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UNOFFICIAL TRANSCRIPT: Hour 2 - Sen. Rand Paul Filibuster of Brennan Nomination

Mar 6, 2013

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 12:47 p.m.-1:47 p.m. The first hour of Sen. Paul's filibuster can be found HERE.

 

CLICK HERE TO WATCH HOUR 2 OF SEN. PAUL'S FILIBUSTER

 

TRANSCRIPT:

 

You know, or how much - if there's an al-Qaida presence there trying to organize and come and attack us. Maybe there is. But maybe there's also people who are just fighting their local government.

 

How about Mali? I'm not sure in Mali they're probably worried more about trying to get the next day's food than coming over here to attack us. But we have to ask these questions and we have to ask about limitations on force because essentially what we have now is a war without geographic boundaries and we have many on my side who come down here and they say, oh, the battlefield's here in America.

 

Be worried. Be alarmed. Alarm bells should go off when people tell you that the battlefield's in America. Why? Because when the battlefield's in America, we don't have due process. What they're talking about is they want the laws of war. Another way of putting that, they call it the laws of war. Another way to put it is to call it martial law. That's what they want in the United States when they say the battlefield is here.

 

One of them, in fact, said if you - if you - if they ask for a lawyer, you tell them to shut up. Well, if that's the standard we're going to have in America, I'm - I'm quite concerned that the battlefield would be here and that the Constitution wouldn't apply. Because, to tell you the truth, if you are shooting at us in Afghanistan, the Constitution doesn't apply over there. But I certainly want it to apply here. If you're engaged in combat overseas, you don't get due process. But when people say, oh, the battlefield's come to America and the battlefield's every, where the war is limitless in time and scope, be worried, because your rights will not exist if you call America a battlefield for all time. We've asked him whether the strikes are exclusively focused on al-Qaida and what is the definition of being part of al-Qaida.

 

In 1947, the National Security Act was passed and it said the CIA doesn't operate in America. Most people, most laypeople know that. The CIA is supposed to be doing surveillance and otherwise outside the U.S. of foreign threats. The FBI works within the United States. They do some of the same thing but they're different groups. The CIA operating in Iraq or Afghanistan doesn't get a warrant before they do whatever they do to snoop on our enemies. The FBI in our country does. They operate under different rules, and for a reason. So we don't want them to operate in the United States.

 

It's not that we're saying the CIA are bad people, we just don't want them operating with no rules or the rules we allow them to operate with overseas. We don't want them operating that way in our country. The disappointing thing is that a month ago when I asked John Brennan this question, as his nomination came forward, is that I couldn't get an answer. He would not answer the question about the CIA operating in the United States. Only after yanking his chain, browbeating him in committee, threatening not to let him out of committee, does he final sale he's going to obey - finally say he's going to obey the law. We should be alarmed by that. Alarm bells should go off when we find that what we're - what is going on here is that it takes that much for him to say he's going to obey the law.

 

Now, the President has said, don't worry because he's not going to kill you with a drone unless it's infeasible to catch you. Now, that would - sounds kind of comforting, but I guess if our - if our standard for whether we kill you or not is whether it's practical or not, that - that - that does bother me a little bit. Just doesn't sound quite strict enough. Because I'm kind of worried that, you know, maybe there's a sequester and the President says we can't have tours of the White House.

 

Maybe he's not got enough people to go arrest you. He had policemen by him and he said he was going to lay off the policemen. Of course, he doesn't have anything to do with the policemen so don't worry about that. But he had the policemen by him and says he's going to lay them off. So maybe he's going to lay the policemen off because he's going to kill you.

 

I know that sounds like a slippery slope beyond what we've asked for, but if the standard is it's infeasible to capture you and that's what you're hanging your hat on, I would be a little concerned that that might not be enough protection for Americans on American soil. Now, there is a law called posse comitatus. It says the military doesn't operate on U.S. soil unless there's a declaration of an insurrection or civil war.

 

There has to be a procedure that Congress goes through. And we've had this law for a long time. And once again, the reason we do it is not because we think our military are bad people. I'm proud of our soldiers, I'm proud of our army, I'm proud of what they do for our country. But they operate under different rules. And it's a much more dangerous environment they operate under. And it's different. It's still dangerous in America, but policemen have a different rules of engagement than your soldiers have. And there's - there's more restrictions and restraint on what we do in our country. So that's why we say the military can't operate here. So when we asked the President, can you kill Americans on American soil with your drone strikes, which is part of the military, it should be an easy answer. In fact, I hope someone's calling him now and asking him for an answer. It would save me a lot of time and breath, and my throat's already dry and I just got started. But if they would ask him for an answer, can the military operate in the United States? Well, no. The law says the military can't operate in the United States.

