Floor Statements

Mr. President, I submit the following notice in writing:

In accordance with rule V of the Standing Rules of the Senate, I hereby give notice in writing that it is my intention to move to suspend rule XVI, and rule XXII, Paragraph 2, for the purpose of proposing and considering Amendment No. 1739, including germaneness requirements.

Mr. President, I ask unanimous consent to set aside the pending amendment and call up my amendment No. 1200, which is cosponsored by the Senator from Missouri, Mr. Roy Blunt, with a modification at the desk.

Mr. President, I ask unanimous consent that the amendment be considered as read.

Mr. President, I rise today to speak about my amendment, which we have entitled ``Trust But Verify.''

I am in full support of immigration reform, as are most Members of this body and most Americans. But part of that reform must be that we insist on border security.

Recently the authors of the current bill made clear that legalization will not be made contingent on border security. Most conservatives such as myself believe just the opposite, that legalization or documentation of workers absolutely must depend on border security first. My amendment does that. Trust But Verify makes documentation of undocumented workers contingent on border security.

I believe the American people should not rely on bureaucrats or a commission to enforce border security. We have been promised security in the past and it never happens. My amendment is different than any other amendment because I want Congress to institute border security, not wait for a plan from the administration.

With Trust But Verify Congress will vote every year for 5 years on whether the border is secure. The power to enforce border security will be in our hands, the people's representatives, and it is Congress that will be held accountable if we fail. If Congress believes the border is not secure, then the processing of the undocumented workers stops until the border becomes secure.

To be clear, my amendment doesn't replace any triggers of the underlying bill. It simply adds new conditions to build on border security measures that are already in the bill. The only way to put real pressure on the Department of Homeland Security is to have tough triggers that ensure that the border is secure before immigration reform can proceed.

My amendment is entitled ``Trust But Verify.'' My amendment legislates exactly how we secure the border. The current bill merely requests a plan to secure the border. My amendment requires 100 percent border surveillance capability, a 95-percent apprehension rate, and a completion of a double-layered fence. Instead of having a plan to build a fence, we just tell them: Build the fence. We monitor the building of the fence as it progresses, and we make these triggers transparent to the public.

This amendment also would end the practice of releasing people who are caught crossing the border. Ninety-five percent of the people caught are released and they never come back--they go to the interior of the country.

Legalization of undocumented workers is allowed to commence after 1 year if Congress agrees that the border is secure. The resolution would be simple and would simply state every year: It is the sense of Congress that the U.S. border is increasingly secure. And Congress will determine if the Department of Homeland Security has met the goals Congress has written into law.

My amendment mandates that 100 percent exit tracking for U.S. visitors is accomplished through all portals--air, land, and water. One of the biggest problems our Nation is experiencing is that individuals here on temporary visas tend to overstay, and some never exit the country. My amendment solves this problem.

My amendment also has two important national security elements. One provision sets up a student visa national security registration system as a means to track young men and women who come to this country on student visas. Also, individuals here under asylum or refugee status must register in a program providing increased screening and a means to make sure the Federal Government has an idea of where people in these programs reside.

We should remember that most of the 9/11 hijackers were here on student visas and were not being properly monitored. And I still don't think that problem has been fixed.

This amendment is fully paid for by taking funds that would have gone toward this commission. We will not need a commission because we are actually going to put border security in the bill, and it requires no additional funding. If my amendment is implemented, there will not be a need for this commission.

One big problem with immigration reform is the dire need to reform our immigration court system. My amendment empowers immigration judges to have the power to implement orders. Judges make decisions and then no one will carry out the orders. It is a completely broken system. Both the left and the right agree we need to fix the immigration court system. This amendment would do it. My amendment would convert our courts from administrative courts to article I courts with enhanced jurisdiction.

My amendment also protects the privacy of all Americans by placing in law protections against citizens being subject to invasive biometric identification cards. Most Second Amendment supporters rightly see universal background checks as a step too far in invading citizens' personal business. Any national ID, biometric or otherwise, raises the same constitutional concerns.

Finally, my amendment does not allow the processing of this new category called registered provisional immigrants until Congress votes that the border is secure. Then we limit the number to 2 million per year, and each year we vote: Is the border more secure? If the border is not becoming more secure, the process stops until we agree the border is secure. This will allow the Department of Homeland Security to do an effective job of conducting background checks on the estimated 11 to 12 million people.

If Congress votes that the border is not secure, the processing of people into this category stops. It will not start again until Congress, the Representatives of the people, believe that the border is secure.

We desperately need immigration reform. If we don't have reform, I think we will have another 10 million people come over in the next decade. So something should be done, but it has to be done in a way that fixes the system. This amendment will fix the system.

I ask my colleagues to support Senate amendment No. 1200, Trust But Verify.

I yield the floor, and I suggest the absence of a quorum.

Reserving the right to object, it has now been 59 days that the opposition has been trying to orchestrate a backroom deal to raise the debt ceiling. Raising the debt ceiling is an incredibly important debate and shouldn't be done in the back room by a few people. It shouldn't be done through parliamentary trickery or chicanery. It should be done out in the full and open and under the ordinary rules of the Senate.

We are now borrowing $40,000 every second, $4 billion a day. We must borrow from China to run the ordinary functions of our government. In fact, it is worse. We borrow from China to send money to China. We borrow money from China to send money to Pakistan. We build bridges in Pakistan with money borrowed from China. It can't go on. No American family can continue to spend money endlessly that they don't have.

All we are asking is for a commonsense resolution that says we can't keep borrowing.

What I ask is unanimous consent that the Senator modify her request so

that it not be in order for the Senate to consider a conference report that includes reconciliation instructions to raise the debt limit. I ask that as a unanimous consent request.

Reserving the right to object, we are talking about two different issues. We have passed budgets year in and year out. We continue to pass budgets. Of course, the budgets on our side don't raise taxes; the budgets on the other side raise taxes by $1 trillion. There are parliamentary rules for how we address separate issues such as the debt ceiling.

What we are concerned about, and all we are asking the opposition to do--including opposition within both parties to do--is that the debt ceiling vote be a separate vote and that it not be stuck in the dead of night in a conference committee with very few people, selected by very few people. We have a big party on our side that can include people with many different opinions, some who are very concerned about the debt ceiling and the direction of our country and some who are concerned very much about the debt, so much so that our resilience will not flag. We will maintain the position that throwing our country into further debt is wrong for the country. I think most Americans can understand that.

We are $16 trillion in debt. We are passing this debt on to our children. It is inexcusable. Somebody must make a stand. Several of us are making a stand--not against a budget but in saying we cannot keep raising the debt ceiling; we cannot keep adding debt to our country. This burden is going to be passed on to our kids and grandkids. We are making a stand, and so I object to a modification.

I object.

Will the Senator yield for a question?

Will the Senator yield for a question?

Will the Senator yield for a question?

This is a debate, and it is a good debate, because it is a debate about the debt ceiling. I am actually in favor of allowing the debt ceiling to go up under certain conditions where we reform things. I think it is unconscionable not to do anything, to simply say: Here is a blank check, keep doing what you have been doing.

We are running the country into the ground. We are borrowing $40,000 a second. Should we not talk about reform in the process? Many of us supported last time around raising the debt ceiling in exchange for a balanced budget amendment. Seventy-five to 80 percent of the public thinks we should balance our budget. They have to, why shouldn't we?

I would ask the Senator: Is he not hearing from his people at home that the debt ceiling should not be done in secret, that it should be done, and if it is going to be done, it should be attached to significant budgetary reform?

Between 3 and 5 minutes.

My nephew Mark Pyeatt has neurofibromatosis 2, NF2, but that is not who he is. He is an indomitable spirit, a courageous young man, a man who knows and faces each day certain that he is one with his God. He is like many young people on Earth--he is in search of the truth. He reads, he thinks, but he no longer hears.

Neurofibromatosis 2 is characterized by recurrent neurologic tumors. Its signature tumor affects the auditory nerves and destroys the hearing. Its relentless course eventually takes all of the hearing. I have never heard Mark complain.

While my signing is only rudimentary, most of his immediate family are proficient, and at Christmas dinner for 40 family members, nearly everyone is trying to learn some signing. The grandkids sing, ``Happy Birthday, Jesus. I am so glad you came.'' The whole family is learning to communicate with their hands. I mostly like to learn insults so I can taunt Mark on the golf course. I can't use most of the signs he taught me on the Senate floor. I don't know this for certain, but I think the seven words George Carlin said you can't say on TV, I think you can't sign them on TV either. I love the way names for people in sign language are created only by the deaf. Mark's mother Lori is ``L'' to the ear because she is on the phone all the time. My wife Kelley is ``K'' sweet. My middle son Duncan is ``D'' in a hoop because he likes basketball.

Neurofibromatosis 2 is a rare disease. Some call it an orphan disease. Orphan diseases face certain obstacles that others do not. Money is typically allocated to research based on how prevalent a disease is. For rare diseases, the resources are likewise rare.

In order for investors to invest in a cure for neurofibromatosis 2, regulatory obstacles need to be cleared. We need to allow foreign drug studies to be accepted in the United States and not repeated. We need to have speedy approval of drugs that are already being used by the general population in other countries.

My chief of staff's sister Karen has pulmonary fibrosis--another orphan disease. She is 40 years old with a young daughter, and she is likely only alive today through a fluke in the system. She takes a medication that is part of an experimental trial in the United States but has been on the general market in Japan for years. If she didn't live near a research center and if her family couldn't afford to pay $1,500 a month out-of-pocket, she wouldn't receive this drug, even though it is legal in Japan.

The drug should have been cleared already, but we are not doing a good enough job of trying to get drugs cleared. It went through trials here. It has already been approved in Europe and Japan, but 200,000 Americans who have a rare deadly terminal disease are being denied this drug.

We all want safety in the drugs and in the cures for disease. We all acknowledge this is a balancing act. We should all acknowledge the regulatory obstacles and burdens new drugs face in our country are oppressive and counterproductive.

My hope is by putting a face to two orphan diseases--my nephew Mark, with neurofibromatosis, and my staff member's sister Karen, with pulmonary fibrosis--this situation will be made more personal. These are people who are close to our families, and we hope others will come to realize we must do something to get rid of government obstacles to cures for rare diseases.

I yield the floor.

Mr. President, I ask unanimous consent that Justin Hamilton, an intern in my office, and Steven Phan of the Sergeant at Arms' office be allowed the privileges of the floor for today's session and that Stephen Phan be allowed to stand next to me to interpret my remarks into American sign language.

On rollcall vote No. 110, I voted ``aye.'' It was my intention to vote ``nay.'' Therefore, I ask unanimous consent that I be permitted to change my vote since it will not affect the outcome.

Mr. President, the President is fond of calling for a balanced approach. Today, I rise in this body to offer a balanced approach to budgets. I offer a budget that balances in 5 years.

This budget is called the Revitalize America Budget. It reforms and saves Social Security and Medicare, making them solvent for 75 years; it creates millions of jobs by letting taxpayers keep an additional $600 billion of their income; it repeals ObamaCare; and it requires Congress to vote to approve or disapprove all major regulations.

Our ever-expanding debt is costing us millions of jobs a year. It is time to stop burying our kids in debt. I suggest a vote for this 5-year balanced budget.

I yield the floor.

On behalf of Senator McConnell and myself, I have to introduce this amendment to create a bridges fund. We have done considerable nation building abroad. I think it is time we do some nation building at home.

We have two bridges in our State, Brent Spence as well as the Sherman Minton Bridge, that need to be repaired and replaced. We do not have enough money in our highway trust fund. This would create a new bridges fund. It would come from money we are currently sending overseas to build bridges overseas. So it would bring foreign aid money back home to the United States where it is needed. It would also take some money from the Department of Energy loans, which I think can be more useful at home to build bridges.

So I urge adoption of this amendment which would allow a new creation of a bridges fund, which I think our country desperately needs.

Madam President, I rise today to begin to filibuster John Brennan's nomination for the CIA. I will speak until I can no longer speak. I will speak as long as it takes until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court. That Americans could be killed in a cafe in San Francisco or in a restaurant in Houston or at their home in Bowling Green, KY, is an abomination. It is something that should not and cannot be tolerated in our country.

I do not rise to oppose John Brennan's nomination simply for the person. I rise today for the principle. The principle is one that, as Americans, we have fought too long and hard for to give up on, to give up on the Bill of Rights, to give up on the fifth amendment protection that says no person shall be held without due process, that no person shall be held for a capital offense without being indicted. This is a precious American tradition and something we should not give up on easily.

They say Lewis Carroll is fiction; Alice never fell down a rabbit hole, and the White Queen's caustic judgments are not really a threat to your security. Or has America the beautiful become Alice's Wonderland?

``No, no!'' said the Queen. ``Sentence first--verdict

afterwards.''

``Stuff and nonsense!'' Alice said loudly. ``The idea of

having the sentence first.''

``Hold your tongue!'' said the Queen, turning purple.

``I won't!'' said Alice.

[``Release the drones,''] said the Queen, as she shouted at

the top of her voice.

Lewis Carroll is fiction, right? When I asked the President: Can you kill an American on American soil, it should have been an easy answer. It is an easy question. It should have been a resounding and unequivocal no. The President's response: He hasn't killed anyone yet.

We are supposed to be comforted by that. The President says: I haven't killed anyone yet. . . . He goes on to say: and I have no intention of killing Americans, but I might.

Is that enough? Are we satisfied by that? Are we so complacent with our rights that we would allow a President to say he might kill Americans, but he will judge the circumstances, he will be the sole arbiter, he will be the sole decider, he will be the executioner in chief if he sees fit?

Some will say he would never do this. Many people give the President consideration. They say he is a good man. I am not arguing he is not. What I am arguing is that the law is there, set in place for the day when angels don't rule government. Madison said that the restraint on government was because government will not always be run by angels. This has nothing, absolutely nothing, to do with whether the President is a Democrat or a Republican. Were this a Republican President, I would be here saying exactly the same thing: No one person, no one politician should be allowed to judge the guilt--to charge an individual, to judge the guilt of an individual, and to execute an individual. It goes against everything we fundamentally believe in our country. This is not even new to our country. There is 800 years of English law that we founded our tradition on. We founded it upon the Magna Carta from 1215. We founded it upon Morgan of Glamorgan from 725 A.D. We founded it upon the Greeks and Romans who had juries. It is not enough to charge someone to say that they are guilty.

Some might come to this floor and they might say: What if we are being attacked on 9/11? What if there are planes flying at the Twin Towers? Obviously we repel them. We repel any attack on our country. If there is a gentleman or a woman with a grenade launcher attacking our buildings or our Capitol, we use lethal force. You don't get due process if you are involved with actively attacking us, our soldiers, or our government. You don't get due process if you are overseas in a battle, shooting at our soldiers. But that is not what we are talking about.

The Wall Street Journal reported and said that the bulk of the drone attacks is signature attacks. They do not even know the name of the person. A line or a caravan is going from a place where we think there are bad people to a place where we think they might commit harm and we kill the caravan, not a person. Is that the standard we will now use in America? Will we use a standard for killing Americans to be that we thought you were bad, we thought you were coming from a meeting with bad people and you were in a line of traffic and so therefore you were fine for the killing?

That is the standard we are using overseas. Is that the standard we are going to use here? I will speak today until the President responds and says: No, we won't kill Americans in cafes. No, we won't kill you at home in your bed at night. No, we won't drop bombs on restaurants.

Is that so hard? It is amazing that the President will not respond. I have been asking this question for a month. It is like pulling teeth to get the President to respond to anything and I get no answer. The President says he hasn't done it yet and I am to be comforted. You are to be comforted in your home. You are to be comforted in your restaurant. You are to be comforted in online communicating in your e- mail that the President has not killed an American yet in the homeland. He says he has not done it yet. He says he has no intention to do so.

Hayek said that nothing more distinguishes arbitrary government from a government that is run by the whims of the people than the rule of law. The law is an amazingly important thing, an amazingly important protection. For us to give up on it so easily doesn't speak well of what our Founding Fathers fought for, what generation after generation of American soldiers has fought for, what soldiers are fighting for today when they go overseas to fight wars for us. It doesn't speak well of what we are doing here to protect the freedom at home when our soldiers are abroad fighting for us that we say our freedom is not precious enough for one person to come down and say: Enough is enough, Mr. President, come clean, come forward and say you will not kill Americans on American soil.

The oath of office of the President says that he will, to the best of his ability, preserve, protect and defend the Constitution. He raises his right hand, he puts his left hand on the Bible, and he says ``will.'' The President doesn't say, I intend to if it is convenient; I intend to unless circumstances dictate otherwise. The President says, ``I will defend the Constitution. I will protect the Constitution.''

There is not room for equivocation here. This is something that is so important, so fundamental to our country that he needs to come forward.

When Brennan, whose nomination I am opposing today, was asked directly: Is there any limit to your killing? Is there any geographic limitation to

your drone strike program? Brennan responded and said: No, there is no limitation.

So the obvious question would be, if there is no limitation on whom you can kill and where you can kill and there is no due process upon whom you will kill, does that mean you will do it in America? The Senator from Oregon asked him that question directly, in committee. And this so-called champion of transparency, this so-called advocate of some kind of process, responded to the Senator from Oregon by saying: I plan to optimize secrecy and optimize transparency.

Gobbledygook. You were asked: Will you kill Americans on American soil? Answer the question.

Our laws forbids the CIA from doing that. It should have been an easy question. The 1947 National Security Act says the CIA doesn't operate in our country. We have the FBI, we have rules, we have separated powers to protect your rights. That is what government was organized to do. That is what the Constitution was put in place to do, to protect your rights. So when I asked, he says: No answer. He says: I will evade your answer, and by letting him come forward we let him get away with it.

I have hounded and hounded and finally yesterday I get a response from Mr. Brennan, who wishes to be the CIA chief, and he finally says: I will obey the law.

Well, hooray. Good for him. It took a month to get him to admit that he will obey the law. But it is not so simple. You see, the drone strike program is under the Department of Defense, so when the CIA says they are not going to kill you in America, they are not saying the Defense Department won't. So Eric Holder sent a response, the Attorney General. His response says: I haven't killed anyone yet. I don't intend to kill anyone. But I might.

He pulls out examples that are not under consideration. There is the use of local force that can always be repelled--if our country is attacked, the President has the right to protect and defend the country. Nobody questions that. Nobody questions if planes are flying toward the Twin Towers whether they can be repelled by the military. Nobody questions whether a terrorist with a rocket launcher or grenade launcher is attacking us, whether they can be repelled. They do not get their day in court.

But if you are sitting in a cafeteria in Dearborn, if you happen to be an Arab American who has a relative in the Middle East and you communicate with them by e-mail and someone says your relative is someone we suspect of being associated with terrorism, is that enough to kill you? For goodness sake, wouldn't we try to make an arrest and come to the truth by having a jury and a presentation of the facts on both sides of the issue?

See, the real problem here is one of the things we did a long time ago is we separated the police power from the judicial power. This was an incredibly important first step. We also prevented the military from acting in our country because we did not want to have a police state. One of the things we greatly objected to of the British is they were passing out general writs or writs of assistance. These were warrants that allowed them to go into a house but allowed them to go into anyone's house. What we did when we wrote our Constitution is we made the Constitution--we made the fourth amendment specific to the person and the place and the things to be looked for. We did not like the soldiers going willy-nilly into any house and looking for anything. So we made our Constitution much more specific.

I think this is something we should not give up on so easily. I think the idea that we could deprive someone of their life without any kind of hearing, essentially allowing a politician--I am not casting any aspersions on the President. I am not saying he is a bad person at all. But he is not a judge.

He is a politician. He was elected by a majority, but the majority doesn't get to decide whom we execute. We have a process for deciding this and we have courts for deciding this. To allow one man to accuse a person in secret and to never get notified that they have been accused--their notification is the buzz of the propellers on the drone as it flies overhead in the seconds before they are killed. Is that what we want from our government? Are we so afraid of terrorism and so afraid of terrorists that we are willing to just throw out our rights and our freedoms and what we have fought for and have gotten over the centuries? We have at least 800--if not 1,000--years' worth of protections.

Originally, the protections were against a monarch. We feared a monarch. We didn't like having a monarch. When we came to this country and set up our Presidency, there was a great deal of alarm. There was a great deal of fear over having a king, and so we limited the executive branch. Madison wrote in the Federalist Papers that the Constitution supposes what history demonstrates, which is that the executive branch is the branch most prone to a war, most likely to go to war, and, therefore, we took that power to declare war and vested it in the legislature. We broke up the powers.

Montesquieu wrote about the checks and balances and the separation of powers. He was somebody whom Jefferson looked toward. They separated the powers because there is a chance for abusive power when power resides in one person. Montesquieu said there can be no liberty when the executive and the legislative branches are combined.

I say something similar; that is, there can be no liberty when the executive and the judiciary branches are combined, and that is what we are doing here. We are allowing the President to be the accuser in secret, we are allowing him to be the judge, and we are allowing him to be the jury. No man should have that power. We should fear that power not because we have to say: Oh, we fear the current President. It has nothing to do with who the President is. It has nothing to do with whether someone is a Republican or Democrat. It has to do with whether we fear the consolidation of power, whether we fear power being given to one person, be it a Republican or a Democrat. This is not necessarily a right-left issue.

Kevin Gosztola, who writes at firedoglake.com, writes that the mere fact that the President's answer to the question of whether you can kill an American on American soil was yes is outrageous. However, it fits the framework for fighting a permanent global war on terrorism without any geographic limitations, which President Obama's administration has maintained it has the authority to wage.

What is important to note is that we are talking about a war without geographic limitations, but we are also talking about a war without temporal limitations. This war has no limit in time. When will this war end? It is a war that has an infinite timeline. If we are going to suspend our rights, if there is going to be no geographic limits to killing--which means we are not at war in Afghanistan, we are at war everywhere. Everybody who pops up is al-Qaida. Whether they have heard of al-Qaida or whether they have had any communication with some network of al-Qaida, it is al-Qaida. There is a new war going on everywhere in the world, and there are no limitations.

Glenn Greenwald has also written about this subject, and he was speaking at the Freedom to Connect conference. He said there is a theoretical framework being built which posits that the U.S. Government has unlimited power. Some call this inherent power. ``Inherent'' means it has not been defined anywhere; it has not been expressly given to the government. They have decided this is their power and they are going to grab it and take what they get.

This is not new. The Bush administration did some of this too. When the Bush administration tried to grab power, the left--and some of us on the right--were critical when they tried to wiretap phones without a warrant. Many on the right and many on the left raised a raucous. There was a loud outcry against President Bush for usurping, going across due process, not allowing due process, and not obeying the restraints of warrants. Where is that outcry now?

Glenn Greenwald writes:

There is a theoretical framework being built that posits

that the U.S. Government has unlimited power, when it comes

to any kind of threats it perceives, to take whatever action

against them that it wants without any constraints or

limitations of any kind.

As Greenwald suggests--and this goes back to Gosztola's words-- answering

yes to the question that you can kill Americans on American soil illustrates the real radicalism the government has embraced in terms of how it uses its own power.

We were opposed to them listening to our conversations without a warrant, but no one is going to stand and say anything about killing a person without a warrant, a judge's review or a jury? No one is going to object to that? Where is the cacophony who stood and said: How can you tap my phone without going to a judge first? I ask: How can you kill someone without going to a judge or a jury? Are we going to give up our rights to any politician of any stripe? Are we going to give up the right to decide who lives and who dies?

Gosztola goes on to say the reason the administration didn't want to answer yes or no to this question--can you kill Americans on American soil--is because he says a ``no'' answer would jeopardize the critical, theoretical foundation they have very carefully constructed that says there are no cognizable constraints on how U.S. Government power can be asserted.

Civil libertarians once expected more from the President. In fact, it was one of the things I liked about the President. I am a Republican. I didn't vote for or support the President either time, but I admired him. I particularly admired him when he ran in 2007. I admired his ability to stand and say: We will not torture people. That is not what America does.

How does the President's mind work? The President--who seemed so honorable, so concerned with our rights, so concerned with the right not to have our phone tapped--now says he is not concerned with whether a person can be killed without a trial. The leap of logic is so fantastic as to boggle the mind. Where is the Barack Obama of 2007? Has the Presidency so transformed him that he has forgotten his moorings and what he stood for?

Civil libertarians once expected more from the President. Ask any civil libertarian whether the President should have the right to arbitrarily kill Americans on American soil, and the answer is easy. Of course no President should have the right or that power under the Constitution.

Brennan has responded in committee that now the CIA does not have the right to do it on American soil. The problem is that this program is under the Department of Defense, so it is, once again, an evasive answer. They are not answering the true question: Will the Government of America kill Americans on American soil?

Gosztola, from firedoglake.com, writes that there may never be a targeted killing of a U.S. citizen on U.S. soil--and the question of whether a U.S. citizen could be targeted and killed on U.S. soil may remain a hypothetical question for some time--but the fact that the Obama administration has told a U.S. Senator there is a circumstance where the government could target and kill an American citizen on American soil without charge and without trial is a stark example of an imperial Presidency.

This is what our Founding Fathers wanted to fight against. They wanted to limit the role and the power of the President. They wanted to check the President's power with the power of the Senate, the power of the House, and the power of the judiciary. We have three coequal branches. Not one of them should be able to run roughshod on the other.

The problem is we have allowed this to happen--not me personally, but Congress in general has allowed the President to usurp this power. If there were an ounce of courage in this body, I would be joined by many other Senators in saying we will not tolerate this, that we will come together, in a bipartisan fashion, and tell any President that no President will ever have the authority to kill Americans without a trial. When the President says he does intend to do so, we have to think that through.

One year ago, the President signed a law that says a person can be detained indefinitely and that they can be sent from America to Guantanamo Bay without a trial. He wants us to be comforted by that. He wants us to remember and think well of him because he says: I don't intend to do so. It is not enough. I mean, would we be able to tolerate a Republican who stood and said: I like the first amendment, I am quite fond of the first amendment, and I don't intend to break the first amendment, but I might.

Would conservatives tolerate someone who said: I like the second amendment, I think it is important and I am for gun ownership and I don't intend to violate the second amendment, but I might. Would we tolerate that he doesn't intend to do so as a standard?

We have to think about the standards being used overseas. Google interviewed him not too long ago and asked him if he could kill Americans at home. He was evasive. He said there are rules. He said the rules outside would be different than inside. I certainly hope so. Outside the United States the rules for killing are that someone can be killed through a signature strike. We don't have to know what that person's name is, who they are or whom they are with. If a person is in a line of traffic and we think they are going from talking to bad people to talking to other bad people, we can kill that person.

Is that going to be the standard in America? When they are asked if they have killed civilians in their drone strikes, they say no. However, a person is not counted as a civilian if they are male or if they are between the ages of 16 and 50. They are considered a potential and probable combatant if they are in the 16-to-50 age range.

My question is: If you are not a civilian, if you are in proximity to bad people, is that the standard we are going to use in the United States? If we are going to kill Americans on American soil and the standard is going to be signature strikes of a person who is close to bad people or in the same proximity of bad people, is that enough? Are we happy with that standard? Are we happy we have no jury, no trial, no charges, and nothing done publicly?

Eric Holder, the Attorney General's response to me is that they maintain they are not going to do this. We should just trust them. It is not about them, though. It is about the law. The law restrains everyone equally, regardless of their party or whether they are Republican or Democrat. The law is out there for the time when somebody inadvertently elects a truly bad person.

When World War I ended, the currency was being destroyed in Germany. In 1923, paper money became so worthless that people wheeled it in wheelbarrows; they burned it for fuel. It became virtually worthless overnight. At the beginning of September 1923, I think it was like 10 or 15 marks for a loaf of bread. On September 14, it was 1,000 marks. On September 30, it was 100,000 marks. By October 15, it was a couple of million marks for a loaf of bread. It was a chaotic situation. Out of that chaos, Hitler was elected democratically. They elected him out of this chaos.

My point is not that anybody in our country is Hitler. I am not accusing anybody of being that evil. I think it is an overplayed and misused analogy. What I am saying is that in a democracy we could someday elect someone who is very evil, and that is why we don't give the power to the government. It is not an accusation of this President or anybody in this body; it is a point to be made historically that occasionally even a democracy gets it wrong. So when a democracy gets it wrong, we want the law to be there in place. We want this rule of law.

As I mentioned, Hayek said that this is what distinguished us. Nothing distinguishes us more clearly from arbitrary government and a government of whims than a rule of law, and a stable and consistent government is the rule of law.

Heritage has an author who has written some about the oath of office. His name is Kesavan. He writes that the location and the phrasing of the oath of office for the President--this is something I mentioned earlier, that the President says he will protect and defend and preserve the Constitution--words are important. The oath doesn't say, I intend to preserve, protect, and defend; it says, I will.

Kesavan writes, though, that the location and phrasing of the oath of office strongly suggests that it is not empowering but limiting. So the President doesn't take an oath of office that says: I intend to preserve, protect, and defend the Constitution, but I also feel that I have inherent powers that were never mentioned by anybody that I will be the sole arbiter of interpreting what those powers are.

That sounds more like a king. That is not what we wanted. We did not want an imperial Presidency. What Kesavan suggests is that the oath of office is not empowering but that it is limiting, that the clause limits the President and how the President can execute or how the Executive power can be exercised.

One unanswered word in that Constitution includes the Fifth Amendment to the Constitution. What does the Fifth Amendment say? The Fifth Amendment says that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. It is pretty explicit. The Fifth Amendment protects us. It protects us from a King placing a person in the tower, but it also should protect us from a President who might kill us with a drone.

We were granted due process. It is not always easy to sort out the details of who is a threat to the country and who is not a threat to the country. If it were people with grenade launchers on their shoulders, that is easy. In fact, I agree completely. A person does not get due process if they are actively attacking America. But we have to realize there have been reports that over half of the drone strikes overseas are not even directed toward an individual, they are directed toward a caravan of unnamed individuals.

Overseas, I have no problems. If people are shooting at American soldiers overseas, by all means, they get no due process. But we also have to realize that many--we don't know because they won't tell us the number, but many of the drone strikes overseas are done when a person is walking, whether to church, a restaurant, or along the road; they are done when a person is in a car driving; they are done when a person is in a house eating or in a restaurant eating; or they are done when a person is in a home sleeping. I am not even saying all those people didn't deserve what they got, but I am saying they were not actively involved in something that is an imminent threat, and if they were in America, they would be arrested.

If we think a person is a terrorist in America, we should arrest them. But here is the question: Who is a terrorist? That is why I have been so concerned with a lot of people around here who want to say if you are associated with terrorism. The reason is that our government has already put out things that I think are of a questionable nature.

The Bureau of Justice put out a bulletin within the last year describing people we need to be worried about. These are the people we are supposed to say something about if we see something. Who are these terrorists who live among us? People who might be missing fingers on one hand; people who might have stains on their clothing; people who might have changed the color of their hair; people who like to pay in cash; people who own more than one gun; people who own weatherized ammunition; people who have 7 days of food in their house--these are people we should be afraid of and we should report to our government, so says our government. Are they going to be on the drone strike list? I think we need to get an answer from the President.

If you are going to kill people in America, we need rules, and we want to know what your rules are because I certainly don't want to have 7 days of food in my house if that is on the list of terrorism. There are some governmental Web sites that advise us to have food in our house. If we live in a hurricane-prone area, we are supposed to keep some extra food around. Who is going to decide when it is OK to have food in our house and when it is not?

There is something called a fusion center. Fusion centers are supposed to coordinate between the Federal Government and the local government to find terrorists. The one in Missouri a couple of years ago came up with a list, and they sent this to every policeman in Missouri. This kind of concerns me. The people on the list might include me. The people on the list from the fusion center in Missouri whom we need to be worried about and whom policemen should stop are people who have bumper stickers that might be pro-life; people who have bumper stickers that might be for more border security; people who support third-party candidates; people who might be in the Constitution Party. And isn't there some irony there--people who might be in the Constitution Party, who believe in the Constitution so much, they might be a terrorist.

So I think we need to be concerned about this. Things are not so black and white. If someone is shooting a gun at us--a cannon, a missile, a rocket, a plane--it is pretty easy to know what lethal attacks are and to repel them, and there should be no due process. But we are talking about people in their home. We are talking about people in a restaurant or a cafe that someone is making an accusation against.

If the accusation is based on how many fingers you have on your hand, I have a problem with that standard. If the standard to be used for killing Americans is whether a person pays in cash, I have a problem with that. If the standard to be used in America is being close to someone who is bad or the government thinks is bad is enough for you to be killed and not even to count you as an accidental kill but to count you as a combatant because you were near them--see, here is the problem, and this is no passing problem, this is an important problem. There was a man named al-Awlaki. He was a bad guy. By all evidence available to the public that I have read, he was treasonous. I have no sympathy for his death. I still would have tried him in a Federal court for treason, and I think he could have been executed. But his son was 16 years old, and he missed his dad, who had been gone for 2 years. His son sneaks out of the house and goes to Yemen. His son is then killed by a drone strike. They won't tell us if he was targeted. I suspect, since there were other people in the group--there were about 20 people killed--that they were targeting someone else. I don't know that. I don't have inside information on that, but I suspect that.

Here is the real problem. When the President's spokesman was asked about al-Awlaki's son, do my colleagues know what his response was? This I find particularly callous and particularly troubling. The President's response to the killing of al-Awlaki's son--he said he should have chosen a more responsible father. It is kind of hard to choose who your parents are. That is sort of like saying to someone whose father is a thief or a murderer or a rapist--obviously a bad thing, but does that mean it is OK to kill their children? Think of the standard we would have if our standard for killing people overseas is that you should have chosen a more responsible parent. It just boggles the mind and really affects me to think that would be our standard.

There is absolutely no excuse for the President not to come forward on this. I have been asking for a month for an answer. It is like pulling teeth to get any answer from the President. Why is that? Because he doesn't want to answer the question the way he should as a good and moral and upstanding person--someone who believes in the Constitution should--that absolutely no American should ever be killed in America who is sitting in a cafe. No American should ever be killed in their house without a warrant and some kind of aggressive behavior by them. There is nothing American about being bombed in one's sleep. There is nothing constitutional about that.

The President says to trust him. He says he hasn't done it yet. He says he doesn't intend to do so but he might. That is just not good enough. It is not enough for me to be placated. It is not enough for me to be quiet.

So I have come here today to speak for as long as I can. I won't be able to speak forever, but I am going to speak for as long as I can to draw attention to something that I find really to be very disturbing.

People have asked about this nomination process because I have actually voted for a couple of the President's nominees, some of whom I have objected to, some of whom I have had personal differences with as well as political differences with. This is not about partisanship.

I voted for Secretary of State John Kerry. I have almost nothing in common with him politically. I have disagreed with him repeatedly on the floor. But I gave the President the prerogative of choosing his Secretary of State because I think the President won the election and he deserves to get

to make some choices on who is in his Cabinet.

I voted for the very controversial Secretary of Defense, Chuck Hagel. There were things I liked about him and things I disliked about him. I filibustered him twice before I allowed him to go forward, and people have given me a hard time. Conservatives from my party have blasted me for doing that, but I gave the President that prerogative.

So I am not standing here as a Republican who will never vote for a Democrat. I voted for the first three nominees by the President. This is not about partisanship. I have allowed the President to pick his political appointees, but I will not sit quietly and let him shred the Constitution. I cannot sit at my desk quietly and let the President say he will kill Americans on American soil who are not actively attacking a country. The answer should be so easy. I can't imagine that he will not expressly come forward and say: No, I will not kill Americans on American soil.

The Fifth Amendment says that no person shall be held for a capital or otherwise infamous crime unless on the presentment or indictment of a grand jury. It goes on to say that no person will be deprived of life, liberty, or property without due process. Now, some hear ``due process,'' and if a person is not a lawyer--I am not a lawyer--when we first hear it, we think, what does that mean? What does it mean to have due process?

