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Mr. MORAN. First, let me outline a thought I had in listening to this conversation and ask the Senator a question about it.
We have seen the actions of our President to be determined unconstitutional in a recent case in the court of appeals in the District of Columbia--a case in which the President made the determination he could determine the definition of a recess in the Senate--and so we now have a court that has declared the President's conclusion in that regard to be unconstitutional.
I don't know that we want to get into the magnitude or evaluating what constitutional violations are most damaging to the American people or to our rights and liberties, but I would ask the Senator to compare the consequences of the President being wrong once again in regard to the constitutionality of utilizing a drone strike to end the life of an American citizen. Again, I am suggesting that we have seen precedent where the President acts unconstitutionally. Fortunately, the legal process is there to make certain a determination is made as to the constitutionality of that act.
In this case, what would be the consequences of a drone strike as compared to whether an appointment to an administrative body under the recess clause is constitutional?
Mr. PAUL. Mr. President, I think the analogy is apt. The difference is a recess appointment you get to make your appeal to a court while still living, which makes a big difference. In the case of the recess appointments, the President decided he could determine when the legislative branch was in session or out of session. So you have the same sort of conflict again.
The President has a sphere and we have a sphere, but now he is saying he controls our sphere also; that he can tell us when we are in session or out of session, and he can basically do what he wishes. The Supreme Court rebuked him pretty sternly.
So I agree with the Senator from Kansas. There is a great deal of similarity between the two because it is, once again, the executive branch or the President acting as if the checks and balances between the Legislative and the executive branches don't exist; that he basically made the decision for us that he has decided we are in recess.
But the Senator is correct, the Supreme Court gave him a pretty stern rebuke and said that would be unconstitutional.
Mr. MORAN. Mr. President, to the Senator from Kentucky, what is the logical extension of a decision that it is constitutional to utilize a drone by our military to strike at the life of an American citizen in the United States?
And I would say, if the Senator would agree with me, most Americans would find it repulsive, unconstitutional, and a terrible violation of public duty if a military officer on the streets of Wichita, KS, pulled a gun and shot an American citizen.
Really, is that not the logical extension of the idea that a drone strike from above results in the death of a U.S. citizen without due process? Is that any different than the ability to kill somebody in any other manner that I think most Americans would recognize today as prohibited without due process of law by our Constitution?
Mr. PAUL. Mr. President, the analogy that the Senator from Kansas brings up I think is appropriate.
We have had rules on the books since the Civil War saying the military doesn't act in our country. So it is not just a drone; it is any sort of law enforcement in the United States. We recognize that.
We respect our soldiers. We are proud of our soldiers. But we have limited their sphere to the sphere of war. Within the United States, for our security we have the police and we have the FBI. It is because the rules of engagement are different. It is different being a soldier. It is a tough job being a soldier. But it is just not the same on the streets of Wichita or the streets of Bowling Green, KY. So we have different rules and we have made it different.
But the Senator is right. I think people would understand that it would be wrong for a military officer to shoot someone on the streets in America. It is prohibited for a good reason; not because our soldiers are bad people, but it is because there are different rules for soldiers. That is what is most troubling about many of these people who say, oh, Wichita is the battlefield. And if it is the battlefield, they don't understand why the military can't act in Wichita or Houston or Bowling Green, KY. So it does delve into the problem that we have to debate: Is there a limitation to where the battlefield is?
If the Senator has another question, I would yield for a question without yielding the floor.
Mr. MORAN. Mr. President, I have an additional question, and I believe it is my final question.
I would ask the Senator from Kentucky, through the President--we are here at this point in time in the juncture of the Senate with the issue of whether to confirm a particular individual to a particular office, an administrative appointment. I would ask the Senator if he doesn't believe the issue of the due process rights of American citizens is of such a magnitude that the real issue that ought to be before the Senate is not the confirmation of an individual, but we ought to resolve the issue of whether the Senate believes it is constitutional for the due process rights of an American citizen to be taken by a drone strike in the United States, and the opportunity now presents itself that it would be a reason not to grant cloture.
Let me ask it as a question. Would it not be a reason to grant cloture on this nomination until we resolve this issue?
Mr. PAUL. Mr. President, I think it is very reasonable. It is more important than just the nomination of one individual.
When we are talking about whether the Bill of Rights is going to be changed, when we are talking about whether you will have the due process to be tried in a court, or whether you could be killed--summarily executed without a trial--that is an important change in the history of our country.
The Senator's response also made me think of something else. Another way to resolve this, where we could conclude this debate and get on to the nomination, would be for the majority party to come forward with a resolution that says: You know what. We are not going to kill noncombatants in America with drone strikes; we are not going to use the military; we are going to reaffirm the law.
So there is a resolution that both parties could come forward--and it would be a wonderful resolution to this process to say: The Senate goes on record in a bipartisan fashion as saying we are not going to overturn the fifth amendment. If you are an American and you live in America, you will not be killed without being accused of a crime, tried by a jury, and convicted by a jury. I think that would be a reasonable resolution to this, and I would entertain it if the other side were interested.
Mr. MORAN. I thank the Senator from Kentucky for responding to my questions.
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