It's on the books and he should simply do the honorable thing and say he will obey the law. It's simple. But I don't get why they refuse to answer it - Why they refuse to answer it. It worries me that they refuse to answer the question, because by refusing to answer it, I believe that they believe they have expansive power, unlimited power. The real irony of this is, is that many on the left, Senator Barack Obama included, were very critical of the Bush Administration. They felt like the Bush Administration usurped power. They felt like the Bush Administration argued invalid aggrandizement or grasping for power. John yew was one of the architects of this, basically just saying hey, if I'm going to protect you, I can do whatever the hell I want. Many on the left objected to that. Some of us on the right also objected to this - this usurpation of power by the Republican President. But the thing is, is it - now the shoe's on the other foot and we're not seeing any of that. We're all of a sudden now seeing a President whose worried about wiretaps not at all worried about the legality of killing Americans on American soil with no judicial process. But the - the law of posse comitatus presents this from happening.

 

It's very clear. It's been on the books 150-some-odd years. I would think it would be pretty easy for the President to go ahead and say he will obey the law. We asked Brennan the question on this and we got no answer. The answers that we've gotten are almost more disturbing than getting an answer really, to tell you the truth. Because when the President responds that "I haven't killed any Americans yet at home" and that "I don't intend to do so but I might," it's - it's incredibly alarming and really goes against his oath of office. He says in his oath of office that I will preserve, I will protect, and I will defend the Constitution. It doesn't say I intend to or that I might. Can you imagine the furor if people were talking about the second amendment? Can you imagine what conservatives would say if a President said, well, yeah, I kind of like the second amendment and I intend to, when convenient, when it's feasible, to protect the second amendment? Or what about those who believe in the First Amendment. If the President were to say, I haven't broken the First Amendment yet, I intend to follow it, but I might break it? Or I intend to follow it when it's feasible? So I have all these rules - and that's what the President answered.

 

When he was at Google campus a couple weeks ago, they asked him the question, can you kill Americans on American soil? And he said, well, the rules will probably be different outside the U.S. Than inside, which basically means yes, he thinks he can kill Americans on American soil but he's going to have some rules. Don't worry about it because he will maybe some rules and there will be a process but it won't be due process. It will be a process that he sets up in secret in the White House, and I - I - I don't find that acceptable. The only answer really acceptable - you know, we asked a question that could be "yes" or "no." Can you kill an American on American soil? It's a yes or no question. They've been evasive and they have never really answered the question. But when we asked it, we pretty much knew only one answer was acceptable and that answer's no. And if you don't answer it, basically by not answering it, you're saying yes. I was actually a little bit startled when I finally got the answer, "yes, we can kill Americans on American soil."

I thought for sure that they would just be evasive to the end and try get their nominee through without opening Pandora's Box. But they have opened Pandora's Box and it would be a mistake to ignore it. It would be a mistake for us to ignore the ramifications of what they've done. When we separate out police power from judicial power, it's an important separation. You know, the police can arrest you, they're allowed to do certain things, but the policeman that comes to your door and puts handcuffs on you doesn't decide your guilt. Now, sometimes we don't always think about how important this separation is but it's incredibly important that those arrests - who arrest you do not - they're not even really the ones who ultimately accuse you. The court, through the people, accuse you and then you've given a trial to determine your guilt.

 

And it's complicated. It isn't always clear who's innocent and who's guilty. Judges and juries make mistakes. But at least we have a process, you get appeals most of the time. So we have a significant process going on that has a several hundred year tradition at the least. So what really gets me about the process that the President favors is, it's sort of - it's the "trust me" process.

 

You know, I have no intention of doing bad things, I will do good things, I'm a good person. And I'm not really disputing his motives or not saying he isn't a good person. But I'm disputing someone who's naive enough to think that that's good enough for our republic, that his good intentions are good enough for our republic. It never would have been accepted, it would have been laughed out of the Constitutional Convention. The Founding Fathers would have objected so strenuously that that person probably would never have been elected to office in our country. Someone who doesn't believe that the rules have to be in place and that we can't have our rights guaranteed by the intentions of our politicians. Think about it. Congress has about a 10 percent approval rating. Do you think the American people want to base whether they're going to be killed by a drone on a politician? I certainly don't. Doesn't have anything to do with whether he's a Republican or a Democrat. I would be here today if this were a Republican President.

 

Because you can't give that much power to one person. We separated the police power from the adjudication or from the jury power from the decisions on innocence and guilt, it's separate from the police power purposefully so and with great forethought. Some transform this, and the President's tried, Brennan has tried to transform this into, oh, well, we need to reserve this power for when planes are attacking the Twin Towers. Well, that's not what we're talking about, Mr. President, and I think you misunderstand or you purposely misunderstand or you purposely obfuscate or you purposely mislead. No one is questioning whether the U.S. can repel an attack. No one is questioning whether your local police can repel an attack. Anybody involved in lethal force, the legal doctrine in our country and has been historically, has always been that the government can repel lethal attacks. The problem is, is that the drone strike program is often not about combatants. It is about people who may or may not be conspiring but they're not in combat.

 

They're in a car, they're in their house, they're in a restaurant, they're in a cafe. If we're going to bring that standard to America, what I'm doing down here today is asking the President to be ex-- is asking the President to be explicit. If you're going to have the standard that you're going to kill noncombatants in America, come forward and please say it clearly so we know what we're up against. If you're not going to do it, come up with the easy answer, is I'm not going to kill noncombatants. That would have been easy for him to say. And he could have said, well, the military at some point in time, you know, has to repel invasions.

