But I guess what still disappoints me about the whole thing is that it takes so much work to get people to say they're going to obey the law. It takes so much work to get the administration to admit that they will adhere to the Constitution. It should be a much simpler process, but I commend the Senator from Texas for not letting go and for trying to get this information. I would welcome any more comments that he has.
SEN. CRUZ: If the Senator would yield for one final question? Is the Senator from Kentucky aware of any precedent, any supreme court case, any lower court case, the decision of any President of the united states beginning with George Washington up to the present, the stated views of any member of this united states Senate beginning with the very first congress up to the Senate, up to the present. Is the Senator from Kentucky aware of any precedent whatsoever for the proposition that this administration seems unwilling to embrace or at least embrace explicitly and emphatically? Namely, that the Constitution somehow permits or at least does not foreclose the united states government killing a U.S. citizen on U.S. soil who is not flying a plane into a building, who is not robbing a bank, who is not pointing a bazooka at the pentagon but who is simply sitting quietly at a cafe, peaceably enjoying breakfast, is the Senator from Kentucky aware of any precedent whatsoever for what I consider to be the really remarkable proposition that the united states government, without indicting him, without bringing him before a jury, without any due process whatsoever, can simply send a drone to kill that united states citizen on U.S. soil?
SEN. PAUL: Mr. President, I'm aware of no legal precedent for taking the life of an American without the Fifth Amendment or due process. What is troubling, though, is that Attorney General Eric Holder is on record as actually arguing that the Fifth Amendment right to due process is to be determined and is to be applicable when determined solely by the executive branch. Now, I would appreciate the comments and opinion from the Senator from Texas on the - the idea that the executive branch gets to determine when the bill of rights applies.
SEN. CRUZ: If I may continue my questioning and give my - my views on that question and ask your response to my views on - on whether the executive may determine its own limitations, I would suggest the genesis of our Constitution is found in the notion that the President is not a king, that we are not ruled by a monarchy, and that no man or woman is above the law. And accordingly, no man or woman may determine the applicability to himself or herself. For that reason, the framers of our Constitution won not one but two revolutions. The first revolution they won was a bloody battle for our independence from King George. And a great many of them gave the ultimate sacrifice so that we might enjoy the freedom we do today.
But the far more important war they won was the war of ideas, where for millennia, men and women had been told that rights come from kings and queens and are given by grace to be taken away at the whim of the monarch. And what our framers concluded instead is that our rights don't come from any king or queen or President, they come from god almighty and sovereignty does not originate from the monarch or the President, it originates from we the people. And accordingly, the Constitution served, as Thomas Jefferson put it, as chains to bind the mischief of government. And I would suggest that any time power is arrogated in one place, in the executive, that liberty is threatened. And that should be a view that receives support not just from republicans, not just from democrats or independents or libertarians, that should be a view that receives support from everybody, that none of us should want to live in a country where the President or the executive asserts the authority to take the life of a united states citizen on U.S. soil without due process of law and absent any imminent threat of harm. I would suggest the idea that we should simply trust the attorney general, trust the director of the CIA, Trust the President to exercise an astonishing power to take of life of any U.S. citizen, that trust, in my judgment, is fundamentally inconsistent with the bill of rights. And I would ask the Senator from Kentucky's reaction if you share my understanding that our rights are protected not at the whim or grace of the executive but they are protected by a Constitution and ultimately they are rights that each us was given by our creator and we are obliged to protect the natural rights to life, liberty and property that every man and woman in America enjoys.
SEN. PAUL: Well, Mr. President, this is what makes it this debate so important. This debate is about fundamental rights that we - that most of us or many of us believe that we derive from our creator and it's important we not give up on these, that we not allow a majority vote or one branch of the government to say we've now decided you don't get all of these rights anymore. Our founders really wanted to make it difficult to change things, to take away our rights. And so this is an important battle and one in which I think we should engage because the President needs to be more forthcoming. The President needs to let us know what his plans are. If he's going to overrule the Fifth Amendment and if the attorney general's going to decide when the Fifth Amendment applies, that's a pretty important distinction and change from the history of our country. Mr. President, at this time, I'd like to ask for any comments, without yielding the floor, but ask for any comments or questions from the Senator from Utah.
