important that one group of people, one political group of people or one politician doesn't get decide that standard. That the standard - and part of the way the process in our country works is there are checks and balances between three branches of government, and that one branch of government doesn't get to unilaterally decide what these standards are. Because some of the standards are a little bit loose. Whether or not you're near someone. Apparently we're not counting civilians who are killed by drone strikes if they're males between the ages of 16 and 50. If they were close to the person we were targeting, we just count them as other militants. Are we going to do that in the United States? If you're eating with 15 of your family members and one of them one of them may or may not be communicating by e-mail with somebody a Middle Eastern country, can we just kill all 20 of you? And because some of you are within the right age group, that's fine?

Or let's say you're eating with your cousin who is communicating with somebody in the Middle East and that person may or may not be a bad person, and then when you leave, let's say you're going to a wedding and you're going from a pre-party and there's 20 cars all going to the wedding and they know or they think they know or there may be a bad person among you, why don't we just strike the caravan? These are called signature strikes. The "Wall Street Journal" said that the bulk of our drone strikes overseas are signature strikes. That's a good question for the president. Are signature strikes going to be the standard for killing Americans in America? The President simply says the rules will probably be different for inside than outside. Well, I frankly don't think that's good enough. He says he has no intent to kill Americans in America. I frankly don't think thats good enough. I don't think it's good enough for the President to say, I have no intention of breaching the Fourth - the Fifth Amendment. Intending not to is not the same as saying I won't. His oath of office says, I will not - no, it says, I will protect, defend and preserve the constitution. It doesn't say, I intend to protect, preserve and defend the Constitution except for when it's infeasible or inconvenient. That's not what the rules are about.

I think the rules are pretty absolute. The rules are, the Bill of Rights are yours. You got them from your Creator. They were enshrined in the Constitution. Nobody gets to take them from you. Nobody. No President from no party gets to be judge, jury and executioner. This decision to let this go, to let this nomination go without an answer is a big mistake for us. If we do this, if we let this nomination go without a debate, without significant opposition, without demanding more answers from the president, the problem is, is we're never getting any more answers.

There will be some in this body who say, well, just let it go, the snow's coming and we want to go home. The - the problem is, is that he's never going to answer these questions unless he's forced to. I suspect George Bush would have been the same. I suspect a lot of the Presidents would be the same, and I think it's unfortunate but they see their power and their sphere of power as being more important than your constitutional rights. But we won't get this by just the gladhand and the winning smile is not going to get any information from the President. The only way that this President would ever give us information is if we were to stop this nomination. And I'm not even saying stop it personally. My objection really is not so much to Brennan as being in charge of the CIA as my objection is to the program and to the President not admitting that he can't do drone strikes in America. So I will continue to do what I can to draw attention to this and we'll see where things lead. But I am disappointed in the President. I am one who, while I'm a Republican, I didn't vote for him in 2008 or 2012, I am one who has admired certain aspects of his policy. I admired his defense of civil liberties. I admired him in 2007 when he said that Americans shouldn't be involved in torture. I admired him when he said that we should follow the rule of law and that we should have warrants before we tap people's phone, that we shouldn't be trolling through people's records. But I find a great irony and, really, frankly, a great hypocrisy to someone who would defend getting warrants before we tap your phone but won't defend a trial before we kill you. You know, tapping one's phone is a breach of your privacy and it should only be done if you've been accused of a crime and evidence has been presented and a judge grants a warrant. But killing someone with no due process? With no judicial oversight?