 

We know that, Mr. President, we're not questioning that. But we are questioning a drone strike program that - you know, we don't know, because nobody will tell us the numbers - the numbers are secret - one Senator said in a public meeting the other day, 4,700 people have been killed overseas. If I had to venture a guess, a significant amount of them weren't involved in shooting at American soldiers. But if they were, by all means, kill them. If we're fighting a war in Afghanistan, which we have been, and if there are soldiers around the bend that are a threat to our soldiers, there is no due process at that point. But that's not what we're arguing about. We're arguing about targeted strikes of people not involved in combat. That's my concern. My concern also is that who is and what is a terrorist? Who is associated with terrorism? Because the government has put out many documents now that tell you to see something, say something. But the stuff you see - you know, I'm not so sure that these people are terrorists. When you see somebody paying in cash or if you have a store and one of your customers comes in frequently and they pay in cash, should you report them to the government in I can't imagine that that's the kind of stashed that we're going to have - the kind of standard that we're going to have in our country for drone strikes. When it comes to some of these people, though, I think some of the drone strikes have probably been justified. Awlaki was a traitor. One of the interesting questions about aged the enemy is, what exactly that means and what are the standards to be.

 

Kevin Williamson writes for the National Review. And he wrote an article on drones that I think really brings this home. If you're going to talk about and want to know who are the people who could potentially be killed. Because in some ways al-Awlaki was a sympathizer, someone who aided and abetted by internet chatter. That's the main thing he was accused of. They said he had more direct association - I haven't seen the secret information on that. But what I would say is that he was initially brought up as a sympathizer. And here's the problem: Many writers have said, if you take up arms against your you are an enemy combatant. I think that's true. If you are in Afghanistan and you're shooting at Americans, you are an enemy combatant. You don't get due process. But here's the question: If you're in Poughkeepsie and you're on the internet and you say, I sympathize with, you know, some group around the world that doesn't like America, and you say bad things about America, are you a traitor? I mean, you can try someone for treason for that.

 

I'm not sure if it'll rise up to that, if you're a politically opposed to what your government is doing and in favor another. But Kevin Williamson says, "if sympathizing with our enemies and propagandizing on their behalf is equivalent to making war on the country, then the Johnson and Nixon administrations should have bombed every elite college campus in the country during the 1960s."

That's all that came out was anti-America, antiwar.

Is objecting to your government or the policies of your government - the policy of your government sympathizing with the enemy? Some were openly sympathetic. Nobody will ever forget Jane Fonda sniveling around with North Vietnamese armored guns and it was despicable. That's one thing if you want to try her for treason, but are you going to just drop a drone, a hell-fired missile on Jane Fonda? Are you going to drop a missile on those at Kent state? Kent state was not good, but in some ways it was accidental since they were shooting over the heads of these people. But can you imagine, we have gone from a country that was rightfully upset about the deaths at Kent state to a country that is going to say, if your country and you're rabble-rousing because you don't like the government's foreign policy or government's war actions that you are sympathizing? See, there are a lot of questions that aren't being asked because sympathizing appears to be used as a standard for the drone strike program. We actually had students apparently during the Vietnamese war who were raising funds for the Viet cong. That sounds like treason. Sounds like something, when you're fighting an enemy and you're comforting the enemy, that does sound like treason. I have no problem with some people being tried for treason. But they don't get a hell-fired missile sent to their house. There is, though, a difference between sympathizing and taking up arms. Most people around here who want to justify no rules, America is a battlefield, no limits to war, they really want to blur it all together. Because it's easier to say, oh, you don't want to stop anybody who is shooting at Americans.

But it's not true. I think lethal force can be used against those engaged in lethal force. What troubles me about the drone strike program is that quite a few - I don't know the number - "The Wall Street Journal" says the bulk of the attacks in Pakistan have been signature attacks, meaning: nobody named and nobody specifically identified, and that civilians aren't really counted because anybody, any male between the age of 16 and 50 is a combatant unless otherwise proven. But if those are the standards, I think we need to be alarmed. And I think there is a difference between sympathizing and taking up arms.

 

One of the interesting things - and Kevin Williamson in the National Review brings this out - and it's sort of a conundrum for conservatives - because the thing about saying someone was involved and just taking the government's word, like saying Awlaki was involved with these other people and taking the government's word because we have no way of ascertaining or getting and questioning whether secret information is true or not true, is that just a few years before this - and a lot of people don't remember this - Awlaki, who was killed, a couple years before this, Awlaki was brought to the Pentagon to speak as part of a group of moderate Islamic preachers. They thought him to be an Islamic "voice of reason." He even came to the Capitol and said prayers in the Capitol. This is the guy who the government said was a good guy for a while who later said was a bad guy. And I think ultimately the evidence that he was a bad guy is pretty strong.