What it means is we are protected. We get protections. Is our justice system perfect? No. Sometimes a person goes all the way through due process in our country, and we have actually convicted people who are innocent. Fortunately, it is very rare, but we have actually convicted people who are innocent. What are the chances that our President, going through a PowerPoint slide show and flashcards, might make a mistake on innocence or guilt? I would say there is a chance. Even our judicial system, which goes through all of these processes, including a judge reviewing the indictment, a jury reviewing it, and then a sentencing phase and all of that going forward--we sometimes make mistakes. What are the chances that one man, one politician, no matter what party they are from, could make a mistake on this? I think there is a real chance that exists. That is why we put these rules in place.

Patrick Henry wrote that the Constitution wasn't given or written or put down to restrain you; the Constitution was to restrain us. There has always been, since the beginning of the time we first had government, this desire to restrain the government, to try to keep the government from growing too strong or to try to keep the government from taking your rights.

It is interesting that when we look at the Constitution, the Constitution gave what are called enumerated powers to government. Madison said these enumerated powers were few and defined. The liberties we were given, though, are numerous and unlimited. So there are about 17 powers given to government which we have now transformed into about a gazillion or at least a million new powers--we don't pay much attention to the enumerated powers or to the Constitution anymore. But the Constitution left our rights as unenumerated; they aren't limited. Your rights are limitless.

So when we get to the 9th and 10th Amendments, they say specifically that those rights not granted to your government are left to the States and the people respectively. It didn't list what those rights are. The 14th Amendment talks about privileges and immunities being left to you also. They are to be protected.

I don't think there is a person in America--that is why I can't understand the President's unwillingness to say he is not going to kill noncombatants. Think about that. He is unwilling to say publicly that he is not going to kill noncombatants, because that is what we are talking about here. I am not talking about someone with a bazooka or a grenade launcher on their shoulder. Anyone committing lethal force can be repelled with lethal force. No one argues that point. I am talking about whether you can kill noncombatants because many of the people being killed overseas are noncombatants. Are they potential combatants? Maybe. Maybe the standard can be less overseas than it is here for people involved in a battle, but it is getting kind of murky overseas as well.

For goodness' sake, in America we can't just have this idea that we are going to kill noncombatants. We are talking about people eating in a cafe, at home, in a restaurant. I think we need to be a little more careful.

The power that was given by the Constitution to the Senate was that of advise and consent. This constitutional provision provides us with the power to consent to nominations or withhold consent. It is a check on the executive branch, but it only works if we actually use it.

I am here to speak for as long as I can hold up to try to rally support from people from both sides to say: For goodness' sake, why don't we use some advise and consent? Why don't we advise the President he should come forward and say he will not condone nor does he believe he has the authority to kill noncombatants?

As a check on the executive branch, this power that is granted to the Senate is the right to withhold consent. The Constitution does not provide Senators with the specifics or the criteria of why we withhold consent. That is left to us to decide.

I withhold my consent today because I am deeply concerned the executive branch has not provided an answer, that the President refuses to say he will not kill noncombatants.

The President swore an oath to the Constitution. He said he will protect, defend, and preserve the Constitution. He did not say: I intend to when it is convenient. He said: I will defend the Constitution. It is inexcusable for him not to come forward.

There is an author who writes for The Atlantic who has written a lot about the drone program by the name of Conor Friedersdorf. He recounts the tale of al-Awlaki's son who was killed. He said when the President's spokesman was asked about the strike that killed him, the President's spokesman replied: Well, he would have been fine if he ``had a more responsible father.''

If that is our standard, we have sunk to a real low.

Cornered by reporters after this, White House Press Secretary Robert Gibbs attempted to defend the kill list, which is secret, of course. We have to remember, if we are going to kill noncombatants in America or people we think might someday be combatants, the list will be secret. So one will not get a chance to protest: Hey, I am not that bad. I might have said that at one time, but I am not that bad. All right. I have objected to big government, not all government. I am not fomenting revolution. I was critical at that meeting. I was at a tea party meeting, and I was critical of the President, but I am not a revolutionary. Please, don't kill me.

Should we live in a country where we have to be worried about what we say? Should we live in a country where we have to worry about what we write? What kind of country would that be? Why is there not more moral outrage? Why is there not every Senator coming down to say: You are exactly right. Let's go ahead and hold this nomination and why don't we hold it until we get more clarification from the President.

Conor Friedersdorf of The Atlantic writes:

. . . it's vital for the uninitiated to understand how Team

Obama misleads when it talks about its drone program. Asked

how their kill list can be justified, Gibbs--

The President's spokesman--

replies that ``when there are people who are trying to harm

us, and have pledged to bring terror to these shores, we've

taken that fight to them.'' Since the kill list itself is

secret, there's no way to offer a specific counterexample.

It is one thing to say: Yes, these people are going to probably come and attack us, which, to tell you the truth, is probably not always true. There are people fighting a civil war in Yemen who probably have no conception of ever coming to America.

Friedersdorf goes on to say:

But we do know that U.S. drones are targeting people who've

never pledged to carry out attacks in the United States.

So we are talking about noncombatants who have never pledged to carry out attacks are being attacked overseas. Think about it, if that is going to be the standard at home: people who have never truly been involved with combat against us.

Friedersdorf continues:

Take Pakistan, where the CIA kills some people without even

knowing their identities. ``As Obama nears the end of his

term, officials said the kill list in Pakistan has slipped to

fewer than 10 al-Qaeda targets, down from as many as two

dozen. . . . ''

Yet we are killing hundreds of people in Pakistan.

There is a quote that I think sort of brings this and makes this very poignant. There is a quote from an ex-CIA agent--I think it is Bruce Riedel--who says: The drone strike program is sort of like a lawnmower. You can keep mowing them down, but as soon as the lawnmower stops, the grass grows again.

Some people have gone one step further and said: For every 1 you kill or for maybe every 1 you accidentally kill whom you did not intend to kill, 10 more spring up.

Think about it. If it were your family member and they have been killed and they were innocent or you believe them to be innocent, is it going to make you more or less likely to become involved with attacking the United States?

I have written a couple letters to John Brennan, who has been put up for the CIA nomination. I think it looks like the first letter was sent January 25. So here we are into March, and I only got a response when he was threatened. So here is a guy whom the President promotes as being transparent and wanting to give a lot of information to the American people, he will not respond to a Senator. They treat the Senate with disdain, basically--will not even respond to us, much less the American people, when I asked him these questions. He finally responded only when his nomination was threatened.

So when it came to the committee and it appeared as if I had bipartisan support for slowing down his nomination if he did not answer his questions, then he answered his questions. It does not give me a lot of confidence that in the future, going forward, if he is approved, that he is going to be real forthcoming and real transparent about this.

I do not have a lot of anticipation or belief that we are going to get more information after this nomination hearing. Some are now saying: You have gotten your pound of flesh. Let him go, and we will keep working on this. The problem is, once he is gone, the discussion is over.

Others in my party have been trying to get information about what went horribly wrong in Benghazi and have gotten some of that information but only by using it as leverage to try to get the President to do what is the honorable thing; that is, to be more transparent with his ways.

In the first letter I sent to Brennan, I asked him the question: Is it legal to order the killing of American citizens and that you would not be compelled to even give your reasoning--not even specific to the case but any of your reasoning?

Finally, as these questions came forward, some of the things were leaked out. One of the most troubling things that came out is when Brennan and the President finally began to talk about the drone strike program, which, according to the former Press Secretary, they were to deny that it existed for years.

When they finally came out, they told us a couple things about their interpretation of it. One, they have no geographical limit to their drone strikes. The second thing is they told us what they thought was imminent. This is pretty important because a lot of Americans, myself included, believe if we are being attacked, we can respond with lethal force. But a lot of Americans think that we have to actually be engaged in that to respond with lethal force. But they told us the way their lawyers interpret ``imminent'' is imminent does not have to mean ``immediate.''

Only a bunch of lawyers could get together, government lawyers could get together and say imminent is not immediate. You have to understand, and what we should be asking the President is, Is this your standard for America? If you are going to assert that you have the right to kill Americans on American soil, are you going to assert--are you going to assert--that your standard is that an imminent threat does not have to be immediate?

I am quite concerned, when I hear this kind of evasiveness, with this sort of nonresponse to questions.

We also asked: Would it not be appropriate to require a judge or a court to review this?

See, here is the real interesting thing. We had a President who ran for office saying your phone should not be tapped without a warrant. I happen to agree with Candidate Obama. But what happened to Candidate Obama, who wanted to protect your right to the privacy of your phone, who does not care much about your right not to be killed by a drone without any kind of judicial proceeding?

I think we should demand it. The way things work around here, though, is people kind of say: Yes, we will demand it, and maybe later on this year we will talk about a bill or talk about getting something. What they should do is just say: No more. We are not going to move forward until we get some justice. We are not going to let the President--any President, Republican or Democratic--do this.

One of the other questions I asked the President was: It is paradoxical that the Federal Government would need to go before a judge to authorize a wiretap on U.S. citizens even overseas but possibly not have any kind of oversight of killing an American here in America.

We have asked him how many citizens have been killed. We have not gotten an answer to that. They say not many, and hopefully it has not been many. But I think it is important to know. I think it would be important to know, if we are going to target Americans in America, if that list exists. I think it would be important to know if being close to someone is also justified. What if you just happen to live in the neighborhood of somebody who is a suspected terrorist? Is it OK because you were close to them? What if you happen to go to dinner with a guy you did not know or a woman you did not know and the government says they are a terrorist? Just because you are having dinner with them and you are a male between the ages of 16 and 50, does that make you a combatant?

We also asked the question: Do you condone the CIA's practice of counting civilians killed by U.S. drone strikes as militants simply because they are of the same age? Similar to every other question, no answer.

We asked him whether al-Awlaki's son was a target. No answer.

We asked how many people have been targeted? No answer.

Part of the problem with this is that we are--or Congress in general is sloppy about writing legislation in general.

I will give an example. When the ObamaCare legislation was written-- it is over 2,000 pages--but it leaves up to the Secretary of Health, I think 1,800 times, the power to decide at a later date what the rule would be. So since ObamaCare, of 2,000 pages, has been written, there have been now 9,000 pages of regulations.

Dodd-Frank is kind of the same way. Dodd-Frank is a couple thousand pages. It now is going to wind up with 8,000 or 9,000 pages of regulations.

We abdicate our responsibility by not writing legislation. We write shells of legislation that are imprecise and do not retain the power. Because of that, the executive branch and the bureaucracy, which is essentially the same thing, do whatever they want.

This happened also with the authorization of use of force in Afghanistan. This happened over 10 years ago now--12 years ago. I thought we were going to war against the people who attacked us, and I am all for that. I would have voted for the war. I would have preferred it to have been a declaration of war. I think we were united in saying: Let's get those people who attacked us on 9/11 and make sure it never happens again.

The problem is, as this war has drug on, they take that authorization of use of force to mean pretty much anything. They have now said the war has no geographic limitations. So it is not a war in Afghanistan; it is a war in Yemen, Somalia, Mali. It is a war in unlimited places.

Were we a body that cared about our prerogative to declare war, we would take that power back. But I will tell you how poor--and this is on both sides of the aisle--how poor is our understanding or belief in retaining that power here.

About 1 year ago, I tried to end the Iraq war. You may say: I thought the

Iraq war was already over. It is. But we still have an authorization of use of force that says we can go to war in Iraq anytime. Since they think the use of force in Afghanistan means limitless war anywhere, anytime in the whole world, for goodness' sake, wouldn't we try to take back an authorization of force if the war is over?

But here is the sad part. I actually got a vote on it. I think I got less than 20 votes. You cannot end a war after it is over up here. It has repercussions, because these authorizations to use force are used for many other things. So the authorization of force says you can go after al-Qaida or associated terrorists.

The problem is that when you allow the executive branch to sort of determine what is al-Qaida, you have got no idea. For the most part I will not be able to determine that either. All the information is classified. There are a lot of bad people. There is a war going on in Yemen. I do not know how much it has to do with us, you know, or how much there is an al-Qaida presence there trying to organize to come and attack us. Maybe there is. But maybe those are also people who are just fighting their local government.

How about Mali? I am not sure. In Mali, they are 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. We have to ask about limitations on force, because essentially what we have now is a war without the geographic boundaries.

We have many on my side who come down here and say, the battlefield is here in America. Be worried. Be alarmed. Alarm bells should go off when people tell you that the battlefield is in America. Why? Because when the battlefield is in America, we do not have due process. What they are talking about is they want the laws of war. Another way of putting that is, they call it the laws of war. Another way to put it is to call it martial law. That is what they want in the United States when they say the battlefield is here.

One of them, in fact, said, if they ask for a lawyer, you tell them to shut up. Well, if that is the standard we are going to have in America, I am quite concerned that the battlefield will be here and that the Constitution would not apply. Because to tell you the truth, if you are shooting at us in Afghanistan, the Constitution does not apply over there. But I certainly want it to apply here. If you are engaged in combat overseas, you do not get due process. But when people say, oh, the battlefield has come to America, and the battlefield is everywhere, 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 have 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. It said the CIA does not operate in America. Most people--most laypeople know that. The CIA is supposed to be doing surveillance and otherwise outside the United States of foreign threats. The FBI works within the United States. They do some of the same thing. But they are different groups. The CIA operating in Iraq or Afghanistan does not 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. We do not want them to operate in the United States. We are not saying the CIA are bad people, we just do not want them operating with no rules or the rules we allow them to operate with overseas. We do not want them operating in our country.

The disappointing thing is that a month ago when I asked John Brennan this question, as his nomination came forward, I could not 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 finally say he is going to obey the law. We should be alarmed by that. Alarm bells should go off when we find that what is going on here is it takes that much for him to say he is going to obey the law.

The President has said: Don't worry, because he is not going to kill you with a drone unless it is infeasible to catch you. Now that sounds kind of comforting. But I guess if our standard for whether we kill you is whether it is practical, that does bother me a little bit. It does not sound quite strict enough. I am kind of worried that maybe there is a sequester and the President says we cannot have tours in the White House. Maybe he has not got enough people to go arrest you. He had policemen by him. He is saying he is going to lay off the policemen. Of course, he does not have anything to do with the policemen, so do not worry about that. But he had the policemen by him that he is going to lay off, so maybe it is infeasible because he has laid off the policemen so it is going to be easier to kill you.

I know that sounds as though we have gone a slippery slope beyond what he is asking for. But if his standard is it is infeasible to capture you and that is what you are hanging your hat on, I would be a little concerned that that may not be enough protection for Americans on American soil.

There is a law called posse comitatus. It has been on the books since shortly after the Civil War. It is once again one of those things a lot of people do not think about, but it is an important thing. It says the military does not operate on U.S. soil unless there is a declaration of an insurrection or a civil war. There has to be a process that Congress goes through. We have had this law for a long time.

Once again, the reason we do it is not because we think our military are bad people. I am proud of our soldiers. I am proud of our Army. I am proud of what they do for our country. But they operate under different rules. It is a much more dangerous environment they operate under. It is different. It is still dangerous in America, but policemen have different rules of engagement than your soldiers have. There are more restrictions and restraint on what we do in our country. So that is why we say the military cannot 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 is calling him now and asking him for an answer. It would save me a lot of time and breath. My throat is 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 cannot operate in the United States. It is on the books. He should simply do the honorable thing and say he will obey the law. It is simple. But I do not get why they refuse to answer it. It worries me that they refuse to answer the question. Because by refusing to answer it, I believe 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 as though the Bush administration usurped power. They felt the Bush administration argued invalid aggrandizement or grasping for power. John Yoo was one of the architects of this, believing basically that the President just says, hey, I am 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 usurpation of power by the Republican President. But the thing is, now that the shoe is on the other foot, we are not seeing any of that. We are now seeing a President who was worried about wiretaps not at all worried about the legality of killing Americans on American soil with no judicial process.

But the law of posse comitatus prevents this from happening. It is very clear. It has been on the books for 150-some-odd years. I think it would be pretty easy for the President to go ahead and say that he will obey the law. We asked Brennan the question on this and we got no answer.

The answers we have gotten are almost more disturbing than getting an answer, really, to tell you the truth. Because when the President responds that I have not killed any Americans yet at home, and that I do not intend do so, but I might, it is incredibly alarming and 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 does not 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 the President said, well, you know, I kind of like the second amendment and I intend to, when convenient, when it is feasible, protect the second amendment? Or what about those who believe in the first amendment, if the President were to say, I have not broken the first amendment yet, I intend to follow it, but I might break it, or I intend to follow it when it is feasible? So I have all of those rules, and this is what the President answered when he was at Google Campus a couple of weeks ago. They asked him the question: Can you kill Americans on American soil? He said: Well, the rules will probably be different outside the United States than inside. That basically means, yes, he thinks he can kill Americans on American soil, but he is going to have some rules. Do not worry about it, because he will make some rules and there will be a process, but it will not be due process. It will be a process that he sets up in secret in the White House, and I do not find that acceptable.

The only answer really acceptable, you know, we ask a question that could be yes or no: Can you kill an American on American soil? It is a yes-or-no question. They have been very evasive. They have never really answered the question. But when asked it, we pretty much knew only one answer was acceptable. That answer is no. I mean, if you do not answer it, basically by not answering it you are 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 be evasive to the end, try to get their nominee through without opening Pandora's box.

But they have opened Pandora's box. It would be a mistake for us to ignore it. It would be a mistake for us to ignore the ramifications of what they have done. When we separate out police power from judicial power, it is an important separation. You know, the police can arrest you. They are allowed to do certain things. But the policeman that comes to our door and puts handcuffs on you does not decide your guilt. Sometimes we do not always think about how important the separation is. But it is incredibly important that those who arrest you are not the ones who ultimately accuse you. The court, through the people, accuses you, and then you are given a trial to determine your guilt.

It is complicated. It is not always clear who is innocent and who is guilty. Judges and juries make mistakes. But at least we have a process. You get appeals most of the time. We have a significant process going on that has a several-hundred-year tradition at the least. So what gets me about the process that the President favors is, it is the ``trust me'' process. You know, I have no intention of doing bad things. I will do good things. I am a good person.

I am not disputing his motives or saying he is not a good person. But I am disputing someone who is naive enough to think that is 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 would probably never have been elected to office in our country.

Someone who does not believe that the rules have to be in place, and that we cannot have our rights guaranteed by the intentions of our politicians--think about it. Congress has about a 10-percent approval rating. Think the American people want to face whether they are going to be killed by a drone on a politician? I certainly do not. It does not have anything to do with whether he is a Republican or Democrat. I would be here today if this were a Republican President, because you cannot 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 is separate from the police power, purposefully so, with great forethought.

Some transform this--and the President has 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 is not what we are talking about, Mr. President. I think you misunderstand or you purposefully obfuscate or you purposefully mislead. No one is questioning whether the United States 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 that the drone strike program is often not about combatants. It is about people who may or may not be conspiring but they are not in combat. They are in a car. They are in their house. They are in a restaurant. They are in a cafe. If we are going to bring that standard to America, what I am doing down here today is asking the President to be explicit. If you are going to have the standard that you are going to kill noncombatants in America, come forward and please say it clearly so we know what we are up against. If you are not going to do it, come up with what the easy answer is: I am not going to kill noncombatants. That would have been easy for him to say.

He could have said the military at some point in time needs to repel invasions. We know that. We are not questioning that. We are questioning a drone strike program--we don't know, because nobody will tell us the numbers. The numbers are secret. One Senator said in a public meeting that 4,700 people had been killed overseas. If I had to venture a guess, a significant amount of them weren't involved in shooting at American soldiers. If they were, by all means kill them. If we are fighting a war in Afghanistan--which we have been--and if there are soldiers around the bend who are a threat to our soldiers, there is no due process at that point. This is not what we are arguing about. We are arguing about targeted strikes of people not involved in combat. That is my concern.

My concern also is who is and what is a terrorist, who is associated with terrorism. The government has put out many documents now which tell you if you see something, say something. The documents you see, I am not so sure these people are terrorists. If you see somebody paying in cash or if you have a store, such as one of your customers comes in frequently and they pay in cash, should you report them to the government? I can't imagine that is the kind of standard we are going to have in our country for deciding drone strikes.

When it comes to some of these people, though, I think some of the drone strikes have probably been justified. Al-Awlaki, I think, was a traitor. This is not from looking at classified documents, this is from reading the lay press. By all means, he gave up on his country, renounced his citizenship, went overseas, consorted with and aided the enemy.

One of the interesting questions about aiding the enemy is what exactly that means and what are the standards to be. Kevin Williamson writes for the National Review. He wrote an article on drones that I think truly brings this home if you are going to talk about and want to know who are the people who potentially could be killed. In some ways al-Awlaki was a sympathizer, someone who aided and abetted through Internet talk and chatter. That was the main thing he was accused of. Actually, after the fact, they said he had more direct association. I don't know if that is true. I haven't seen the secret information on that.

What I would say is he was initially brought up as a sympathizer. Here is the problem. Many writers have said if you take up arms against your country, you are an enemy combatant. I think that is true. If you are in Afghanistan, have a grenade launcher on your shoulder and are shooting at Americans, you are an enemy combatant. You don't get due process.

Here is the question: If you are in Poughkeepsie and you are on the Internet, and you say I sympathize with some group around the world that doesn't like America, and say bad things about America, are you a traitor? I mean, you can try someone for treason for that. I am not sure if it will rise up to that if you are politically opposed to what your government is doing in favor of another. Kevin Williamson gets it pretty clearly:

If sympathizing with our enemies and propagandizing on

their behalf is the equivalent of making war on the country,

then the Johnson and Nixon administrations should have bombed

every elite college in America.

During the 1960s, that is all that came out was anti-America, antiwar. Is objecting to your government or objecting to the policy of your government sympathizing with the enemy?

Some were openly sympathetic. No one will ever forget Jane Fonda swiveling around in North Vietnamese armored guns, and it was despicable. It is one thing if you want to try her for treason, but are you going to drop a drone Hellfire missile on Jane Fonda? Are you going to drop a drone Hellfire missile on those at Kent State?

Our country objected to what happened at Kent State, which was not good--but it was accidental since they were shooting over the heads of these people. Can you imagine we have gone from a country that was rightfully upset about the deaths at Kent State to a country which now is going to say, if you are in college and you are rabble rousing because you don't like the government's foreign policy or the government's war actions, you are sympathizing? 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 Vietnam war, who were actually raising funds for the Vietcong. That does to me sound like treason. It sounds to me something like we are fighting an enemy and you are giving comfort to the enemy. That does sound like treason. I have no problem with some people actually being tried for treason, but they get a day in court. They don't get a Hellfire missile sent to their house. There is a difference, though, 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. It is easier to say, oh, you don't want to stop anybody who is shooting at Americans, but it is not true. I think lethal force may be used against those engaged in lethal force.

What troubles me about the drone strike program is quite a few--I don't know the number--the Wall Street Journal says the bulk of the attacks in Afghanistan has been signature attacks. This means nobody was named, nobody specifically was identified, and civilians aren't really counted. This is because anybody, any male between the age of 16 and 60, is a combatant unless otherwise proven. If those are the standards, I think we need to be alarmed. I think there is a difference between sympathizing and taking up arms.

One of the interesting things Kevin Williamson and the National Review brings out, and it is sort of a conundrum for conservatives-- because saying someone was involved and just taking the government's words, like saying al-Awlaki was involved with these other people and taking the government's word, we have no way of ascertaining or questioning whether the secret information is true or not true. A few years before this--and a lot of people don't remember this--al-Awlaki, who was killed a couple years before this, was brought to the Pentagon to speak as a 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 and later said he was a bad guy. I think ultimately the evidence he was a bad guy is pretty strong. Most of his crime was sympathizing.

It wasn't enough of a standard. I think in a court, in a treasonous court, al-Awlaki would have been convicted of treason if I were a juror. I would have voted he was committing treason, and I wouldn't have had trouble at all with a drone strike on him.

If we are going to take by extension the standard we used in putting him on the list that he was a sympathizer, agitator, and a pain in the royal you-know-what on the Internet, there are a lot of those people in America if that is going to be our standard.

That is why I would feel a little more comforted if it weren't an accusation by a politician who unleashes Hellfire missiles. I would be a little more comforted--and I think we would all sleep a little better in our houses at night--if we knew that before the Hellfire missile comes down, a policeman would come to your door and say we accuse you of this. They might put handcuffs on you and take you to jail, but they don't get to summarily execute you.

That is all I am asking. I am asking for the President to admit publicly he is not in favor of summary executions. That is really all I am asking, about summary executions of noncombatants. It seems like a pretty easy answer.

We could be done with this in a moment's notice if someone will call the President and ask the question. We could be done with this because that is what I want to hear, not that he is going to use the military to repel an invasion. Nobody is questioning the authority of the President to repel an invasion. I am questioning the authority of the President to kill noncombatants asleep at home, eating in the restaurant, or what-have-you.

One of the things Williamson brings up in his National Review article again--which is a little bit off the subject but somewhat related--we were fearful and we didn't do a very good job with 9/11, frankly. September 11 occurred because of a lot of mistakes, and some of you could look back as a Monday-morning quarterback and say, oh, we should have done this.

One of the things that sort of bothered me about 9/11 was no one was ever fired. In fact, they gave medals--the head of the FBI, the CIA, everybody gets a medal. No one was ever fired.

Some of you may remember there was a 20th hijacker. His name was Moussaoui. He was in Minnesota, and they captured him a month in advance of 9/11. When they captured him, the FBI agent there--who was spot on--was doing an excellent job. The agent who should have received the medal was the FBI agent who caught Moussaoui and was asking his superiors to get a warrant. He asked repeatedly. He sent 70 letters to headquarters, saying: May I have a warrant to open this guy's computer, to investigate him? He was turned down. He got 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 received 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 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 screenings, at least 15 of the 9/11 hijackers would have been caught. They were all on student visas, and they were all overstaying their student visas. Nobody was paying attention. I still ask that question today. I ask, do we know where all the students are, particularly from about 10 Middle Eastern countries? The students who aren't from our own country, do we know where they are? I think we have not a good enough system to know where they all are, whether they have come and gone. 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 hijackers in Florida and ultimately would have perhaps exposed the whole ring.

The same thing was going on in Arizona at the same time. They had somebody in Arizona saying there are guys who want to fly planes and don't want to learn how to land them.

There were horrible and tragic occurrences that happened, human breakdown. How do we fix it? We fix it the same way we do everything in Washington: We threw a ton of money at it, and I mean a ton of money. Billions upon billions and into the trillions of dollars have now been spent. Really the main problem with 9/11 was a lack of communication, lack of trying, lack of 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 we not let this go. This is the first time I have decided to come to the floor and speak in a true filibuster. People talk about filibuster all the time. They say the filibuster is overused and it is abused. A

lot of times the filibuster in our country and in the Senate is actually requesting 60 votes happen and we need to do everything by unanimous consent, so it almost never happens. I have been here 2 years, and I don't think I have ever seen anybody come to the floor and speak in a filibuster as I am doing today. I think it is important, though, and I think the issue rises to such an occasion. There are a lot of things we disagree on, Republicans and Democrats. I think there are a lot of things we could actually pass up here, a lot of things we could actually agree to we could pass if we get together, try to do smaller bills, work on what we agreed and get away from some of the empty partisanship.

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.

I think you are 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 we shouldn't give up on them easily. I don't see this battle as a partisan battle at all. I don't see this as Republicans versus Democrats. I would be here if there were a Republican President doing this.

Really, the great irony of this is 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 very expansive powers, some would say unlimited. He was accused of running an imperial Presidency. The irony is this President 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 the President's powers were limited.

When I first came here, one of the first votes I was able to receive was a vote on whether we should go to war without congressional approval. The interesting part is that the war was beginning in Libya. It turned out to be a small war, but small wars sometimes lead to big wars. In fact, that was one of Eisenhower's admonitions, to 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 is still a huge mess and it is still yet to be determined whether Libya will descend into the chaos of radical Islam. I think there is a chance they may still descend into that chaos.

But when the question came up about going to war in Libya, there was the question of, well, doesn't the Constitution say you have to declare war? And so we looked back through some of the President's writings as a candidate, and 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 Candidate Obama 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 the President didn't have the authority to imprison you indefinitely without a trial. And I think it is 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 him and put those words up on a standard next to me, and we voted on a sense-of-the-Senate that said: No President shall go to war without the authority of Congress--which basically just restates the Constitution. Now, you would think that would be a pretty easy vote for people. I think I got less than 20 votes. That is the sad state of affairs we are in. There were some who actually probably believed that but 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. 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 is the same no matter which President.

One of the complaints you hear a lot of times in the media is about there being no bipartisanship in Congress. Well, 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. So you will find that often on these votes on whether the Constitution says we have to declare war in the Congress, Republicans and Democrats vote overwhelmingly against that.

Now, 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 are giving it back. And this has been going on for a long time, really, probably for over 100 years, starting with Woodrow Wilson, who sort of grabbed for Presidential power, and Presidents have been getting more and more powerful for over 100 years, Republican and Democratic.

There was at one time--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 are 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 am 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 prevent one body or one part of the three parts of government from obtaining too much power. So there was a time when we tried to keep that power.

Unfortunately, the bipartisanship we have now, 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 an individual has a right to a trial by jury, whether an individual has the right to not be detained indefinitely--there is quite a bit of bipartisanship, although usually in the wrong direction.

Now, I will say there is some evolution and some trend toward people being more respectful of this, and there has been some work on both sides of the aisle that has brought together some of us who believe in civil liberties.

There was a bill last year called the national defense authorization bill. In that bill, there was a clause that said 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, an American citizen can be held. So there was another Republican Senator on the floor, and I asked the question: Does that mean an American could actually be sent to Guantanamo Bay from here, someone who is accused of something but never gets a trial? And his answer was yes. His answer was yes, if they are a danger to the country.

The problem with that kind of thinking is, who gets to determine whether you are a danger? Who gets to determine whether you are guilty or innocent? It sort of begs the question of what our court system is set up to do, which 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 you can be indefinitely detained, an American could be sent to Guantanamo Bay, and we had a big fight over it. We lost the first time around in 2012. We had an amendment that tried to protect American citizens. This was a good example of bipartisanship on our side. We had 45 votes, and I would say it was probably about 38 Democrats

and about 7 Republicans. So that was an example of both sides kind of working together. But 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. So the bill passes, the House passes their version without our amendment in it, it goes to the conference committee, where they work out the differences, and they strip out our language. So 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 is a very accurate term because that is part of what we are arguing for. We are arguing that no one person should get too much power or no one body will get too much power.

Some people see all that fighting and disputing between the different branches of government, and they see it in a bad light. They say: Oh, with all that fighting and bickering, that is gridlock. But in some ways, our Founding Fathers weren't too opposed to a little gridlock, particularly if it were gridlock that said: You know what, we are not going to make it easy to get rid of the first amendment.

It is not easy to get a constitutional amendment in our country. We have added some through the years, but it is not easy to do. We make it hard to amend the Constitution. In fact, we make it such that we are not really a country that is majority rule. And I am 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 love the idea that America is a democracy. Woodrow Wilson said we were going to war in the world war to make the world safe for democracy. Well, No. 1, we are not a democracy, and we were never intended to be a democracy.

When Franklin came out of the Constitutional Convention, a woman went up to him and asked him: What will it be? Will it be a monarchy or a democracy? And he said: It is a republic. It is a constitutional republic, if you can keep it. He was already worrying about whether democratic action would lead to people straying away and giving a government too many powers.

So we are a republic, and it is important to know the differences between a republic and a democracy, particularly with our history and our country. 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 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 be killed without due process is that our Founders thought it was very important, this whole concept between a republic and a democracy, and also considering the idea that majority State legislatures were voting on things such as the Jim Crow laws that would say that a White person 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 they want a democracy, this is my first question to them: You are OK 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 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 was 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 I like is that Lochner really expands the 14th amendment. The 13th, 14th, and 15th amendments were passed after the Civil War and usually over Democratic objection.

In my State, the Democrats ruled the State legislature in Kentucky for many, many years, and they voted against the 13th amendment, the 14th amendment, and the 15th amendment. The great champions of emancipation, of voting rights, of all of the postwar 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, and 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 been, unfortunately, reversed, we are the party that believes in the immutability of rights. We don't believe that the democracy can take away your rights, that a majority rule can take away your first, your second, or your fourth amendment rights. And I think if we got that message out, we might change some of what is going on.

But the President is an opponent of the Lochner decision. In the Lochner decision, a State legislature decides something, and it is not really of importance what the decision is so much as that it is about judicial deference, about whether the courts should say: Well, the State legislature decided this, and majorities should get to rule.

Many believed as Oliver Wendell Holmes did, who was a dissenter in the Lochner case. He basically said majorities should get to rule.

Herbert Croly, one of the founders of the New Republic, wrote that we can get trapped up in all of this support for Bill of Rights and all these ancient individual rights. If we get too carried away with this whole idea of rights thing, we will have a monarchy of the law instead of a monarchy of the people.

It was for good reason that we established a republic and not a democracy. One of the best contrasts--it may not be a perfect contrast, but I think it has some truth and validity--is that our Revolution worked. In our Revolution we established a constrained government. In France, the mob came into power. They had mob rule. The French Revolution was a disaster.

Now, we had some things going for us. We had a colonial government with English common law and adjudication, and we had adopted practices. We were Englishmen, and we believed in the rights of Englishmen. We had that for several hundred years in our country, so it was easier for us to have a revolution. They didn't quite have that going on in France, so it was different.

But one of the differences I see between America and France is that we established a republic, and we weren't going to have majority rule where the majority was setting up a guillotine. Ours wasn't perfect, obviously. The Founders left and allowed slavery to still occur. Interestingly, though, if you read the Constitution, I think they were embarrassed by it. The word ``slave'' doesn't occur in our Constitution. In fact, there were many abolitionist writers, one by the name of Lysander Spooner, who actually wrote about the unconstitutionality of slavery even before the war. And if you read the Constitution and acknowledge that there is no word in there for ``slavery'' and nothing that 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 just snatched you up. If you were next in line to be King or you made them mad, they snatched you up and put you into the tower. So we came up with the right of habeas corpus. You had to present the body and say: He has been arrested, and these are the charges against him. We have gotten to where there is some concern in our country about that, but we have had that right all along.

So Lysander Spooner wrote and said: Why shouldn't a slave come forward and say, this guy is keeping me; he is telling me 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. I am not sure exactly how the arguments were, but in Dred Scott they ruled that you can't make the argument. I don't know if habeas corpus

was part of that case, but it should have been.

What I am 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.

When you get to the Lochner case, which was in 1905, the majority ruled five to four 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. President Obama is a big opponent to this. But I would ask him--among the other things I am asking him today--to rethink the Lochner case because the Lochner case really is what precedes and what the case Buchanan v. Warley is predicated on.

Buchanan v. Warley is a case from 1917--interestingly, it comes from my State, Louisville, KY. There was a young African-American attorney by the name of William Warley. He was a Republican, like most African Americans were in Louisville in those days. He was a founder of the NAACP and, like most founders of the NAACP, a Republican.

What they did in 1914 was they sued because the Kentucky Legislature--by a majority rule, by democratic action--passed a law that said a White person couldn't sell to a Black person in a White section of town or vice versa. This was the first case the NAACP brought up.

Moorfield Storey was the first president of the NAACP, a famous attorney. He and an attorney by the name of Clayton Blakely went forward with this case, and they won the case. It actually passed overwhelmingly. But, interestingly, this case to end Jim Crow was based on the Lochner decision. So those who don't like the Lochner decision, I would say go back. We need to reassess Lochner. In fact, there is a good book by Bernstein from George Mason talking about rehabilitating Lochner.

The thing is, with majority rule--if you say we are going to give deference to majority rule or we are going to have judicial restraint and we are going to say that whatever the majority wants is fine, you set yourself up for a diminishment of rights.

I go back to 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 is important.

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 ruled no. I think it is a wonderful decision. It expands the 14th amendment and says to the people that you have unenumerated rights.

Now, there is some dissension on how we look at these cases. But when you go forward to Buchanan v. Warley, 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 that 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 the 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 he actually wrote an opinion in favor because he believed so strongly in majority rule.