Now, some are saying in here, oh, we'll get to it. We're eventually going to set up a court, maybe a FISA court, which, unfortunately, probably won't be quite good enough because it'll be in secret and you really should have a chance to confront your accusers and have a public trial if you're going to be killed. Particularly what I'm talking about is American citizens. But there needs to be some oversight. But the problem with waiting to do this and saying, oh, you know, we'll do this, you know, sometime. We'll get to it eventually. It never happens. Same way with saying, oh, we'll get to - we'll keep asking the president for more information. But it never happens. You know? If we do not take a stand for something we believe in, it's going to slip away from us. I think our rights are gradually eroding. I think they are gradually slipping away from us. I think the understanding of the Constitution as a document that restrains your government, that restrains the size and scope of your government has been lost on a lot of people, and I think it's something we shouldn't give up on. When the President goes through his three different items that were leaked through this memo, he says there has to be an imminent threat and he says the capture has to be inconvenient or infeasible, and he says that the operation of killing the person has to be conducted within a manner consistent with the applicable law of war. Here's the problem. That sounds fine if you're in Afghanistan in the mountains fighting a war, but I'm talking about downtown Washington, D.C., talking about living in the suburbs of Houston or Atlanta. Are we going to have drone strike programs in America consistent with the applicable law of war? See, the other way to put law of war - and this isn't a stretch, this is just turning the words around - martial law. Now, people, if you put it that way might have a little bit different impression. Do we want martial law in our country? If you go back to the battle we had over indefinite detention last year, where they are saying they can take a citizen without a trial, actually send them from America to Guantanamo Bay if they are accused of terrorism, - accused, not convicted, accused of terrorism - you start to worry about some of the stuff happening in our country, that this could actually happen. One of the sort of ironies of looking at different governments and looking at what makes people unhappy. In Tahrir Square in Cairo, there have been hundreds of thousands of people protesting, and it's interesting what they are protesting. They are protesting - one of the large things they protest is something called an emergency decree, which I believe went in place by Mubarak 20-some odd years ago. So you get leaders who come in and they are fearful or they use fear to accumulate power, and you get a decree, so you get martial law. The martial law ironically enough in Egypt allows detention without trial. They do have the right to trial but there is an exception and it's been excepted for the last 20-some odd years, and the people are hopping mad over it. So we get involved in their country and their politics and give them money and weapons, and we have got some of the same debate and proble here at home. Whether or not you can indefinitely detain.

You know, the president's response to this was also pretty disappointing. It wouldn't have become law without him. I think he threatened to veto it and then he signed it anyway. Empty threats are of no value. He struck no great blow for America or for American freedoms by not vetoing this. But when he signed it, he said something similar to what he's saying now. He said well, I have no intent to indefinitely detain people. Am I the only one in America that's a little bit, you know, underwhelmed by the President saying he has no intent to dough taken somebody but he is going to sign it into law saying he has the power to? That's the same thing we're getting now in this drone strike program. Don't worry, everything's okay. I'm your leader, and I would never detain you. I would never shoot Hellfire missiles at noncombatants. I won't do that. And I can take him at his word, but what about the next guy? And the next guy? In 1923, when they destroyed the currency in Germany, they elected Hitler. I'm not saying anybody's Hitler, so don't misunderstand me. I'm saying that there is a danger even in a democratic country that someday you get a leader who comes in in the middle of chaos and says, Those people did it! Those people are the mistake, those people are who we need to rout out. And if the laws have been removed that prevented that from happening, if the laws had been removed that say we can indefinitely detain. In Hitler's case, he said the Jews, those bankers, the Jews did this to us and they were indefinitely detained. Now, am I saying it's going to happen in our country? Unlikely. I can't imagine any of our leaders for all of our disagreements doing that. But if you don't have the law to protect you, you don't have that protection, because you do not know who the next guy is, and the next guy, or the next woman.

When Madison wrote about this, he was very explicit. He said we have these rules in place because we don't have a government of angels. If we had a government of angels, we wouldn't need these rules. And I will never forget the discussion with somebody about the Kelo case.

The Kelo case was a case where the government took private property and gave it to a richer person who had private property that wanted to develop it. Ironically, the justification they use is blight. They take it from one middle-class person and give it to a rich corporation and they say they're doing that to rectify blight. But when they did that and when they came down with a ruling on this, it was concerning the logic of the way they get to this ruling that basically they really don't have this right to your property. And when the kilo decision came down, it really bothered me. I remember we started having the battle in our local government. And in our local government, there was a battle over a resolution, and the resolution said - it was in the city council. The resolution said that the local city government can't take private land and give it to another person. It was really like so many other things the intention of eminent domain was to build highways and have thoroughfares that you might get otherwise, but it was never intended to take from a private owner and give it to a corporation. That's what they did with the Kelo decision.

Local governments began talking about this. I was talking to one of my local government officials. It was probably 20 years ago, 15, 20 years ago. Their response was but I would never do that. I would never take private land through eminent domain and give it to another corporation. I would never do that. So really the - and I believe - I believe that person. And I really frankly give the President the benefit of the doubt. I don't question his motives. I don't think he probably will kill noncombatants, but I certainly don't want him to claim that he has the authority to kill noncombatants. So this is a big deal. It's a huge deal.