But most of his crime was sympathizing, and was it enough of a standard? I think in a court - in a treasonous court, I think Awlaki would have been convicted of treason. Were I a juror, I would have voted that he was committing treason and I wouldn't have had trouble at all with a drone strike on him. But if we're going to take by extension the standard we used in putting him on the list, that he was a sympathizer, an agitator and a pain in the royal you-know-what on the Internet, there's a lot of those people in America, if that's going to be our standard. That's why I would feel a little more comforted if it weren't an accusation by a politician that unleashes Hellfire missiles. I would be a little more comforted and I think we would all sleep a little better in our house at night if we knew before the Hellfire missile comes down, a policeman would come to your door and say, we accuse you of this. And they might put handcuffs on you and take you to jail, but they don't get to summarily execute you. That's all I'm asking here. I'm asking for the President to admit publicly that he's not in favor of summary executions. That's really all I'm asking. Summary executions of noncombatants. It seems like a pretty easy answer. We could be done with this in a moment's notice if someone would call the President, ask him the question, we could be done with this. Because that's what I want to hear. Not that he's not going to use the military to repel an invasion. Nobody is questioning the authority of the President to repel an invasion. But I am questioning the authority of the President to kill noncombatants asleep at home, eating at the restaurant, or what have you.

One of the things that Williamson brings up in this "National Review" article again, which I also found a little bit - it's a little bit off the subject but somewhat related. You know, we are fearful and we didn't do a very good job with 9/11, frankly. 9/11 occurred because of a lot of mistakes, and sometimes you can look back as a Monday morning quarterback and say, oh, we should have done this. But one of the things that always bothered me about 9/11 was that no one was ever fired. In fact, they gave medals - the head of the FBI, the head of the CIA, everybody gets a medal. No one was ever fired. Some of you may not remember this, but there was a 20th hijacker, his name was Moussaoui, who was up in Minnesota, I believe. They capture him a month in advance to 9/11. And when they capture him, the FBI agent there, who was spot-on and doing an excellent job and really the guy who should have gotten the medal was the FBI agent that caught Moussaoui and was asking his superiors to get a warrant. He asked repeatedly, he sends 70 letters to headquarters saying, can I have a warrant to open this guy's computer, to investigate him? He's turned down. He gets no response. It was a horrible and tragic human error. What do we do? We promote and give medals to the people who were in charge. That agent should have gotten a medal, but anybody above him who made the decision not to even ask for a warrant shouldn't have gone anywhere within the department.

Williamson makes the point, he says "if our law enforcement and intelligence agencies particularly the State Department had been doing a minimally competent job vis-a-vis visa overstays and application screening, at least 15 of the 19 9/11 hijackers would have been caught." They were all here on student visas, they were all overstaying their student visas. Nobody was paying attention. I still ask that question to today. I ask, do we know where all the students are? Particularly from about 10 Middle Eastern countries, the ones who are in our country. Do we know where they are? I think we have not a good enough system to know where they all are, whether they've come and gone. And this is a real problem. Had we actually looked at Moussaoui's computer - they did, they looked at it on September 12, the day after 9/11. They looked at his computer. I think it, within hours, led them and linked them up to several of the hijackers in Florida and ultimately would have perhaps exposed the whole ring. Same thing is going on in Arizona at the same time. They had somebody in Arizona saying there's guys wanting to fly planes that don't want to learn how to land them. There were horrible and tragic occurrences that happened, human breakdown. But how do we fix it? We fix the same way we fix everything in Washington. We threw ton of money at it and I mean a ton of money at it. Billions upon billions into the trillions have now been spent, but really the main problem with 9/11 was lack of communication, lack of trying, lack of really doing a good job at what you were already supposed to be doing.

When we look at this issue, and as we go forward from here, I think what is most important to me is that we just not let this go. This is the first time that I've decided to come to the floor and speak in a true filibuster. People talk about the filibuster all the time, they say the filibuster is overused and it's abused. A lot of times the filibuster in our country and in the Senate is actually requesting the 60 votes happen and we have to do everything by unanimous consent, so it almost never happens. I've been here two years and I don't think I've seen anybody come to the floor  and speak in an open and spoken filibuster as I am today. I think it is important, though, and I think the issue rises to such an occasion because I think there are very few things - there are a lot of things we disagree on - a lot of things we disagree on, Republicans and Democrats. And I think there are a lot of things that we could actually pass if we'd get together and try to do smaller bills and work on what we agree and get away from some of the empty partisanship. But the reason I came to the floor today to do this is because I think certain things rise above party politics.

Certain things rise above partisanship. And I think your right to be secure in your person, the right to be secure in your liberty, the right to be tried by a jury of your peers - these are things that are so important and rise to such a level that we shouldn't give up on them easily. And I don't see this battle as a partisan battle at all of the I don't see this as Republicans versus Democrats. I would be here if there were a Republican President doing this. And really, the great irony of this is that President Obama's position on this is an extension of George Bush's opinion. It basically is a continuation and an expansion of George Bush's opinion. George Bush was a President who believed in a very expansive power. Virtually, some would say, unlimited. He was accused of running an imperial Presidency. The irony is that this President that we have currently was elected in opposition to that. This President was one elected who when he was in this body was often very vocal at saying that the President's powers were limited. When I first came here, one of the first votes that I was able to get was a vote on whether or not we should go to war without Congressional approval. And so the interesting thing is that the war was beginning in Libya, turned out to be a small war, but small wars sometimes lead to big wars. In fact, that was one of Eisenhower's admonitions is beware of small wars that you may find yourself in a big war. Fortunately, the Libya war didn't turn out to be a big war, although I think it's still a huge mess over there, and I think it's still yet to be determined whether Libya will descend into the chaos of radical Islam. I think there is a chance they still may descend into that chaos. But when the question came up about going to war in Libya, there was the question of, doesn't the Constitution say that you have to declare war? And so we looked back through some of the President's writings as a candidate.