Some may think these are idle questions. I don't think it is an idle question whether or not you have a democracy or a republic. I think these questions--from Lochner, from Buchanan v. Warley, all the way through to the present--are important.

In the last couple years, we had two cases on gun rights, the second amendment, called Heller and McDonald. I think both of them can be seen as, once again, an expansion of the 14th amendment to say: Your privileges and immunities which are part of the 14th 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 14th amendment, I believe that means everything else. What does that mean? It means I believe in a very circumscribed view for the government.

One of the side benefits of having a circumscribed view of the government would be that a government that is not allowed to do much wouldn't get in many problems. For example, if your government wasn't allowed to spend money it didn't have or if 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, the comments from then-Speaker of the House Nancy Pelosi were: A majority passed this. We passed this by majority. It is the law. Why would anybody question the constitutionality?

The President said the same thing. The President said: A majority passed this. What right has the court to overturn this?

The question has been written about by many brilliant scholars who have looked at the Constitution and looked at what it means. Some of this has to do with whether you presume liberty--and Randy Barnett has written about restoring the Constitution--whether you have a presumption of liberty or whether you have a presumption of constitutionality. That may sound a little esoteric, but what does that mean? It is whether or not, when they pass a law up here, you just presume it is fine because it is the law and the judges should give deference to it because it is a law.

It may sound confusing because you might think I am 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 am not arguing for deference to the legislature; I am arguing for deference to the Constitution.

I am also arguing that there is a presumption of liberty. This goes back to the way we want to look at the 14th amendment. The 14th amendment says we have unenumerated rights. I guess, by extension, when you go from the 14th amendment to the 9th and 10th amendments is the best way to look at this.

The 14th amendment talks about privileges and immunities, and when you look at what the 9th and 10th amendment do, they say 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 are not to be disparaged. I 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 are 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 will see that ever happen, and it is difficult to change our Constitution, but it is incredibly important that our Founding Fathers put it in there and made it difficult.

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 you--until you get to the fourth amendment. But if we are going to have the second amendment, I think you have to have the fourth amendment--the right to be free in your person from unreasonable searches and seizures, that a judge should have to have a warrant to come in your house. How are your guns going to be protected if they can come in your house without a warrant? You have to have the fourth amendment.

But you also have to have the fifth amendment. We don't talk about the fifth amendment very much. Everything is about the second amendment.

It has been all over the news. You can't turn on a channel without hearing about the second amendment. But I think today is as good a day as any to talk about the fifth amendment.

I have come here to filibuster the nomination of John Brennan because I think the fifth amendment is important. But 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 a travesty, and it is something we should not do lightly. So I think it is worth a discussion. So far, it is sort of a one-way discussion, but we will see. But it is worth a discussion that we talk about the fifth amendment. It says that no person shall be deprived of their life or their liberty. That is what it means. It is pretty clear, and it is 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 who would not be troubled that we are talking about killing noncombatants in America with drone strikes. We have to get the President to respond to this. I don't think it is 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 is convenient. I have never seen a President go out on the lawn with the Chief Justice and say: I intend to follow the Constitution when it is convenient. Because what he says is he won't drop a Hellfire missile on you unless it is infeasible to capture you. That is what they are doing overseas. If that is going to be the standard for America, if you are not going to get a Hellfire missile dropped on you unless it is infeasible--to me, that sounds like unless it is convenient; if it is inconvenient. ``Not feasible'' sounds like inconveniency is the standard.

I asked Secretary Kerry about this in his nominating process. I said: 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. It is hard to get things through Congress, and it is Congress's fault. There are too many squabbles and so many fights. So most of the time we will come to Congress and we will 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.

But this is the standard we get to: We don't intend to kill anyone and we don't intend to go to war without a declaration of war unless it is impractical to get your approval.

That was the point. If you do not get the point of the Constitution, if you don't get the point of what kind of system our government 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: There would be debate and checks and balances. If inconveniency is our standard for going to war without Congress, inconveniency is our standard for killing Americans on American soil with drones, I think we have sunk to a new low. I just cannot imagine as a country that is the standard you want to have.

I want to reiterate. This doesn't have anything to do with the President being a Democrat. Whether he was a Democrat or Republican, I don't question his motives. I met the President several times. I really don't think he would do this. But the thing is, I am troubled by the fact he will not tell us he will not.

If he is a good man and we believe him to be a good man who would never kill noncombatants in a cafe in Houston, sitting out in a sidewalk cafe smoking--oh, that's right, you are not allowed to smoke cigarettes anymore--let's say they are sitting out in a cafe. If the President is not going to kill them, why would he not say he is not going to kill them there? That is the troubling aspect of this, if the President will not acknowledge he is not going to kill noncombatants in America.

The real problem with this is we are now engaged in a limitless war. A lot of Americans may not know this but people all the time up here are saying it. You have to read between the lines sometimes to hear what they are saying. They are saying there is no geographic limit to the war. That is what Brennan has said. What does that mean? I thought we went to war in Afghanistan. I really thought that even at the time. I was not here, but I would have voted to go to war. I thought they were voting to go to war to get the people who attacked us on 9/11. I was all for it. I still am all for that. But we are now using that resolution to go to war to have no geographic limit for drone strikes anywhere in the whole world; and not only no geographic limit, no temporal limit, which means no timeline. There is no end to the war in Afghanistan. The war will never end.

If you have no geographic limit--many on my side say the battlefield is everywhere, and the battlefield is in the United States. It is one thing to say that, but realize what they mean by that. They say because the battlefield is here, the laws of war apply. That is what a drone strike is. A drone strike is not something you do domestically. They are saying the laws of war apply.

If you change the words around, what are the laws of war? Martial law. I think if you ask Americans are you in favor of martial law by the President, I don't think many would be. But many in this body would gladly give up their power, would gladly say America is now the battlefield so the laws of war should operate.

The laws of war are that there really is no due process in war. I am not arguing for due process in war; I think it is, frankly, impossible. If you have gone as an American to Afghanistan and you are fighting against us, you don't get due process. You don't get your Miranda rights. It is an impossibility to have the Constitution operating in a battlefield. So I am not for that.

But I am against defining the battlefield as being everywhere, including my house, my office, including everywhere in America. If it is a battlefield, you have no rights. The war zone is a zone where you do not get due process, you do not get Miranda rights, you do not get an attorney. But it should be different in our country. If our country is a battlefield, if our country is a war zone, what is left? I thought we were fighting to preserve our way. I thought we were fighting to preserve and protect our Constitution. What are we fighting for if we are not going to protect our rights at home?

The Bill of Rights is too important to scrap it. The Bill of Rights is too important to let any President, Republican or Democrat, simply come forward and say: Well, I have not broken the Constitution yet, and I do not intend to break the Constitution, but I might because they are everywhere and the battlefield is everywhere and we are so frightened that we must do anything.

I think it is good to be angry, upset, really to want vengeance sometimes against people who attack you. I was all for punishing those who attacked us after 9/11. But I think, also, at the same time we need to not let that get in the way of what is our way of life and what we are protecting here. When we look at this and we look at what is going on with terrorism, we need to keep in perspective that these people can do us harm, but they are incredibly weak people. They are incredibly cowardly, in a way. You know, they have no armies. They have the ability to inflict terrorism, which is what weak people do. People who have no armies and no strength attack the civilians. It is a weak and cowardly way to attack your enemies. But it is not something that we should cower so much that we say: Gosh, someday they may come and blow up the Senate, which would be terrible.

I think the things terrorists do are terrible, but I am not saying that because we are so frightened of them coming that we should say: Why don't we just have camps again, you know? Why don't we just round up--the Japanese Americans were a threat in the war and we just rounded them up and, guess what. No Japanese Americans attacked us, so it must have worked. I think it was an abomination what we did, one of the worst and most tragic episodes in our history, and the fact that the courts upheld it. But are we so frightened we are going to give up on

our Bill of Rights? Are we so frightened the next thing we are going to do is round up people of a different skin color because we think they have cousins who live in Lebanon?

We cannot really give up on what makes America special. What makes America special is the Bill of Rights. What makes us special is really that we are not a democracy. There are a lot of democracies around the world. We are a republic. We are a constitutional republic. We are a country that enshrined our rights, took care and deliberation and wrote down our rights, and they are not supposed to be usurped by any majority. So it is important that we know we are not a democracy, we are a constitutional republic. It is important for me to know and say that my rights came from my Creator. You don't have to agree with me on that. Some people think they came naturally to them, but they think there is a natural state of being that is free.

We do give up some freedom. We give up some freedom to pay taxes. If I work, all of my labor is mine, and I give up some of my labor and some of my wages to a government. To live in a civilized world you do give up a little bit. But what I have always argued for is that we should minimize what freedom we give up. That is why you should always minimize taxes. You should minimize the size of your government because everything you give up in taxes or everything you give up to your government is loss of your sweat equity, your labor. It is yours. It is nobody else's. So you give up the very minimum of it.

There is another argument. That is sort of the freedom argument for why we should keep government minimized. The other argument for why we should keep government minimized is more of an efficiency argument. This comes from Milton Friedman, but I think he put it very succinctly. He said nobody spends somebody else's money as wisely or as frugally as you spend your own.

It is a simple statement, but I think in one statement, one simple sentence, it sort of brings forward something about government that is very true. People up here just do not spend it wisely. The reason they don't spend it wisely is because it is not theirs. In fact, they have a perverse and wrongheaded incentive that says: I need to spend all of my money or I won't get it next year, so government agencies incredibly want to spend all the money and more to make sure there is nothing left at end of the year.

If you listen to some people, they would say: Oh, no, government is just here to help people. Without government it would be--without this massive huge government--we have to have the debt because we need all the things we get from government. Will Rogers once wrote and said: ``You're lucky you don't get all the Government you are paying for.''

George Will recently wrote, and he sort of put a twist on it, and he said that used to be true, but now I think you are getting more government than you pay for. That is sort of the truth. We get a ton of government. Our taxes cover about 60 or 70 percent of what we spend up here. What kind of country gets rich borrowing 30 cents on every dollar? What kind of family can spend 30 percent more than comes in?

Some things are pretty simple. Wealth accumulation for you or wealth accumulation for a country is by savings. You don't get wealthy by spending more money than comes in. So as we look to these things, I think we need to be cognizant of the reasons we would want to have smaller, not bigger, government. But we would have smaller government if we paid attention to the rules.

The rules are very important, and when people talk about ``oh, that would be a monarchy of the law,'' or they say ``that would be too rigid to live under the laws, we need a living, breathing, evolving Constitution,'' I think things change over time. You get new technologies; drone strikes and things are new technologies. But I think what does not change are certain freedoms that are going to be the same now as they will be in 10,000 years.

I think the freedom for people to worship is something that I don't want majority rule to decide. You say: What does the freedom to worship have to do with drone strikes? It is hard to worship after a Hellfire missile has been launched on you.

So all of our rights--there is a panoply of rights that are all interconnected, and they come from the basic right to life. If you don't have the right to be secure in your person, you don't have any other rights. So as we diminish one right we attack at the foundation. But if we are at a foundation where we are saying we can strike a person in America with no trial, with no accusation, I think we have come a long way from where we began.

I worry about it. I worry about it not just in the abstract sense, not just in the sense that these are a right in abstract and that we lose something we cannot actually touch or feel. I worry really about it in the sense that I don't know how you continue to exist as a country if you do not believe in some fundamental right, some fundamental right and wrong.

After ObamaCare passed and there were some questions about its constitutionality, they asked a Representative from the House side--he was asked: What about constitutionality? He said: Why would I care? Most of the things we do up here have no constitutional justification.

We have gotten to the point where people care more about having enough votes. They think it is right if you have a majority vote as opposed to that there are certain immutable rights and wrongs; that there are certain immutable rights that were there at the founding of our country that will be there in 100 years or 1,000 years from now: Your right to be secure in your person, the right that the government cannot take away these privileges.

This is not a new fight. Really, from the beginning of time there has been a struggle with the people versus the leaders. The leaders always want more. The amazing thing is it is sort of like a contagion. Not many people get to be President in this country. One person gets to be. We have had in the forties--44 or 45 Presidents. We have not had many Presidents. But there is something contagious about the office. It is that power corrupts, I think.

Lord Acton said it is not just that power corrupts, but that absolute power corrupts absolutely.

I think people can become intoxicated with power. I don't know if that is the explanation for President Obama's about-face. He was one who at a time when he was in this body believed in some restraint, believed in Senate authority, believed in--actually he did not even believe in raising the debt ceiling when he was here. The thing is, what we would hope for is someday we have a President who believes, even after assuming office, that the powers of the office should be protected. I think we run the risk, as we allow more and more power to gravitate to the President, we run the risk of living under an imperial Presidency.

I have said some inflammatory statements: that the President is acting like a king. Some of that is inflammatory and provocative, but some of it has some ring of truth to it or I would not get so much push-back. Kings operate by edict. They say it is so; make it so. There is no give-and-take. There are no checks and balances between the legislature and the Presidency.

This has been going on for a long time. It is a titanic struggle and, frankly, I wish more people were interested in it. I wish we had a dozen people down here saying: No President should assume such authority. No President has the right to say he is judge, jury, and executioner. No President should be allowed to say that.

It is not enough for him to say: My motives are good. I don't intend to do so. I haven't done so yet, but I might.

If that is the standard we are going to live under, we have a great danger in our country. It is not enough. We live under the rule of law, and the law is quite explicit. The fifth amendment says no person shall be detained without an indictment or without due process.

I find the answer to be incredibly easy. I have asked the President an easy question. My question is, Can you kill an American on American soil, a noncombatant, with a drone strike? It should be an easy answer.

(Mr. HEINRICH assumed the chair.)

When a President will not answer a question or when they answer the question and it is an evasive answer, our

concern is if they answer yes. I thought they would never answer the question, but they finally did. They said: Yes, we can conceive of situations when we might. The situations they conceive of, though, are attacks on the country, which I don't disagree with, so they are talking about things that are not controversial.

If planes are attacking the Twin Towers, New York or DC, there is not any question on either side of the aisle among almost anybody in the country or the universe who doesn't believe we can repel lethal threats. What we are talking about are the noncombatants who are either eating dinner, sleeping in their house or walking down the street. A large percentage of the drone strikes have been people who were not carrying arms or in combat.

Were they bad people? I am not positive I could say one way or the other, but I don't want that sort of standard to be used in America. I don't want the standard to be that if someone is close to a bad person who happens to be a male between the ages of 16 and 50, that they are no longer a civilian but actually a militant. Is that the standard we are going to use in America?

I don't want the standard to be sympathizing. Has anybody ever been on the Internet? Has anyone ever seen crackpots who are on the Internet and say all kinds of crazy things? If someone is saying crazy things and they happen to be against our government, is that enough for a Hellfire missile to come down on their house? Is sympathizing enough? People have written and talked about this. During the Vietnam war there were some people who probably were treasonist and probably should have been tried for treason. Having said that, I would not kill them without some sort of due process or trial. The idea of a right to trial by jury has been the basis of our history for hundreds and hundreds of years. It is the basis of a foundational principle for our country. I cannot imagine we would be so cavalier as to let it go.

As we move forward with this nominating process, I have decided to occupy as much time as I can on the floor to bring attention to this issue. Ultimately, I cannot win. There are not enough votes. There would be if there was truly an uprising of bipartisan support that would come to the floor and say: It is not about John Brennan. It is about a constitutional principle and we are willing to delay this until the President can explicitly say noncombatants in America will not be killed with drone strikes. I think that is pretty easy to answer, but it has been like pulling teeth.

I have written letter after letter for weeks and weeks trying to get an answer on this and we have not had much luck. There have been people who have written about the lawfulness of these lethal operations directed against citizens, and there is a question both in the country and outside the country of what the standard will be. Will it be the same standard? Some say there is no standard once we get outside the country and that anybody can be killed whether they are an American citizen or not.

Frankly, I don't like the idea of no standard. For example, the most prominent American who was killed overseas was al-Awlaki. His name was publicly known to be on a kill list for months. I see no reason why he could not have been tried in a Federal court expeditiously--if he didn't return home, he would still be tried--given representation, and tried for treason. These are not frequent cases that occur overseas, so I see no reason why we would not use a Federal court. The Federal courts are adapted in such a way that we can go into secret session if there is classified material. The Federal courts in Washington, DC, Philadelphia, and New York have done this on occasion. I think we could do this in Federal court. We have convicted quite a few terrorists--I think that they number up to several hundred--in the United States in our courts.

The main thing I object to is people becoming so fearful they cavalierly give up their rights. We had two terrorists in Bowling Green, KY, my hometown, which has 50,000 people. Who would have thought we would have two terrorists? They were conspiring to either buy or send Stinger missiles to Iraq. I am glad they were caught and punished. They were tried in a court.

Many people said let's just send them to Guantanamo Bay forever. Once we go down that path where we are not going to have any due process-- our courts have done a pretty good job. In fact, I think we have not let off anybody from one of our courts that should have been kept here and tried.

I do have a question as to how the terrorists got into the country. That goes back to the issue of not wanting terrorism to occur, but how should we combat it? Is it best if we combat it in Yemen, Mali, Somalia, Afghanistan, Pakistan or should we combat terrorism by knowing who is coming into and leaving our country?

For example, we have allowed 60,000 people from Iraq to come into this country in the last 2 or 3 years. Frankly, I think that is a lot. They come here under asylum. The problem with asylum is I thought asylum is when a county was escaping a dictatorship. We won the war in Iraq. They have a democratic government over there, and I would not understand why they would want to leave a democratic government. Also, the 60,000 who leave--other than maybe the two we captured in Bowling Green, we presume that most of them are pro-Western--are the people we want to run Iraq. There are all kinds of reasons to stay in Iraq to run the country.

In letting so many people come in, we didn't do a very good job because the two terrorists who were allowed to go to Bowling Green had their fingerprints on an IED that was in a warehouse somewhere. They did not find a match on any of the fragments with their fingerprints on a database until after we caught them. Once we knew their names and had their fingerprints, we checked some fragments for their fingerprints that had been in a warehouse for years and years. So we are not quite doing the job.

Sometimes we want to analyze so much information that we get overwhelmed with the information too. We collect millions and millions and billions of pieces and bits of information, but it cannot all be analyzed. Some of it, I fear, goes against our rights to privacy. Any of our e-mails that are over 6 months old can be looked at. We found out about this recently when we had an adulterous affair in our military.

I believe our third-party records are ours. I had an amendment recently on this, and I told people my Visa bill is pretty private. Just because I use my Visa card doesn't mean I have given up my information and that the government gets to look at my Visa bill every month, but that is what we have done. A lot of these things have been slipping away from us for a long time. It is not just President Obama; it is 40 or 50 years of court cases.

Thirty, forty or fifty years ago, we decided that once a third party had your records, they were not private anymore. I think that is absurd. Think of the age we live in and how a lot of people don't use cash at all. Our Visa cards have everything on it. We can look at a person's Visa card and find out if they have seen a psychiatrist, what kind of medicines they are on, what kind of magazines they get, what kind of books they get. We can look at a person's Visa bill and find out if they gamble or drink or what their travel plans are. We can find out a ton of information on a person's Visa bill.

Should people be allowed to look at a Visa bill, without asking a judge, and then say: We think he is involved in this. We are not saying we cannot do this for a terrorist, but what we should do is go to a judge and present some evidence and say we think he is a terrorist and we want to look at his Visa bill. People in America should not be able to have their Visa bill open to scrutiny, and that is basically what we have now. Our banking records, our Visa statements, and all our records that are held by a third party are not protected.

Some people may have heard about how they want to have cyber security. Everybody wants their computers to be secure, including the computer companies. They work nonstop trying to keep hackers out of computers, but the law they want to pass gives immunity to the computer companies. A lot of us don't think much of it. We check off the confidentiality button and hope that after we have signed the contract, they will not share it. They share it in a way that is anonymous, and we put up with that in order to get a search engine. I am OK with that.

What I am concerned about is when we pass the cyber security bill, we cannot sue them if they breach the policy. So then everybody's computer, searches, and reading habits are open to the Federal Government. Because we are fearful of people coming at us and fearful of attacks, we give up our rights. I thought we were fighting to preserve our rights.

So what are we fighting for? These battles are going on and on throughout the government. The interesting thing about these battles is that they are not always Republican v. Democrat. These are battles that are sometimes coalitions of people from the right and people from the left who have gotten together and fought over these issues.

In the case of trying to get the President to acknowledge he will not do drone strikes, there have been people on the Democratic side of the aisle who have aligned with me and helped me get this information. The President probably would have refused until Hell froze over to give me anything, but the fact is we had Democrats ask to get information also. Suddenly we were able to get a coalition and get the information, but it has not been easy. The fact that they don't want to acknowledge limitations as to the President's power worries me that they believe in an expansive Presidential power. In order to stop that, we have to be protective of our rights. We have to be able to not so easily give up on our rights.

There is a white paper that was written, and the title of it is ``The lawfulness of a lethal operation directed against a U.S. Citizen who is an operational leader of al-Qaida, foreign associated forces,'' and this is from the Department of Justice. This white paper sets forth a legal framework for considering the circumstances for which the U.S. Government could use lethal force. One of the things they do in the document--this was leaked repeatedly--is they tell of the criteria for when they can kill people overseas.

We don't know the criteria for killing people in this country. They make a contention that the rules will be different, but no one is acknowledging exactly whom they can kill or what the rules will be. For the people who are killed overseas by drone strikes, the thing they come up with is that they say it has to be an imminent threat, but it does not have to be immediate.

To my thinking, only a bunch of government lawyers could come up with a definition for imminent threat that says it is not immediate, so that is the first problem with it. Is that going to be the standard that is used in America, that there has to be an imminent threat, but it doesn't have to be immediate?

My next question is: What does that mean? Does that mean noncombatants who we think might someday be combatants are an imminent threat? It is a pretty important question. What is imminent. There is no question of what imminent lethal force is. If someone is aiming a gun, a missile or a bomb at you, there is an imminent threat, and no one questions that. No one questions using lethal force to stop any kind of imminent attack. We become a little bit worried when the President says imminent doesn't have to mean immediate. When that happens--and then we see from the unclassified portion of the drone attacks overseas--many of these people are not involved in combat. They might someday be involved in combat, they might have been involved in combat, but when we kill them, most of them are not involved in combat. So even overseas there is some question of this program, but my questions are primarily directed toward what we do in this country.

It says the U.S. Government can use lethal force in a foreign country outside the area of active hostilities. That is, once again, the point. We are not talking about a battlefield. But because the battlefield has no limits--since the battlefield is not just Afghanistan. The battlefield has no geographic limits so the battlefield is the whole world, and many in this body say the battlefield is the United States. So once we acknowledge and admit that the battlefield is the United States, this whole idea of what is imminent versus what is immediate becomes pretty important because we are talking about our neighbors now.

The other thing about this is we need to try to understand who these terrorists are. Members of al-Qaida. There are no people walking around with a card that says ``al-Qaida'' on it. There are bad people. There were bad people associated with the terrorists--and we have killed a lot of them--who were in Afghanistan training and part of the group that attacked us. But there are terrorists all over the world who are unhappy with their own local governments--some of them are unhappy with us too--but to call them al-Qaida is sometimes a stretch and sometimes open to debate as to who is and who isn't.

Then they use other words, and words are important. They are either a ``member of al-Qaida'' or ``associated forces.'' I don't know what that means. Does one have to talk to al-Qaida or commit terrorism or does a person have to be in a country where we are supporting the government and people are attacking the government? It is not always clear.

The other question we get to when it is either al-Qaida or people associated with al-Qaida is that now we get to the United States and we have the government defining what they say as terrorism. So the government has put out some documents, one by the Bureau of Justice, to warn us of who might be a terrorist. In fact, the government has programs where they want people to inform: If you see someone, tell someone. If you see these people, you are supposed to inform on them. So some of the characteristics of the people who might be terrorists-- and I don't know, they don't have to be an imminent threat or an immediate threat, but some of these people might be terrorists. I don't know. If the President is going to kill these people, he needs to let them know. Some of the people who might be terrorists might be missing fingers. Some people may have stains on their clothing or some people may have changed the color of their hair, some people may have accumulated guns, some people may have accumulated weatherized ammunitions, which might be half the hunters in the South this time of year, or people who might like to pay in cash, or people who have seven days of food on hand. I know people who just for religious reasons are taught to keep food on hand. In fact, government Web sites sometimes tell us to keep food on hand for hurricanes. If you live along the coast, one government Web site says keep food on hand, and another one says if you do, you might be a terrorist. They are not saying you are, but if these are the characteristics of terrorism, would you not be a little concerned that if the government is putting this list out, we are going to drop Hellfire missiles from drones on people in America who might be on this list? I am particularly concerned about that.

So I think we can't be sloppy about this. We can't allow ourselves to be so I guess afraid of terrorism or afraid of our enemies that we give up on what makes us Americans. What makes us Americans are our constitutional rights that are enshrined in our Constitution. It is why we have gone to war, to defend these rights. Will we think the war still has purpose if we are no longer able to enjoy these rights at home?

The problem as I see it as we go forward is that I wish I could tell people there is an end to this, that there would be a grand battle for our constitutional rights or for what rights we lose overseas, what rights we lose here if we travel. The problem is they don't see an end to the war. They see perpetual war, perpetual war without geographic limits, and they see the battlefield here, so they want the laws of war to apply not only there but here. In other words, what they are saying is the laws of war are martial law. These are the laws of war. These are the laws that are accepted in war.

We accept a lot of things on the battlefield that we don't want to accept here. I acknowledge we accept that we don't get Miranda rights on the battlefield. We don't get due process. We don't get an attorney. If they are shooting at us, we shoot back and kill them. But the thing is if a person is sitting in a cafe in Houston, they do get Miranda rights, they do get accused of a crime, they do get a jury of their peers. That is what we are talking about here. The President should unequivocally come forward and state that noncombatants--people not involved with lethal force--will not have drones dropped on them.

The other thing he should acknowledge is the law--not only the constitutional law but the law since the Civil War--has said the military doesn't operate in the United States. There is a reason for the military not operating in the United States. Why? The military operates under different rules of engagement than policemen. The rules are stricter for policemen. We do it because we are not in a war here so the policemen have to call judges. A lot of people don't think this through, though, and they will say, These people are terrible, awful people who would cut your head off. They are right; they really are bad people. We have really bad people in our country too sometimes. We have murderers and rapists. But tonight at 4 a.m. if there is a rapist going around the neighborhood and you get to a house and there isn't an imminent thing going on but you are told he might be in this house, before the door is broken down, they call on a cell phone, they get a judge out of bed, and they say, we have chased him into this neighborhood, no one is answering, we want to break the door down, can we have a warrant. Most of the time the police have to call for a warrant. We have a process. But when he is arrested, they don't just string him up. We don't have lynchings in our country. We don't let mobs decide who is guilty and who is not.

I don't question the President's motives. I don't think the President would purposefully take innocent people and kill them. I really don't think he would drop a Hellfire missile on a cafe or a restaurant as I have been talking about. But it bothers me that he won't say he won't. It also bothers me that when he was a Senator in this body and when he was a candidate, he had a much higher belief and standard for civil liberties and he seems to have lost that since he has been the President.

I think this is an important issue. It goes beyond John Brennan. It goes beyond the President. It goes to an issue that rises above I think all other issues we consider here. I have voted for three of the President's nominees, not because I agreed with them politically; in fact, I disagreed with the vast majority, but I disagree with the President on a lot of political issues. I voted for his nominations because I think the President does get some prerogative in deciding who his political appointees are. I have chosen to make a stand on this one and not so much because of the person but the principle of this. I have nothing personally against Brennan. I have nothing personally against the President. But I have a great deal of concern about the rights that were enshrined in the Constitution. I have a great deal of concern about this slippery slope of saying there won't be accusations, there won't be trials, that we will summarily execute people, and the question is, will we execute noncombatants. If he is not going to, he ought to say so.

In this white paper that was released, they talked about the three different conditions. One of them was imminence, but then they qualified it by saying imminent doesn't have to be immediate. Another one was feasibility. They said it is not feasible to get some of these people overseas and so we kill them. But feasibility, to a certain extent, could be defined as convenience. So the question is, in America, what if they live up in the Rocky Mountains and there are no roads leading up to where they are; they are not very accessible; it is not very feasible; so we are going to do strikes based on convenience. Is that going to be the standard?

When we talk about standards, they say they have a process in place, but the process is very important. The standard is important, but it is also important that one group of people, one political group of people or one politician doesn't get to decide that standard. And part of the way the process in our country works is that there are checks and balances between the three branches of government so that one branch of government doesn't get to unilaterally decide what these standards are. Because some of the standards are a little bit loose--whether you are near someone. Apparently, we are not counting civilians who are killed by drone strikes if they are males between the ages of 16 and 50. If they were close to the people we are targeting, we just count them as other militants. Are we going to do that in the United States?

If you are eating with 15 of your family members and one of them may or may not be communicating by e-mail with somebody in a Middle Eastern country, can we kill all 20 of them, and because some of them are within the right age group, that is fine? Let's say you are eating with your cousin who is communicating with somebody in the Middle East and that person may or may not be a bad person, and then when you leave-- let's say you are going to a wedding and you are going from a preparty and there are 20 cars all going to the wedding and they know or they think they know there may be a bad person among the group; why don't we just strike the caravan? These are called signature strikes. The Wall Street Journal said that the bulk of our drone strikes overseas are signature strikes. That is a good question for the President: Are signature strikes going to be the standard for killing Americans in America?

The President simply says the rules will probably be different for inside than outside. Well, I frankly don't think that is good enough. He says he has no intent to kill Americans in America. I frankly don't think that is good enough. I don't think it is good enough for the President to say I have no intention of breaching the fifth amendment. Intending not to is not the same as saying I won't. His oath of office says I will not--no, it says: I will protect, defend, and preserve the Constitution. It doesn't say I intend to protect, defend, and preserve the Constitution except for when it is infeasible or inconvenient. That is not what the rules are about. I think the rules are pretty absolute.

The rules are the Bill of Rights and they are ours. We got them from our Creator. They were enshrined in the Constitution. Nobody gets to take them from us. Nobody. No President from any party gets to be judge, jury, and executioner.

This decision to let this go, to let this nomination go without an answer is a big mistake for us. If we do this--if we let this nomination go without a debate, without significant opposition, without demanding more answers from the President--the problem is we are never getting any more answers. There will be some in this body who say, Well, just let it go. The snow is coming and we want to go home. The problem is that he is never going to answer these questions unless he is forced to. I suspect George Bush would have been the same. I suspect a lot of the Presidents would be the same. And I think it is unfortunate that they see their power and their sphere of power as being more important than our constitutional rights. But we won't get this by just the glad hand and the winning smile. That is not going to get any information from the President.

The only way this President would ever give us information is if we were to stop this nomination. I am not even saying stop it personally. My objection really is not so much to Brennan being in charge of the CIA as my objection is to the program and to the President not admitting that he can't do drone strikes in America.

I will continue to do what I can to draw attention to this and we will see where things lead. But I am disappointed in the President. I am one who while I am a Republican--I didn't vote for him in 2008 or 2012--I am one who has admired certain aspects of his policy. I admired his defense of civil liberties. I admired him in 2007 when he said Americans shouldn't be involved in torture. I admired him when he said we should follow the rule of law and we should have warrants before we tap people's phones and that we shouldn't be trolling through people's records. But I find a great irony and, frankly, a great hypocrisy in someone who would defend getting warrants before we tap your phone but won't defend a trial before we kill you. Tapping one's phone is a breach of privacy and it should only be done if a person has been accused of a crime and evidence has been presented and a judge grants a warrant. But killing someone with no due process, with no judicial oversight--some are saying, Oh, we will get to it. We are eventually going to set up a court, maybe a FISA court. Unfortunately, a FISA court probably won't be good enough because it will be in secret and a person should have a chance to confront their accusers and have a public trial if a person is going to be killed.

Typically what I am talking about is American citizens, but there needs to be some oversight. But the problem of waiting to do this and saying, Oh, we will do this sometime, we will get to it eventually, never happens. The same way with saying, Oh, we will get to--we will keep asking the President for more information, but it never happens. If we do not take a stand for something we believe in, it is going to slip away from us. I think our rights are gradually eroding. I think they are gradually slipping away from us. I think the understanding of the Constitution as a document that restrains the government, that restrains the size and scope of the government, has been lost on a lot of people. I think it is something we shouldn't give up on.

When the President goes through his three different items that were leaked through this memo, he says there has to be an imminent threat. He says their capture has to be inconvenient or infeasible. And he says the operation of killing the person has to be conducted within a manner consistent with the applicable law of war.

Here is the problem. That sounds fine if you are in Afghanistan and in the mountains fighting a war. But I am talking about downtown Washington, DC. I am talking about living in the suburbs of Houston or Atlanta. Are we going to have drone strike programs in America consistent with the applicable law of war?

See, the other way to put ``law of war''--and this is not a stretch, this is just turning the words around--``martial law.'' Now people, if you put it that way, might have a little different impression. Do we want martial law in our country?

If you go back to the battle we had over indefinite detention last year, where they are saying they can take a citizen without a trial and actually send them from America to Guantanamo Bay if they are accused of terrorism--accused, not convicted; accused of terrorism--you start to worry about some of the stuff happening in our country, that this could actually happen.

One of the sort of ironies of looking at different governments and looking at what makes people unhappy--in Tahrir Square in Cairo, there have been hundreds of thousands of people protesting. It is interesting what they are protesting. One of the large things they are protesting is something called an emergency decree, which I believe went in place by Mubarak 20-some-odd years ago. So you get leaders who come in, and they use fear to accumulate power, and you get a decree. So you get martial law. The martial law, ironically enough, in Egypt allows detention without trial. They do have the right to trial, but there is an exception, and it has been accepted for the last 20-some-odd years, and the people are hopping mad over it. So we get involved in their country and their politics and give them money and weapons, and we have some of the same debate and problems here at home--whether or not you can indefinitely detain.

The President's response to this was also pretty disappointing. It would not have become law without him. I think he threatened to veto it, and then he signed it anyway. Empty threats are of no value, and he struck no great blow for America or for American freedoms by not vetoing this. But when he signed it, he said something similar to what he is saying now. He said: Well, I have no intent to indefinitely detain people.

Am I the only one in America who is a little bit underwhelmed by the President saying he has no intent to detain somebody but he is going to sign it into law saying he has the power to? That is the same thing we are getting now in this drone strike program: Don't worry. Everything is OK. I am your leader, and I would never detain you. I would never shoot Hellfire missiles at noncombatants. I will not do that.

I can take him at his word, but what about the next guy and the next guy? In 1923, when they destroyed the currency in Germany, they elected Hitler. I am not saying anybody is Hitler, so do not misunderstand me. I am saying there is a danger, even in a democratic country, that someday you get a leader who comes in, in the middle of chaos, and says: Those people did it. Those people are the mistake. Those people are who we need to root out.

If the laws have been removed that prevented that from happening, if the laws have been removed and they say: We can indefinitely detain--in Hitler's case, he said: The Jews, those bankers, the Jews did this to us. And they were indefinitely detained. Now, am I saying this is going to happen in our country? Unlikely. I cannot imagine any of our leaders, for all of our disagreements, doing that. But if you do not have the law to protect you, you do not have that protection because you do not know who the next guy is and the next guy or the next woman.

When Madison wrote about this, he was very explicit. He said: We have these rules in place because we do not have a government of angels. If we had a government of angels, we would not need these rules.

I will never forget the discussion with somebody about the Kelo case. The Kelo case was a case where the government took private property and gave it to a richer person who had private property who wanted to develop it. Ironically, the justification they used was blight. So they take it from one middle-class person and give it to a rich corporation, and they say they are doing that to rectify blight. But when they did that and when they came down with the ruling, it was concerning the logic of the way they get to this ruling, that basically they really do not have this right to your property.