So with the eminent domain, we finally passed it in our local commission. It was like 3-2. In my town in Kentucky, you can't take private property through eminent domain and give it to another private individual. Because it is not about the individuals involved. It's about the fact that we don't always have angels running our government, we don't always know who we're going to get.

If we look through and we ask the question, if we ask the question do you want a government that is run by majority rule or a government that's restrained by its documents, it's a pretty important question, and ultimately there are ramifications to majority rule, to basically whatever the majority wants. One, the majority can vote upon minorities rules they don't pass on themselves. In fact, Martin Luther King wrote - this is one of my favorite writings from him. He said that an unjust law is any law that a minority - that a majority passes on a minority but doesn't make binding on themselves. I thought that was a great statement because you would almost apply that to any law written on any suggest. If the law excludes certain people and isn't applied to everyone, then by definition it's an unjust law. What a great way to put it succinctly and what a great way that we should look as far as trying to write rules. But you have to decide as a country whether you want majorities or politicians to decide things or whether you want reliance on documents and on a process and on a rule of law that protects you. I think if we rely on basically the whims of politicians, I think it's a big mistake.

You know, if we are going to rely on the politician basically sitting in the office going through flash cards and a power point presentation to make the decision on life and death for Americans in America, I think it's a huge mistake. Any people who watch trials and court cases realize that even courts aren't perfect. It's actually amazing how we even get it wrong with courts in trials and juries. Many states and even many people who are in support of the death penalty question their support of the death penalty because of the imperfection of our courts. Through DNA testing, we don't always get it right, even with that.

I think in Illinois, they stopped the death penalty, after having so many DNA testings that showed there was incorrect diagnosis of who - who had committed the crime. And so the question becomes is even with all the checks and balances of the court, are you worried at all about having one politician accuse, secretly charge I guess if you can call it a charge and then execute Americans? I'm incredibly troubled by that. I can't imagine that we as a free country would let that stand. I mean, I think it's an insult to every soldier in uniform fighting for American freedom around the world that we would just give up on ours at home, that the President would cavalierly or incorrectly or without forethought - without sufficient forethought not tell us, not go ahead and explicitly say this will never happen in America. His answer to me shouldn't have been no, we won't kill noncombatants. It should be never, no, never, we will never in America come to that. Under my watch, we will never, ever allow this to happen in America. It's incredibly disappointing. It should be disappointing to all Americans or anyone who believes in this.

We have to realize that trying to figure out guilt or innocence is very complicated. Anybody who h ever served on a jury realizes how difficult it is to determine guilt. Sometimes you are unsure. In some cases, are actually decided by gosh, the evidence is so equal that there wasn't preponderance. I didn't become completely convinced and this person is going to be put to death. Contrast that, the feeling that a juror has and what a jury is trying to do in finding innocence or guilt, letting someone be punished by death, contrasts that with our current standard. Our current standard for killing someone overseas is you can be sympathizing, you can be close to people who we think are bad, you can be in a caravan that we say bears the signature of bad people. Now, there is another debate that can be had about whether those are sufficient standards for war, and the standards are different for war in our country, but we have to adamantly and unequivocally stand up and say to those who would say this is a battlefield, the hell it's a battlefield. This is our country. If you want to say that this is a battlefield, if you say that we're going to have the laws of war here, we're going to have martial law here, by golly, let's have a debate about it.

Let's have a discussion in the country, let's have everybody talking about are we the battlefield. Is this a battlefield? Is our country a battlefield? Because what that means is you get no due process in a battlefield. And I'm not here to argue and say that you get due process in a battlefield. I'm here to argue that we can't let America be a battlefield because we can't say that we're no longer going to have due process that we're no longer going to have trial by jury that we're no longer going to have presentment of charges and grand juries. It is impossible in a battlefield. In Afghanistan, it's impossible to say hey, wait a minute, can I read you your Miranda rights? It is impossible. We're not arguing for that. We're not arguing for a judge or a jury or anything else. If people are shooting at our troops, they can do everything possible, including drone strikes.

It's not even the technology so much that I'm opposed to but the technology opens doors that we need to be concerned with. Defense of our soldiers in war, there is no due process involved with that, but realize the danger to saying America is the war, America is the battlefield, because also realize the danger that these people - they are republicans and democrats - these people don't believe there is any limit to the war. There is no geographic limit and there is no temporal limit. It's a perpetual war, and many of it - if you prompt them or provoke them, they will open up and say oh, yeah, America's is a battlefield, we need the laws of war, and you ask them when is the war going to end? When will we win the war? They will admit it. Some of them will frankly admit it. They will say the war goes on, it may go on for a long time. Some have talked about the 100 years' war, 100 years being in these countries. But basically we are talking about perpetual war. We're talking about a war with no geographic limit, no temporal limit and a war that really has come to our country.