One of the President's writings I found very instructive and I was quite proud of him for having said it, the President said that no President shall unilaterally go to war without the authority of Congress unless there is an imminent threat to the country. I guess we should be a little wary of his unless now since we know imminent doesn't have to be immediate and imminent no longer means what humans once thought imminent meant. But he did say that the President doesn't go to war by himself. I think it would be fair to say that candidate Obama also felt that the President didn't have the authority to imprison you indefinitely without a trial. I think it's also safe to say that Barack Obama of 2007 would be right down here with me arguing against this drone strike program if he were in the Senate. It amazes and disappoints me how much he has actually changed from what he once stood for. But I forced a vote on his words. I took his exact words, we quoted them and put them up on a standard next to me and we voted on a Sense of the Senate that said no President should go to war without the authority of Congress. Which basically just restates the Constitution. You would think that would be a pretty easy vote for people. I think it got less than 20 votes. That is a sad state of affairs we're in. Now some who probably actually believed that refused to vote for it because they said well, he is a Republican and I won't vote with a Republican. But I honestly tell you, were the shoe on the other foot - were there a Republican President here and I a Republican senator - I would have exactly the same opinion. My opinion today on drone strikes would be exactly the same opinion under George Bush, and I was critical of George Bush as well. So were there a Republican President now, I would have the same instinct and the same resolution to carry this forward. And on the issue of war, it's the same no matter which President.

One of the complaints that you hear a lot of times in the media is about there is no bipartisanship in Congress. The interesting thing is actually there is a lot of bipartisanship in Congress. If you look at people who don't really believe in much restraint of government as far as civil liberties, it really is on both sides. And so you will find that often these votes on whether or not the Constitution says that we have to declare war in the Congress, Republicans and Democrats vote overwhelmingly against that. And you need to realize the implications of that - what they are voting for is to say we don't retain that power and we don't want it. The Constitution gave it to us, but we're giving it back. And this has been going on for a long time. Really, probably for over a hundred years, starting with sort of the Woodrow Wilson sort of grab for Presidential power, Presidents have been getting more and more powerful for over a hundred years, Republican and Democrat. There was at one point in time in our history a pride among the Senate and a pride among the Congress that said these are our powers and we're not giving them up. There were people on both sides of the aisle who would stand firm and say this is not a power I'm willing to relinquish. This is not something that is good for the country. And by relinquishing the power of Congress, we relinquish something very fundamental to our Republic, which is the checks and balances that we should have checks and balances to help and try to prevent one body or one part of the three parts of government from obtaining too much power. And so there was a time when we have tried to keep that power. Unfortunately, the bipartisanship that we have now, which many in the media fail to understand, they see us not getting along on taxes and on spending, but they fail to understand that on something very important, on whether or not an individual has a right to a trial by jury, whether an individual has the right to not be detained indefinitely, that there is quite a bit of bipartisanship, usually in the wrong direction.

Now, I will say that there is some evolution and some trend towards people being more respectful of this, and there has been some work on both sides of the aisle that has brought some of us who believe in civil liberties together. There was a bill last year called the National Defense Authorization bill, and in that bill they said that there was a clause that says that Americans can be indefinitely detained. What does that mean? Well, it means forever, basically, or without a trial, no sort of sentence, no sort of adjudication of guilt or innocence, but an American citizen can be held. And so the question I had, and there was another Republican Senator on the floor, does in a mean you can actually be sent, an American sent to Guantanamo Bay from here, who is accused of something but never gets a trial? And his answer was yes. His answer was yes, you could send them if they are a danger to the country. The problem with that kind of thinking is that, Who gets to determine whether you're a danger? Who gets to determine whether you're guilty or innocent? It sort of begs the question of what our court system is set up to do is to try to find guilt or innocence. Guilt or innocence isn't always apparent, and sometimes an accusation is a false accusation. Sometimes accusations are made because people politically don't like your point of view. So the question becomes should we have a process where we try to determine innocence or guilt? So in the National Defense Authorization bill, there was an amendment that said that you can be indefinitely detained, an American could be sent to Guantanamo Bay. And we had a big fight over it and we lost the first time around in 2012. We had an amendment that would have tried to protect American citizens. This was a good example of bipartisanship on our side. We had 45 votes, and I'd say it was probably about 38 Democrats and about seven Republicans. And so there was an example of both sides kind of working together.