When the Kelo decision came down, it really bothered me. But I remember we started having the battle in our local government. In our local government, there was a battle over a resolution. The resolution said--it was in the city council--the resolution said the local city government cannot take private land and give it to another person. It was really like so many other things. The intention of eminent domain was to have highways and thoroughfares that you might not get otherwise, but it was never intended to take from a private owner and give to a corporation. That is what they did with the Kelo decision.

So, anyway, local governments began talking about this, and I was talking to one of my local government officials--this is probably 20 years ago, 15 years ago--and their response was, but I would never do that. I would never take private land through eminent domain and give it to another corporation. I would never do that.

And I believed that person. And I really, frankly, give the President the benefit of the doubt. I do not question his motives. I do not think he probably will kill noncombatants. But I certainly do not want him to claim that he has the authority to kill noncombatants. So this is a big deal. It is a huge deal.

So with the eminent domain, we finally passed it in our local commission. It was like 3 to 2, but in my town in Kentucky, you cannot take private property with eminent domain and give it to another private individual, because it is not about the individuals involved, it is about the fact that we do not always have angels running our government. We do not always know whom we are going to get.

If we ask the question, Do you want a government that is run by majority rule or a government that is restrained by its documents, it is a pretty important question. Ultimately, there are ramifications to majority rule, to basically whatever the majority wants.

One, the majority can vote upon minority rules they do not pass on themselves. In fact, Martin Luther King wrote--this is one of my favorite quotes from him--he said: An unjust law is any law that a majority passes on a minority but does not make binding on themselves. I thought it was a great statement because you could probably almost apply that to any law written on any subject. If the law excludes certain people and is not applied to everyone, then by definition it is an unjust law. What a great way to put it succinctly and a great way that we should look as far as trying to write rules.

But you have to decide as a country whether you want majorities or politicians to decide things or whether you want reliance on documents and on a process and on a rule of law that protects you.

If we rely on, basically, the whims of politicians, I think it is a big mistake. If we are going to rely on the politician basically sitting in the Oval Office going through flashcards and a

PowerPoint presentation to make the decision on life and death for Americans in America, I think it is a huge mistake.

Any people who watch trials and court cases realize that even courts are not perfect. It is actually amazing how we even get it wrong with courts and trials and juries. Many States and even many people who were for the death penalty have questioned their support of the death penalty because of the imperfection of our courts. Through DNA testing, we have found we do not always get it right even with that. I think in Illinois they stopped the death penalty after having so many DNA testings that showed there was an incorrect diagnosis of who had committed the crime.

So the question becomes, even with all the checks and balances of the court, are you worried at all about having one politician accuse, secretly charge, I guess--if you can call it a charge--and then execute Americans? I am incredibly troubled by that. I cannot imagine we as a free country would let that stand. I think it is an insult to every soldier in uniform fighting for American freedom around the world that we would just give up on ours at home, that the President would cavalierly or incorrectly or without forethought, without sufficient forethought, not tell us, not go ahead and explicitly say: This will never happen in America.

His answer to me should not have been, no, we will not kill noncombatants. It should be, never--no, never. We will never in America come to that. Under my watch, we will never, ever allow this to happen in America.

It is incredibly disappointing. It should be disappointing to all Americans or anyone who believes in this. We have to realize that trying to figure out guilt or innocence is very complicated. Anybody who has ever served on a jury realizes how difficult it is to determine guilt. And sometimes you are unsure. Some cases are actually decided by, gosh, the evidence was so equal, but there was not a preponderance. I could not become completely convinced, and this person is going to be put to death?

Contrast the feeling a juror has and what a juror is trying to do in finding innocence or guilt and letting someone be punished by death with our current standard. Our current standard for killing someone overseas is that you can be sympathizing, you can be close to people who we think are bad, you can be in a caravan that we say bears the signature of bad people.

Now, there is another debate that can be had about whether those are sufficient standards for war. And the standards are different for war in our country. But we have to adamantly and unequivocally stand up and say to those who would say this is a battlefield: The hell it is a battlefield. This is our country. If you want to say this is a battlefield--if you say we are going to have the laws of war here, we are going to have martial law here--by golly, let's have a debate about it. Let's have a discussion in the country. Let's have everybody talking about, are we the battlefield? Is this a battlefield? Is our country a battlefield? Because what that means is that you get no due process in a battlefield.

I am not here to argue and say that you get due process in a battlefield. I am here to argue that we cannot let America be a battlefield because we cannot say that we are no longer going to have due process, that we are no longer going to have trial by jury, that we are no longer going to have presentment of charges and grand juries. It is impossible in a battlefield. In Afghanistan, it is impossible to say: Hey, wait a minute, can I read you your Miranda rights? It is impossible. We are not arguing for that. We are not arguing for a judge or a jury or anything else. If people are shooting at our troops, they can do everything possible, including drone strikes. It is not even the technology so much that I am opposed to, but the technology opens doors that we need to be concerned with.

Defense of our soldiers in war--there is no due process involved with that. But realize the danger to saying America is at war, America is the battlefield, because also realize the danger that these people-- they are Republicans and Democrats--these people do not believe there is any limit to the war, there is no geographic limit, and there is no temporal limit. It is a perpetual war. And many of them--if you prompt them or provoke them--will open up and say: Oh, yes, America is a battlefield. We need the laws of war. And you ask them: When is the war going to end, When will we win the war, they will admit it--some of them will frankly admit it. They will say the war may go on for a long time. Some have talked about a 100-year war, 100 years being in these countries. But basically we are talking about perpetual war. We are talking about a war with no geographic limit, no temporal limit, and a war that has come to our country.

There will be bad people who come to our country whom we need to repel. We are not talking about that. If planes are being flown into the Twin Towers, we have the right to shoot them down with our military. That is an act of war. No one questions that. If someone is standing outside the Capitol with a grenade launcher, we have a lot of brave Capitol policemen. I hope they kill the person immediately. Lethal force to repel lethal force has never been questioned by anybody and is not even controversial.

But they want to make the debate about that and not about killing noncombatants driving in their car down Constitution or sitting in a cafe on Massachusetts Avenue. There may be bad people who are driving in their car, and there may be bad people sitting in cafes around the country. If there are, accuse them of a crime, arrest them and try them.

The battlefield coming to America or acknowledging that is an enormous mistake. So there are some big issues, some issues that we as a country gloss over. We watch the nightly news. There is sometimes so much hysteria about so many issues, so many people yelling back and forth. But this is an issue that I think if we could get a frank discussion--I have proposed to the leadership--I have not had much luck with this--but I proposed for a constitutional debate or a debate of importance that everybody come, and instead of hearing me all day, we take 2 or 3 minutes and we go around the room and everybody speaks, it is limited, but there is some kind of debate and discussion--less speechmaking and more debate.

I proposed we have lunch together. I have asked to come to the Democratic lunch. I have not gotten the invitation secured yet. It has only been 2 years so it may happen, but there are many reasons for discussion. There are many reasons why we should have civility. There are reasons why people on both sides of the aisle can agree to this. If we were to have a vote, maybe not on the nomination but a vote on restricting drones--there is a bill out there that we are working on that would restrict drones to imminent threats. It does not even get into the distinction of the military--things in the country would be the FBI; it would not be the military because that is the law. There is an important reason for the law.

But we have a bill we are going to come forward with that we are working on that would simply say there has to be a real imminent lethal threat, something we can see. Then I think people could agree to that because it is not so much the drone we object to. If some guy is robbing a liquor store 2 blocks from here and the policemen come up and he comes out brandishing a gun, he or she can be shot. Once again, they do not get Miranda rights. They do not get a trial. They do not get anything. If you come out brandishing a weapon and people are threatened by it, you can be shot.

So it is important to know what we are talking about. We are not talking about the guy coming out of the liquor store with a weapon. Even a drone could kill him if the FBI had drones. So my objection to drones is not so much the technology. There may be a use for law enforcement here, but there is also potential for abuses.

Many government agencies have drones. These hopefully will remain unarmed drones. This is a different subject. But it is a subject that sort of dovetails from this into the next subject, which is, should you have protection from the government snooping--from the government looking through your bedroom windows? I remember that issue when I read ``1984'' when I was in high school. It bothered me, but I could not quite connect. I felt somewhat secure in the sense that we did

not have two-way televisions. This was back in the 1970s. We did not have the ability to look at people. The government could not look at me in my house 24 hours a day.

So you kind of get the feeling for how terrible it would be for that to happen. But technology was behind that. Actually ``1984'' was written, I think, in 1949. So talk about--he was truly being able to foresee the future. But now fast forward another 30 or 40 years and look at the technology we have now. We have drones that are less than an ounce, presumably with cameras--it is hard for me to believe that-- but less than an ounce with a camera. It is not impossible to conceive that you could have a drone fly outside your window and see what your reading material is.

It is not impossible to say they could not send drones up to your mailbox and read at least what kind of mail you are getting or where it is from. It is not inconceivable that drones could follow you around. We had an important Supreme Court case last year, though, that was a blow for privacy. This was a Supreme Court case that had to do with GPS tagging. Everyone knows what GPS is. But what they were doing is the police were shooting them to cars or tagging them when you were not with your car and then following you around waiting for you to commit a crime. If you tag everybody's car and wait for them to speed, we are going to have a big deal on fines. There is going to be a problem. There is also a problem with following people around waiting for people to commit a crime. So the Supreme Court ruled, I think it was unanimously, that you have to have a warrant to do that.

The thing about surveillance is those of us who believe in privacy are not arguing against any surveillance. What we are arguing is that you have to have a reason to do it and you have to ask a judge for permission. So it is not a society where there is no surveillance or a society where you have absolute privacy. If you commit a crime, the police go to the judge and ask for permission to do this.

But there are some worrisome things about the direction of drones. For example, the EPA now has drones. The EPA is flying drones over farmland. I think some of this may be even in the defecation patterns of the cows. I do not know exactly what they are looking for because manure in streams is said to be a pollutant and, actually, frankly, thousands of animals might.

But the whole idea, if you think someone is dumping anything in a stream--I am not opposed to having laws stopping that, get a warrant, search them or get a warrant and spy on them with a satellite or drone or whatever you want to do. But you have to have some kind of probable cause they are committing a crime. Because you can imagine that we would devolve into a society where every aspect of our life would just be open to the government to watch what we are doing.

They say there is something called an open spaces concept. They say: You have 40 acres. The land is open so it is not private anymore. I think that is absurd. I think that is sort of analogous to the whole banking secrecy, such as you gave your records to your bank so you do not care if anybody looks at them. That is absurd. I have a 40-acre farm. I go hunting out there. I am supposed to not care if people watch me, everything I do once I am outside my house. My privacy is only in my house and not in open spaces?

I disagree with that. One of the interesting things about the right to privacy, and you actually get some disagreement from people on the right about this. There was a case called the Griswold case. It had to do with birth control. A lot of conservatives objected to it because they saw it as a building block for Roe v. Wade. I am pro-life and did not like the decision in Roe v. Wade, but I actually do not mind the decision in Griswold so much. The reason is, going back to a little bit of the discussion we had earlier on Lochner, is that with Griswold, what I see is they talked about a right to privacy.

Some said--the conservatives who are worried about the judiciary coming up with new things or creating things--they thought the right to privacy was not in the Constitution so you do not have it. I think that is a mistake in notion. Because, for example, the right to private property, that is not in the Constitution either, but I do not think any of the Founding Fathers or most of us today would argue you do not have a right to private property. In fact, I think it is one of the most important parts. In fact, there was some debate about having it in there. But I think the right to privacy, the right to private property, they are part of what I would call the unenumerated rights. The unenumerated rights are basically everything else not given to the government.

You gave the government--or we give the government, through the compact of the Constitution, we give the government enumerated powers. There are about 17 to 19, depending on how you count them. But as Madison said, they are ``few and defined.'' When you talk about the rights, though, the 9th and 10th amendment will say those rights not specifically delegated to the Federal Government are left to the States and the people respectively. They are not to be disparaged.

So the interesting thing about your rights is there is not sort of a list of your rights. In fact, when the Founding Fathers were putting together the Bill of Rights, one of the objections to the Bill of Rights was they said if we put the Bill of Rights together, everybody will think that is all of their rights. They will say, if it is not listed, you do not get it.

So the 9th and 10th amendments were an important part of it. In fact, I do not know I would have voted for the Bill of Right's inclusion if you did not have the 9th and 10th. I like all the others, of course. But then the 9th and 10th protect all those not mentioned.

So it is an interesting thing that some on the right disagree. In fact, the majority does not like the Griswold decision. But I actually kind of like it because I think your right to privacy is yours, the same as I think your right to private property is yours. It was not delegated, it was not taken, it was not given to the Federal Government. It is yours.

It gets back to the sort of the primacy of liberty, the primacy of your individual freedom that you did not get that, you were not given your freedom by government. It was yours naturally or, as many of us believe, it is comes from your Creator. So your rights are national and inborn. They were enshrined in the Constitution, not given to you but enshrined and protected. As Patrick Henry said, it is not that the Constitution was instituted among men to protect the government, they were to protect the people from the government.

It was to limit the size of government, to try to restrain the size of government, to try to allow for a government that lived under a rule of law. When Hayek said nothing distinguishes an arbitrary government from a constitutional government more clearly than this concept of the rule of law, the important thing about the rule of law is also that the rule of law is something that--it gives a certainty. Businessmen have talked about certainty.

Without relinquishing the floor, I would like to hear a few comments from Senator Lee.

Yes. I think there is really no question about using lethal force against an imminent attack. I think that is why we need to make the question we are asking the President very clearly. The question is if planes are attacking the World Trade Center, we do believe in an imminent response. We do believe in an imminent defense for that. The problem is we are talking about noncombatants who might someday be involved. If they are in America, I see no reason why they shouldn't be arrested.

Absolutely. I think that is where the crux comes down to this, talking about having an imminent standard. This is part of the problem in the sense he doesn't want to talk about it. If we are going to do something so dramatic as to no longer have the fifth amendment apply in the United States, to have no accusation, to have no arrest, no jury trials for folks who are to be killed in the United States, it is such a dramatic change that you would think we would want to have a full airing of a debate on this.

I won't yield the floor, but I will allow the Senator to make comments.

Yes.

Yes, I am aware of that. I think we have a transcript of some of the conversation from this morning.

Absolutely. At this point, I will entertain comments from Senator Cruz and a question.

I will not yield the floor, but I will acknowledge a question to the Chair.

Mr. President, I am quite surprised, although I guess I shouldn't be, that we don't get direct responses. It is a pretty direct question. It is the question I have been asking all morning. It is the question I have been asking for a month and a half. I am talking about situations where you have a noncombatant, someone not posing an imminent threat, who they think make may someday pose an imminent threat because that is what we are doing overseas. If that is the standard overseas, I am asking is that going to be the standard here? It amazes me.

Part of the reason we are here today in the midst of a filibuster is because they won't answer the question directly. I applaud the attempts to try to get a more specific question. I am not terribly surprised we have had trouble getting a direct answer.

As long as I do not yield the floor.

Well, Mr. President, the response is a little bit troubling; that it took so much work and so much effort of cross- examination to finally get an answer.

I will note, in his final answer, I don't ever see the words ``constitutional'' or ``unconstitutional.'' He is responding to Senator Cruz's word of ``constitutional'' when he says: Let it be clear and translate my ``appropriate'' to ``no.'' I thought I was saying no. All right. No.

Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he doesn't believe killing people not actively engaged in combat with drones in America, on American soil, is constitutional. That sure would have short-circuited and saved quite a bit of time.

I will say, though, that I will believe a little more of the sincerity of the President and of the Attorney General if we get a public endorsement of the bill that says drones can't be used except under imminent threat, and define that as an imminent threat where you actually have a lethal attack underway. If we could get to that, I think this is something that both parties ought to be able to unite by. It is such a basic principle, I can't imagine we couldn't unite by this. And it would have gone a long way to getting these answers.

But what still disappoints me about the whole thing is that it takes so much work to get people to say they are going to obey the law. It takes so much work to get the administration to admit they will adhere to the Constitution. This should be a much simpler process.

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.

Mr. President, I am 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.

I would appreciate the comments and opinions of the Senator from Texas on the idea that the executive branch gets to determine when the Bill of Rights applies.

Well, Mr. President, this is what makes this debate so important. This debate is about the fundamental rights that we--most of us, or many of us--believe derive from our Creator and that it is important we not give up on these; that we not allow a majority vote or one branch of government to say we have now decided you don't get all these rights anymore.

Our Founders really wanted to make it difficult to change things, to take away our rights. 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 is going to overrule the fifth amendment and if the Attorney General is going to decide when the fifth amendment applies. That is a pretty important distinction and change from the history of our country.

Mr. President, at this time I would like to ask for any comments, without yielding the floor, from the Senator from Utah.

Yes, I agree with the comments of the Senator from Utah.

The whole problem is that if the President says my plan has due process, that would be sort of like me saying I have passed my law, and I think it is constitutional. Well, the same branch of government doesn't get to judge whether it is constitutional. That is the whole idea of the checks and balances.

We pass a law in the Senate and the Supreme Court can rule on whether it is constitutional. So the President gets to decide that he is going to abrogate the fifth amendment or abbreviate the fifth amendment or do certain things, and then he says: Oh, I am really not because the way I interpret it, I am applying the fifth amendment to my process.

Well, he can't do that. He can't be judge, jury, executioner, and Supreme Court all rolled into one. That is an arrogation of power we cannot allow.

Mr. President, at this time I would like to entertain comments or a question from the Senator from Kansas without yielding the floor, if I may.

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. 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. 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. President, without relinquishing the floor, I yield to the Senator from Texas for a question.

Mr. President, I think the question is well put.

The first aspect of the question is, What is the President thinking? Why would the President not respond to us? Why would the President not answer a pretty easy question and say that noncombatants in the United States will not be killed with drones?

I think the reason is complicated--and it is conjecture because I can't get in his mind. But I would say it is sort of a contagion or an infection that affects Republicans and Democrats when they get into the White House. They see the power the Presidency has. It is enormous. They see themselves as good people, and they say: I can't give up any power because I am going to do good with that power.

The problem they don't see is that the power itself is intoxicating, and the power someday may be in the hands of someone else who is less inclined to use it in a good way. I think that is why the power grows and grows, because everybody believes themselves to be doing the right thing.

With regard to exactly what would happen in the situation when there is not an imminent threat, it boggles the mind when we can't answer that question. And I don't have a good understanding as to why exactly we can't get a response.

I would yield for a response from the Senator from Texas.

Mr. President, I think it is an excellent question and really gets to the root of the whole problem we are talking about because we are talking about people who may not all be good people. They may be bad people and they may be plotting to do something bad to America, and they may be in a cafe. So there may be all kinds of reasons to arrest and punish them, but there may be all kinds of reasons to try to get more information from them. Particularly if they are not involved in combat, it is hard to imagine why you would want to kill them. If they are not involved in combat, why not capture them and try to get some useful information out of them?

So it is a little bit difficult to understand why the President wouldn't say what is obvious: Why would we want to kill noncombatants in America?

The reason we keep asking the question is, of the drone strikes overseas--which we are not privy to all of the details because some of it is classified. But the details that have been in the press are that a lot of these people being killed overseas are not in combat.

So the real question is, If you are going to take this drone strike overseas and it has no geographic limitations, and you are bringing it home to America, does the President not think it is incumbent upon him to say: Well, yes, we are bringing it home, but we are not going to kill noncombatants?

What an important question. I think the Senator has phrased it appropriately and I would anticipate or respect any other response he would like to give.

Mr. President, I would like to say that I appreciate the remarks of the Senator from Texas. If the filibuster goes on long enough, we would like to hear a recitation of William Barrett Travis's last words at the Alamo. We had to memorize that as a kid, and I am afraid my memory has gone a little dusty. But the Senator is younger and may remember that for us.

The issue at hand is an issue that goes beyond party politics. It goes beyond nominations. It goes beyond the President is a Democrat and I am a Republican. I voted for three of the President's nominations, much to the chagrin and much to the criticism of some on my side. But I have done so because I think the President does have some prerogatives--that is just my personal viewpoint--on choosing appointees. This is a political appointee, but I do not consider this debate to be about the appointee. I think this debate is more about a constitutional issue, and I think it rises to a level above the individual and it is something to which we need to draw attention and about which we need to have a good healthy discussion in our country.

I don't think it has to be a bitter partisan battle. I have met the President personally. I have flown on Air Force One with him. I respect him, I respect the office. I think he and I could have a reasonable conversation on this issue. In fact, I think if he were here today, he might actually agree with much of what I am saying. What I am disappointed in--and I do not know if it is the muddle of a large government and not getting a message forward, but what I am disappointed in is that it is so hard to get him to agree with what I think he should already and probably already agrees with. But when we are talking about doing something so different, when we are talking about changing the way we adjudicate guilt, changing the way we decide someone's life or death, it is too important to just say: Oh, Mr. President, go ahead and do it. As long as you tell me you have no intent of breaking the law or no intent to kill Americans, that is enough.

It just simply is not enough. It is not enough to say: I have not done it yet. I do not intend to kill anybody, but I might.

He came up with some circumstances where he might use the drone strikes in America. Then, in the cross-examination of Senator Cruz in the committee, we have gotten him to admit--under duress, I think, but to admit that they are not talking about people in a cafe.

Some might say he has never mentioned people in a cafe. The reason it

comes up, of people not involved in combat, is that a lot of the people who have been the victims or have been killed by these drone strikes were not involved in combat when they were killed. They were riding in cars, walking down the street, traveling in caravans. I am not saying they are good people. I am just saying, regarding the standard for whom we kill overseas, we have to ask the question, and I don't think we are doing our job if we do not ask the President: Are you going to use the same criteria for how you kill people overseas? Is that the same criteria over here?

And it should not be: I will tell you later. It shouldn't be, I don't intend to do it and I probably won't, but I might.

That is just not enough.

We are talking about basic protections that we fought our Revolution over and really, in a way, when I see the wars that we have gone to-- and not every war has been perfectly justified or that we should have, but when our soldiers fight, I see them fighting for the Bill of Rights, and I think they say that too. No matter where they are around the world, I see them fighting for the Bill of Rights and our Constitution. But if we are giving that up, if we are not going to adhere to the fifth amendment, it takes the wind out of the sails.

Can you imagine being a soldier in Afghanistan or Iraq or in far- flung places around the world and you are told you were fighting for the Bill of Rights minus the fifth amendment? Or when we say we are going to indefinitely detain people, we are going to fight for the Bill of Rights minus the sixth amendment? It is pretty important. These things are what we are fighting for, so we really should at least have a robust debate over the magnitude of these changes, over how these will be set up, over exactly what will happen, how this process is going to work. I am just saying that ``I am not intending to do so'' is not enough.

Mr. President, I, without yielding the floor, would like to allow a question from the Senator from Texas.

Mr. President, I think what Travis's letter at the Alamo talks about is that there are things bigger than the individual. At the time he wrote that, I don't think they had much hope of surviving, and he died at the Alamo, as well as other volunteers, some from my State of Kentucky. But there was an issue bigger to them at the time, that they saw as bigger than the issue of the individual. I think that is what this debate is about.

This is not really about the person of John Brennan. This really is not about the person of Barack Obama. This is about the body of the Constitution, it is about our respect for it, and it is about whether we will hold these principles so dear and we will hold these principles so high that we are willing to try to enjoin a debate, to try to get both sides to talk about this and to try to admit it, because we don't want innocent people to be killed in America. We want to have the process that has protected our freedoms for a couple of hundred years now to remain in place, and we are unwilling to diminish that simply because of fear.

FDR said, ``There is nothing to fear but fear itself.'' I think we should also say that we should not let fear be so great that we allow the loss of our freedoms. I think that is where we are, that sometimes terrorists are everywhere and they are trying to attack us, but we need to remember that it is our freedom that is precious, and we need to try to do everything we can to uphold that.

At this time, I would entertain a question, without yielding the floor, from the Senator from Oregon.

Mr. President, I thank the Senator from Oregon for coming to the floor and being a champion for the Bill of Rights. We get a lot of grief in Washington about a lack of civility--people yelling and screaming at each other. In my dealings with Senator Wyden--who is on the other side of the aisle--I think it is evident that people can be from different perspectives, find common ground, and try to get to a point which is not a partisan point. I have tried to make it not so much about red as it is about principles. I voted for two or three of the President's nominations, and I think he deserves some latitude with his political nominees. I think the Senator from Oregon said it well when he said we have use of authorization of force in Afghanistan. Most people think that was going toward Afghanistan. It has been so broadly interpreted that it means worldwide war basically forever, and that is sort of why we get into some of these problems. Not only is it worldwide, which is a big debate in and of itself, worldwide means at home too. The battlefield is here.

I agree with the Senator from Oregon that Brennan was very forthright. It was a little bit onerous getting the response, but once we got the response, it was exactly what was appropriate. He said he would obey the law, and the law was very clear: The CIA does not operate in the United States. The problem is not with his response but that the Department of Defense is the one directing the drone programs and it doesn't answer the final question.

As far as Holder's response, if it would have been written as the Senator from Oregon states it, there probably wouldn't be much of a problem. I think maybe recounting the letter gives it a little more strength than the letter actually possesses in its own words. If he were to say we were ruling out all strikes other than extraordinary strikes, that would actually be a pretty good letter. Instead he says he can imagine this under certain circumstances, and he lists a couple of circumstances. The interesting thing is that a lot of us agree that in a situation such as Pearl Harbor and 9/11--probably the Senator from Oregon and probably me--we can repel a military attack. The reason we asked the next question, and the reason I am concerned about the next question--and I have only seen the unclassified version of these--but the unclassified versions of the drone attacks indicate that a significant amount of them are not killing people with a weapon. People like to talk about taking up arms. Well, a lot of people are not carrying around arms. It doesn't make them good people, but they are not carrying around arms. They are not actively shooting our soldiers or us. At the particular time they kill them, they look like noncombatants. If we have somebody sitting in a cafe in our country-- even if it is a bad person--most of us would probably rather arrest that person. If they were arrested, one, they would get the due process of our country; and two, if they were bad people, we might actually get information from them. So I wish to see a little bit better wording.

The last thing I would say--and I would appreciate hearing the Senator's response--is the Attorney General was in the Judiciary Committee this morning. He was asked a bunch of questions on this. I looked through the transcript of a couple of them and it is still like pulling teeth. He was asked four times: Do you think it is constitutional to kill someone in a cafe in Seattle or Houston or Louisville? He kept saying it wasn't appropriate, but language is important when we are talking about this. Appropriate is not strong enough. It is sort of like the President is saying: I have no intention. We want him to say he won't, rather than not having intention.

He didn't quite put it together in his response, but in his response--combined with the questioning--we can get the opinion that maybe he thinks it is not constitutional to kill noncombatants having dinner. Wouldn't it be easier if they just said that? At this point, I would entertain a question without yielding the floor.

Mr. President, a lot of the process by which we are getting this information wouldn't have happened without the Senator from Oregon as well as the senior Senator from Georgia both working together to get information. It is the way the system ought to be working. One of the good things about the body is both Republicans and Democrats working together to get information from--not necessarily adversarial but in a way adversarial--another branch of government. We are a branch of government, but it is not partisan against partisan, it is bipartisan working for the power of the checks and balances to try to ensure a leveling. I thank the Senator from Oregon for helping to get the information to make this a much fuller debate.

Without yielding the floor, I will entertain a question from the Senator from Florida.

Mr. President, my response to that is yes. In fact, I have actually voted for several of the President's nominations. My trying to draw attention to this issue is because I believe it is an incredibly fundamental issue; that is, how we would kill people--Americans--on American soil, whether the Constitution applies, whether the fifth amendment applies.

So my motivation in doing this is not partisan. It is something that has to do--and I have said, frankly--and I truly mean this--if it were a Republican President today I would still be in the same place because the American people deserve answers on this.

There are different rules in war than there are here. We need to acknowledge and separate ourselves and say we are not completely--we are not in the middle of a battle zone. We still do have Miranda rights and we still get an attorney in the United States. It is not the same as a battlefield, but if he is bringing battlefield strategy home, we need to know before he starts doing it and at least we need to know the rules. Does the Constitution apply?

I would entertain a further question from the Senator from Florida without yielding the floor.

Mr. President, I think the Senator from Florida has it exactly right. This is about checks and balances, it is about the coequal branches of government, and it is about how we limit usurpation of power by checking and balancing each of the different powers.

So when Montesquieu wrote that there can be no liberty when you combine the executive and the legislative, they were separated for a reason. When the Constitution says Congress declares war not the President, it was separated for a reason. So when we look forward to these things--and the Senator from Kansas brought this up earlier--when the President says, I have the ability to determine when you are in session or not and I can do recess appointments when I think you are out of session, that is a great usurpation of power to one branch and we should fight it as an institution, Republican and Democrat, and not make these partisan issues.

So I agree with the Senator from Florida. I believe there is a need for those checks and balances. By the body not struggling to get as much information as they can--not even in this case as much about the individual as about the policy--then I think it is a mistake for the body not to. I agree with the Senator from Florida completely. It is something that should be defended. It is not something to be derided as partisan because I don't see it as partisan at all. I see it as a defense of the separation of powers and of the checks and balances.

At this time I yield, without yielding the floor, for another question.

The answer to the question is that we have tried the normal channels and have been for a month. We sent the standard letters. We sent three different letters to John Brennan and we didn't get any response. But when the leverage became used or the leverage became apparent that both Republicans and Democrats on the Intelligence Committee were asking for more answers, then we finally began to get answers. The answers unfortunately didn't quite answer the question.

As the days wore on, we have actually gotten more answers. Since I have been standing here this morning, we have now gotten the report of the Attorney General's testimony before the Judiciary Committee. In that, under withering cross-examination, I guess is the best way to put it, he finally owns up and says: Well, maybe somebody in a cafe, it wouldn't be appropriate to kill them in America.

The Senator from Texas wanted to go one step further. We don't want you to say whether it is appropriate; we want you to say whether you think you have the power to do it, whether you think you have the constitutional authority to kill someone who is a noncombatant in a restaurant or in their house or in their church or wherever. Do you think you have the power to kill noncombatants? It is a pretty important question. I think we may have eked out some of the answer from Attorney General Holder.

It would be nice if we would actually get that in clean language, where the Attorney General would now say this is our policy. But, see, this comes from allowing the executive branch so much power. If you allow them the power to make the rules, to make the decisions without any kind of oversight or scrutiny, the danger is that there will be no process. So the thing is right now we have a program going on where we kill people around the world with drone strikes, and there are criteria and standards for how we do it.

The obvious question is: You are going to do that in America? Under what standards? We have had at least allegations, we have had some who have said the bulk of the drone strikes around the world have been signature killings, which means the people are not identified who are being killed, that it is a long line of traffic and we blow up the line of traffic.

Now, we can debate whether in war we may have a looser criteria for whom we are blowing up, but I would think that in America we would not blow up a caravan going from a wedding to a funeral, from a church to a house, from a political meeting back to their home. We would have different rules in America. If you are accused of a crime, if they think you are somehow a terrorist, then they would arrest you, particularly if you are in a noncombat opportunity. Why in the world would the President take the position that if you are eating in a cafeteria, you are eating at a restaurant, you are at home asleep, that you could not be arrested?

So it is a real easy question, and the President should, very frankly, answer the question: I will not kill noncombatants in America. I cannot imagine why the President cannot answer an easy question.

There have been people on both the right and the left who have been asking these questions. Glenn Greenwald writes a lot about this issue. This is a pretty interesting proposition that he puts forward. He says:

If you posit that the entire world is a ``battlefield,''

then you're authorizing him to do anywhere in the world what

he can do on a battlefield. . . .

That has been my point. If the United States is the battlefield, and we are going to have the laws of war--or another way it can be put is martial law--in America, if we are going to have that in America, you need to know about it because martial law--living under martial law--is the way they live in Egypt. That is why they just had a rebellion in Egypt and overthrew Mubarak. Because they had, by martial law, indefinite detention.

So those who say the battlefield is here, we need to live under the laws of war in our country--and they tell you to shut up if you want an attorney--by golly, be careful about that. Be quite careful if you are going to let us go to that sense.

So Greenwald says:

If you posit that the entire world is a ``battlefield,''

then you're authorizing him to do anywhere in the world what

he can do on a battlefield: kill, imprison, eavesdrop,

detain--all without limits or oversight or accountability.

That's why ``the-world-is-a-battlefield'' theory was so

radical and alarming (not to mention controversial). . . .

He also quotes from Esquire, from Charles Pierce, who said:

This is why the argument many liberals are making--that the

drone program is acceptable both morally and as a matter of

practical politics because of the faith you have in the guy

who happens to be presiding over it at the moment. . . .

So you will remember, many of these people did not like George Bush, and they railed and railed about wiretaps, and now they are suspiciously quiet when we get to a killing program.

But he says: If you have so much confidence because you like the guy, the President in charge of this--he says--that ``is criminally naive, intellectually empty, and as false as blue money to the future.''

He goes on to say:

The powers we have allowed to leach away from their

constitutional points of origin into that office have created

in the presidency a foul strain of outlawry that (worse) is

now seen as the proper order of things.

If that is the case--

And the author says he believes it is--

then the very nature of the presidency of the United States

at its core has become the vehicle for permanently unlawful

behavior.

This is coming from a liberal.

Every four years, we elect a new criminal because that's

become the precise job description.

So we have to ask some important questions. I am not asking any questions about the President's motives. I do not question his motives. I, frankly, do not think he will be killing people in restaurants tonight or in their house tonight. But this is about the rule of law. It is not so much about him. It is not so much about John Brennan. It is about having rules so that someday, if we do have the misfortune of electing someone you do not trust--electing someone who might kill innocent people or who might kill people whom they disagree with politically or they might kill people whom they disagree with religiously or might kill people of another ethnic group--we are protected. That is what these protections are about. But they are not so much about the individuals involved now.

But there is a program that is going on around the world that is killing individuals with drones, and it is done in a warlike fashion. The thing is, in war you do not get due process. So these people around the world do not get Miranda rights, and I am not arguing for that. If you have a gun leveled at an American in Afghanistan, you are going to be killed with no due process. I am not arguing for that. But I am arguing it is different if you are in Afghanistan pointing a weapon at us or here pointing a weapon at us. It is different if you are eating dinner or if you are in your home at night.

So I think there are clear and distinct differences, and there is no excuse for the President not giving us a clear-cut answer.

There is a writer by the name of Conor Friedersdorf who writes for The Atlantic. I will get into that in just a minute.

At this time, I would like to, without yielding the floor, stop for a question from the Senator from Georgia.

Mr. President, the Senator from Georgia is correct. I also, while he is on the floor, want to thank him for getting some of this information to come forward. Because it has been a very onerous task, and without his leadership on the Intelligence Committee, as well as Republicans and Democrats asking for more information, we would not have gotten anywhere. With that input, we have been able to get some answers.

The answers have not all been good. Brennan has answered, with the appropriate answer: The CIA does not work within the United States. That should be pretty obvious because everybody knows that and that is the law. The problem is, it does not answer the final question because the drone program is under the Department of Defense, and if we are going to bring that home to America, I think the Intelligence Committee, as well as the whole body, ought to be not just waiting for the President to tell us how he is going to use it in America. We have civil law in America and we ought to be part of that process. But I do not think we can allow it to go on without our input.

Yes. Mr. President, the idea of combating lethal force I think is questioned by very few, if anybody. If planes are flying into the Twin Towers, we obviously send up F-16s. We have missiles. We do whatever we can to stop an attack on America.

What I am concerned about--the same way if it is a domestic terrorist. If there is someone outside the Capitol with a grenade launcher, we do not give them Miranda rights. We kill them. That is the way it works. If you are exerting lethal force against American soldiers anywhere in the world or in our country, you use lethal force to stop that. Sometimes you cannot stop to even ask permission from Congress. You do that. Imminent threats are repulsed.

But because of all the drone attacks--and I am not saying they are necessarily wrong the way they are done--it is just that they are done at people who are not in the middle of a battle. So if we transfer that to America, I do not think that is acceptable for America.