Now, there will be bad people who come to our country who we need to repel. We're not talking about that. If planes are being flown into the twin towers, we have the right to shoot them down with our military. That's an act of war. No one questions that. If someone is standing outside the Capitol with a grenade launcher, we have a lot of brave capitol policemen and I hope that they - they kill the person immediately. Lethal force - for repel lethal force has never been questioned by anybody and is really not even controversial. But they want to make the debate about that and not about killing noncombatants driving in their car down Constitution Ave. Or sitting in a cafe on Massachusetts Avenue. Now, there may be bad people who are driving in their car and there may be bad people sitting in cafes around the country. If there are, accuse them of a crime, arrest them and try them.

The battlefield coming to America or acknowledging that is an enormous mistake. So there are some big issues here, some issues that we as a country I think gloss over. We - you know, you watch the nightly news and there's sometimes so much hysteria about so many issues, so many people yelling back and forth. But this is really an issue that I think if we could get a frank discussion - you know, I've proposed to the leadership - I haven't had much luck with this - but I proposed that for a constitutional debate or a debate of importance, that everybody come. And instead of hearing me for all day, we take two or three minutes and we go around the room and everybody speaks and it's limited but there's some kind of debate and discussion, less speech making and more debate. I proposed that we have lunch together. I've asked to come to the democratic lunch. I haven't been - I haven't got the invitation secured yet. It's only been two years so it may happen. But there are many reasons for discussion, there are many reasons why we should have civility, there are many reasons why people on both sides of the aisle can agree to this. If we were to have a vote maybe not on the nomination but a vote on restricting drones, there is a bill out there that we're working on that would restrict drones to imminent threats and really doesn't even get into the distinction of the military. Things in the country would be the FBI; it wouldn't be the military because that's the law. And there's an important reason for the law. But we have a bill that we're going to come forward with that we're working on that would simply say that there has to be a - a real imminent, lethal threat, something you can see. Which then I think people could agree to that. Because it's not so much the drone that we object to. If some guy's robbing a liquor store two blocks from here and the policemen come up and he comes out brandishing a gun, he or she can be shot. They once again don't get Miranda Rights, they don't get a trial, they don't get anything. If you come out brandishing a weapon and people are threatened by it, you can be shot. So it's important to know what we're talking about. We're not talking about the guy coming out of the liquor store with a weapon. Even a drone could kill him if the FBI had drones. So my objection to drones isn't so much the technology. There may be a use in law - for law enforcement here. But there are also potential, great potential for abuses.

Many government agencies have been - become buying drones and these hopefully will remain unarmed drones and it's a different subject but it's a subject that sort of dovetails from this into the next subject, which is should you have protection from the government snooping, you know, from the government looking through your bedroom windows? And I remember when I read "1984" when I was in hi school, it - it bothered me but I - I really couldn't quite connect. And I - I kind of was - I felt somewhat secure in the sense that, well, we didn't have two-way televisions. This was back in the 1970's. We didn't have the ability to look at people and the government couldn't look at me in - in my house 24 hours a day. And you could kind of get the feeling of how terrible that would be for that to happen and technology was behind that. And actually "1984" I think was written in 1949, so, really, talk about, you know, really being able to foresee the future.

But now fast forward another 30 or 40 years and look at the technology we have now. We have drone as that are less than an ounce. I - presumably with cameras. I don't know. It's hard for me to believe that. But less than an ounce with a camera. It is not impossible to conceive that you could have a drone fly outside your window and see what you're reading, to see what your reading material is. It's not impossible to say that they couldn't send drones up to your mailbox and read at least there - you know, what kind of mail you're getting and where it's from. It's not unconceivable that drones could - inconceivable that drones could follow you around. We had an important Supreme Court case last year, though, that was a blow for privacy and this was a Supreme Court case that had to do with GPS tagging. GPS - everybody knows what GPS Is, but what they were doing is the police were shooting them on to cars or tagging them when you weren't with your car and then just following you around, waiting for you to commit a crime. Well, you know, if you tag everybody's car and wait for them to speed, we're going to have a big deal on fines. There's going to be a problem. This was a problem to - there's also a problem of following people around waiting for people to commit a crime. So the Supreme Court ruled - and I think it was unanimously - that you have to have a warrant to do that. The thing about surveillance is, those of us who believe in privacy around arguing against any surveillance. What we're arguing is, that you have to have a reason to do it and you have to ask a judge for permission. So it isn't a society where there is no surveillance or a society where you have absolute privacy. If you commit a crime, the police go to the judge and they ask for permission to do this. But there are some worrisome things about direction of drones.