SEN. LEE: In response to your - your question, I - I would like to add to your remarks and those of the junior from Texas the fact that in the concluding paragraph of the department of justice white paper on this issue, the department concludes as follows. "In sum, an operation in the circumstances and under the constraints described above would not result in a violation of any due process rights." It's a rather interesting conclusion in light of the fact that two out of the three analytical points outlined above in the memorandum in the white paper are themselves so broad as to be arguably meaningless or, at a minimum, capable of being interpreted in such a way as to subject American citizens to the arbitrary deprivation of their own right to live.
First, as I mentioned earlier, by proposing an imminence standard that leaves out anything imminent - in other words, it's not just peanut butter without the jelly; it's peanut butter without the peanut butter - there is no "there" there. They define out of existence the very imminence standard that they purport to create and follow. That is not due process. It's the opposite of process.
Secondly, they outline a set of circumstances in which this attack may occur where capture is infeasible and then they define an understanding of feasibility that is so broad as to render it virtually meaningless. So at the conclusion of the memo, when the memo says, "In sum, an operation of the circumstances and under the constraints described above would not result in a violation of any due process rights," its describing constraints that are not really constraints. And that is a problem. That amounts to a deprivation of due process. In light of these circumstances, I think it really is imperative that the American people and, at a minimum, those who serve in this body, or, at a minimum, those who serve on the Senate judiciary committee, that - that we be given an opportunity to review the wholesale legal analysis identified by the attorney general today that have been prepared by the Department of Justice's office of legal counsel. This is the chief advisory body within the U.S. Department of Justice. It is the job of the fine lawyers in the office of legal counsel to render this advice and we ought to have the benefit of that. At a minimum, we ought to have the benefit of that within the Senate Judiciary Committee. So when I asked the attorney general this morning whether he'd make those available, I was surprised and a little bit frustrated when he declined to offer them immediately. He said that he would check in with those that he needed to consult with. I reminded him that he is, in fact, the attorney general. He does, in fact, supervise those who work in the department of justice. I hope that's satisfactory and responsive to your question.
SEN. PAUL: Yes. Mr. President, I agree with the comment from the Senator from Utah. The - the whole problem is, is that if the President says, "my plan has due process," that would be sort of like me saying, "I passed my law and I think it's Constitutional." Well, the same branch of government doesn't get to judge whether it's Constitutional. That's the whole idea of the checks and balances. We pass a law in the Senate and the Supreme Court can rule on whether it's Constitutional. So the President gets to decide that will he's going to abrogate the fifth amendment or abbreviate the fifth amendment or do certain things and then he says, oh, I'm really not because the way I interpret it is, I am applying the fifth amendment to my process. Well, you can't do that. You can't be judge, jury, and executioner and Supreme Court all rolled into one. That is an arrogation of power that we cannot allow. Mr. President, at this time, I'd like to entertain comments from the Senator from Kansas without yielding the floor, if I can. For a question.
SEN. MORAN: Mr. President, thank you. I'd like to address the Senator from Kentucky with a series of several questions.
The presiding officer: The Senator from Kansas.
SEN. MORAN: Mr. President, thank you. First of all, let me outline a thought in listening to this conversation and ask a question about it. We have seen our President, his actions to be determined to be unconstitutional in a recent case in the court of appeals here in the District of Columbia in which the President made the determination that he could determine the definition of recess of the Senate. And we now have a court who has declared the President's conclusion in that regard to be unconstitutional . And 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 you 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. And, again, trying to suggest that we have seen precedent where the President acts unconstitutionally, and fortunately the legal process is there to make certain that that is - 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 a court appointment - oh, I'm sorry, an appointment to a body under the recess clause is Constitutional?
SEN. PAUL: Mr. President, I think the analogy is apt. The difference in the recess appointments is 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 that he could determine when the legislative branch was in session or out of session. So you have this same sort of conflict again. The President has a sphere and we have a sphere but now he's saying that he controls our sphere also, that he can tell us when we're in session or out of session, and he can basically do what he wishes. And the supreme court rebuked him pretty sternly, and so I agree with the Senator from Kansas, - there's a great deal of similarity between the two because it's once again the executive branch or the President acting as if the checks and balances between the legislature and between the executive branch don't exist, that he basically has made the decision for us that he's decided we were in recess. But you're correct, the court gave him a pretty stern rebuke on it and said that would be unconstitutional .