We fought and we lost. The next year we came back and we fought for the same amendment again and we beat them. Interestingly, we beat them. We had 67 votes to say that you cannot detain an American, an American can't be sent to Guantanamo Bay without a trial, without an accusation, without a jury, without the Bill of Rights. You can't do that to Americans. We won the battle with 67 votes. The bill passes, the House passes their version without our amendment on it, it goes to conference committee where they work out the differences, and they stripped out our language. Sometimes when you win around here, you lose. But with the 67, there was a pretty good mix. Maybe 35, 40 Democrats and 15, 20 republicans. So there is some emerging consensus or some kind of emerging group. One of the other Senators has called it the "checks and balances" caucus, and I think that's a very accurate term because that's part of what we're arguing for here. We're arguing that no one person should get too much power, or no one body would get too much power. Some people see all that fighting and disputing between the different branches of government. They see it in a bad light. They say oh, with all that fighting and bickering, that's gridlock.

But in some ways, our Founding Fathers I think weren't too opposed to a little bit of gridlock, particularly if it were gridlock that said you know what, we're not going to make it easy to get rid of the First Amendment. It's not easy to get a Constitutional amendment in our country. We have added some through the years, but it's not easy to do. We make it hard to amend the Constitution. And in fact, we make it such that it really isn't a - we're not really a country that's majority rule, and I'm sort of a stickler for talking about the differences between a democracy and a Republic. I think some people are sloppy with their words and they - they love the idea that America is a democracy.

You know, Woodrow Wilson said that we were going to war in the first World War to make the world safe for democracy. Well, number one, we're not a democracy and we never were intended to be a democracy. When Franklin comes out of the Constitutional convention, a woman comes up to him and asks him, what will it be - will it be a monarchy or a democracy? And he says it's a Republic. It's a constitutional Republic - if you can keep it. He was already worried, will democratic action lead to people straying away and giving a government too many powers? But we are a Republic. It's important to know how a difference is between a Republic and a democracy, particularly with our history in our country. In our country, we had a period of time where majorities passed some very egregious and unfair and unjust laws.

In our country, we had a period of time where majorities passed some very egregious and unfair and unjust laws. These were called the Jim Crow laws. They passed laws based on your race or the color of your skin, and these were passed by majorities. The important thing about the Constitution and about rights and one of the reasons I am here today talking about the Fifth Amendment and how it gives you the right not to be committed to prison or not to be killed without due process is that our founders thought it was very important. This whole concept between a republic and a democracy, also between - or considering the idea that majority state legislatures were voting on something, Jim Crow laws, that would say to a white person you can't sell a house to a black person or vice versa, those laws were passed by majority rule.

 

So any time someone comes up to me and says you want a democracy, that's my first question, you're okay with Jim Crow then, because democracies did bad things, but if you believe that rights are protected and that rights should be protected and that these individual rights are not something that a democracy can overturn, then you do truly believe in a protection that is more important than any Democratic rule.

 

There has been some dispute over this. There is a Supreme Court case by the name of Lochner back in 1905. The President doesn't like Lochner at all. He is very much opposed to it. But the one thing about Lochner that I like is that Lochner really expands the Fourth Amendment. You know, the 13th, 14th and 15th were passed after the Civil War, and usually over Democrat objection. In my state, the Democrats ruled the state legislature in Kentucky for many, many years, and they voted against the 13th Amendment, the Fourth Amendment and the 15th Amendment.

 

The great champions of emancipation, of voting rights, of all of the post-war amendments were the Republicans. Every African-American in the country was a republican before 1930, virtually every African-American. In 1931 in Louisville, there were 25,730 black Republicans. There were 129 black Democrats. Every African-American was a Republican at one point in time. I try to tell people even though the numbers have unfortunately reversed that we are the party that believes in the immutability of rights. We don't believe that a democracy can take away your rights, that a majority rule can take away your First Amendment, your Second Amendment, your Fourth Amendment. And I think if we got that message out, we might change some of what goes on.

 

But the President is an opponent of the Lochner decision, and in the Lochner decision, a state legislature decides something. It's not really of importance what the decision is so much as that it's about judicial deference, about whether the court should say well, the state legislature decided this, a majority should get to rule. So many, like Oliver Wendell Holmes, was a dissent in the Lochner case, and he basically said majorities should get to rule. Herbert Crawley, who was one of the founders of the new republic, he wrote that we can get trapped up in all this support for the Bill of Rights and all these ancient individual rights, if we get too carried away with that, this whole idea of rights things, we'll have a monarchy of the law instead of a monarchy of the people.

 

Well, it was for good reason that we established a republic and not a democracy. One of the best contrasts, I think - and it may not be a perfect contrast but I think it has some truth to it and some validity, is that our revolution worked, but our revolution, we established a constrained government. In France, the mob came into power. They had mob rule. The French revolution was a disaster. We had some things going for us. We had had a colonial government with English common law and English adjudication and we adopted English practices, we were Englishmen and we believed in the rights of Englishmen. We had had that for several hundred years in our country, so it was easier for us to have a revolution, and they didn't quite have that going on in France, so it was different. One of the differences I see between that America and the French is we established a republic and we weren't going to have any majority rule where the majority were setting up a guillotine.

