Executive Session

Floor Speech

By:  John McCain III
Date: March 7, 2013
Location: Washington, DC

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Mr. McCAIN. Mr. President, I wish to quote from this morning's editorial in the Wall Street Journal entitled ``Rand Paul's Drone Rant.'' I wish to read for the edification of my colleagues the editorial which was in the Wall Street Journal, a credible media outlet, this morning.

The Wall Street Journal reads:

Give Rand Paul credit for theatrical timing. As the storm descended on Washington, the Kentucky Republican's old-fashioned filibuster Wednesday filled the attention void on Twitter and cable TV. If only his reasoning matched the showmanship.

Shortly before noon, Senator Paul began talking filibuster against John Brennan's nomination to lead the CIA. The tactic is rarely used in the Senate and was last seen in 2010. But Senator Paul said an ``alarm'' had to be sounded about the threat to Americans from their own government. He promised to speak ``until the President says, no, he will not kill you at a cafe.'' He meant by a military drone. He's apparently serious, though his argument isn't.

Senator Paul had written the White House to inquire about the possibility of a drone strike against a U.S. citizen on American soil. Attorney General Eric Holder replied that the U.S. hasn't and ``has no intention'' to bomb any specific territory. Drones are limited to the remotest area of conflict zones like Pakistan and Yemen. But as a hypothetical constitutional matter, Mr. Holder acknowledged the President can authorize the use of lethal military force within U.S. territory.

This shocked Senator Paul, who invoked the Constitution and Miranda rights. Under current U.S. policy, Mr. Paul mused on the floor, Jane Fonda could have been legally killed by a Hellfire missile during her tour of Communist Hanoi in 1972. A group of noncombatants sitting in public view in Houston may soon be pulverized, he declared.

Calm down, Senator. Mr. Holder is right, even if he doesn't explain the law very well. The U.S. Government cannot randomly target American citizens on U.S. soil or anywhere else.

I repeat that: The U.S. Government cannot randomly target American citizens on U.S. soil or anywhere else.

What it can do under the laws of war is target an ``enemy combatant'' anywhere at any time, including on U.S. soil. This includes a U.S. citizen who is also an enemy combatant. The President can designate such a combatant if he belongs to an entity--a government, say, or a terrorist network like al-Qaida--that has taken up arms against the United States as part of an internationally recognized armed conflict. That does not include Hanoi Jane.

Such a conflict exists between the U.S. and al-Qaida, so Mr. Holder is right that the U.S. could have targeted (say) U.S. citizen Anwar al-Awlaki had he continued to live in Virginia. The U.S. killed him in Yemen before he could kill more Americans. But under the law al-Awlaki was no different than the Nazis who came ashore on Long Island in World War II, were captured and executed.

The country needs more Senators who care about liberty, but if Mr. Paul wants to be taken seriously, he needs to do more than pull political stunts that fire up impressionable libertarian kids in their college dorms. He needs to know what he's talking about.

I watched some of that ``debate'' yesterday. I saw colleagues of mine who know better come to the floor and voice this same concern, which is totally unfounded. I must say that the use of Jane Fonda's name does evoke certain memories with me, and I must say she is not my favorite American, but I also believe that as odious as it was, Ms. Fonda acted within her constitutional rights. To somehow say that someone who disagrees with American policy, and even may demonstrate against it, is somehow a member of an organization which makes that individual an enemy combatant is simply false. It is simply false.

I believe we need to visit this whole issue of the use of drones--who uses them, whether the CIA should become their own Air Force, what the oversight is. The legal and political foundation for this kind of conflict needs to be reviewed.

Relating to this, let me quote from an article by Jack Goldsmith that was in the Washington Post on February 5, 2013, entitled: ``U.S. needs a rulebook for secret warfare.''

The legal foundation rests mostly on laws designed for another task that government lawyers have interpreted, without public scrutiny, to meet new challenges. Outside the surveillance context, Congress as a body has not debated or approved the means or ends of secret warfare. Because secret surveillance and targeted strikes, rather than U.S. military detention, are central to the new warfare, there are no viable plaintiffs to test the government's authorities in court. In short, executive-branch decisions since 2001 have led the Nation to a new type of war against new enemies on a new battlefield without enough focused national debate, deliberate congressional approval or real judicial review.

What the government needs is a new framework statute--akin to the National Security Act of 1947, or the series of intelligence reforms made after Watergate, or even the 2001 authorization of force--to define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the President's actions.

I don't think we should have any doubt there are people both within the United States of America and outside it who are members of terrorist organizations and who want to repeat 9/11. All of us thank God there has not been a repeat of 9/11. Most of the experts I know will say there has been a certain element of luck--a small element but still an element of luck, such as the Underwear Bomber and others--that has prevented a devastating attack on the United States. But to somehow allege or infer the President of the United States is going to kill somebody such as Jane Fonda or someone who disagrees with the government's policies is a stretch of imagination which is, frankly, ridiculous--ridiculous.