It is a different debate on whether it is always a good idea, whether we should do it, what the rules should be overseas. But the rules we have currently I do not think are appropriate for the United States.

Mr. President, I wish to thank the ranking member of the Intelligence Committee and also say this could come to a close anytime if the President will sort of say what Attorney General Holder was trying to say this morning, and put it into actual words, that he thinks he has the military authority to reject imminent attack. I think we all agree to that. But if he says he is not going to use drones on people who are not engaged in combat in America, I think we could be done with this debate--I think one phone call from the President to clarify what his position is or from the Attorney General to actually write out what his position is.

But I guess the reason I am kind of alarmed is, we have a quote from the Attorney General saying the executive

branch will decide when and if to use the fifth amendment.

I understand in times of war and on battlefields that is a different story. I am talking about in the United States. I do not think the executive branch gets an option of whether to adhere to the fifth amendment in the United States. But if they could be more clear on that, I think we could be done with this debate at any time.

I have never objected to a vote on Brennan, on the nominee for the CIA. But I have objected to the idea that basically we are just going to throw out the baby with the bathwater and the Bill of Rights becomes something of lesser importance.

Without yielding the floor, I would be happy to yield.

Mr. President, reserving the right to object, I would be happy with a vote now. I have talked a lot today. But the only thing I would like is a clarification. If the President or the Attorney General will clarify that they are not going to kill noncombatants in America-- he essentially almost said that this morning.

He could take his remarks, that he virtually agreed ultimately with Senator Cruz, and put it in a coherent statement that says the drone program will not kill Americans who are not involved in combat.

I think he probably agrees to that. I do not understand why we could not put that into words. But if he does, I want no more time. If not, I will continue to object. If the administration and the Attorney General will not provide an accurate answer, I object.

Mr. President, at this time, without yielding the floor, I would like to entertain a question from the Senator from Pennsylvania.

Mr. President, in late January we sent a letter to John Brennan, the nominee for the CIA, asking a bunch of questions. Included among those questions was, Can you kill an American in America with a drone strike? We got no response and no response and no response.

Thanks to the intervention of the ranking member on the Intelligence Committee, as well as members from the opposite aisle on the Intelligence Committee, we finally got an answer about 2 days ago. The answer from John Brennan was that he acknowledges the CIA cannot act in the United States. That is the law. That was nice. But the Attorney General responded and said they do not intend to. They have not yet, but they might.

Mr. President, that is the only direct response I have gotten. I have also read the testimony from the Judiciary Committee where the Senator from Texas cross-examined the Attorney General, who responded indirectly to my question by saying: It was inappropriate, we probably would not do that.

But he would not answer directly whether it was unconstitutional. It appears at the end that he may have said that it would be unconstitutional, say, to kill noncombatants.

It should be a pretty simple answer really. That is all I am asking. I can be done anytime if I could just get a response from the administration or the Attorney General saying they do not believe they have the authority to kill noncombatants in America.

Well, there has been a white paper that was released that goes through a series of things. They do have a step or a process they go through in determining whom to kill. The problem I have is that in foreign countries--I do not know the exact number because it is classified, but in foreign countries many of the people being killed are not actively engaged in combat.

I am not saying that is right or wrong or making an opinion on that matter. But I am saying that is not a standard I can live with in the United States. So let's say one-third of the drone strikes are going against people who are eating dinner with their family or walking down the road or sleeping in their house. If that is our standard and we are going to do drone strikes in America, I could not tolerate or live with myself if I would accept a standard in the United States that would allow that to happen.

Well, the interesting thing about this is for many years, no one would talk about the drone strike program at all. Then, recently, one of the former spokesmen for the President said he was instructed to never say it existed. But now that it is in the open, the President, a week ago, was asked at Google when he was there for an interview: Can you do this?

His answer: Well, the rules would probably have to be different inside than outside.

That implies he thinks he can do it in America. Then the question becomes, What are those rules? This is as much about the checks and balances of--you know, they say we have the ability to advise and consent. This is some friendly advice I am giving to the President today that he ought to think about or we should think about as a body whether we are a check and balance to the power of the Executive, whether it is Republican or Democratic.

I think it is immaterial. No President should have the power to make these decisions unilaterally.

I thank the Senator from Pennsylvania for asking his questions and being part of the debate. I think that ultimately we could get this straightened out in the sense that it is not so much about the debate about the person as it is about the issue.

If we could get the administration or the Attorney General to put their answer in a succinct form and simply say they believe they have the authority to repel an attack, which most of--I think all of us agree to that, but they do not have the authority to kill someone in a restaurant, to kill someone at home in their house, to kill someone when they are eating dinner; that, really, if you want to say that you can use drones in America to strike people, not only would it have to be remarkably different, it could not be anything like the way we use drones around the world, which brings up some other important questions.

The thing is this has brought us to a much bigger and important debate. When people tell you that America is a battlefield, when they tell you the battlefield is here, realize what they are telling you. They are telling you your Bill of Rights do not apply because in the battlefield, you really do not have due process. I am not arguing for that. I am not arguing for some kind of silly rules for soldiers to ask for Miranda rights and do all this. War is war. War is hell. But we cannot have perpetual war. We cannot have war that has no temporal limits. We cannot then have war that is a part of our daily life in our country; that we are going to say from now on in our country, you do not have the protections of the Bill of Rights.

So I think it is incredibly important. We have been kind of blase about this whole drone strike program. It should come home to where we can really think about it because that is what they are asking to do. They are asking to bring the drone strikes to the homeland.

So I think we need to be careful. We need to ask important questions. I think at the very least we need to be asking the question: Can you do this with no due process? Are we not going to have an accusation? Are we not going to have a public accusation or charge? Are we not going to have a trial by jury?

I started out today reading from ``Alice in Wonderland.'' I would like to go back to ``Alice in Wonderland,'' because it sort of points out the absurdity of where we are at this point. We think of Lewis Caroll as being fiction. Of course it is fiction. We think Alice never fell down a rabbit hole. Of course she did not. She is not real. The white queen and her caustic judgments are not really a threat to us. But there is a question: Has America the beautiful become Alice's Wonderland? We can hear the queen saying: No. No. But her response is, Sentence first, verdict afterwards.

Well, that is absurd. How could we sentence someone without determining first whether they are guilty or innocent? Only in Alice's Wonderland would you sentence someone before you try them. Would you sentence someone to death before you accuse them? Do we really live in Alice's Wonderland? Is there no one willing to stand up and say to the President: For goodness' sake, you can't sentence people before you try them. You can't sentence people before you determine whether they are guilty.

There has been discussion in our country about whether even the courts can sometimes make mistakes. Some States have gotten rid of the death penalty because they have made mistakes and through DNA testing they have found that sometimes they convicted the wrong person. Can you imagine, with all the checks and balances of our court system--which I think is the best in the entire world, with attorneys on both sides whether you can afford them or not. There is an argument back and forth, and there are all of these procedural protections, and you may appeal, and still sometimes we get it wrong.

If we can get it wrong in the best system in the world, do you think one politician might get it wrong? You will never know because nobody is told who is going to be killed. It is a secret list. How do you protest? How do you say: I am innocent. How do you say: Yes, I e-mail with my cousin who lives in the Middle East, and I didn't know he was involved in that. Do you not get a chance to explain yourself in a court of law before you get a Hellfire missile dropped on your head?

It amazes me that people are so willing and eager to throw out the Bill of Rights and just say: Oh, that is fine. Terrorists are a big threat to us, and I am so fearful that they will attack me that I am willing to give up my rights. I am willing to give up on the Bill of Rights.

I think we give up too easily.

The President has responded, and he said he hasn't killed anybody yet in America. He says he doesn't intend to kill anyone in America, but he might. I, frankly, just don't think that is good enough.

The President's oath of office says ``I will,'' not ``I might'' or ``I intend to,'' the President says ``I will protect, preserve, and defend the Constitution.'' He doesn't say ``I will do it when it is

practical'' or ``I will do it unless it is infeasible, unless it is unpleasant, people argue with me. I have to go through Congress, and I can't get anything done, then I won't obey the Constitution.'' It is out there. It is a rule. He doesn't get to choose.

Recently he made some choices where it appears as if he believes he does have some sort of superpower, some power that sort of exceeds the other branches of government. Recently he told the body of the Senate that he decides when we are in recess, he decides when we are working. The court rebuked him. The court told him it is unconstitutional, and they reversed his decision. Do you know the people he appointed through a recess--do you know what they are doing right now? They are still at their post. They are still working in defiance of the court. This will have to go to the Supreme Court. I guess it will take another year or so to go up there, but he has been told what he did was illegal.

I guess what disappoints me most about this, though, is that the President, when he ran for office, was actually someone for whom I had a great deal of respect on the issues of civil liberties. I work with many on the other side of the aisle because, frankly, many on the left and some on the right--we truly do believe in civil liberties and in protecting the individual. I think the President was one of those when he was in the Senate.

The President, when he ran for office, often talked about, it isn't American to torture people. I agree with him. He said it isn't American to give up on the right to privacy, to say you don't need a warrant to tap someone's phone. I agreed with him, and I respected that about him. I can't for the life of me understand how he goes from that kind of belief where he believes so much in the constitutional protections to your phone, but he is not willing to stand up for the constitutional protection to your life? It doesn't make any sense at all. And if he does, why won't he say it?

I have my own sort of theory on this, and this applies both to Republicans and Democrats. My theory is that it is sort of a contagion, it is sort of an infection that you get when occupying the Oval Office. They think, oh, I am a good person, so more power for me would be a good thing.

Lord Acton said that power corrupts, and absolute power corrupts absolutely. There is a danger when someone has so much power that they think more power, more power and more power--I will do good with that power. The problem is that even if that is a good person, someday someone occupying that office may not be a good person. Someday you may get someone in the Oval Office who says: What about those people? They look different from us. What about those people? They have different color skin. What about those people? They have a different color ideology than I have. What about those people?

The danger is also that we have already defined some of the people who we think might be terrorists. The Bureau of Justice came out with a list of characteristics, and they said: If you see this, report on it. If you see this, tell someone. They want you to inform on your neighbor, so you need to know which one of your neighbors is a terrorist. They gave you some descriptions of people to be worried about. They said people missing fingers, people with colored stains on their clothes, people who have weatherized ammunition, people who have multiple guns, people who like to use cash. If that is the criteria or the criterion for who is a terrorist, I would be a little bit worried if you are one of those people--you might have a drone attack in your bed tonight.

This has gone on in more than one place. The fusion centers they developed were supposed to be a liaison between the Federal Government and the local government. In these fusion centers, for example, in Missouri, they also came up with some characteristics of people who might be terrorists. They actually send it out as a memo to all the police officers. Can you imagine if you are one of these people--people who are pro-life, people who are for secure borders, people who support third-party candidates? The big irony of all is people who belong to the Constitution Party. If you believe in the Constitution too much, you might be a terrorist. They say it was a mistake, and they eventually apologized. Now they don't--they try not to have their memos become public, I think.

The point is, if this is what we are getting to and this is the criterion for who is a terrorist, you would think--you really would think you would be worried about giving your President the authority to kill Americans on American soil without any kind of due process. I find it quite alarming.

I think the answer he could have given is pretty simple. I think there is a possibility he may actually even agree with some of the things we are saying here today. Why won't he give it? I think Presidents, Republican and Democratic, don't give the answer because they are afraid of constricting their authority. They believe in some sort of inherent power, which is not listed anywhere, but they think they have it. They don't want to give up any of it. They jealously guard this power. They have this power, and they don't want to give it up. That is why they won't answer us with a straight answer.

You get things. The only word I can think of is gobbledygook. You get this craziness that comes from attorneys that doesn't make any sense.

He was asked: What is an imminent threat?

These people we are going to kill with drones have to be an imminent threat.

His attorneys say ``imminent'' doesn't have to mean ``immediately.'' That is the only way he can justify this because probably half of these drone attacks are people who really aren't engaged in any kind of combat. That is a different debate. You can argue right or wrong whether we should be killing these people not involved in combat because there is evidence they are conspiring to hurt us and to attack us. That is another argument, but it is a pretty low standard. You can argue that, well, that is war over there, and that is a lower standard, and I can accept it, but for goodness' sake, could there be any question that in America we are going to accept a standard so low, a standard that basically says that if we think you might someday be engaged in hostilities, we can kill you? We need to be careful because the criteria for the drone strike program overseas really is something that I think most Americans wouldn't accept for their fellow citizens.

Overseas, one of the most famous American citizens they killed was al-Awlaki. Before he was killed, he was primarily thought of as someone who they said was a sympathizer. I think there is no question he was a sympathizer. I think he denounced his citizenship. He was a bad guy. He sympathized with our enemies. I think he could have been tried for treason. I think if I were on a jury, from what I have read of nonclassified information, I would have voted his guilt and for his death. The thing is, some kind of process might be helpful.

His son, though, 16 years old, was killed 2 weeks later in a separate drone strike, and he was on nobody's list that I know of; they won't respond. I think the response by the President's spokesman is reprehensible. It really should be called out. It is really sort of this flippant response that I think shows absolutely no regard for individual rights or for Americans. He said: Well, the kid should have chosen a more responsible father. Think about that. Is that the standard you wish your government to operate on in America? We have a lot of criminals in our country. We have a lot of bad people. If you happen to be the son of a bad person, is that enough to kill you?

The other thing is that people killed overseas who are not the target--they don't call them civilians because they say anybody between the age of 16 and 50 who is a male is a potential combatant. Are we going to use that same standard here in our country? Are we going to use the standard in our country that if you just happen to be a male and you happen to be standing near somebody we have judged to be a problem, that we are going to go ahead, and, oh, I guess that is not even collateral damage; that person was probably a bad person because he was standing close to this person?

I think there are different standards for war than there are within our country. It is not always going to be perfect, and there is a legitimate debate over what the rules should be in a war,

where a war is overseas, and exactly what happens. I think good, honest people can disagree on some of that. What I worry about are the people who say America is a battlefield because when they say America is a battlefield, they say they want the laws of war to apply here. The reverse of that is basically, if you reverse the laws of war, they are talking about martial law, is what they are talking about, law that is acceptable under extreme circumstances.

I don't think what we have in our country right now is a circumstance where I would accept martial law, but we have already instituted some of the things you will see in other countries under martial law. In Egypt, they have indefinite detention. That is their emergency decree that occurred back in the 1970s, and it went on and on to the present. They have martial law, and they are very unhappy about having martial law, indefinite detention. You saw it last year. We have indefinite detention in America.

The President's response again was inadequate. What did the President say to having indefinite detention in our country? He said: Well, I don't intend to use it. I would rather have a President who has the chutzpa to not sign the legislation and send it back and say: Take it out or I won't sign it. I would have a lot of respect for someone like that.

Mr. President, without yielding the floor, I would be happy to entertain a question from the Senator from Texas.

Mr. President, the question from the Senator from Texas is a very good one, and there does seem to be a double standard going on here. There seems to be one standard for wiretapping of phones or interrogation, but there seems to be much less a standard for actually killing. It seems to be hypocritical and one would wonder why.

With regard to releasing the memos and how they come about their process, some of that was leaked. It is always curious to me that it is as if the leaks come out on purpose; as if they are intentional. The leaks happen right before a nomination process. I don't know the truth of that, but I do think that not only should we get the memos, but if there is going to be a drone strike program in America, perhaps we should actually be writing the rules and sending them to the President. That would be our job--not to listen to him and what he is going to do on drone strikes in America, but actually spelling out and having an open discussion. Because in America I don't think that should be a secret--how we are going to go about this in America.

I see no reason not only to get the drone memos, and I think it would be more consistent with their earlier position, but I think what we should do is be a part of the process of determining how we go forward, with whether we are going to have drone strikes in America and what the rules would be.

Mr. President, piecing together what I have heard of some of his testimony, I actually think he did finally admit to some things that I think are consistent with what I am saying. They haven't put it in writing previously. I would think he could almost take his testimony today--where he almost at some point seems to agree that it would be unconstitutional to kill noncombatants, people not actively engaged in combat--and if he would say that, I think he would answer my question, basically. Because I have never been talking about people engaged in lethal force. You don't get much due process there. If you are engaged in lethal force, lethal force is used against you. So one would think he could answer that simple question, similar to what he actually stated in his testimony today, but they won't give us a succinct answer, or any answer, really. So that is the answer we have been trying to get to all along.

Mr. President, here is the interesting thing about saying it is hypothetical and it wouldn't happen. I could buy that, except for the fact that our foreign drone strike program--a significant amount of the drone strikes--are on people not actively engaged in combat. Whether that is right or wrong is another question, but since we already have an example of a significant amount of those being used on those not engaged in active combat, it is hard for him to say this is a rare, unusual, hypothetical thing that could never happen, because it seems as though it is a big part of the drone program overseas.

Mr. President, the questions and points the Senator from Texas has made are very good points, and it also shows we are not that far apart in trying to find an answer to this, because, there is no ultimate ability for me to stop this nomination. I am already getting tired and I don't know how long I will be able to do this, so I can't ultimately stop the nomination. But what I can do is try to draw attention to this and try to get an answer. That would be something, if we could get an answer from the President. And I think we would all sleep better and feel more comfortable if he would say explicitly that noncombatants in America won't be killed with drones. The reason it has to be answered is because our foreign drone strike program does kill noncombatants. They may argue they are conspiring or they may some day be combatants, but if that is the same standard we are going to be using in the United States, it is a far different country than I know about. Ours is a country where dissent, vocal dissent, even vehement, vociferous dissent as far as whether our country should go to war, whether our country should raise taxes, lower taxes, has always been allowed. We allow a great deal of dissent in our country. But some of the people whom we have said we are targeting have been dissenters, probably traitors too, but they have also been people who have been vocalizing it more than they have been shooting anybody.

That is not to say you can't be a traitor even if you don't shoot anybody. But if you are going to be accused of treason or of being a traitor in the United States, I would think you would get your day in court, probably. It is particularly troublesome since some of the descriptions of who might be a terrorist are such that I would be a little bit concerned about the slippery slope to who is and who is not a terrorist. I can't imagine in America we would do that without an open accusation, without a trial by a jury, without a verdict.

I think it is important this discussion go on, and I am not ultimately setting the goal that I can stop this nomination. I am here today to draw attention to a constitutional principle, to try to get the administration to admit publicly they will not kill Americans who are not involved in combat. But it hasn't so much to do with Brennan or his nomination, it has to do with a constitutional principle. Ultimately, Brennan will be approved. He will be the head of the CIA. This will be a blip in his nomination process. I hope people will see it more as an argument for how important our rights are; that no one, no branch of government, no individual politician should be above the law, should be able to dictate and say what they think the law is.

We had some of this even under a Republican President. I was critical of President Bush for saying he had the ability to interpret the law; he had the ability to put signing statements, which were extensive sometimes, which gave his interpretation of what the law was or what he thought the law was. So I have been critical of both sides thinking they have more power than they have.

Our Founding Fathers were brilliant in the sense that they separated the powers and had these coequal powers of government, these branches of government that were somewhat pitted against each other. And by having equal power and by being able to judge the power of the other branch, no one branch could accumulate too much power. But in our country it has been going the other way for a long time. It hasn't been just Democratic Presidents or just Republican Presidents, it has frankly been both. For maybe 100 years or so power has been gravitating and gravitating and gravitating to the Presidency. And not just the Presidency. When people talk about the bureaucracy, these are people who are within the executive branch--millions of them. When we passed ObamaCare, it was 2,000-some-odd pages, but there have been 9,000 pages of regulations written since. ObamaCare had 1,800 references to ``the Secretary of Health shall decide at a later date.'' We gave up that power. We gave up power that should have been ours, that should have been written into the legislation. We gave up that power, and as a consequence we gave it to the executive branch. We gave it to people-- many of them we call bureaucrats--who are unelected. So we gave away power. It is a struggle, and it should be a perpetual struggle, but we shouldn't give in on that struggle and give up that power.

There was mention the President should reveal to us drone memos on how he is making the decisions. We have had some leaks about that, but I would go one step further. Not only should the President let Congress know what he is doing, maybe we should tell him what to do. Maybe the Congress should be setting the rules for how we do drone strikes. Maybe the Congress should be protecting the American people from their government.

That sounds terrible, protecting you from your government. That is what the Constitution was about. The Constitution wasn't written to restrain your behavior, it was written to restrain your government's behavior.

A lot of people get confused when we talk about religion and the first amendment. But if you read the first amendment, it says Congress shall make no law. It doesn't say anything about your religious preferences. It is not supposed to limit your involvement in government. It is really not supposed to limit so much religious involvement in government or even religion.

We have a prayer every morning in the Senate. You can't have it in your public school, but we have a prayer every morning. Explain that to me. We have the Ten Commandments around here. So does the Supreme Court. But

you can't have it in your local school. I think we have gotten confused on things. It was really about government getting involved in your religion.

We didn't want to establish a church. We thought it was a bad idea to have an official church, and I still think it is a bad idea to have an official church because then the government would be telling the church what to do. But it is really all about the documents that we have protecting you from an overbearing government.

Your government was given a few defined powers, the enumerated powers. There are 17, 19--depends on how you want to count them--but there are not very many. They are few and defined. But your liberties are many--basically, unlimited and undefined.

When you read the ninth and tenth amendment, it says those rights not explicitly given to government are left to the States and the people. They are yours. They are not to be disparaged.

These are important debates we are having. When Montesquieu talked about the separation of powers and the different checks and balances, he said: There can be no liberty when you combine the executive and the legislative. Likewise, I would add to that there can be no liberty when you combine the executive and the judiciary.

So if you allow the President to tell you he can have drone strikes on Americans, on American soil, you are allowing him to be not only the executive, you are allowing him to be the judiciary. If he makes it secret, nobody can object.

I remember one time I was complaining to another Senator about these things called suspicious activity reports. Your bank is required to file them on you. In fact, if you pay your Visa bill through your bank, over the phone, you have done a wire transfer, and you can be part of a suspicious activity report. If you turn cash in to the bank or get cash out of the bank over a certain amount, you can get a suspicious activity report.

I was concerned about this because there have been 8 million filed since 9/11, and the Senator's response is he has never heard anybody complain about it. The reason nobody complains is they are secret. They don't tell you they are doing this.

So if you get on the kill list, it is a little hard to complain. We might have a kill list for a couple of years in the United States, on American citizens, and nobody might complain because it is secret. You don't know you are on the list.

So I think it is important that we have a big debate and discussion over this; that we let the President know he doesn't get to write all of these rules on killing American citizens; that the Constitution still applies in our country.

The reason this is a big debate is that when you are in a war, the Constitution doesn't always apply on the battlefield in another country. There is a debate over whether the Constitution is here or whether it extends beyond the borders. But the practical matter is we can't really enforce the Constitution beyond our borders. You sort of consent to your Constitution, you sort of consent to your government by voting. We have that arrangement in our country, but it doesn't happen in Mexico, Europe, or Afghanistan, and it certainly doesn't happen in the middle of hostilities. So you don't really get due process over there. That is the real danger. That is the problem. That is the rub.

This whole thing is about the use of authorization of force that was passed after 9/11 to go to war in Afghanistan. If you had voted on that--you didn't; your leaders did. But had you voted on that, you would have thought: I am going to war in Afghanistan to get the people who attacked us on 9/11.

I was all for it. I still am. I think that was something we needed to do. We couldn't let people attack us, but I don't think you would have thought, when you voted for that, you were voting for a worldwide war with no end that included America as part of the battlefield. That is the real problem.

The administration, John Brennan, who wants to be head of the CIA, and Eric Holder, the Attorney General, they all believe--and many here believe this also--there is no geographic limit to the war. It is not in Afghanistan. They say it is everywhere, but they say everywhere includes here.

Here is the problem: If you don't think you can apply due process in the middle of a war, what happens if they say the war is here? That means you don't get any protection. So if you are accused of a crime, I guess that is it.

I can't imagine that is what we want as Americans. I just can't imagine we would believe or acquiesce or allow the President to basically say he is going to make the decisions for us; that he basically would kill noncombatants in America.

I, frankly, think eventually he will admit--it would be nice if he would admit it tonight--that he is not going to do it. If anybody has a phone, give him a call. Let him know we would like to know an answer. And I think it would be appropriate.

When the Attorney General came this morning to the Judiciary Committee to answer questions, he was asked repeatedly this question: Can you kill noncombatants if they are sitting and having tea somewhere in America? He kind of weebled and wobbled and went around the issue. Finally, we said: We want to know, is it constitutional? Do you think you can do this?

Instead of saying we might not, we don't intend to--and it sounds like he finally admits at the end that it is unconstitutional. But then why can't we get them to issue a statement? Why can't we get them to say explicitly: We are not going to do this? I see no reason. It would take them 5 minutes to jot this down on a piece of paper. If they don't intend to do it, why not tell us?

When your government won't tell you they are not going to do something, when they won't answer, no, they don't have the power, they are saying to you, yes, they have the power.

If they will not answer your question and say: No, I will not kill Americans who are not involved in combat here at home, if they cannot tell you that, they are saying, yes, they will kill Americans not involved in combat. It is a simple question.

Conor Friedersdorf writes for the Atlantic, and he writes:

Does President Obama think that he has the power to kill

American citizens on U.S. soil? If he accuses a guy in the

Arizona desert or rural Montana of being an Al Qaeda

terrorist, is it ever kosher to send a drone over to blow him

up, as was done to--

People overseas--

Or is it never okay to drone strike an--

American citizen to death here in America?

It's an easy question.

Answering it wouldn't jeopardize national security in any

way.

So why do Obama administration officials keep dodging it?

When the President was asked this question in a Google Plus interview last week, he said: Well we might have different rules inside the country than outside the country.

Well, that sort of assumes he thinks he can kill Americans here, and he might have different rules. He might have more protections, but he is not going to tell you. He says it is secret. I, for one, am not very comforted.

When the President says he hasn't killed any Americans yet and he doesn't intend to kill any Americans--but he might--that doesn't really comfort me so much. I don't think that is strong enough language.

The Presidential oath of office says, ``I will preserve, protect, and defend the Constitution.'' It doesn't say: I intend to. It doesn't say: I intend to preserve, if it is convenient; I intend to preserve, protect, and defend the Constitution if it is convenient.

In his memo, he says he is only going to kill people if it is infeasible. To me, that sounds a little bit like, yes, it is tough. It is inconvenient, so I am going to preserve, protect, and defend the Constitution as long as it is feasible. It just doesn't inspire me.

Friedersdorf goes on to say with regard to the President's answer in Google: ``But he still didn't give a straight answer.''

Counterterrorism adviser John Brennan--whose nomination we are talking about--won't answer either. He finally did answer, but only under duress. His answer was actually the appropriate answer. He said the CIA can't do this in America. But it begs the question--because the CIA is not in charge of the drone program; the Department of Defense is. So we need an answer from the Department of Defense, and we get an

answer from Eric Holder that says they haven't done it yet, they don't intend to do it, but they might. He doesn't say specifically that they will not.

These answers have been out there for a while, and we have been through this and around this and asked questions. These are simple questions. These are questions I can't imagine why we can't get an explicit answer to--unless the answer is no. Unless the answer is that they don't want limitations on their power. Unless the answer is that they don't want to be constrained by the Constitution. Unless their answer is that the Bill of Rights doesn't apply to them when they think it doesn't apply to them. And that is the real danger.

Eric Holder--your Attorney General--was asked about this and asked about the fifth amendment. He was asked: Does it apply?

He said: Well, it applies when we think it applies.

What does that mean? I know it is a debatable question--overseas, American citizens, this and that--but I don't think it is a debatable question. In our country, does the fifth amendment apply? I don't know how you can argue the fifth amendment doesn't apply. I don't know how you can argue we have an exemption to the Bill of Rights when we want to.

But this is the President--the same President who argued he gets to determine when the Senate is in recess because he didn't get a few of his appointees last year, also argued that the Senate was in recess and said he could appoint anybody he wanted--and he did.

It went to court, and the court rebuked him. The court said: You don't get to decide all the rules for all of government. The Senate decides when they are in recess; you decide when you are in recess, but you don't get to decide the rules for the Senate.

They struck him down. Has he obeyed the ruling? Has he listened to what the court did? Has he been chastised and rebuked by the court?

The people he appointed illegally are still doing that job. All of their decisions are probably invalid. So for the last 2 or 2\1/2\ years--however long these recess appointments have been out there--all of these decisions are going to be a huge mess. They have made all these decisions, and it is going to be uncertain whether the decisions are going to be valid. All of this happened because for some reason he thought he had power he doesn't actually have. I think there are some analogies to what we are talking about.

Now, one of the rules he said he would adhere to, as far as the drone strikes overseas, was that there has to be an imminence to the threat. Then his team of lawyers followed up and concluded: Well, it has to be imminent, but it doesn't have to be immediate. I think only a gaggle of government lawyers could come together and say ``imminent'' doesn't mean ``immediate.''

Spencer Ackerman wrote, in Wired, about this. The title is, ``How Obama Transformed an Old Military Concept So He Can Drone Americans.''

``Imminence'' used to mean something in military terms;

namely, that an adversary had begun preparations for an

assault. In order to justify his drone strikes on American

citizens, President Obama redefined the concept to exclude

any actual adversary attack.

It is important to get that and to register that he has defined a potential imminent attack to mean that it excludes any actual adversary attack. So you are under imminent attack but there is no attack. It is a bizarre logic, but it is done to widen what they can do to grant them more power.

Ackerman goes on to say:

That's the heart of the Justice Department's newly leaked

white paper--

These drone memos--

first reported by NBC News, explaining why a ``broader

concept of imminence'' (.pdf) trumps traditional

Constitutional protections American citizens enjoy from being

killed by their government without due process. It's an

especially striking claim when considering that the actual

number of American citizens who are ``senior operational

leader[s] of al-Qaida or its associated forces'' is

vanishingly small. As much as Obama talks about rejecting the

concept of ``perpetual war'' he's providing, and

institutionalizing, a blueprint for it.

This is what we are talking about. Don't think if you give the President the power to kill Americans, that it is a temporary power.

The use of authorization of force, they say, has no geographic limit and no temporal limit. There is no end to the war. There is no end to the lessening or the abrogation or the giving up of your rights. If you give up your rights now, don't expect to get them back.

Ackerman goes on:

Imminence has always been a tricky concept. It used to

depend on observable battlefield preparations, like tanks

amassing near a front line, missile assemblage, or the

fueling of fighter jet squadrons. Even under those

circumstances, there has been little consensus--

internationally about various wars that we have had in the past.

President George W. Bush contended that the U.S. had to

invade Iraq not because the government knew Saddam Hussein

was about to launch an attack upon America, but because it

didn't.

Because it was unknown, because we fear things we don't know--we don't know so we conclude yes, and we preemptively attack.

Bush contended that the uncertainty about Saddam's weapons

of mass destruction augmented by 9/11's warnings of shadowy

terrorist groups plotting undetectable attacks redefined

``imminence. . . . ''

So when I say this is not a partisan battle, I am true to my word. President Bush started this. President Obama is expanding this.

The real irony, though, is President Obama ran as the anti-Bush candidate. He ran as the guy with the real moral umbrage at what President Bush was doing and in the end he is taking Presidential power to a new level beyond what President Bush could have ever imagined. So Bush contended that they could invade because they were uncertain about what Saddam could do. He:

. . . redefined ``imminence'' to mean the absence of

dispositive proof refuting the existence of an unconventional

weapons program. . . .

Imminence is the absence of proof that you don't have something. So you have to prove a negative, you have to prove you don't have something, or you are an imminent threat.

That would be sort of like saying to Mexico: Prove to us you don't have a nuclear weapon or we are going to bomb Mexico City. It is a bizarre notion of imminence. So Mexico is now an imminent threat to the United States because they are unwilling to prove they don't have a nuclear weapon. You can see the convoluted logic that occurs here.

But when U.S. troops invaded, they learned that Saddam did

not possess what Bush or Condoleezza Rice famously termed a

smoking gun that could come in the form of a mushroom cloud.

The undated Justice Department white paper, a summary of a

number of still-classified legal analyses, redefines

imminence once again. Al-Qaida leaders are ``continually

planning attacks,'' the undated white paper says, and so a

preemptive attack ``does not require the United States to

have clear evidence that a specific attack on U.S. persons

and interests in the immediate future.''

Realize what this means. First of all, nobody has an al-Qaida card. I think we say every terrorist in the world is in al-Qaida because then they have to prove otherwise. So nobody has an al-Qaida card. Everyone is in al-Qaida. So we say that unless you can prove that you are not attacking us, because we know the history of al-Qaida is to continue to attack us, we can preemptively attack you.

But now we are talking about bringing that kind of gobbledygook, jumbled logic to the United States. Are these going to be the standards by which we kill Americans?

Ackerman goes on:

For an adversary attack to be ``imminent'' and a preemptive

U.S. response justified, U.S. officials need only

``incorporate considerations of the relevant window of

opportunity, the possibility of reducing collateral damage to

civilians, and the likelihood of heading off future

disastrous attacks on America.''

So if we say al-Qaida is always attacking us and we say you are part of al-Qaida, then we can kill you. But the thing is, that is an accusation. If you are a U.S. citizen, you live in San Francisco or Houston or Seattle and someone says you are a member of al-Qaida, should not you get a chance to defend yourself? Shouldn't you get to go to court? Shouldn't you get a lawyer? Are these not things that we would want in our country?

Ackerman goes on. He says:

There is a subtlety at work in the Justice Department

framework. It takes imminence out of the context of something

an enemy

does and places it into the context of a policymakers's

epistemic limitations.

So really we are not looking to say someone has a rocket launcher on their shoulder. We are saying because we think that these people do not like us and will continue to attack us, we can preemptively kill them.

Realize that this kind of logic is being used overseas, and that is debatable. But now they are going to bring this logic to America. So when you read stuff like this, that imminence is out of the equation and in its place we are going to put a ``policymaker's epistemic limitations'' or estimation--that is how we are going to decide who is going to be killed in America? All we know is what we have in the foreign drone program.

We have no evidence yet because no one has told us. They just told us they have not killed anyone yet, they don't intend to, but they might-- but they haven't told us what the rules are they are going to use in this context--what rules are going to be used in America? If you are going to kill noncombatants, people eating dinner in America, there have to be some rules. Does the Constitution apply?

When Eric Holder was asked about the fifth amendment, he said the fifth amendment applies when they think it applies. He says the executive branch is very careful and they are very conscious of the fifth amendment and they do try to apply the fifth amendment when they can.

I mean, it is a different story when you are talking about a war overseas and you are talking about people who live in our country. You don't get the option of determining when the fifth amendment applies.

Ackerman goes on to say:

If there is a reasonable debate about what imminence means

in an era of terrorism, and what standards ought to be

accepted for defining it as an international norm, that

framework--

where they talk about that they are thinking about what the terrorist is thinking rather than what the terrorist is doing basically preempts the whole idea of determining or trying to discuss or figure out what imminence really means.

Ackerman goes on:

All that matters to justify a drone strike attack is for

the U.S. to recognize that it can't be all-knowing.

So interestingly it's not intelligence that drives the attack, it's you saying I don't know but I am worried that these people do attack us continuously, so by me not knowing their plans, that is a justification for an attack. Realize, that could be the standard in the United States.

It's the logical equivalent of the CIA's signature strikes,

which target anonymous military-age males in areas where

terrorists operate--

This should be the thing that should just scare the you-know-what out of you. If we are killing people overseas who we don't know their name because we think they are in a caravan going from a place where we think there are bad people to another place where there are bad people, that is a fairly loose standard. So, let's say there are people going from a Constitution Party meeting to a Libertarian Party meeting. Both these groups don't like big government. They hate big government. They are opposed to government. They are nonviolent as far as I know, but they were on the Fusion List for potential terrorists. Are we going to kill people in a caravan going from one meeting to the next? Are we going to have to name the person we kill in the United States?