For example, the EPA now has drones and the EPA's flying drones over farmland. I think some of this may be even in the - the defecation patterns of the cows. I don't know exactly what they're looking for because manure in streams is said to be a pollutant and actually, frankly, thousands of animals might. But the whole idea is, if you think someone is dumping anything in a stream - and I'm not opposed to having laws stopping that - get a warrant, search them or get a warrant and spy on them with a satellite. I mean, a satellite or a drone or however you want to do it. But you have to have some kind of probable cause they're committing a crime. Because you can imagine that we would devolve into a society where every aspect of our life would just be open to the government to watch what we're doing.

Now, they say there's something called an open spaces concept. They say, well, you've got 40 acres and the land is open so it's not really private anymore. Well, I think that's absurd. I think that's sort of analogous to the whole banking secrecy. It's like, oh, you gave your records to your bank so you don't really care if anybody looks at them? That's absurd. I have a 40-acre farm and I go hunting out there but I just - you know, I'm supposed to not care if people watch me, everything I do, once I'm outside of my house? My privacy's only inside my house and not in open spaces? I disagree with that. One of the interesting things about the right to privacy - and you'll actually get some disagreement from people on the right about this - there was a case called the Griswold case, it had to do with birth control. And a lot of conservatives objected to it because they saw it as a building block for the Roe v. Wade. I'm pro-life and didn't like the decision in Roe v. Wade but actually don't mind the decision in Griswold so much. And the reason is, going back to a little bit of the discussion we had earlier on Lochner, is that with Griswold, what I see is, is that they talked about a right to privacy. Now, some said, the conservatives who don't - who are worried about the judiciary coming up with new things or creating new things, is they thought the right to privacy wasn't in the Constitution so you really don't have it. And that's a mistaken notion. Because, for example, the right to private property, that's not in the Constitution either but I don't think any of the founding fathers or most of us today would argue you don't have a right to private property. In fact, I think it's one of the most important parts - in fact, there was some debate about having it in there. But the thing is, is that I think the right to privacy, the right to private property, they're part of what I call the unenumerated rights. And the unenumerated rights are basically everything else not given to the government. You gave the government - or we give the government through the compact of the Constitution, we give the government enumerated powers. There's about 17-19, depending on how you count them, but there are - they are, as Madison said, few and defined.

When you talk about the rights, though, the 9th and 10th Amendment say those rights not specifically delegated to the federal government are left to the states and the people respectively. And they're not to be disparaged. So the interesting thing about your rights are, is that there isn't sort of a list of your rights. And, in fact, when the founding fathers were putting together the bill of rights, one of the objections to the bill of rights were that they said, oh, if we put the bill of rights together, everybody will think that's all of the rights and they'll think if it wasn't listed, you don't get it. So the 9th and 10th Amendment were a really important part of it. In fact, I don't know that I would have voted for the - the Bill of Rights inclusion if you didn't have the 9th and 10th. I mean, I like all the others, of course, but the 9th and 10th then protect all those not mentioned. And so it's an interesting thing that some - some on the right disagree. In fact, the majority don't like the Griswold decision but I actually kind of like it because I think your right to privacy is yours. The same way I think your right to private property is yours. It wasn't delegated and it wasn't taken, it wasn't given to the federal government; it is yours.

It gets back to sort of the primacy of liberty, the primacy of your individual freedom that you didn't get that, you weren't given your free government. It's something that was yours naturally. Or, as many of us believe, it comes from your creator. So your rights are natural and inborn, they were enshrined in the constitution, not given you, they were enshrined in the constitution. Not that the Constitution was instituted among men to protect the government, they were to protect the people from the government. It was to limit the size of government, to try to restrain the size of government, to try to allow for a government that lived under a rule of law. And Hayek said that nothing distinguishes arbitrary government from a Constitutional government, more clearly than this concept of the rule of law. The important thing about the rule of law is also that the rule of law is something that - it gives a certainty. And businessmen have talked about certainty. And without relinquishing the floor, I would like to hear a few comments from Sen. Lee


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