I don't disagree that we need more debate, more discussion, and, frankly, probably more legislation to make sure America does protect the rights of all our citizens and to make sure, at the same time, if someone is an enemy combatant, that enemy combatant has nowhere to hide--not in a cafe, not anywhere. But to say that somehow, even though we try to take that person, that we would hit them in a cafe with a Hellfire missile--well, first of all, there are no drones with Hellfire missiles anywhere near. They are over in places such as Yemen and Afghanistan and other places around the world.

We have done a disservice to a lot of Americans by making them believe that somehow they are in danger from their government. They are not. But we are in danger--we are in danger--from a dedicated, longstanding, easily replaceable leadership enemy that is hellbent on our destruction, and this leads us to having to do things perhaps we haven't had to do in other more conventional wars.

I don't believe Anwar al-Awlaki should have been protected anywhere in the world, but that doesn't mean they are going to take him out with a Hellfire missile. It means we are going to use our best intelligence to apprehend and debrief these people so we can gain the necessary intelligence to bring them all to justice.

All I can say is, I don't think what happened yesterday is helpful for the American people. We need a discussion, as I said, about exactly how we are going to address this new form of almost interminable warfare, which is very different from anything we have ever faced in the past, but somehow to allege the United States of America, our government, would drop a drone Hellfire missile on Jane Fonda, that brings the conversation from a serious discussion about U.S. policy to the realm of the ridiculous.

I would also like to add an additional note. About 42 percent, as I am told, of the Members of this Senate are here for 6 years or less. Every time a majority party is in power, they become frustrated with the exercise of the minority and their rights in the Senate. Back some years ago, when the Republicans--this side of aisle--were in the majority, we were going to eliminate the ability to call for 60 votes on the confirmation of judges. We were able to put that aside. There was another effort at the beginning of this Senate to do away with 60 votes and go back down to 51, which, in my view, would have destroyed the Senate.

A lot of us worked very hard--a group of us--for a long time to come up with some compromises that would allow the Senate to move more rapidly and efficiently but at the same time preserving the 60-vote majority requirement on some pieces of legislation. What we saw yesterday is going to give ammunition to those critics who say the rules of the Senate are being abused. I hope my colleagues on this side of the aisle will take that into consideration.

I note the presence of the Senator from South Carolina. The Senator from South Carolina, as many of our colleagues know, is a lawyer. He has been a military lawyer in the Air Force Reserve for over 20 years. If there is anyone in the Senate who knows about this issue from a legal and technical standpoint, it is my colleague from South Carolina.

I ask my colleague from South Carolina, is there any way the President of the United States could just randomly attack someone, with a drone or a Hellfire missile, without that person being designated an enemy combatant?

And I don't think, as much as I hate to say it, that applies to Jane Fonda.

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Mr. McCAIN. May I ask my colleague a question especially on that subject.

A lot of our friends--particularly Senator Paul and others--pride themselves on their strict adherence to the Constitution and the decisions of the U.S. Supreme Court.

Isn't it true that as a result of an attack on Long Island during World War II, an American citizen--among others--was captured and hung on American soil, and the U.S. Supreme Court upheld that execution because that individual was an enemy combatant? Does that establish without a doubt the fact that these are enemy combatants, and no matter where they are, they are subject to the same form of justice as the terrorists in World War II were?

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Mr. McCAIN. And may I say to my friend that there are scenarios where there could be an extreme situation where there is a direct threat. We could draw many scenarios--a bomb-laden, explosive-laden vehicle headed for a nuclear powerplant--where the President of the United States may have to use any asset the President has in order to prevent an impending catastrophic attack on the United States of America. And that is within the realm of possible scenarios.

So to somehow say that we would kill people in cafes and therefore drone strikes should never be used under any circumstances I believe is a distortion of the realities of the threats we face.

As we are speaking, there are people who are plotting to attack the United States of America. We know that. At the same time, we are ready, as the Senator said, to discuss, debate, and frame legislation that brings us up to date with the new kind of war we are in. But to somehow have a debate and a discussion that we would have killed Jane Fonda does, in my view, a disservice to the debate and discussion that needs to be conducted.

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Mr. McCAIN. If I may say real quickly, an imminent threat.

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Mr. McCAIN. We may have to do a little better job of defining that, but to say imminent threat would then translate into killing somebody in a cafe is not a mature debate or discussion.

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Mr. McCAIN. Madam President, I think that concludes our discussion. I would agree with the Senator from Illinois and my colleague from South Carolina that we need hearings. We need to discuss how we conduct this--the United States, in what appears to be, for all intents and purposes, an interminable conflict that we are in and we have to adjust to it. But that conversation should not be talking about drones killing Jane Fonda and people in cafes. It should be all about what authority and what checks and balances should exist in order to make it a most effective ability to combat an enemy that we know will be with us for a long time.

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Mr. McCAIN. Madam President, I thank my colleague and also thank the Senator from Illinois for his engagement. In closing, I would like to congratulate my friend from South Carolina for his best behavior last night at dinner. He was on his best manners and everyone was very impressed.

I yield the floor.

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