Kentucky Sen. Rand Paul made headlines this week, as his nearly 13-hour filibuster shed light on the question of whether a president can target An American on American soil with a drone strike if they don’t pose an imminent security risk.
The filibuster triggered a response from Attorney General Eric Holder, who stated the government does not have that power under the Constitution, but an accomplished prosecutor of terrorists disagrees.
Andrew C. McCarthy led the government’s prosecution of Sheikh Omar Abdel Rahman and other conspirators behind the 1993 bombing of the World Trade Center. He says while Sen. Paul is well-intentioned, the Constitution is not on his side.
“The Constitution does not bar attacks on American citizens on American soil. I think it’s safe to say that in this conflict, we shouldn’t be having attacks on Americans on American soil because 12 years after 9-11, we know what the enemy’s capabilities are. We know how the enemy operates,” said McCarthy. “There would be no problem amending the authorization for the use of military force to ban attacks on Americans on American soil and leave the Constitution to the side.”
McCarthy says those looking for the courts to rule the Constitution upholds Sen. Paul’s position in this debate could well be in for a shock.
“The constitutional cases that we’ve had over the years have held that American citizens who join with the enemy can be detained without trial, subjected to military commissions, executed after military commissions, interrogated without counsel, the whole nine yards,” he said. “It doesn’t make any rational sense to say that you can treat an American citizen who joins with the enemy exactly as you treat the enemy in every single particular except death.”
“The Constitution is there to give broad latitude to the government in the event that whatever power is needed to be marshaled to quell not just the threat that’s posed by the conflict we’re in now, but any conceivable threat. I can easily imagine several scenarios where we would have enemies invading the United States, attacking the United States, who are joined by people who happen to be American citizens in the United States, where we might have a conflict where it’s very conceivable that you would be attacking American citizens,” said McCarthy. “Once you say the Constitution forbids American citizens from being attacked on American soil, the next thing is what about American citizens on foreign soil and then what about foreign citizens on American soil? If it’s the Constitution that’s the basis of all this, rather than sensible legislation with respect to the authorization for military force, you’re basically rolling out a gold mine for our enemies – a gold mine of constitutional protections.”
But doesn’t being an American citizen carry greater constitutional protections than for a non-citizen? Not as much as you might think according to McCarthy.
“I think it’s a useful populist tool for Sen. Paul and it will be of legal insignificance to the court,” said McCarthy, who says that court’s won’t likely approve protecting citizens and not protecting non-citizens.