You say, oh, that is absurd. We would never do that. Well, what about whose phone we tap? Do we have to name that person? It used to be the requirement. It has gotten less so over time. We have gotten to the point where the fourth amendment protections to name the person, place, and what you want to look at have become looser over time. I think it is a legitimate question. If you are going to target Americans on American soil, are you going to name them first? Are you going to tell us who is on the list? The list overseas is secret so the question is, is the list going to be secret in the United States? How do you get your due process if you don't know you are on the list? It is a little bit late after the drone attack to say: Hey, it wasn't me. I didn't really mean what I said in that e-mail. I should not have made that comment on line.

Some liberals think they have had a double standard on this and haven't been very good. Some have been more honest in their criticism of the President being hypocritical. The President seemed to be concerned at one time about warrants for wiretaps. He seemed to be concerned about Americans and torture. He seems to have lost a little bit of that when we talk about whether to kill Americans on American soil.

Eugene Robinson, whom I would consider a liberal pundit, wrote an article printed in the San Antonio News called ``Judicial Review Needed For Drone Hits Of Citizens.'' He begins this way. He says:

If George W. Bush had told us that the ``war on terror''

gave him the right to execute an American citizen overseas

with a missile fired from a drone aircraft, without due

process or judicial review, I'd have gone ballistic.

These are Eugene Robinson's words. If he had heard this about George Bush, he would have gone ballistic. To his credit he says:

It makes no difference that the president making this

chilling claim is Barack Obama. What's wrong is wrong.

Robinson goes on to say:

The moral and ethical questions posed by the advent of

drone warfare are painfully complex. We had better start

working out some answers because, as an administration

spokesman told me recently, drone attacks are the ``new

normal'' in the ongoing struggle against terrorist groups

such as al-Qaida.

These attacks have become normal. They have become commonplace. They have become the rule rather than the exception. But at least Eugene Robinson is someone who is consistent in his application of criticism. He says he would have gone ballistic had George W. Bush done exactly what President Obama is doing and his response is, ``It makes no difference that the president making this chilling claim is Barack Obama. What's wrong is wrong.''

The question of when we get due process, whether it applies to you here or overseas, is a big question. But under our concept of government, it is not a question that should be left up to one branch of government. You know, should one branch of government get to decide that you don't get due process? That the fifth amendment doesn't apply to you? This is an incredibly important question. John Brennan and the nomination today pale in comparison to that question. Does the President alone, unilaterally, get to decide whether the fifth amendment applies to you? Or can he say that he is going to secretly accuse you of a crime and that the fifth amendment doesn't apply to you?

This is worrisome because the Attorney General has been asked about the applicability of the fifth amendment to the drone program. He said the fifth amendment applies when they think it applies. He says they try to give some kind of process. It is not due process. Due process involves a jury and a judge and public trial and an accusation. By process, they mean they get together and look at a PowerPoint presentation. They go through some flash cards and they decide who they are going to kill. That is the process. They may say you are demeaning the process by treating it flippantly, about whether they are serious about the process. Is that the process you want for someone in America? Do you want in America, for the process for you being accused of a crime, to be a PowerPoint presentation by one branch of government, maybe in a political party you are part of, maybe in a political party you are not part of?

There are things in politics that are partisan. I don't think I would want Americans to be subject to any partisanship with determining whether you get the fifth amendment, whether you get a jury trial. I can't imagine anybody would. I don't care whether it is a Republican or Democrat, I don't want a politician deciding my innocence or guilt; it is as simple as that. The President should say unequivocally we are not going to kill noncombatants, we are not going to do PowerPoint presentations in the Oval Office on Tuesdays. We are not going to have Terrorist Tuesdays for Americans. He should say that. I don't think it is that hard. It is an easy question to the President.

Mr. President, are you going to have Terrorist Tuesdays for Americans?

Are they going to put flashcards of Americans up and pass them around the table in the Oval Office with pictures of Americans on them and decide

who is going to die and who is going to live? Are they going to publicly charge people or are they going to secretly charge people? Are they going to have any kind of trial or any kind of representation? Does anybody get a chance to say: Hey, it wasn't me. I didn't do it. Does anybody get a chance to represent or have representation?

This is an article we found interesting also by Noah Shachtman. This was also printed in ``Wired.'' It is called ``U.S. Drones Can Now Kill Joe Schmoe Militants in Yemen.'' This is not quite about the domestic issue so much and a little bit about the foreign issue. However, there is a linkage between the foreign drone attacks and what will become the domestic drone attacks.

Why? Because those are the only drone attacks we know and we have not been told that there will be an American plan for killing Americans and a foreign plan for killing Americans or foreigners overseas. We have not been told that. We have not been told anything. We have been told to go and sit in a corner--including the Senate and Congress--and be quiet. They have a process. They have a PowerPoint presentation, and they have flashcards. I don't think that is adequate.

Noah Shachtman writes in ``Wired'':

In September, American-born militant Anwar al-Awlaki was

killed by a U.S. drone strike in Yemen. In the seven months

since, the al-Qaida affiliate there has only grown in power,

influence, and lethality. The American solution? Authorize

more drone attacks--

It kind of brings me back to that quote from the CIA agent. He said drone attacks are like a lawnmower, but when you quit mowing the lawn, the terrorists come back; sometimes they may be more numerous. The question is, Can they kill them all? Can they kill every terrorist in the world? For every terrorist they kill, maybe 3 or 4 pop up--maybe 10 pop up. What happens to the families who happen to be the ones whom we make mistakes on or happen to be in the wrong place at the wrong time?

I know the President's spokesman found it cute to say: Oh, they should have chosen more responsible parents. I don't find that endearing or cute. I find it reprehensible to say that is the standard. We have to ask the question: Is that going to be the standard in the United States? Are we going to kill people because they are related to bad people and then flippantly say they should have chosen better parents after we kill a 16-year-old? Shachtman goes on to write:

The American solution? Authorize more drone attacks--and

not just against well-known extremists like Awlaki, but

against nameless, faceless low-level terrorists as well.

A relentless campaign of unmanned airstrikes has

significantly weakened al-Qaida's central leadership in

Pakistan.

I am not saying we should not use drones. I am not saying they are not a valuable weapon that has helped us to decimate our enemies. I am just saying it is different in a warzone than it is in our country. If the President cannot acknowledge that being in battle somewhere is distinctly different than walking down the street in Washington or Baltimore or Philadelphia, it is beyond me how we can let him get away with that.

. . . militants were chosen for--

These drone strikes--

robotic elimination based solely on their intelligence

``signatures''--their behavior, as captured by wiretaps,

overhead surveillance and local informants.

We don't know the names of the people who were killed in these drone strikes except to know it was largely in the tribal areas of Pakistan. We are targeting people and we do not know their names. We cannot know much about them if we don't know their names. We are targeting them by their signatures, where they go, and whom they visit.

Probably, inevitably, the milkman or the doctor has to go to the terrorist camp. Maybe some of them are complicit, but some of the people who may not be quite the people we think we are after are in a caravan going from city to city. Maybe they are in the local food distribution business and make good money selling it. But the question is whether that is the kind of standard we would like to have in America. Would a signature strike be acceptable in America? These are questions that ought to be asked and the President ought to answer.

These people are being targeted by their signature. Their behavior is captured by wiretaps, overhead surveillance, and local informants.

Shachtman goes on to say:

A similar approach might not work in this case, however.

In Yemen, where we have a lot of drone strikes, he says:

Every Yemeni is armed.

It is going to be kind of hard to tell who is friend or foe when they are all fighting and they are all mad at each other.

So how can they differentiate between suspected militants

and armed Yemenis?

Shachtman goes on to say:

What's more, al-Qaida in the Arabian Peninsula--the Yemeni

affiliate of the terror collective--``is joined at the hip''

with an insurgency largely focused on toppling the local

government, another official told the Washington Post last

week. So there's a very real risk of America being

``perceived as taking sides in a civil war.''

The Yemeni drone campaign--actually, two separate efforts

run by the CIA and the military's Joint Special Operations

Command--will still be more tightly restricted than the

Pakistani drone war at its peak. Potential targets need to be

seen or heard doing something that indicates they are

plotting against the West, or are high up the militant

hierarchy.

``You don't necessarily need to know the guy's name. You

don't have to have a 10-sheet dossier on him. But you have to

know the activities this person has been engaged in,'' a U.S.

Official tells the Journal.

Gregory Johnsen, a Yemen specialist at Princeton

University, believes that these ``signature'' strikes--``or

something an awful lot like them''--have actually been going

on for quite a while in Yemen.

He goes on to say that he thinks that ``Awlaki's son was killed just a month after his dad,'' in a signature strike. He says he thinks `` . . . there have been 13 attacks in Yemen in 2012.''

When we talk to people around here, they say there are no signature strikes. What are we supposed to believe? A lot of people are saying they have evidence and have heard there are signature strikes. Those in power who have the secret say we are not. It is hard to know what to believe.

I think one thing that is easy to understand, though, is that I cannot imagine we would allow such a standard in the United States where we don't name whom we are killing and that we kill people involved in a caravan. I think it should be pretty easy for the President to say there will be no signature strikes in America.

Shachtman goes on to say:

Many of them have hit lower-level militants, not top terror

names. This authorization only makes targeting killings

legally and bureaucratically kosher.

But despite the increased pace of strikes--those 13 attacks

are more than they were in all of 2011--al-Qaida in the

Arabian Peninsula. . . . In fact, White House

counterterrorism adviser John Brennan last week called it the

terror group's ``most active operational franchise.''

All of which leads Micah Zenko at the Council of Foreign

Relations to wonder where this drone campaign is going. ``By

any common-sense definition, these vast targeted killings

should be characterized as America's Third War since 9/11,''

he writes. ``Unlike Iraq and Afghanistan--where government

agencies acted according to articulated strategies,

congressional hearings and press conferences provided some

oversight and timelines explicitly stating when the U.S.

combat role would end--the Third War is Orwellian in its lack

of cogent strategy, transparency, and end date.''

``Since these attacks are covert, the administration will

offer no public defense, he adds. But ``it begs [CIA director

David] Petraeus' haunting question at the onset of the Iraq

war in 2003: ``Tell me how this ends?''

That is a question I have for the President: How does the war end? How do we win? How do we declare victory and when will the war end? The problem is we have come up with a scheme that basically has no geographic limitations on where the war is fought. It is harder to defeat an enemy if the entire war is the battlefield. It is not only a problem with determining victory, it is a problem with ultimately coming home.

The other problem with having no geographic limitations to this is saying that war is here; the war is in America and the battlefield here at home is one where we are going to have rules or the laws of war are going to apply in our everyday life.

Before we were talking about drone strikes in America, the Center for Constitutional Rights has been concerned

even about American citizens overseas. On September 30, they put out this release which said:

Today, in response to the news that a missile attack by an

American drone aircraft had killed U.S. citizen Anwar Al-

Awlaki in Yemen, the Center for Constitutional Rights, which

had previously brought a challenge in federal court to the

legality of the authorization to target Al-Awlaki in Yemen,

released the following statement: ``The assassination of

Anwar Al-Awlaki by American drone attacks is the latest of

many affronts to domestic and international law'' . . . ''The

targeted assassination program that started under President

Bush and expanded under the Obama Administration essentially

grants the executive the power to kill any U.S. citizen

deemed a threat, without any judicial oversight or any of the

rights afforded by our Constitution. If we allow such gross

overreaches of power to continue, we are setting the stage

for increasing erosions of civil liberties and the rule of

law.''

Now what they have said there is not completely noncontroversial, and I might even take some issue with the fact that they are saying the Constitution applies everywhere. Some argue it applies to U.S. citizens whether here or at home, and I think there is some debate as to that. I think the only place we can guarantee that the Constitution applies is in our country. The only border we ultimately control is in our country. The courts we ultimately control are here. However, the entity doing the killing is the American military killing a citizen overseas. So I personally have been of the belief that what we should do is try people for treason. It is one of the four crimes in the Constitution that is actually labeled, displayed, and given to the Federal courts.

There are specifics on what is actually treason. I personally don't think it would be that hard to try people for treason. I think we could do it without--we could start at the very top court and not have appeal after appeal.

I think there was evidence that al-Awlaki could have been tried in Federal court for treason and then targeted.

People say: Why would we want to give any protection to people who have denounced their citizenship, who hate America, and who are conspiring with the enemy?

I guess the way I would respond is that I don't like murderers and rapists either. I don't like violent people who commit crimes in our country. But because we prize our system so much and because we want to make sure we arrest, convict, and possibly execute the right person, we have trials. So we think it is pretty important that we have trials. So I agree when people say these are bad people. Yes, these are bad people. Many of them deserve what they get. The problem is, if we give up on the process of how we do it, if we give up on the Constitution, or if we say that kind of standard is going to be brought back to the homeland, or if we say America is a battlefield, there is a real problem. There is a problem in doing that because I think if we do that, the standard becomes so loose, we really won't have what we really expect as Americans.

The Center for the Constitutional Rights goes on with this comment by Pardiss Kebriaei, a senior staff attorney. They went to the court, and they asked for information on some of these drone strikes, and they were denied. She responds:

In dismissing our complaint, the district court noted that

there were nonetheless disturbing questions raised by the

authority being asserted by the United States.

There certainly are disturbing questions that need to be asked again and answered by the U.S. Government about the circumstances and the killing and legal standard that governs it.

In October 2012 there was an article by Greg Miller in the Washington Post. It was entitled ``Plan for Hunting Terrorists Signals U.S. Intends to Keep Adding Names To Kill List.'' The editor notes that this project was based on interviews with dozens of current and former national security officials, intelligence analysts, and others who have examined and were examining the U.S. counterterrorism policies and the practice of targeted killings.

This is the first of three stories that appeared:

Over the past 2 years, the Obama administration has been

secretly developing a new blueprint for pursuing terrorists,

a next-generation targeting list called the ``disposition

matrix.''

The matrix contains the names of terrorism suspects arrayed

against an accounting of the resources being marshaled to

track them down, including sealed indictments and clandestine

operations. U.S. officials said the database is designed to

go beyond existing kill lists, mapping plans for the

``disposition'' of suspects beyond the reach of American

drones.

Although the matrix is a work in progress, the effort to

create it reflects a reality setting in among the nation's

counterterrorism ranks: The United States' conventional wars

are winding down, but the government expects to continue

adding names to kill or capture lists for years.

Among senior Obama administration officials, there is a

broad consensus that such operations are likely to be

extended at least another decade. Given the way al-Qaida

continues to metastasize, some officials said no clear end is

in sight.

``We can't possibly kill everyone who wants to harm us,'' a

senior administration said. ``It's a necessary part of what

we do . . . We're not going to wind up in 10 years in a world

of everybody holding hands any saying, ``We love America.''

That timeline suggests that the United States has reached

only the midpoint of what was once known as the global war on

terrorism. Targeting lists that were regarded as finite

emergency measures after the attacks of September 11 are now

fixtures of the national security apparatus. The rosters

expand and contract with the pace of drone strikes but never

go to zero.

Meanwhile, a significant milestone looms: The number of

militants and civilians killed in the drone campaign over 10

years will soon exceed 3,000 by certain estimates.

We have heard an estimate recently by a Member of the Senate who said 4,700 have been killed.

The Obama administration has touted its successes against

the terrorist network, including the death of Osama bin

Laden, as signature achievements that argue for President

Obama's reelection. The administration has taken tentative

steps toward greater transparency, formally acknowledging for

the first time the United States' use of armed drones.

Less visible is the extent to which Obama has

institutionalized the highly classified practice of targeted

killing, transforming ad-hoc elements into a counterterrorism

infrastructure capable of sustaining a seemingly permanent

war.

Spokesmen for the White House, the National

Counterterrorism Center, the CIA and other agencies declined

to comment on the matrix. Privately, officials acknowledge

that the development of the matrix is part of a series of

moves, in Washington and overseas, to embed counterterrorism

tools into U.S. policy for the long haul.

White House counterterrorism adviser John O. Brennan is

seeking to codify the administration's approach to generating

capture/kill lists, part of a broader effort . . .

CIA Director David Petraeus is pushing for an expansion of

the agency's fleet of armed drones. The proposal, which would

need White House approval, reflects the agency's

transformation into a paramilitary force and makes clear that

it does not intend to dismantle its drone program and return

to pre-September 11 focus on gathering intelligence.

The U.S. Joint Special Operations Command, which carried

out the raid that killed bin Laden, has moved command teams

into suspected terrorist hotbeds in Africa. A rugged U.S.

outpost in Djibouti has been transformed into a launchpad for

counterterrorism operations across the Horn of Africa and

into the Middle East.

The Joint Special Operations Command has also established a

secret targeting center across the Potomac River from

Washington. The current and former U.S. official said the

elite command's targeting cells have traditionally been

located along the front lines of its missions, including Iraq

and Afghanistan. But the joint committee has now created a

national capital region task force that is a 15-minute

commute from the White House so it can be more directly

involved in deliberations about the al-Qaida list.

The developments were described by current and former

officials from the White House as well as intelligence and

counterterrorism agencies. Most spoke on the condition of

anonymity because of the sensitivity of the subject. These

counterterrorism components have been affixed to a legal

foundation for targeted killings the Obama administration

has discussed more openly over the past year. In a series

of speeches, administration officials have cited the legal

basis, including the congressional authorization to use

military force.

This really gets to the crux of the matter, which is that the authorizations for all of these activities around the world and then ultimately here at home all come from the use of authorization of force when we went to war against Afghanistan after 9/11. The problem is, how do we finally conclude war? Is perpetual war OK with everybody? How would we conclude the war in Afghanistan?

The President said he is bringing troops home. It is actually another thing I admire about the President. I think it is time to come home. I think we have accomplished our battle. I think we have accomplished our plan. But the thing is, if we are going to end

the war, why would we not end the war? I think it means we end that war and we go somewhere else. There is a question of whether we can continually afford perpetual war. There is a question of whether it is advisable. There is a question of whether or not we go so many places that maybe in the end we are doing more harm than good.

The thing about the wars as they go on is we have to figure out a way to try to end war. We have to figure out a way to try to limit war. Our goal shouldn't be to expand war to proportions that have no limit. To say there are no geographic limits on war I don't think should be an admirable thing. I think it is a mistake in policy to say we can have perpetual war with no limits, with no geographic limits, with no temporal limits.

It is hard to end a war anymore, though. It used to be easy. In the old days, you won a war and you came home. The problem is that we can't even end the Iraq war. The Iraq war has been over for a couple of years now--at least a couple of years. I tried to introduce a resolution to end the Iraq war, to deauthorize the war, and it was voted down. I think I got less than 15 votes. How do we end war?

The problem is that people take these resolutions and they stretch them and they pull them and they contort them to mean things that really they were never intended to mean. I don't think being involved in a protracted war in Yemen or Mali or any of these other places was intended when we went to war in Afghanistan. I just don't think that was the intention.

Critics contend that the justifications for the drone war have become more tenuous as the campaign has extended further and further beyond the core group of al-Qaida operatives behind the strikes on New York and Washington. Critics note that the administration still doesn't confirm the CIA's involvement or the identities of those who were killed. Certain strikes are now under legal challenge, including the killing last year of the son of al-Awlaki.

Counterterrorism experts have said, though, that the reliance on these targeted killings is self-perpetuating, yielding undeniable short-term results that may obscure the long-term costs. I think that is a good way of putting it because when we think about it, obviously, they are killing some bad people. This is war, and there has been some short-term good. The question is, Does the short-term good outweigh the long-term costs not only in dollars but the long-term costs of whether we are encouraging a next generation of terrorists?

This is a quote from Bruce Riedel, a former CIA analyst. He says:

The problem with the drones is it's like your lawn mower.

You got to mow the lawn all the time. The minute you stop

mowing, the grass is going to grow back.

Maybe there is an infinite number of terrorists. Maybe the drone strikes aren't the ultimate answer. There are a billion Muslims in the world. Maybe there needs to be some component of this that isn't just the killing fields. I am not saying that many of these people aren't allied against us and would attack us and they don't deserve to die; I am just not sure it is the ultimate answer, it is the ultimate way. I am also concerned that the people who are the strongest proponents of this are also those who want to bring the war to America and say that America is part of this perpetual battlefield.

The United States now operates multiple drone programs,

including acknowledged U.S. military patrols over conflicted

zones in Afghanistan and Libya and classified CIA

surveillance flights over Iran. Strikes against al-Qaida,

however, are carried out under secret lethal programs

involving the CIA and the CSOC. The matrix was developed by

the NCTC under former Director Michael Leiter to augment

those organizations' separate but overlapping kill lists. The

result is a single, continually evolving database in which

biographies, locations, known associates, and affiliated

organizations are all catalogued.

So are strategies for taking targets down, including

extradition requests, capture operations and drone patrols.

Obama's decision to shutter the CIA's secret prisons ended

a program that had become a source of international scorn,

but it also complicated the pursuit of terrorists. Unless a

suspect surfaced in the sights of a drone . . . the United

States had to scramble to figure out what to do.

``We had a disposition problem,'' said a former U.S.

counterterrorism official. . . .

The database is meant to map out contingencies, creating an

operational menu that spells out each agency's role in case a

suspect surfaces in an unexpected spot. ``If he's in Saudi

Arabia, pick up with the Saudis,'' the former official said.

``If traveling overseas to al-Shabaab . . . we can pick him

up by ship. If in Yemen, kill or have the Yemenis pick him

up.''

There has been some discussion as to what to do with these people. It is a complicated situation, but I think the take-home message from all of this is that what we are stuck in is a very messy sort of decisionmaking, a type of decisionmaking that I do not think is appropriate for the homeland, for the United States. I think the idea that in the United States this is to be a battlefield, and you do not need an attorney, you do not need a court, or you do not get due process, is really repugnant to the American people, and should be.

I think it is something we have given up on too easily if we let the President dictate the terms of this. If the President is unwilling to say clearly and unequivocally that he is not going to kill noncombatants in America, I do not think we should tolerate that. I think there should be a huge outcry and the President should come forward and explain his position.

This discussion tonight is not so much about John Brennan, it is not about his nomination so much as it is about whether we believe that in America there are some rights that are so special that we are not willing to give up on these.

So as we move forward into this debate, it is not about who gets nominated to be the head of the CIA. It is about principles that are bigger than the people. It is about something bigger and larger than the people involved. It is about constitutional principles that we should not give up on.

I think we should all judge as inadequate the President's response when he says he has not killed Americans in America yet, he does not intend to, but that he might. I do not think that is a response that we should tolerate.

So as we move forward in this debate, we need to understand and we need to fight for something that is classically American, something we are proud of and something our soldiers fight for; that is, our rights, our individual rights, our right to be seen as an American, to be tried in a court by our peers. I think if we are to give up on that it is a huge mistake.

One of the things we have to ask is, What kind of standard will there be? If there is going to be a program in America, what kind of standard? If we are going to kill Americans in America, what kind of standard will there be?

If the standard is to be sympathy, you can imagine the craziness of this.

Mr. President, I would at this time yield for a question, without yielding the floor, from my colleague from Kansas.

Mr. President, I think it is a good question because, ultimately,

the question is, Who gets to decide? Does the President get to decide unilaterally that he is going to do this? And how would you challenge it? If you are dead, you have a tough time challenging, basically, his authority to do this.

But, no, I cannot imagine in any way that you can usurp and go beyond the constitutional requirements in the United States. I see no way he can do that, and I cannot imagine that he would even assert such a thing. But it still boggles the mind that he will not explicitly say he will not do this.

Mr. President, I think it is a good point. I think also a point to be made is that one resolution to this impasse would be to have a resolution come forward from the Senate saying exactly that; that our understanding is--and this has been something that Senator Cruz and I have discussed: whether we should limit the President's power by legislation or by resolution, basically saying that repealing an imminent threat is something the President can do, but killing noncombatants is not something that is allowed under the Constitution.

I think the courts would rule that way should the courts ever have to rule on this. But it would be much simpler and more healthy for the country if the President would simply come out and say that.

Mr. President, since we began this today, I have had no communications from the White House or the Attorney General. The only thing we have gotten indirectly was that the Attorney General was before the Judiciary Committee today and that he did seem to backtrack or acknowledge a little bit, under withering cross-examination. He was not very forthcoming in saying what we would like to hear: that they will not kill noncombatants in America. But I think that is still a possibility from them. I think his answers were not inconsistent with that.

But you would think it would be a little bit easier and they would make it easier on everyone, and you would think they would want to reassure the public that they have no intention--not just they have no intention--but that they will not kill Americans.

Yes, I think American citizens get that. But not only that, I come from a State that has two large military bases. When our soldiers go off--and when I talk to them--they talk of fighting for our Bill of Rights, they talk of fighting for our Constitution. They do not think they are going off to conquer any people. They truly believe and they honestly appraise that they are fighting for our Bill of Rights.

So that is why I see this as somewhat of an insult to our soldiers, to say that and to insinuate somehow that the Bill of Rights is not so important; that our fear is going to guide us away or take us away from something so fundamental and so important.

I think Americans do realize that the protections of having a jury trial are incredibly important and that assessing guilt is not always easy when you are accused of a crime. I think Americans know it is really important to try to get it right when someone is accused of a crime. So I think the American people are with us in wanting to find these answers.

The Senator is right. This is not ultimately about the nomination; this is about a question that is bigger than any individual. It is about something that our country was founded upon; that is, basically, the individual rights.

Mr. President, we have had a good and healthy debate today. I think we have hit upon a few points. We may have even hit a couple points more than once.

When we think about it and put it in perspective, so many of the battles we have up here are battles that I think the American public is sometimes disgusted with. They see a lot of things we do as petty and partisan. Sometimes I see disagreements up here that I think are completely partisan and completely petty on both sides.

But I think this issue is different in the sense that this is not about this particular individual and his nomination. I have actually voted for the President's first three nominations to his Cabinet. So I have not taken a partisan position that the President cannot nominate his political appointees. I have looked carefully at the nominees. I have asked for more information. I have tried to extend debate on some of the nominees. But in the end, I voted for three out of three and many of the judges that the President has put forward, not necessarily because I agree with their politics. I do not agree with much of the President's politics.

In fact, one of the few things I did agree with the President on was the idea of civil liberties, was the idea that you do not tap someone's phone without a wire, without a warrant, that you do not torture Americans, and that you did not kill Americans without due process. These are things I thought the President and I agreed on. So I am not so sure exactly, you know, where we stand with that. I actually kind of think that probably he still does agree with me, or I still agree with him. But the question is, why cannot he publicly go ahead and announce he is not going to kill noncombatants?

This is a resolution we have talked about. This resolution says: ``To express the sense of the Senate against the use of drones to execute American citizens on American soil.''

Expressing the sense of the Senate against the use of

drones to execute American citizens on American soil.

Resolved, that it is the sense of the Senate that the use of

drones to execute or target American citizens on American

soil who pose no imminent

threat clearly violates the constitutional due process of

rights. The American people deserve a clear, concise and

unequivocal public statement from the President of the United

States that contains detailed legal reasoning, including but

not limited to the balance between national security and due

process, limits of executive power, and distinction between

the treatment of citizens and noncitizens within and outside

the borders of the United States.

The use of lethal force against American citizens and the

use of drones in the application of the lethal force within

the United States territory.

There is another article that I think is of interest. This is another article by Spencer Ackerman in Wired. This talks about once again the signature strikes, the idea that basically we are killing people whose names we did not know. The title of this was: ``CIA Drones Kill Large Groups Without Knowing Who They Are.''

The expansion of the CIA's undeclared drone war into the

tribal areas of Pakistan required a big expansion of who can

be marked for death. Once the standard for targeted killings

was top-level leaders in al-Qaeda or one of its allies.

That's long gone, especially as the number of people targeted

at once has grown.

This is the new standard, according to a blockbuster piece

in the Wall Street Journal: ``Men believed to be militants

associated with terrorist groups, but whose identities aren't

always known.'' [may be targeted.] The CIA is now killing

people without knowing who they are, on suspicion of

association with terrorist groups. The article does not

define the standards, [but the standards are said to be]

``suspicion'' and ``association.''

While this is overseas, it kind of gets to the point we have been talking about: What is the standard that will be used in America? If we are to have drone strikes in America, what is the standard we will use? Is it a standard that says you have to be suspicious, or that you have to be associated?

Strikes targeting those people, usually groups of such people, are what we call signature strikes. The bulk of the CIA's drone strikes are signature strikes now, which is a remarkable thing. So what we are talking about--that is one of the reasons why we are concerned here--is that if the President claims he can do strikes in America, and the bulk of the current strikes overseas are signature strikes, would it not be worrisome that we could kill people in America without evening knowing their name?

The bulk of CIA's drone strikes now are ``signature''

strikes.

It was written in the Wall Street Journal in an article by Adam Entous, Siobhan Gorman, and Julian Barnes. And the ``bulk'' really means the bulk. The Journal reports that the growth in clusters of people targeted by the CIA has required the agency to tell its Pakistani counterparts about mass attacks. We are talking about pretty significant attacks here. They are only notifying them when they are going to kill more than 20 at a time.

Determining who is the target is not a question of intelligence collection. The cameras on the CIA fleet of Predators and Reapers work just fine. It is a question of intelligence analysis, interpreting the imagery collected from the drones, from the spies and spotters below, to understand who is a terrorist and who, say, drops off the terrorist's laundry. Admittedly in a war with a shadowy enemy, it can be difficult to distinguish between the two. So the question is, is this the kind of standard we will use in the United States? Will we use a standard where people do not have to be named? We do not know. The President has indicated his drone strikes in America will have different rules than his drone strikes outside of America. But we have heard no rules on what those drone strikes will be.

So we have drone strikes inside and outside. They are going to have different rules. But we already know that in a large percentage of the drone strikes overseas we are not naming the person. Is that going to be the standard? We also know we have targeted people for sympathizing with the enemy. We talked about that before. In the 1960s, we had many people who sympathized with North Vietnam. Many people will remember Jane Fonda swiveling herself around in a North Vietnamese artillery and thinking, gleefully, that she was just right at home with the North Vietnamese.

I am not a great fan of Jane Fonda. I am really not too interested in putting her on a drone kill list either. We have had many people who have dissented in our country. We have had people in our country who have been against the Afghan war, against the Iraq war. I was opposed to the Iraq war. There have been people against the government on occasion. What are the criteria for who will be killed? Does the fifth amendment apply? Will the list be secret or not secret? Can you kill noncombatants?

And people say, well, the President would never kill noncombatants. The problem is, is that is who we are killing overseas. We are alleging that they may be conspiring someday to be combatants or they might have been yesterday. But are we going to take that same kind of standard and use it in America? Are we going to have a standard that if you are on your iPad typing an email in a cafe that you can be targeted in a drone strike? These are not questions that are inconsequential. These are questions that should be known. These are questions that should be public. These are questions that should be discussed in Congress. In fact, we should not be asking him for drone memos, we should be giving him drone memos. We should not be asking him how is he going to run the drone program, we should be telling him how he is to run the drone program. That is our authority. We have abdicated our authority. We do not do what we are supposed to. We are supposed to be the checks and balances. But we have let the President make those decisions because we have largely abdicated our responsibility.

In this Spencer Ackerman story from Wired, he talks about and goes on to say:

Fundamentally, though, it is a question of policy, whether

it is acceptable for the CIA to kill someone without fully

knowing if he is the bombsmith or the laundry guy.

The Journal reports:

The CIA's willingness to strike without such knowledge,

sanctioned in full by President Barack Obama, is causing

problems for the State Department and the military. As we

have written this week, the high volume of drone attacks in

Pakistani tribal areas contributes to Pakistani intransigence

on another issue of huge importance to the United States,

convincing Pakistan to deliver the insurgent groups it

sponsors to peace talks aimed at ending the Afghan war. The

drones do not cause that intransigence. Pakistani leaders,

after all, cooperate with the drones and exploit popular

anti-American sentiment to shake down Washington. The strikes

become cards for Pakistan to play, however cynically.

I think this is quite true of Pakistan. They play both sides to the middle. They play both sides to get more money from us. I think they have been complicit in the drone attacks, and then they complain about them publicly. They have two faces, one to their people, and one privately to us. But the question is, have we gotten involved more in Pakistan than getting al-Qaida leaders, and have we gotten more involved with a war in Pakistan that involves people who want to be free of their central government?

Ultimately, we as a country need to figure out how to end the war. We have had the war in Afghanistan for 12 years now. The war basically has authorized a worldwide war. Not only am I worried about the perpetual nature of the war, I am also worried that there are no geographic limitations to the war. But I am particularly concerned, and what today has all been about, I am worried that they say the United States is the battlefield now. My side, their side, the President, everybody thinks that America is the battlefield. The problem is, they all think you do not get due process in a battlefield. Largely they are correct. When you are overseas in a battlefield, it is hard to have due process. We are not going to ask for Miranda rights before we shoot people in battle. But America is different.

So one of the most important things I hope that will come from today is people will say and people will listen: How do we end the war in Iraq? How do we end the war in Afghanistan? I got a vote. I tried to end the Iraq war 2 years after it ended, by taking away the authorization of use of force. I still could not get that voted on.

It is even more important not only to end the war in Iraq, but ultimately to end the war in Afghanistan. Because the war in Afghanistan, the use of authorization of force is used to create a worldwide war without limitations, to create a war that some say the battlefield is here at home. This battlefield being here at home means you do not get due process at home.

There have been Members of the Senate stand up and say, when they ask you for a lawyer, you tell them to shut up. Is that the kind of due process we want in our country? Is that what we are moving toward? So the questions we are asking here are important questions. These questions are: Does the Bill of Rights apply? Can they have exceptions to the Bill of Rights?

One of the articles from the National Review recently was by Kevin Williams. We got into this a little bit earlier. I thought it was an important article because it talked about what our concern is is about what standard we will use. What will be the standard for how we kill Americans in America? He talked a little bit about how his belief is that al-Awlaki was targeted mainly as a propagandist. An interesting thing about al-Awlaki is that before he was targeted, he was actually invited to the Pentagon. We considered him to be a moderate Islamist for a while.

We invited him to the Pentagon. I think he actually gave and said prayers in the Capitol at one point.

The question is if we made a mistake the first time about whether he was our friend--and I think we did--could you make a mistake on the other end? The question is, if governments are to decide who are sympathizers and people who are politicians, with no checks or balances, are to decide who is a sympathizer, is there a danger that people who have political dissent could be included in this?

The way Williamson describes al-Awlaki was that he was first and foremost an al-Qaida propagandist. He was a preacher and a blogger who first began to provoke United States authorities through the online bile which earned him the faintly ridiculous sobriquet the bin Laden of the Internet.

Was he an active participant in planning acts of terrorism against the United States? The FBI did not think so, at least in the wake of 9/ 11 attacks. The Bureau interviewed him four times and concluded he was not involved. The Defense Department famously invited him to dine at the Pentagon as part of the Islamic outreach efforts, and in 2002 he was conducting prayers in the U.S. Capitol.

Throughout the following years, al-Awlaki became a sort of al-Qaida gadfly, dangerous principally because he was fluent in English and, therefore, a more effective propagandist. It was not until the first Obama administration that al-Awlaki was promoted by United States authorities from propagandist to operations man.

You may remember the context. The Obama administration had been planning to try 9/11 conspirators in New York City when the country was thrown into a panic by the machinations of the would-be underpants bomber, Umar Farouk Abdulmutallab.

The Obama administration, in an interesting about-face--whereas it had been planning to try Khalid Shaikh Mohammed in New York and his coconspirators there, definitively turning our back on Guantanamo-- turned around and made a decision that it couldn't do it in New York. Al-Awlaki was a part of this. He was a propagandist and part of this. They said Abdulmutallab actually sought out al-Awlaki in Yemen and al- Awlaki had blessed his bomb plot and even introduced him to a bombmaker. This, according to the Obama administration, is what justified treating al-Awlaki as a man at arms earning him a place on the national secret hit list.

Williamson asked this question:

If sympathizing with our enemies and propagandizing on

their behalf is the 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.

These are his words, not mine. He goes on:

And as satisfying as putting Jane Fonda on a kill list

might have been, I do not think that our understanding of the

law would encourage such a thing, even though she did give

priceless aid to the communist aggressors in Vietnam.