 

Ours wasn't perfect. Our founders allowed and left slavery to occur. Interestingly, if you read the Constitution, I think they were embarrassed by it. You know, the word "slave" doesn't occur in our Constitution and, in fact, there were many writers, many abolitionist writers - there was a writer by the name of Lysander Spooner, who was an abolitionist, and he actually wrote about the unconstitutionality of slavery before the war. And, really, if you read the Constitution and you leave out or acknowledge that there is no word in there, slavery, and nothing that really says you have to be consigned to slavery, there are things in there that say you can't be kept without being presented with charges. Habeas Corpus means "present the body." In the old days in England and in different monarchies, they'd just snatch you up. If you were next in line to be king or they made you mad, they snatched you up and put you in the tower. And so they came up with the right of Habeas Corpus, you had to present the body, you had to say, he's been arrested and these are the charges against him. We kind of have gotten, you know, to where there's some concern in our country about that, but we had that right all along.

 

So Lysander Spooner wrote and said, well, you know, why shouldn't a slave come forward and say, this guy's keeping me, he's telling me that I have to work for him, but I haven't been charged with anything. What is my crime? Eventually one court case did come forward and it was ruled incorrectly. And I'm not sure how the arguments were, but in Dread Scott they ruled you can't make the argument. But I don't know if habeas corpus was part of that case or not but it should have been. What I'm trying to say, though, is that the rights of the Constitution, the rights of the individual that were enshrined in the Constitution are important things that democracies can't overturn. So when you get to the Lochner case, the Lochner case in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone can't deprive you of determining how long your working hours are without due process. So President Obama's a big opponent to this, but I would ask him, among the other things I'm asking him today, to rethink the Lochner case. Because the Lochner case is really what precedes and what the - the case Buchanan v. Warley is predicated upon. Buchannan v. Worley is a case from 1917. Interestingly, it comes from my state, from Louisville, Ky. There's a young African-American attorney by the name of William Warley. He's a Republican, like most African-Americans were in Louisville in those days. He was the founder of the NAACP. And like most founders of the NAACP, a republican. And so what they do in 1914 is they sue because the Kentucky legislature, by majority rule, by Democratic action, passes a law saying a white person can't sell to a black person in a white section of town or vice versa.

 

So this is the first case the NAACP brings up. Morefield story was the famous - I think he was the first President of the NAACP famous attorney. Him and an attorney by the name of, I think Clinton blankey. But they go forward with this case and they win the case. It actually passes overwhelmingly. But interestingly, this case to end Jim Crow is based on the Lochner decision. So those who don't like the Lochner decision, I'd say, go back, we need to reassess Lochner In fact, there's a good book by Bernstein from George Mason talking about rehabilitating Lochner. The thing is, is that with majority rule, if you say we're going to give deference to majority rule or we're going to have judicial restraint and we're going to say, well, whatever the majority wants is fine, you set yourself up for a diminishment of rights.

 

I go back to the - the discussion of the Constitution limits power that is given to Congress but it doesn't limit rights. The powers are enumerated, your rights are unenumerated. The powers given to the government are few and defined. The freedoms left to you are many and undefined. And that's important. And what does this have to do with Lochner? The case in Lochner is whether a majority rule, a state legislature can take away your due process, your due process to contract. Can they take away your life and liberty without due process. And the court rules, no. I think it's a wonderful decision. It expands the Fourth Amendment and says to the people that you have unenumerated rights.

 

Now, there's some dissension on how we look at these cases, but when you go forward to Buchannan v. Worley, yes, the case about Jim Crow laws and housing segregation, one of the people who was going to dissent - and I think he thought better of it when he thought about he would be the first justice in probably 70-some-odd years to say that he believed in the Jim Crow laws and was upholding Jim Crow laws - was Oliver Wendell Holmes. He actually writes an opinion that has been found but was never presented to the court and he ended up voting to get rid of the Jim Crow laws. But the interesting thing is, he actually wrote an opinion in favor because he believed so strongly in majority rule.

 

I don't think these questions - some may think these are idle questions. I don't think it's an idle question whether or not you have a democracy or a republic. I think that these questions from - that these questions from Lochner, from Buchanan v. Warley all the way to the present are important. Last year and the last couple years we had two cases on gun rights, the second amendment. These are called Heller and McDonald. Both of them I think can be seen as - once again an expansion of the Fourth Amendment to say, your privileges and immunities, which are part of the Fourth Amendment, include the Second Amendment and they include certain rights. In fact, I think any power or any right not given up to the government or limited by the enumerated powers is yours. So when they say the privileges and immunities of the Fourth Amendment, I believe that means everything else. What does that mean? It means I believe in a very circumscribed view for government.

 

Now, one of the side benefits of having a circumscribed view of the government would be a government that's not allowed to do much wouldn't get in many problems. For example, if your government wasn't allowed to spend money that it didn't - that it didn't have or if your money wasn't - your government wasn't allowed to spend money on programs that were not enumerated as being within the purview of the federal government, you wouldn't have these massive deficits. We would have never gotten in this fix if we believed in a republic and not a democracy.

 

Now what proof do I have that the current officials believe in democracy versus republic? When Obamacare came forward - you know, the - the comments from then-Speaker of the House Nancy Pelosi were, a majority passed this. You know? We passed this by a majority. It's the law. Why would anybody question the Constitutionality? The President said the same thing. The President said, look, a majority passed this. What right has the court to overturn this?