Students in Ann Arbor, MI, were actively and openly raising

funds for the Vietcong throughout the war. Would it have been

proper to put them on kill lists?

I don't know.

Williamson said:

I do not think that it would. There is a difference between

sympathizing with our enemies and taking up arms against the

country.

They aren't the same thing. We have to ask ourselves, what is the standard? Could political dissent be part of the standard for drone strikes?

You say, well, that is ridiculous. We have listed people already on Web sites and said they were at risk for terrorism for their political beliefs. The Fusion Center in Missouri listed people who were of pro- life origin and listed people who believed in secure borders for immigration. They listed people who were supporters of third-party candidates, the Constitution Party or the Libertarian Party. These people were listed in a mailing sent out to all the police in the State to be aware of these people. Be aware of people who have bumper stickers on their cars supporting these people.

That, to me, sounds dangerously close to having a standard where the standard is sympathy not for your enemies but sympathy for unpopular ideas or ideas that aren't popular with the government. That concerns me. It concerns whether we could have in our country a standard that is less than the Constitution. The Constitution is a standard where I can't imagine we would want to give up on this standard, or any President could assert a standard would not be the Constitution.

There was an article in Human Rights First which was published in December of 2012. It begins with this prefacing statement:

We are establishing precedents that other nations may

follow, and not all of those nations may--and not all of them

will be nations that share our interests or the premium we

put on protecting human life, including citizens.

This was a statement by John Brennan. It is a statement that actually carries some weight and should be thought through. This is the reason why I say this filibuster is not so much about Brennan as it is about a constitutional principle.

The Obama administration has dramatically escalated targeted killing by drones as the central feature of counterterrorism response.

Mr. President, at this time I have a unanimous consent request. I wish to read it into the Record. With this unanimous consent request, I would emphasize that this would be ending the debate and allowing a vote on Brennan. Part of this unanimous consent request would be the establishment of a vote on this resolution as well as setting a vote up on the confirmation of John Brennan to be CIA Director.

The resolution states:

Resolved, that it is the sense of the Senate that:

1. The use of drones to execute, or to target, American

citizens on American soil who pose no imminent threat clearly

violates the constitutional due process rights of citizens.

That is the most important clause of that. I think it is important for the American people to know that apparently the other side is going to object. Object. It is important to know the majority party here in the Senate, the party of the President, is going to object to this statement being voted on. They may still vote against it if they wish, but they are going to object, I understand, to having a vote on this statement. The use of drones to execute a target, American citizens on American soil, who pose no imminent threat, clearly violates the constitutional due process rights of citizens.

What we are talking about is a resolution that says what we have been trying to get the President to say: You can't kill noncombatants. You can't kill people in a cafe in Seattle. That is what we are asking. It is blatantly unconstitutional to kill noncombatants. I can't understand why we couldn't get a resolution, particularly because I am willing to, with this resolution, move forward and let the vote occur on Brennan.

The second part of the resolution is:

The American people deserve a clear, concise, and

unequivocal public statement from the President of the United

States that contains detailed legal reasoning, including but

not limited to the balance between national security and due

process, limits of executive power and distinction between

treatments of citizens and noncitizens within and outside the

borders of the United States, the use of lethal force against

American citizens, and the use of drones in the application

of lethal force within the United States territory.

Basically, the second part of the resolution asked, basically, we do our job and ask the President to let us know what is going on with the program. If there is an objection to this, it would be an objection to, No. 1, killing citizens who are noncombatants and, No. 2,

to giving us a report on what the program will actually entail.

Mr. President, I ask unanimous consent that at a time to be determined by the two leaders tomorrow, the Senate vote on this resolution as I just read it, and with the addition to it they then turn to the Brennan nomination or be allowed to proceed to a vote.

Mr. President, I am disappointed the Democrats choose not to vote on this. The answer around here for a lot of things is we will have a hearing at some later date to be determined. The problem is this is a nonbinding resolution. This is a resolution just stating we believe in the Constitution and, A, Mr. President, send us some information about your plan, how it is going to work. It doesn't change the law. In fact, I wish it could do more than that. We have an actual bill which will be introduced. We will actually try to change the law.

This is a symbolic gesture and a way to allow us to move forward. I am disappointed we can't.

This was an article that was published in Human Rights First in December of 2012. As I said, it has an opening statement by John Brennan I think is actually well thought out and recognizes some of the advantages and disadvantages of drone strikes.

John Brennan begins by saying:

We are establishing precedents that other nations may

follow, and not all of those nations may--and not all of them

will be nations that share our interests.

Think about what he is saying there. Other people are going to get drones. We have already lost a drone in Iran. How long do you think it is before Iran has drones? How long do you think it is before Hezbollah has drones or Hamas has drones? I think there is a certain amount of thought that ought to go into a drone-killing program, particularly when the people who are being killed by the drones will have their own drones, I think within short order.

The Obama administration has dramatically escalated

targeted killing by drones as a central feature of his

counterterrorism response. Over the past 2 years the

administration has begun to speak more openly about the

targeted killing program, including in public remarks by

several senior officials. While we welcome and appreciate

these disclosures, they nevertheless provided only limited

information.

Experts in other governments have continued to raise

serious concerns about:

The precedent that the United States targeted killing

policy is setting for the rest of the world, including

countries which have acquired or are in the process of

acquiring drones, yet have long failed to adhere to the rule

of law and protect human rights--

We would like to believe we actually have rules in place, and we would not misuse drones. Imagine what it is going to be like when countries get drones that have none of the rules, none of the checks and balances.

The impact of the drone program on other U.S.

counterterrorism efforts, including whether U.S. allies and

other security partners have reduced intelligence sharing and

other forms of counterterrorism cooperation because of the

operational and legal concerns expressed by these countries;

the impact of drone operations on other aspects of U.S.

counterterrorism strategy, especially diplomatic and foreign

assistance efforts designed to counter extremism, promote

stability, and provide economic aid; the number of civilian

casualties, including a lack of clarity on who the United

States considers a civilian in these situations.

Of note and of consideration also is whether the legal

framework of the program that has been publicly asserted so

far by the administration comports with international legal

requirements.

The totality of these concerns, heightened by the lack of

public information surrounding the program, require the

administration to better explain the program and its legal

basis and to carefully review the policy in light of the

global precedent it is setting and serious questions about

the effectiveness of the program on the full range of U.S.

counterterrorism efforts. While it is expected that elements

of the U.S. Government's strategy for a targeted killing will

be classified, it is in the national interest that the

government be more transparent about policy considerations

governing its use as well as its legal justification, and

that the program be subject to regular oversight.

Furthermore, it is in the U.S. national security interests to

ensure that the rules of engagement are clear and that the

program minimizes any unintended negative consequences.

How the U.S. operates and publicly explains its targeted

killing programs will have far-reaching consequences. The

manufacture and sale of unmanned aerial vehicles is an

increasing global industry and drone technology is not

prohibitively complicated.

I will give you an idea where there is a marketplace for drones. Last year, I introduced a bill to require a warrant before you could use a domestic drone to spy on citizens. Before I introduced it or anybody knew outside my office, we already had calls in lobbying coming from drone manufacturers. So this is a big business.

Some 70 countries already possess UAVs, or drones,

including Russia, Syria and Libya, and others are in the

process of acquiring them. As White House counterterrorism

chief John Brennan stated: The United States is

``establishing precedents that other nations may follow, and

not all of them will be nations that share our interests or

the premium we put on protecting human life, including

innocent civilians.''

By declaring that it is an armed conflict with al Qaeda's

``associated forces,'' (a term it has not defined)--

I think this is an important point because everybody is always saying: Don't worry. You are fine. You are not a terrorist. We are only going after terrorists. The problem is, as I said, the government has defined terrorism in this country to mean things that may not include terrorists--paying cash, having weatherized ammunition--so there are a lot of different things they have used as a definition. But let's say they are going after al-Qaida, people working with them or associated forces--what that means I don't know, particularly since al-Qaida is a little hard to define because they do not have membership cards. Some of them probably don't use the label at all. I doubt many of them have any communication with any kind of central headquarters or central group called al-Qaida.

By declaring that it is in an armed conflict with al

Qaeda's ``associated forces,'' without articulating limits to

that armed conflict, the United States is inviting other

countries to similarly declare armed conflicts against groups

they consider to be security threats for purposes of assuming

lethal targeting authority. Moreover, by announcing that all

``members'' of such groups are legally targetable, the United

States is establishing exceedingly broad precedent for those

who can be targeted, even if it is not to utilize the full

scope of this claimed authority. As an alternative to armed

conflict-based targeting, U.S. officials have claimed that

targeted killings are justified as self-defense responding to

an imminent threat. . . .

The problem is we have defined imminent to be not immediate. So having a murky definition of what imminent is allows us to run into problems.

It is also not clear that the current broad targeted

killing policy serves U.S. long-term strategic interests in

combating international terrorism. Although it has been

reported that some high-level operational leaders of al-Qaida

have been killed in drone attacks, studies show the vast

majority are not high-level terrorist leaders. National

security analysts and former U.S. military officials

increasingly argue that such tactical gains are outweighed by

the substantial cost of the targeted killing program,

including growing anti-American sentiment and recruiting

support for al-Qaida.

The broad targeted killing program has already strained

U.S. relations with allies and thereby impeded the flow of

critical intelligence about terrorist operations.

The problem is, when we talk about this, one of the most important things to our intelligence is actually human intelligence. We get information from people who are our friends, who live in those countries, who blend into the population and are part of their population. But we have gone on to destroy some of this intelligence in the sense that one of the people who helped us to

get bin Laden was a doctor in Pakistan by the name of Dr. Shakil Afridi. If we don't stand by the people who give us intelligence and give us information, we will not get more. But when he did help us, somehow his name was leaked. I don't know where the leak came from, but his name was leaked and then he was arrested by the Pakistanis. He is now in prison for the rest of his life.

I have asked several times, both to the previous Secretary of State as well as to the current Secretary of State, and I asked the current Secretary of State point-blank and directly: Will you use the leverage of foreign aid to say we are not going to give you foreign aid if you don't release this doctor who gave us information?

It is a little ironic that we will not do it, particularly since at one point in time we actually had, I think, a $25 million reward for any information that led to helping us get bin Laden. So it is kind of disappointing that we haven't held out and supported our human intelligence and people such as Dr. Afridi, who helped us get probably the most notorious terrorist of the last century.

While the U.S. Government does not report the number of

deaths from drone strikes, independent groups have estimated

that the drone program has claimed several thousand lives so

far.

Estimates and public comments by some Senators have said as many as 4,700. What we don't know about the 4,700 but what would be an important statistic, I think, or maybe a troubling statistic, would be how many of the 4,700 were killed in combat--actually holding weapons, fighting, going to a battle, coming from a battle--and how many of the drone strikes were actually on people who weren't involved in combat. I think if that number were released, if that number were made public, it would concern you even more because you may well find out a lot of the people--and we have seen some of the strikes on television, with people in their cars, people walking around without weapons, people eating dinner, people at home in their houses. I am not saying these are good people necessarily, I am just saying the drone strike program we have in place currently seems to have a very low threshold for whom they kill. So the question would be whether you are going to use that kind of standard if you have a domestic drone strike program in the United States.

I think we are getting to the point, and that is one of the most important questions as we look at the foreign drone program, is understanding what the parameters are that allow us to kill people in foreign countries and are those the parameters that are going to be used here.

For the most part, over the last decade, they haven't admitted we even have a drone strike program. But now that they admit it, the President doesn't want to answer any questions about it. He doesn't want to deny he will use it here. He just says he isn't intending to use it here but then says: Oh, probably there will be different rules inside the United States than outside the United States.

This is where the Senate ought to get involved, instead of punting this to another time. The Senate ought to say we are not going to wait for the President to send us a memo. We are going to send him a memo. We are going to tell him what the rules on drone strikes are. We are going to tell him the Constitution does apply to Americans, particularly Americans in the United States, and there are no exceptions.

I find it inexcusable that the Attorney General says: Well, the fifth amendment, we will use it as needed, basically. We will use it when we choose. The problem with that is I don't think the executive branch should get to pick and choose.

Without yielding the floor, I am going to allow a question from my colleague from Texas.

Mr. President, I thank the Senator from Texas for coming to the floor and cheering me up. I was getting kind of tired. I appreciate him bringing news from the outside world.

As you know, we are not allowed to have electronics on the floor, so I don't really have much knowledge of the electronic outside world. But actually it is probably a good thing for every American eventually not to see their phone or their computer for about 8 hours.

The thing is, people think that we should not--people are always saying don't fight, get along, and stuff. I think people do want that. I think at the same time they want you to stand up and stand for something and believe in something. It doesn't have to mean that we do it in an acrimonious way. Even the Senator from Illinois and I usually have civilized words together. There is a smile.

The thing about it is that there are principles we ought to stand for. I think the most important principle here, though, is that really this is a tug-of-war between the executive branch and the legislative branch. There may be some partisanship, that we can't all get together in the Senate to say to the President that we think his power should be restrained, but I think at the same time there are some on the other side who are saying that. Really, that is what this should be about.

It is about how much power a President can have. Can a President have the power to decide to kill Americans on American soil? But not only that, can the President have the power to decide when the Bill of Rights applies? Can you be targeted because you have been alleged to have committed some crime and your Bill of Rights is stripped away even if you are here in the United States? I think it is a pretty easy question.

Maybe someone from the media would ask the President tonight--I don't know if he is still up or not--but ask the President the question. Ask him, do you plan on killing Americans who are not in combat? Do you plan on killing Americans who are not in a combat position, people whom you might be accusing of some kind of crime but who are actually not engaged in combat? I would think it would be a simple answer. In fact, I am willing to go home if we can get an answer from the President that says: People not engaged in combat won't be on any target list. It is a pretty simple question to ask and a pretty reasonable question to ask.

After much jockeying and debate with the Senator from Texas asking the Attorney General this question, we finally did get to where it seems as though he was coming toward not trying to but being forced to say it is not constitutional to kill noncombatants.

It should be an easy question. So we will take a telegram. We will even take a tweet. If the Attorney General would tweet us, we can have that relayed to the floor and let him know--let us know that basically they acknowledge that their power is not unlimited.

I don't think this is really an overstatement of the cause. This has been written up. Glenn Greenwald has written this up. Conor Friedersdorf has written this up, talking about if you have a war that has no end, if you have a war that has no geographic limit, and then if you have strikes that have no constitutional bounds, basically what you have is an unlimited imperial Presidency.

This is not a partisan issue. A lot of this began under George Bush. It has been continued, expanded, doubled, and quintupled and made 10 times worse by the current President. But even under George Bush, nobody ever maintained they could kill Americans at home. I can't imagine that the President, when he comes forward and says he has not killed Americans and he does not intend to do it but he might--that somehow we are supposed to be placated by that. Somehow that is supposed to be enough.

This is not the first time we have seen this--not the first time we have seen a reversal of fortunes here, reversal of what I think he stood for as a candidate. I have said many times, probably 10 times today that I admired the President. I admired the President when he was a Senator on many issues. I admired the President when he ran for office. But the President who ran for office and said we are not going to tap phones without a warrant, the President who ran for office and said we are not going to torture people now says we are going to kill people with no due process? I find that incredibly hypocritical and incredibly ironic. I see no reason why he can't come forward and say: We don't get to pick and choose when the fifth amendment applies. We don't get to pick and choose when people can be accused of crime and get no adjudication and be killed by a drone.

I just cannot imagine he can't answer these questions. It is not enough to say: I don't intend to do so.

Last year when we passed the national defense authorization bill, there was included in that the ability to indefinitely detain an individual, an American citizen. In fact, I asked another Senator on my side--I said: Does that mean you can send an American to Guantanamo Bay?

He said: Yes, if they are dangerous.

That would be fine if we all agreed who is dangerous and who committed a crime, but that would be an accusation, and that would have to be adjudicated somehow, and if you don't get a trial, how do we determine your innocence or guilt or whether you are going to be sent to Guantanamo Bay?

The President, like so many times, said: I don't support indefinite detention. I would veto that.

No, no, I won't veto that this time, but I would veto that if I were still Candidate Barack Obama. But I am President Barack Obama, I am not going to veto that.

So instead he says: I have no intention of detaining anyone.

Here is the problem. It is not good enough. The law is for everybody. It is not for saying: Oh, I am a good President. I am very--I went to Harvard. I am not going to detain anybody.

That is not enough. The law is what the law is. If the law allows you to be detained as an American citizen, what about the next guy who is not so high-minded, the next guy who decides he is going to detain political opponents and ethnic groups or people he dislikes? What happens when that happens? It is not enough to say: I don't intend to do something.

I would think the leader of the free world, the leader of I think one of the most important nations if not the most important nation or civilization we have had in historic times--I have high hopes and high estimation of who we are as a people. It is not enough for him to say: I don't intend to break the Constitution. You either believe in the Constitution or you do not.

I think illustrative of sort of this opinion was when I interviewed or asked questions to Senator Kerry when he was being nominated. I asked him these questions about, can you go to war without a declaration of war.

His answer was, oh, of course I will support the Constitution, except for when I won't support the Constitution, when it is inconvenient. It is sometimes hard to go to war, it is messy, there is all this voting stuff, and people don't want to vote to go to war, they don't want to raise taxes. It is just hard to get the votes for war. So when it is inconvenient, I will not.

That is the problem.

He asked me or sort of insinuated that I was an absolutist. I don't know how to halfway believe that Congress should declare war. I don't know how to halfway believe in the fifth amendment. This is not one we are even debating exactly what it means, what the

establishment clause of the first amendment means. There is really not a lot of debate over what due process is. When you are accused of a crime, when you are accused of something, you are indicted. When you are accused, you get a trial, you get due process. Nobody is really debating what that means. Yet the Attorney General for this President has said that the fifth amendment will be applied when they can.

To be fair, I think he is referring to foreign strikes. He is talking about foreign strikes. To tell you the truth, it is kind of muddled, whether the Constitution applies to people in foreign lands or in foreign zones. But that is the whole point of this. The point is that this is America. We are not talking about a battlefield. We are not talking about people using legal force. If you are in America, if you are outside the Capitol and you have a grenade launcher, you will be killed without due process. You don't get due process. You don't get an attorney. You don't get Miranda rights. Nobody thinks that you do. But if you are sitting in a cafe, and somebody thinks you e-mailed your cousin in the Middle East, and they think you are conspiring with them, you should be charged. You should be imprisoned if they can make the charges stick. But they should not just drop a Hellfire missile on your cafe experience.

We have to realize and the President above all people--someone who taught constitutional law should realize that his opinion is not so important. Even as the President, it is not so important. For him to say that he doesn't intend to kill people--I would defy a constitutional lawyer in our country to say that is important. The law is what it is, and he is going to give us a legal interpretation of the law and not what his intent is. To say he hasn't killed anybody yet, to say he has no intention of killing anybody but he might, is just not a legal standard I chose to live by. It concerns me.

It concerns me that we have documents in the United States that are produced by the government that indicate people who might be a terrorist. The Bureau of Justice came out with one last year, and it said people who are missing fingers, people who have colored stains on their clothes, people who have more than 7 days of food might be terrorists. Ironically, another government Web site says that if you live on the coast, you should have 7 days of food because there might be a hurricane, you might need to have the food. But another Web site says that if you do, you might be crazy and a lunatic and a survivalist, and you might be someone we might need to target with a drone. If you see somebody hiding this, you are supposed to report them. If you hear of people who have guns in their house or lots of weatherized ammunition or ready-to-eat meals, they could be on the target list. Of that is whom we are targeting to be terrorists, I would certainly want a trial. I just wouldn't think it would be enough to be accused.

People say: Oh, well, they are just members of al-Qaida, but they don't have a membership card. I don't know that we have looked at anybody's because they are dead; they were blown up with a missile, so no one is looking at their al-Qaida membership card. The thing is in the United States they might say someone is associated with al-Qaida or associated with terrorism. We have had experience with government offices and officials talking about people who might be terrorists.

The Fusion Centers in Missouri said people who are pro-life might be terrorists. They said people who are for secure borders might be terrorists. They said the people who vote for the Constitution Party or the Libertarian Party might be terrorists. So if they believe in signature strikes, I guess if we see the traffic going to the Libertarian Party Convention, that could probably hit a caravan and hit a whole bunch of them at once.

People say that is absurd. The President is not advocating that. He is advocating a drone strike in America, and all we have to compare it with is the drone strike overseas. He doesn't want to talk about it, but when forced to, he says the rules will probably be slightly different inside the United States than they will be outside the United States. I guess he does believe he has a right to have a drone strike program in the United States. He will just have slightly different rules.

I have an important question for him. He needs to give me a call. Is one of the rules of inside the U.S. drone strike program to obey the Constitution that a person will get a trial by a jury of their peers? Is that going to be in the rules for inside America as opposed to outside America?

It is disturbing that it has been so hard to get any information on this. I wouldn't have gotten any information at all--I don't think--had we not gotten some support from the other side.

The Senator from Oregon stood in the committee. In fact, he asked the question before I did. I was fascinated he asked the question. Senator Wyden stood in the Intelligence Committee and asked: Can you do a drone strike on Americans on American soil? John Brennan's response--I kid you not--we need to optimize transparency and we need to optimize secrecy. That was his answer. Here is the followup question: What does that mean? Does that mean you can kill Americans on American soil? What are you trying to say or what are you trying not to say? To Brennan's credit, he finally answered the question only when there was a threat of him not getting out of committee--thanks to the bipartisan support of Republicans and Democrats threatening to hold him up. He finally got out, but on the day we threatened to hold him up, he finally responded.

I sent him questions a month and a half previously, and I finally got an answer after the threat of his nomination not coming out of committee. This is not the way it should work. The President is bragging about how transparent the guy is, that he believes in transparency, that he is such a high-minded fellow, but he won't give any answer unless someone forces him to. The same thing with the President.

So we finally get an answer and John Brennan says: Well, the CIA cannot kill people in the United States, it is against the law. Yes, we knew that. Thanks. Thanks for admitting you are going to obey the law. We feel blessed that you said you will now obey the law. But it is sad that it took a month and a half--and under severe duress--that they have admitted they will obey the law and the CIA will not kill you in America.

The problem is it is kind of a tricky answer because they are not the ones running the drone program. The Defense Department runs the program. You can be sure the CIA is not going to kill you, but the Defense Department might. Still the answer is: We haven't killed anybody yet. We don't intend to, but we might. So that is what we are going to have to be satisfied with.

So we got the answer from the Attorney General, and his was a little more detailed and actually had some good things in it. Basically, he concluded by saying they could conceive of a place where someone could get attacked or where the United States might attack Americans, but the examples they came up with were not what we were asking about. So it is sort of akin to answering a question but answering the question that wasn't asked.

They said: Well, if planes are flying at the Twin Towers and if Pearl Harbor is happening again, obviously, we could see a use for drone strikes. Well, me too. I mean, if we are being attacked and there is a war or even if there is a person with a grenade launcher, we have the ability to respond to that. No one is questioning that. The reason this question comes up is that a significant portion of the drone strikes overseas are occurring on people who are not involved in combat.

Now there are allegations that there are bad people and they may have been in combat but are not currently in combat. The question is: Are we going to use the foreign drone strike model in the United States? Are we going to kill noncombatants in the United States? Are we going to kill people whom we suspect? That sort of gets us to the other question when we talk about what rules and procedures we expect in our country. Do we expect that the police would come and arrest you and put you in jail for the rest of your life because they suspect something? Is suspicion enough? Obviously not. We believe that is the beginning of it. Usually, it involves probable cause and involves a judge to get information.

I have a message here--not from the White House. It is a message saying the White House hasn't returned our phone

calls. If anybody knows anybody at the White House and wants to come, we are looking for an answer from the White House. We have called Justice also. I think the answer says something about the sequester. Maybe they are going to call me when the sequester is over.

I think one of the courtesies they ought to think about is-- particularly if what they are hearing is something that they don't object to--why not end the debate by going ahead and letting us know? Why not go ahead and let us know they agree they are not going to be killing noncombatants. I would think that would be a pretty easy answer for them. In negotiating with any kind of executive branch--this one or others--that when we get a nonanswer or a nonresponsive answer or get a refusal to answer, I think that is when we need to be concerned that the answer is not the answer they want to be public. It is an answer that perhaps the fifth amendment will be optional depending on who is judging the circumstances.

As we look forward and look at some of the information that has been gathered over time on this, one of the interesting articles we have collected on this was an article in the Los Angeles Times entitled ``Police employ Predator drone spy planes on the home front.'' This is an article by Brian Bennett.

Reporting from Washington--Armed with a search warrant,

Nelson County Sheriff Kelly Janke went looking for six

missing cows on the Brossart family farm in the early evening

of June 23. Three men brandishing rifles chased him off, he

said.

Janke knew the gunman could be anywhere on the 3,000-acre

spread in eastern North Dakota. Fearful of an armed standoff,

he called in reinforcements from the state Highway Patrol, a

regional SWAT team, a bomb squad, ambulances and deputy

sheriffs from three other counties.

He also called in a Predator B drone.

As the unmanned aircraft circled 2 miles overhead the next

morning, sophisticated sensors under the nose helped pinpoint

the three suspects and showed they were unarmed. Police

rushed in and made the first known arrests of U.S. citizens

with help from a Predator, the spy drone that has helped

revolutionize modern warfare.

But that was just the start. Local police say they have

used two unarmed Predators based at Grand Forks Air Force

Base to fly at least two dozen surveillance flights since

June. The FBI and Drug Enforcement Administration have used

Predators for other domestic investigations, officials said.

``We don't use [drones] on every call out,'' said Bill

Macki, head of the police SWAT team in Grand Forks. ``If we

have something in town like an apartment complex, we don't

call them.''

The drones belong to U.S. Customs and Border Protection,

which operates eight Predators on the country's northern and

southwestern borders to search for illegal immigrants and

smugglers. The previously unreported use of its drones to

assist local, state, and federal law enforcement has occurred

without any public acknowledgement or debate.

Congress first authorized Customs and Border Protection to

buy unarmed Predators in 2005. Officials in charge of the

fleet cite broad authority to work with police from budget

requests to Congress that cite ``interior law enforcement

support'' as part of their mission.

In an interview, Michael C. Kostelnik, a retired Air Force

general who heads the office that supervises drones, said

Predators are flown ``in many areas around the country, not

only for federal operators, but also for state and local law

enforcement. . . .''

But former Rep. Jane Harman (D-Venice), who sat on the

House homeland security intelligence subcommittee at the time

and served as its chairwoman from 2007 until this year, said

no one discussed using Predators to help local police serve

warrants or do other basic work.

Using Predators for routine law enforcement without public

debate or clear legal authority is a mistake, Harman said.

``There is no question that this could become something

that people will regret,'' said Harman, who resigned from the

House in February and now heads the Woodrow Wilson

International Center for Scholars, a Washington think tank.

The point is it isn't so much about technology. I am not opposed to drones being used even domestically. It is about the individual freedom, it is about the process, and it is about how they are used. For example, just like in national defense, if someone is robbing a liquor store and it is safer to get the robber down with a drone, that is fine. If someone is armed and robbing and threatening people in the liquor store and people as they come out, I don't mind if that person was shot with a drone or a rifle from a policeman. It is what it is. As one of my friends who is a physician would say when people would come in wounded from robbing someone: Well, I guess that is an occupational hazard if you break into homes. The thing is it isn't the force we are talking about, it is whether the process is right. So they can use lethal force when lethal force is threatened. The question about drones is whether they are being used with warrants, if they are spying on someone or doing surveillance on someone.

One of the bills we introduced last year was a bill to require warrants for drone surveillance. This is a hot topic, and I think it will probably get up to the Supreme Court. I don't believe it has yet. There were cases that were talking about GPS tagging of cars, and the Supreme Court ruled they cannot do that without a warrant.

My suspicion is they will rule in favor of warrants on drones too. Although there is some dispute over what they call open spaces. I think that with open spaces we need to be concerned that just because you are not inside your house does not mean you don't still deserve some privacy on your own land. So it is not so much that the drone is necessarily our enemy, but it just allows the government to do so much more. We need to be very careful about the safeguards of the Constitution and requiring whether these safeguards are met as far as protecting our liberty.

This is from the same article from the Los Angeles Times:

In 2008 and 2010, Harman helped beat back efforts by

Homeland Security officials to use imagery from military

satellites to help domestic investigations. Congress blocked

the proposal on grounds it would violate the Posse Comitatus

Act.

The Posse Comitatus Act is pretty important and it has been part of our discussion today and we are not the first person to raise this. The military is not authorized to operate in the United States. Some may say: Why not? The reason is they operate under different rules of engagement than our police do. In Afghanistan, Iraq or in any kind of war theater, they have warrants, they don't have Miranda rights, and they don't get due process in war. At home we do. That is why it is important we get folks to acknowledge this is not a battlefield. America is not a battlefield. It is a place where we have constitutional rights and have for hundreds of years.

The Posse Comitatus Act--after the Civil War--regulated and prohibited the military from acting as a police or taking a police role on U.S. soil. Proponents say the high resolution cameras, heat sensors, and sophisticated radar on the Border Protection drones--and this is the other point--were legislated to be used on the border.

One could argue that there is a Federal role for monitoring borders for national defense and other reasons, but now they are loaning them out to local law enforcement and law enforcement is also buying drones directly. So they have high-resolution cameras, heat sensors, and sophisticated radar on the Border Protection drones that can help track criminal activity in the United States just as the CIA uses predators and other drones to spy on militants in Pakistan, nuclear sites in Iran, and other targets around the globe.

For decades, U.S. ports have allowed law enforcement to conduct aerial surveillance without a warrant. This is part of that sort of open spaces doctrine. I am not saying it makes it right but that the government has been doing it for decades. Some of the courts apparently have ruled that what a person does in the open--even behind a backyard fence--can be seen by a passing airplane and is not protected by privacy laws. I don't think I agree with that. If a person is swimming in their pool in their backyard or in the hot tub, just because we have the technology to be able to see them in their hot tub, does that mean they have a right to look at what people are doing in their backyard? I don't accept that. I think it has been abused and we should be fighting against this surveillance state.

Advocates say Predators are simply more effective than other planes. Flying out of earshot and out of sight, a Predator B can watch a target for 20 hours nonstop, far longer than any police helicopter or manned aircraft.

What I would say there is it seems as though that might be somewhat analogous to the GPS case. The Supreme Court ruled that you can't tag people's

cars and watch them constantly, waiting to see if they break any laws. So I would think the same for a Predator, that you stake them out, watch, and you will eventually get somebody breaking the speed limit or running a stop sign. I don't think that is what was intended.

Howard Safir says, ``I am for the use of drones.'' He is the former head of operations of the U.S. Marshals Service and former New York City police commissioner. He said, ``Drones could help police in manhunts, hostage situations and other difficult cases.''

I agree completely. If someone is being held in harm's way, if someone is being held and threatened, drones are a great idea. So it is not that I am opposed to the technology. I am not particularly excited about them hovering outside our windows looking over our shoulders at what magazines we read, whether we are reading any free market magazines that might be offensive to government officials. So I think we don't want people looking into our activities in our houses without a warrant. But I think in situations where people have already broken the law, there is lethal force being exposed and there are people in danger, why wouldn't we want to use a drone versus a policeman to save the life of a policeman going into a difficult situation. So I think those probably will come to fruition. That doesn't bother me.

In some ways it is a little bit analogous to the situation we are talking about with drone strikes by the military in the United States. It is not so much that anybody is opposed to using a drone to shoot down a plane that is flying in to attack us, or people who are flying into a building to knock a building down, or flying into the Capitol. Nobody is opposed to using a drone when there is a lethal imminent force. The problem is it has gotten so convoluted. The President said an imminent threat doesn't have to be immediate. So that is the kind of thing we are concerned about. We are not concerned about an imminent or lethal threat where someone responds. What we are concerned about is a drone strike against a noncombatant. It seems as though it ought to be an easy question for the President. Couldn't he at least respond and say, I have always believed this, I just forgot to mention it, and we weren't very clear in the way we expressed it but, obviously, we would never use a drone against a noncombatant. He needs to say that, though, because the drones overseas are being used against noncombatants and we need to know what the rules are going to be.

This is a long, drawn-out day, but it is to try to get some answers. It is to try to shame the President into doing the right thing. I think he knows what the right thing is. I think the President, part of him would like to do the right thing. But I think there is a certain stubbornness there too. I think there is a certain belief that he is the President and Presidents have all this power and he doesn't want to give up any of that power. I think some of that we see with Republicans and Democrats, frankly. When people leave the legislative branch and go to the White House, they think, I am a good person. I would never use power wrongly, so why would it be wrong if I got more power? Why would it be wrong if I said, I am going to use the fifth amendment, people will get due process, except for sometimes when I think they are bad people, and then I won't use the fifth amendment, they won't get due process.

Privacy advocates say that drones help police snoop on citizens in ways that push current law to the breaking point. Ryan Calo, director for privacy and robotics at Stanford Law School's Center for Internet and Society, says:

Any time you have a tool like that in the hands of law

enforcement that makes it easier to do surveillance, they

will do more of it. This could be a time when people are

uncomfortable and they want to place limits on that

technology. It could make us question the doctrines that you

do not have privacy in public.

I think that is a good point. Maybe we will question some of the things we have said before about open spaces now that we can crisscross every inch of our open spaces. We have to imagine that we now have drones that weigh less than an ounce, so we are not even talking about the pictures of you coming down--some of us after a while don't want pictures of us in our bathing suit, whether it is 2 miles up or whether it is from 5 feet in front of us. So I can't imagine we would eventually rule that a drone could swoop down and be 10 feet over our fence. What is the question going to be? Can they be 10 feet over our fence or 2,000 feet in the air and still snoop without any kind of problem at all?

Do we want to live in a police state is basically what the question is. Do we want to live in a surveillance state? It is going to take people to stand up and say enough is enough, that we are not going to do this, instead of everybody being like a herd of lemmings and going off the cliff saying, ``Lead me, lead me, take care of me.''

We have to ask the question that Franklin asked: Are you going to trade your liberty for security? Are you so fearful, are you so afraid that you are willing to trade your liberty for security? That is sort of the underlying question to this entire debate.

The Los Angeles Times article continues:

This can be a time when people are uncomfortable and they

want to place limits on that technology. It could make us

question the doctrine that you do not have privacy in public.

This is from a June 13 article, 2012, in ``Wired'' magazine by Lorenzo Franceschi-Bicchierai:

We like to think of the drone war as something far away,

fought in the deserts of Yemen or the mountains of

Afghanistan. But we now know it is closer than we thought.

There are 64 drone bases on American soil. That includes 12

locations housing Predator and Reaper unmanned aerial

vehicles, which can be armed.

Public Intelligence, a non-profit that advocates for free

access to information, released a map--

which is probably not a very good idea to release a map of where our drone bases are in the United States.

The possibility of military drones as well as those

controlled by police departments and universities flying over

American skies have raised concerns among privacy activists.

The other thing that should concern everybody, and probably people saw this as they had some university students seeing if they could commandeer a drone. So they had a drone fly over and the guy who didn't know the frequency all of a sudden within 2 minutes is commandeering the drone. There are questions whether that is what happened in Iran or whether the thing landed accidentally. I don't know the answer to that, but I think it is of concern that the drones could be commandeered and used by the people. It is also a concern that ultimately our enemies are going to have these drones too, and so while war is a messy thing and there are a lot of imperfections to war, I think the way we act in war should be the way we ultimately want to be treated in war. It is easier said than done and I don't think it is an easy doctrine, but it is something I think we should aspire to.

The possibility of military drones as well as those

controlled by police departments and universities flying over

American skies has raised concerns among privacy activists.

The American Civil Liberties Union explained in its December

report that the machines potentially could be used to spy on

American citizens. The drones' presence in our skies threaten

to eradicate existing practical limits on aerial monitoring

and allowing for pervasive surveillance, police fishing

expeditions, and abusive use of these tools in a way that

would eventually eliminate the privacy Americans have

traditionally enjoyed in their movements and activities.