 

The question has been written about by many I think brilliant scholars who have - have looked at the Constitution and looked at what it means. Some of this has to do with whether or not you presume liberty - Randy Barnett's written about this, "Restoring the Constitution," - whether you have a presumption of liberty or whether you have a presumption of Constitutionality. And that may sound a little esoteric. What does that mean? It's whether or not when they pass a law up here, you just presume it's fine because it's the law and the judges should give deference to it because it was a law. So this is kind of confusing because you think, oh, I'm arguing for judicial activism. In a way, I kind of am. Because if the Congress usurps the Constitution, if the Congress takes away from your rights, the judges should stop them in their tracks. I'm not arguing for deference to the legislature. I'm arguing for deference to the Constitution.

 

And so I'm also arguing that there is a presumption of liberty. This goes back to the - the - the way we want to look at the Fourth Amendment. The Fourth Amendment says that we have unenumerated rights. It says that basically, you know, or - I guess by extension, when you go from the Fourth Amendment to the Ninth and Tenth Amendments is the best way to look at this. The Fourth Amendment talks about privileges and immunities and then when you look at what the Ninth and Tenth Amendments do, they say, you know, those powers not given to government, those freedoms you didn't relinquish or those powers you didn't give to the government are left to the states and the people respectively. And it says they're not to be disparaged. I've always - always loved the way that was worded. Not to be disparaged. Not only is the federal government not to trample on your rights, they are not to be disparaged. But these rights are unlimited. They're yours. You got them from your creator. These are natural born rights and no democracy should be able to take these away from you.

 

Now, by changing the Constitution, they could literally take away your freedom of speech or your freedom to practice your religion. I don't think I see that ever happening and it's difficult to change our Constitution. But incredibly important that your Founding Fathers put it in there and made it difficult. Now, I always kind of joke that if you go to a conservative meeting and you talk about the second amendment, everybody pats you on the back and they all love ya until you get to the Fourth Amendment. But if we're going to have the second amendment, I think you've got to have the Fourth Amendment, the right to be free in your person from unreasonable search and seizures. That a judge should have to have a warrant to come in your house.

 

They always say, how are your guns going to be protected if they can come in your house without a warrant? You've got to have the fourth amendment. But you also have to have the 5th amendment. You know, we don't talk about the 5th amendment very much. Everything's about the second amendment. It's been all over the news, you can't turn on a channel without talking about the second amendment. But I think today's as good a day as any to talk about the Fifth Amendment. I've come here to filibuster the nomination of John Brennan because I think the Fifth Amendment is important, that I think we shouldn't be cavalier.

 

I don't think we should be casual in our disregard for the Constitution. I think that to allow the President to trample on and shred the Constitution and say that the Fifth Amendment no longer applies is - is a travesty and is something that we should not do lightly. So I think it's worth a discussion. So far it's sort of a one-way discussion but we'll see. But it's worth a discussion that we talk about the Fifth Amendment. It says, no person shall be deprived of their liberty, of their life or their liberty. That's what it means. It's pretty clear and it's pretty plain. You can't take away someone's life and liberty without due process. Or an indictment. So it should trouble every American. I can't imagine that there wouldn't be an American in our country that would not be troubled that we're talking about killing noncombatants in America with drone strikes.

 

We have to get the President to respond to this. I don't think it's good enough for the President to say, I haven't done it yet. I don't intend to do it but I might. His oath of office says he will preserve, protect and defend the Constitution. The oath of office doesn't say, well, I intend to when it's convenient. I mean, you know, I've never seen a President go out on the lawn with the Chief Justice and say, "I intend to follow the Constitution when it's convenient." Because what he says is he won't drop a hellfire missile on you unless it's infeasible to capture you. That's what they're doing overseas. If that's going to be the standard for America, if you're not going to get a hellfire missile on you unless it's infeasible, to me that sounds like unless it's convenient. If it's inconvenient. Nonfeasible sounds like inconveniency is the standard.

 

You know, I asked Secretary Kerry about this in his nominating process. I said, well, can you go to war without Congress approving of it, without a declaration of war like the Constitution says? And he said, no, I intend to obey the Constitution except for when I don't intend to obey the Constitution and when it's kind of - you know, it's hard to get things through Congress and Congress is - so many squabbles and so many fights. So yeah, most of the time we'll come to Congress and we'll ask for a declaration of war - which, by the way, we have not done since World War I. And when we did, it was voted on nearly unanimously. We have not had a declaration of war. But this is the standard we get to. They don't intend to kill anyone and we don't intend to go to war without a declaration of war unless it's impractical to get your approval. Well, that was the point. If you don't get the point of the Constitution, if you don't get the point of what kind of system our government is set up, what kind of system our founders set up, it was to make it impractical. It was to make it difficult to go to war. It was to make it difficult and make it important that there be debate and checks and balances.

 

If inconveniencecy is our standard for going to war without Congress, inconveniency is our standard for killing Americans on American soil with drones - I mean, I think we've sunk to a new low. I just can't imagine as a country that that's the standard that you want to have.

 

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Contact Senator Rand Paul at One of his Offices

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