I have told people that when I first read ``1984,'' I was bothered by it. Everybody is bothered by Big Brother being able to have these two- way televisions in your house and they see everything you do. You can't escape Big Brother. But part of the consolation I had and part of the feeling was, Well, they can't do this. The technology doesn't exist. When I was a kid it didn't exist.

It is amazing, though, to think that Orwell writes this in 1949, before any of this technology. We were getting closer in the 1970s when I was a kid and now we are there, though. The technology is there. So while technology is not an enemy and technology is not something we can or should ban, technology makes our privacy more important, it makes the defense of our privacy something that needs to be guarded more jealously, because our government now does have the technology to see our every movement, to monitor our every move. So do our enemies, for that matter. So one can imagine, we don't want

the police GPS tracking us and we probably don't want our political opponents tracking our car, either. So there have to be some protections of privacy.

The issue and discussion of privacy has been one that conservatives and people on the right haven't always been as unified about. Libertarians on the right have been better with these issues and some conservatives have as well. But the question has always been, Do you have a right to privacy? I have always said, Sure, you have a right to privacy. I can't imagine why you wouldn't have a right to privacy.

Some on the conservative side say, Well, you don't have a right to privacy; nobody talked about it in the Constitution. You don't necessarily have a right to privacy. I have to disagree because I think what is talked about in the Constitution are the freedoms we gave up or agreed to have limited. The freedoms that you didn't agree to have limited are unnamed. They are unenumerated. And the 9th and 10 amendments say they are to be left to the States and people. The 9th and 10th amendments say that there is a plethora of rights, there is an unlimited amount of rights and they are yours. They stay with you, unless the government explicitly takes these rights away from you.

So the conclusion I come to with the right to privacy is I think you do have a right to privacy. I think we have a right to private property. Private property isn't listed in the Constitution, either, but I think all of our Founding Fathers believed in private property and some of them talked about actually putting the words in there. But I think some of them liked more the idea--instead of life, liberty, and property, they liked life, liberty, and the pursuit of happiness, and I think it has a more noble ring to it because it is not talking about the property, but pursuit of happiness does involve the pursuit of gaining things you will own.

One of the things about our government and about the rule of law, and one of the things that frankly I think a lot of people don't think about but that makes us an incredibly prosperous Nation is the certainty of the law. By that, what I mean is the certainty of ownership. This gets to sort of the idea of not only do we want these rights for the civil protections so we can't be incarcerated or accused of a crime falsely without being able to defend ourselves, we also want the rule of law to be consistent for everyone and not mutable. We don't want it to be arbitrary. We don't want the whims of any politician or any executive to be able to decide what the law is.

This isn't the first time I have had some disagreement with the President on this. When we had some of the bankruptcies, when the car companies were going bankrupt, I believe it was with the Chrysler bankruptcy, that as things went through, there were people who were creditors and they owned part of the company.

I learned this firsthand because I actually had some Fruit of the Loom. When Fruit of the Loom went bankrupt, I thought, well, I will get something, right? They will be bought out, and I will get some money when they are bought out. I did not get anything. I was an unsecured creditor. Apparently, in the Chrysler thing, so were the labor unions.

Usually what happens is that as a company, unfortunately, goes bankrupt, all those contracts would be renegotiated, and really then the car companies could become competitive. They could become like Toyota or other successful companies that are nonunionized. And they might become successful again.

But instead we took the actual bankruptcy law and turned it on its head. When we do this and when we bail out banks and things and change the rules at midpoint, it changes what investors do, and it changes that certainty investors need either in banks or in car companies.

Pension plans invest in a lot of these things. So a lot of people think, oh, well, the President had preference for the union because he liked the union. Well, that is fine. But teachers are in a union too, and they had a pension plan, and they owned Chrysler stock, and they got ripped off because he changed the law and gave the money to the autoworkers' union. But he took it from somebody else.

The problem is that you need those pension funds, some of which are for regular working folks. Firemen have them. Police have them. Teachers have them. It is one of the things that were not fully explained in the Romney campaign. He got so much grief for running these funds, but a lot of the people who became successful along with him and who made money were just average, ordinary citizens who are teachers, firemen, and policemen. Their pension plan was there in Bain Capital. I think that was never fully explained.

But my point is, with the rule of law, that certainty is what creates wealth in our country. One of the reasons it is hard for Africa to get ahead--Africa has great resources--diamonds and minerals. One of the big reasons they do not get ahead is there is corruption in their government. Some of that corruption we aid and abet because we give foreign aid directly to corrupt governments that steal it.

Mubarak was one of the richest men in the world--probably worth between $5 and $10 billion, maybe between $15 and $20 billion. We gave him $60 billion, so I guess we should be thankful he only stole one- third of it. Mobutu in Central Africa stole billions. There was no running water, no electricity. He and the soldiers around him lived high off the hog, and they took our money and stole it as well.

But the problem is that not only do you have the kleptocracy and the stealing of foreign aid, but then you do not have the certainty of your property. A lot of capital formation in our country is based on your home loans. It used to be before the housing market went south, but it still is. It is where a lot of capital comes from, particularly for average, ordinary citizens borrowing against their house.

If you do not have that certainty of the law, it is a problem. So what we are talking about today is more certainty of your liberty from unfair prosecution or unfair arrest or unfair death, ultimately, from a drone, which takes consistency of law, which takes that the Constitution will be adhered to and will be adhered to consistently and not in an arbitrary fashion. So it is important not only for your civil liberties, it is also important for your private property as well to have a rule of law.

People talk about a rule of law, and they talk about it all the time. I do not think it fully gets through to everybody exactly what a rule of law means and how important it is. Hayek wrote that nothing more clearly distinguishes an arbitrary society from a stable society than the rule of law. He said that the rule of law is what gives that certainty to the marketplace. So it is not enough just to have freedom. You can have complete and random anarchic freedom, and you may well not get prosperity if you do not have a law that stabilizes things. You have to have a police force and a judiciary that enforces contracts.

So that is a lot of what goes on in the developing world that they do not have. They have kleptocracy, which we aid and abet by giving them money and giving it to thieves because the thieves are our friends, not somebody else's friends. But then they also have this instability by not having a rule of law.

The drones' presence in our skies ``threatens to eradicate

existing practical limits on aerial monitoring . . .

This comes from an article in Wired by Lorenzo Franceschi-Bicchieri.

As Danger Room reported last month, even military drones,

which are prohibited from spying on Americans, may

``accidentally'' conduct such surveillance--and keep the data

for months afterwards while they figure out what to do with

it.

The material they collect without a warrant, as scholar

Steven Aftergood revealed, could then be used to open an

investigation.

The Posse Comitatus Act prohibits the U.S. military from

operating on American soil . . .

So once again, if we go back to asking the President this question: Can you do military strikes on Americans on American soil, you know an easy answer is, I will obey the law. The law says he cannot do it. Yet he indicates that he is going to have different rules inside America than outside America for his drone strikes, which implies that he thinks he can do it.

The Posse Comitatus Act expressly forbids the military from operating in the United States. So if he is going to kill Americans in America, it will either be in defiance of the Posse Comitatus Act or he is going to have to arm the FBI with drones to kill people.

The problem is that I think once he gets into the FBI, the ludicrous nature of what he is asserting will really be paramount. I cannot imagine that he can argue at that point that we are not going to obey the Bill of Rights with the FBI because we already do with the FBI.

So many of the answers are pretty simple here and pretty easy, and I just cannot imagine why he is resisting doing this.

This new map comes out almost two months after the

Electronic Frontier Foundation revealed another one, this

time of public agencies--including police departments and

universities--that have a permit issued by the Federal

Aviation Agency to use [drones] in American airspace.

``It goes to show you how entrenched drones already are,'' said Trevor Timm, an EFF activist, when asked about the new map. ``It's clear that the drone industry is expanding rapidly and this map is just another example of that. And if people are worried about military technology coming back and being sold in the US, this is just another example [of] how drone technology is probably going to proliferate in the US very soon.''

This is another article from February of 2013.

This is in Wired. It is called ``Domestic-Drone Industry Prepares for Big Battle with Regulators.''

For a day, a sandy-haired Virginian named Jeremy Novara was

the hero of the nascent domestic drone industry.

Novara went to the microphone at a ballroom in a Ritz-

Carlton outside Washington, D.C. . . . and did something many

in his business want to do: tenaciously challenge the drone

regulators at the Federal Aviation Administration to loosen

restrictions on unmanned planes over the United States.

Judging from the reaction he received, and from the stated

intentions of the drone advocates who convened the forum, the

domestic-drone industry expects to do a lot more of that in

the coming months.

There's been a lot of hype around unmanned drones becoming

a fixture over U.S. airspace. . . .

You may have seen just 2 days ago, I think, a pilot coming into New York City saw one on the way down. And I saw the report, I think yesterday, saying they are still asking whose drone it was. You would think certainly we would have found out in 24 hours. I would think for certain it probably would be a government drone. But it is a little worrisome that they are seeing drones, that they do not know who is flying them or where they are as far as getting in the way of our commercial airliners.

There's been a lot of hype around unmanned drones becoming

a fixture over U.S. airspace, both for law enforcement use

and for operations by businesses as varied as farmers and

filmmakers.

It sort of leads to another point--that it is not the technology that we are opposed to. There are going to be all kinds of private uses for drones. There have to be some rules for where they are flown so they do not get in the way of airplanes. But I would think farmers and ranchers might want to use drones to, I don't know, count their cattle or their sheep. I do not know if you do that. But there are going to be private uses for these drones that will not be objectionable.

All have big implications for traditional conceptions of

privacy, as unmanned planes can loiter over people's

backyards and snap pictures for far longer than piloted

aircraft.

The government is anticipating that drone makers could

generate a windfall of cash as drones move from a military to

a civilian role. Jim Williams of the Federal Aviation

Administration told [a conclave of the drone manufacturers

conference] that the potential market for government and

commercial drones could generate ``nearly $90 billion in

economic activity . . . ''

But there's an obstacle: the Federal Aviation

Administration.

The FAA has been reluctant to grant licenses out of fear that the drones, which maneuver poorly, have an alarming crash rate, and are spoofible, don't have the sensing capacity to spot approaching aircraft, which could complicate and endanger U.S. airspace.

The FAA has been criticized some by--there is a group

called the Electronic Frontier Foundation--for not being

transparent about its licenses. And they have filed Freedom

of Information Act because they would like to know whether

the intentions of those putting the drones up is benign or

whether it involves some kind of surveillance.

We talk a lot about the government spying on us, but I think there is great potential for your competitors, your enemies, and other people to spy on you with drones, particularly as they become cheaper. Those issues will be complicated. I think one way to sort of rectify or give an answer to those is to say your property from where it starts on the ground up is yours. People can fly over it, but I do not think they should be able to snoop and look down in it--I think probably private or public looking down on your property. That will be something, though, that the courts will continue to have to work out.

There was a push last year by Congress and the Obama administration directing the FAA to fully integrate unmanned aircraft into American skies. It has not been nearly enough for the drone makers. The FAA is months late in designating six test sites for drones around the country. The question is when the test site selection will begin. ``I'm sure that's what all of you are asking now,'' says Williams, the head of the FAA's drone division.

Drone makers are also frustrated by the logic of existing

FAA regulations. Currently, a drone weighing under 55 pounds,

flying below 400 feet within an operator's line of sight and

away from an airport is considered a model airplane and

cleared to fly without a license. That is, if it is not

engaging in any for-profit activity--sort of. ``A farmer

can be a modeller if they operate their aircraft as a

hobby or for recreational purposes.''

Enter Novara, a 31-year-old who owns a small drone business

in Falls Church, Va. called Vanilla Aircraft. ``If a farmer,

who hopefully is profit-minded, can fly as a hobbyist an

unmanned aircraft,'' Novara challenged Williams, ``why can't

I, as the owner of an unmanned aircraft company, fly as a

hobbyist my own unmanned aircraft over property that I own?

The guidelines before this were that any commercial intent is

prohibited, but . . . ''

The bottom line is that there is going to be a lot of things we are going to enter into with private drones. But opposition to the technology, either for military purposes or for private purposes, is not something we are going after. What we are talking about is whether your privacy will be respected and whether your constitutional rights will be protected.

This is a new article from today by Conor Friedersdorf. It is called ``Killing Americans on U.S. Soil: Eric Holder's Evasive, Manipulative Letter.''

On December 7, 1941, Japanese warplanes bombed the U.S.

naval base at Pearl Harbor, Hawaii. Six decades later, al-

Qaeda terrorists flew hijacked airplanes into the World Trade

Center and the Pentagon. Neither President Roosevelt nor

President . . . Bush targeted and killed Americans on U.S.

soil in the aftermath of those attacks. Doing so wouldn't

have made any sense.

How strange, then, that Attorney General Eric Holder

invoked those very attacks in a letter confirming that

President Obama believes there are circumstances in which he

could order Americans targeted and killed on U.S. soil.

It is kind of strange. The things that he gives as justification are things in which we did not kill Americans.

It's possible, I suppose, to imagine--

These are Eric Holder's words now.

It's possible, I suppose, to imagine an extraordinary

circumstance in which it would be necessary and appropriate

under the Constitution and applicable laws for the President

to authorize the military to use lethal force within the

territory of the United States. For example, the President

could conceivably have no choice but to authorize the

military to use force if necessary to protect the homeland in

the circumstances of a catastrophic attack like what happened

in 1941 and again on 9/11. This very scenario to be guarded

against is a President using the pretext of a terrorist

attack to seize extraordinary powers. Isn't that among the

most likely scenarios for the United States turning into an

authoritarian security state?

To be sure, if Americans are at the controls of fighter jets en route to Hawaii, of course Obama could order that they be fired upon. If Americans hijacked a plane, of course it would be permissible to kill them before they could crash it into a building. But those are not the sorts of targeted killings we are talking about. What we are talking about is killing people not engaged in combat because you suspect them of being a terrorist.

If you read to the end of Holder's letter, to the passage

where he said--

This is Friedersdorf again.

If you read to the end of Holder's letter, to the passage

where he says, ``Were such an emergency to arise, I would

examine the particular facts and circumstances before

advising the president on the scope of his authority,'' it

becomes clear that, despite invoking Pearl Harbor and 9/11,

even he isn't envisioning a response to an attack in process,

which would have to happen immediately. So what does he

envision? If he can see that a

``for example'' is necessary to explain, he ought to give us

a clarifying example rather than a nonsensical one that seems

to name-check events for their emotional resonance more than

for their aptness to the issue.

Elsewhere in his letter, Holder writes that ``the US

government has not carried out drone strikes in the United

States and has no intention of doing so. As a policy matter

moreover, we reject the use of military force where well-

established law enforcement authorities in the country

provide the best means for incapacitating a terrorist

threat.'' Interesting they reject it ``as a policy matter,''

but aren't willing to reject military force in the United

States as a legal matter--

That is a good distinction--

even in instances where law enforcement would better

incapacitate the threat. For the Obama Administration,

conceding that the executive branch is legally forbidden to

do certain things is verboten,--

So it is kind of interesting. When they are willing to admit to any kind of limitations on their power they say: ``Policywise'' they might be limited, but they are not willing to say ``legally'' they are limited. This is a problem of not just this administration, but the previous one of thinking that any kind of inch that they give to another branch of government, that they will be losing some of their power and they are unwilling to do it.

Friedersdorf goes on to say that:

For the Obama administration, conceding that the executive

branch is legally forbidden to do certain things is verboten,

despite the fact that an unchecked executive is much more

dangerous than the possibility of a future President failing

to do enough to fight back against an actual attack on our

homeland.

Any thinking person can see that Holder's letter is non-

responsive, evasive, and deliberately manipulative in its sly

reassurances, right down to the rhetorically powerful but

substantively nonsensical invocation of 9/11. (Being more

subtle about it than Rudy Giuliani doesn't make it right.) To

credulously accept this sort of response on an issue as

important as this one is behavior unfit for any citizen of a

free country, where safeguarding the rule of law is a civic

responsibility. The time to discuss the appropriate scope of

the president's authority is now.

I know many would rather defer this, they would rather do this at another time. But the thing is, it is now. We brought the issue up. We have spent a lot of time on this issue. Why not have a discussion, instead of putting me off and saying: Oh, we will have a committee hearing on it. Sorry you are not on that committee, but we are going to have a committee hearing on this at a later date. It will never be discussed. Nothing ever happens around here. I mean, they promise you stuff. They say: We are going to take care of it. But it never happens. I think it never will.

The time to discuss the appropriate scope of the

president's authority--

This is Friedersdorf again.

The time to discuss the appropriate scope of the

president's authority is now, not in the aftermath of a

catastrophic attack on the nation, as Holder suggests. The

fact that he disagrees speaks volumes about team Obama's

reckless shortsightedness.

This is another article from Wired. This is from today. This is by Spencer Ackerman.

The Obama administration calls it ``targeted killing.''

Steven Segal would call it getting marked for death. It's the

practice of singling out an individual linked to a terrorist

group, for killing, and it's been played out hundreds of

times in the 9/11 era--including more recently against U.S.

citizens like al-Qaida's YouTube preacher Anwar al-Awlaki.

The Obama team has said next to nothing about how it works or

what laws restrict it. Until Monday.

Attorney General Eric Holder explained the administration's

reasoning for killing American citizens overseas--and only

overseas--with drone strikes and other means during a Monday

speech at Northwestern University. Holder claimed that the

government can kill ``a U.S. citizen who is a senior

operational leader of al-Qaida or associated forces''

provided the government--unilaterally--determines that

citizen poses ``an imminent threat of violent attack''--

Once again, a little bit of a problem on the imminent doctrine is that ``imminent'' does not have to mean ``immediate.''

--he can't be captured; and ``law of war principles,'' like

the use of proportional force and the minimization of

collateral damage, apply.''

The reason why some of this is important--even though he is talking about overseas now and not what we are trying to talk about here is that since we have not been given sort of the parameters for how they will kill Americans in America, we can only assume that they will work with the parameters they have overseas. The whole idea that an imminent threat is not immediate is problematic no matter where that doctrine is used.

The idea that the law-of-war principles--I think proportional force is a good idea as far as trying to restrain how much force we use. But there are other things within the law of war that we need to be concerned about; things that happen in war are not quite the same kind of standard that we would have in the United States.

Ackerman goes on and he says:

This is an indicator of our times.

This is actually Holder.

This is an indicator of our times, not a departure from our

laws and our values. The debate over killing Awlaki, whom

Holder barely discussed, began long before a Hellfire missile

fired from a drone killed him and fellow propagandist Samir

Kahn in September. Awlaki's father sued the Obama

administration in 2010 to compel it to reveal its legal

rationale for the long-telegraphed strike. The administration

refused, with a judge's support.

For months after Awlaki's killing, the government never

disclosed any evidence supporting its decision that Awlaki

posed an imminent danger to Americans beyond his rhetoric of

incitement. But during the February sentencing of the

``Underwear Bomber,'' the government put forward a court

filing claiming that Awlaki worked intimately with convicted

would-be bomber Umar Farouk Abdulmutallab--

Who was the Underwear Bomber.

--to blow up Northwest Airlines. Holder referred to that

connection in his speech.

Several legal scholars have wondered why the United States

did not have to provide Awlaki with due process of law before

killing him, as stipulated under the fifth amendment. Holder

contended that the United States actually did, even if no

judge ever heard the case.

Well, this is sort of an interesting point. I am not making an opinion on whether the fifth amendment applies to al-Awlaki overseas. I think a lot of that is complicated and not necessarily certain whether you can apply the Constitution to people outside the United States, or whether an entity within the United States should obey the Constitution on people outside the United States.

The bottom line is, in war you are not going to get due process. You are not going to get Miranda rights if you are fighting in battle. It is a little more debatable when you are not. The point is, though, that they are saying they are applying the fifth amendment sort of in private to al-Awlaki.

The question is, if this is the standard that is going to be used in the United States, it is not going to be the actual use of the fifth amendment, which means a court and a jury, it is going to be the pretend use that is done behind closed doors. I am not so sure you can have the fifth amendment that does not involve a courtroom. I just do not understand a grand jury indictment, due process, not to be deprived of life and liberty. I do not how it happens in private.

But that is the way they are administering the fifth amendment in private. They are using their discretion as to when to administer the fifth amendment. I do not know how that is going to work. I also do not think that is appropriate for U.S. citizens. So other than the President asking and answering a question as to whether noncombatants will be killed in America, we need to ask whether he is going to-- before he kills them, is he going to use the fifth amendment in private in the Oval Office, or is the fifth amendment going to be public? If it is public, I do not know how you kill someone. If you are going to get some kind of due process, you would have to get tried in a court. I am not sure how this would go forward.

This is an additional quote from Holder from the same speech:

The Constitution's guarantee of due process is ironclad,

and it is essential--but, as a recent court decision makes

clear, ``it does not require judicial approval before the

president may use force abroad against a senior operational

leader of a foreign terrorist organization with which the

United States is at war, even if that individual happens to

be a U.S. citizen.''

Well, that is kind of confusing. If that is going to be the standard here, I would be quite concerned. The standard over there--I think there are arguments on both sides of it. But the standard over here, I cannot imagine that this is the standard we are going to use. Because basically he is saying the Constitution applies unless we think it does not apply, and then decide it does not apply.

But then he says, as long as we are at war. Well, who are we at war with? We are at war basically with anybody who

does not like us around the world. I am not sure if there is ever an end to that. I think there are problems overseas. But particularly the problem is--I think the problem at hand that we are trying to get to the root of is, is this the standard? If you are using this standard overseas, are you going to use the standard here that basically the fifth amendment applies when we think it applies, and it does not apply when we do not think it applies?

This is Ackerman, at this point, from Wired again.

Holder did not explain why Awlaki's 16-year-old son, whom a

missile strike killed two weeks after his father's death, was

a lawful target. Holder did not explain how a missile strike

represents due process, or what the standards for due process

the government must meet when killing a U.S. citizen abroad.

Holder did not explain why the government can only target

U.S. citizens suspected of terrorism for death overseas and

not necessarily domestically.

As I said, a lot of these things overseas you can debate and try to decide whether this is a war zone or not a war zone. But they obviously do not apply in the United States. The most troubling thing about the killing of the 16-year-old son of Awlaki is the President's spokesman's response to this. You know, the flippant nature of it and the irresponsible nature for him to have said: Well, he should have chosen more responsible parents. If that is the standard we are going to have for killing Americans on American soil, that we are going to kill people who do not have responsible parents, we have set the bar pretty low for our killing program.

I think al-Awlaki was killed--I don't know. I have not seen the classified information. I think the son was killed probably when they either targeted someone else or they did what they call these signature strikes where they don't know whom they are killing necessarily. They just think they are bad people, they came from a meeting of other bad people:

The decision to kill an American, Holder said, is ``among

the gravest that government leaders can face.'' Targeted

killing is not assassination, he argued, because

``assassinations are unlawful killings.'' Among the few

external limitations on the government's war power that

Holder mentioned were the approval of a local government

where the strikes occur--which must have pleased reluctant,

unsteady U.S. Allies in Pakistan and Yemen.

He is saying an interesting thing, and probably Pakistan has approved of most of the killings. However, Pakistan wants to come in and wants to convince and say: No, we haven't. They are doing it against our will, but my guess is they have been told.

Some Members of Congress don't consider that a sufficient

safeguard.

``The government should explain exactly how much evidence

the president needs in order to decide that a particular

American is part of a terrorist group,'' says Sen. Ron Wyden,

an Oregon Democrat who sits on the Senate's Intelligence

Committee. ``It is also unclear to me whether individual

Americans must be given the opportunity to surrender before

lethal force is used against them. And I'm particularly

concerned that the geographic boundaries of this authority

have not been clearly laid out.''

The point on the geographic boundaries is a pretty important point because this is one of the concerning items about what they maintain. They say there are no geographic limitations. They say they get the authority for war everywhere around the world, as well as war here, because they say there were no geographic limitations to the use of authorization of force when we went to war in Afghanistan.

I think people who voted for that--and I would have voted to go to war in Afghanistan--thought we were going to Afghanistan to fight the people who got us on 9/11.

I don't think they thought, when they voted for that resolution, it meant we could have war in the United States under that resolution and that the standard would be one of the laws of war or one of martial law within the United States. I don't think anybody voting on it had that conclusion. That is a real problem. Those people are saying, including the administration is saying, no geographic limitations and, essentially, there are no temporal limitations. We have a perpetual war without any geographic limitations, which now they want to apply war principles to killing in the United States.

Ackerman continues quoting Senator Wyden:

``And based on what I've heard so far, I can't tell whether

or not the Justice Department's legal arguments would allow

the President to order intelligence agencies to kill an

American inside the United States.''

He is unclear about it, and he has seen a lot more information than I have because he is on the Intelligence Committee and sees secure and classified information. He is unsure of it.

This makes me think nobody in the Senate or the Congress knows whether they are asserting whether they can kill Americans on American soil.

Mary Ellen O'Connell, the vice president of the American

Society of International Law, found Holder's legal rationale

flimsy, stating:

``First, [Holder] restates the renamed global war on

terror, which Obama himself condemned. Then he tries the

United Nations Charter Article 51 but does not include the

whole article: It says member states of the U.N. have an

`inherent right of self-defense' if an armed attack occurs.

Article 51 does not provide a legal green light for targeted

killing,'' O'Connell said in an e-mail. ``Finally, he adds

the argument that the U.S. may use force against States that

are `unable or unwilling' to act. This argument has no basis

in international law. It simply does not exist. So regardless

of how carefully you target under the law of armed conflict,

there is no right in the first instance to target at all.''

Without yielding the floor, I would like to entertain a question from the Senator from Utah.

Mr. President, I would like to thank the Senator from Utah for his expert constitutional analysis, and I rely on his advice and analysis of legislation and want to thank him very much for being part of this debate.

We are in contact with the White House, and we have told the White House we will allow debate on Brennan as soon as they will give a clarification of what their opinion is on drone strikes in America.

I think after Holder's cross-examination, his opinion may not be too far off from what we are asking for. But we want it clarified and in writing because we think this is an important battle

for the American public and an important battle for the Constitution. So if the President or the Attorney General will promise to give us something, even give us something by morning, we are more than willing to go ahead with the vote in the morning with that information.

At this time, without yielding the floor, I wish to entertain a question from the Senator from Wyoming.

Madam President, I thank the Senator from Wyoming for coming to the floor and helping to advance this debate. One of the points that was made toward the end is about our soldiers he visited and that he saw the capacity of the drones. The one thing that should not be lost here is that we are not arguing about the use of drones, particularly in defense of our military. When people are shooting at our soldiers I want the best equipment in the world that we have to defend them and to win our battles. That is something I think we should all want.

But I think our American soldiers would be disappointed in us here at home if they felt, which I think many of them do, that they are fighting for our Bill of Rights, they are fighting for our Constitution, they are fighting for our conception of freedom--in doing so, I think they would be disappointed if they felt the drones that were being used against the enemy in the mountains of Afghanistan and Pakistan were going to be used against Americans in America without any kind of due process, because the whole idea of the Constitution is what they are fighting for. That is what the President has pledged to uphold and preserve. So it is such an important battle.

The unanimous consent that we put forward, which we had hoped they would let us vote on in the morning also but they have disagreed with, basically says the use of drones to execute or target American citizens on American soil who pose no imminent threat clearly violates the constitutional due process rights of citizens.

The point we are trying to get at, which I think for the administration ought to be an easy question--we are not talking about someone attacking the Twin Towers. We are in agreement that the military can repulse attacks by American citizens in planes. Some of the hijackers--I think some of them--I don't know if any of them were citizens or not but--yes, some of them were citizens, I think. The point is, no matter who you are, if you attack the United States you can be repelled and that lethal force can be used.

The point is we are concerned that some of the drone strikes overseas are of people not involved in combat at the time, and that is another question, but here at home I don't think we want to have a standard where someone who we think might be a terrorist, who we think might be engaged in something, who is in a restaurant eating dinner, would be killed. I think we want more protections for Americans. We want, if you are accused of a crime, to have the ability to defend yourself in a court of law.

I, without relinquishing the floor, would be happy to entertain any other questions.

Madam President, one of the things I hear at home, similar to what the Senator from Wyoming is talking about, is that we hear people worried about the erosion of their rights. They worry about statements from the President when the President says he intends to protect the Constitution--except for maybe when it is infeasible or when it is inconvenient. I think that worries people.

One of the other things about drones, which is not particularly related to this, necessarily, but I know in Wyoming I bet they have the same concerns, is our farmers are not too happy about the government flying drones over their property. That is something on which we had an interesting vote last year. We had a vote on whether the EPA could continue these without explaining to us. Once again, it was sort of similar to this fight in the sense that we wanted to stop the drone flights over farms. It was a pretty simple request, an easy request until we got the government to explain what kind of criteria, what kind of rules they were using for flying over farms.

We got 56 Senators to vote to ban these drone flights until we got more information. But it is like a lot of other things in the Senate, it took 60 votes, so we didn't actually quite win even though we had a majority.

With regard to what we are trying to accomplish through this, the main thing we want is a public acknowledgment from the President or from the Attorney General, saying that their policy is not to kill noncombatants in America. Many of the drone strikes overseas have been noncombatants--at least at the time they are killed they were not involved in combat. I don't think it is too much to ask the President to clarify that what he means is the United States can repel invasion, the United States can repel attacks, whether they are American citizens or not. We don't have a dispute with that. Our concern is when you look at the drone program overseas, a lot of people are sitting around eating, walking, sleeping in their house--that that is not the sort of a program I can imagine using in the United States. I cannot imagine we are going to have drone strikes on people while they are asleep in their home or when they are out eating in a cafe or eating in a restaurant. I cannot imagine that is the standard we are going to use. Maybe it is just a misunderstanding. Maybe the President can clear this up.

When Attorney General Holder was there this morning, the Senator from Texas asked him this question and under pointed questioning it seemed as if he was backing toward an answer that might be acceptable. He said it was not appropriate, but what we are looking for from the lead legal officer of the President, from the President, is something a little more precise than ``I don't intend to,'' or a little more precise than ``it is not appropriate.'' We would like him to say that they don't have a legal authority to kill Americans on American soil. We just don't believe they do. Targeted drone strikes in America, I don't think they have the legal authority nor the constitutional prerogative to do this, and they need to admit to that. It has been like pulling teeth trying to get information or get them to acknowledge anything. Our goal is to try to get the President to acknowledge something publicly, more so than any kind of legislation.

We do have some legislation that we are interested in. We are not demanding that it pass in order to let this nomination go forward. What we are asking for is we will let them have a vote any time they want if they will at least give us a little more of a clear understanding that they are going to obey the law. It took a month and a half for us to get the response from them that the CIA doesn't operate in the United States; that just is the law. It has been the law since 1947.

One would not think it would be that hard to get them to acknowledge they are going to obey the law. The posse comitatus law has been here since the 1860s, and it says the military doesn't operate in the United States. How hard is it for the administration to say we are going to adhere to the posse comitatus law and that we are not going to use the military in the United States? That clarifies quite a few things because if they think they are going to kill Americans with the FBI, at least we already know the FBI works under the rules of the Constitution. I would think at that point we are getting somewhere or at least moving in the right direction.

We are not looking for something where we permanently stop the President from getting his political appointees. I have mentioned previously I voted for three of the President's political appointees. My point in being here doesn't have so much to do with the CIA Director as it has to do with the policy of the administration on drones. He just happens to have been in charge of that policy on drones and the CIA has something to do with drones overseas. At least Brennan has been forthright and finally came forward with a letter that says the CIA doesn't operate in the United States.

Unfortunately, Attorney General Holder's response has been somewhat muddled in the sense that he kind of says we have not yet, we don't intend to, but we might. Now he says there is an extraordinary circumstance, but his extraordinary circumstance doesn't quite make any sense because it is 9/11 or Pearl Harbor. Well, in both of those instances we would react immediately to stop somebody, but they would not be targeted drone strikes. I cannot imagine that we would know the person's name and who they are when they are flying a plane into a building. We would respond to them, but it would not have anything to do with the targeted drone strikes. It is sort of answering a question that wasn't asked.

At this time, Madam President, and without yielding the time, I wish to entertain a question from the Senator from Wyoming.

Madam President, we sent our last letter to John Brennan, I believe, in the latter part of January. We got no response. We then sent him a second letter in the first or second week of February and got no response. We then sent our third letter, which I believe is the letter the Senator was reading from, and that was a couple of weeks ago. We got no response to any of these letters.

However, when the committee--both Republicans and Democrats--was holding up his nomination last week and the chairman of the committee asked for a response, all of a sudden we got a response. The response from Brennan was actually encouraging. The response, I believe, was this morning or yesterday. The day has kind of run together. That response was basically that the CIA doesn't have the authority to operate in the United States and that is the rule. It has been the law since the 1947 National Security Act.

Our concern is that the Attorney General's response has been a little more vague. Basically they have not done any killings in the United States yet. They don't have any intention to, but they might. The problem with the ``they might'' part is they left it kind of vague. They said it would have to be extraordinary, but they point out two occurrences in which they would not have targeted drone strikes. They point out Pearl Harbor and 9/11.

In both of those instances, I think it is appropriate to respond militarily, but they would not have targeted drone strikes. They might use drones, but they would not have targeted drone strikes because they would be responding immediately to someone attacking us. I think we all agree that we can respond to lethal force at any point in time.

I think the problem is the drone program around the world often targets

people who are not in combat. It is hard for me to imagine that we would have people who--I don't know if they are conspiring or what they are doing--are talking to an individual or someone in a restaurant or cafe, that we wouldn't arrest them.

The ranking member on the Intelligence Committee made a good point. He said: Particularly if they are in a noncombat area in the United States, wouldn't you want to arrest them to get some information from them to see if they might be a threat? One reason would be to see if they are innocent or guilty. If they are truly guilty, you would probably be able to get some information from them by interrogating them.

The Senator asked the question about the limitations. That is ultimately what we are asking Brennan, Eric Holder, the Attorney General, and the President. What limitations do you cede to your authority? The President takes an oath that he is going to preserve, protect, and defend the Constitution. He says he will do that, but the oath doesn't say: I intend to do that. It says: I will preserve, protect, and defend the Constitution.

The problem we have is that when John Brennan has been asked what are the limitations to your authority, his response has been that we have no geographic limitations. He says he gets that from the use of authorization of force to go to war in Afghanistan. The problem with that is I don't think people who voted for that intended that there would be no limitations and that we could have war anywhere.

Then the question is: Is there a limitation at the U.S. border?

Well, there is a law--a posse comitatus law--from after the Civil War which says the military doesn't operate here. It is not because we think the military are bad people, we just have different rules for the military. Our soldiers are not used to dealing with due process, and we don't make them. On a battlefield when they are shooting, they don't give people their Miranda rights. They don't get to have a jury trial.

There is none of that going on on the battlefield so soldiers don't have to deal with that, but policemen in our country have different rules of engagement. They are required to deal with that, and we want that because we want there to be a process because we have always been concerned in our country--we broke away from the mother country in England because we were concerned about too much power. We wanted that power to be reined in.

So our biggest problem is that when they say they have no geographic limitations, that could include America. So that was our next question. Senator Wyden asked Brennan in the committee: Do you have the authority to do strikes in America? John Brennan's answer was--this was the first answer before we got the second answer: Well, we want to optimize transparency and we want to optimize secrecy, and that was his conclusion. It was like, what does that mean? So that is when we got more and more involved with asking this question and asking it repeatedly.

But I think there are limitations. Ultimately, there is a limitation of the Constitution, but also there is a big debate that needs to go on about what are the limitations of what we voted on when we went to war. I was all in favor of doing everything possible to those who attacked us on 9/11, of going to Afghanistan. We need to figure out how and what the completion of that mission is, and whether that use or authorization of force is open-ended, forever, or whether we are ever going to vote on that again, which I think means when we vote on that again, we retain that power to bring it back to the Senate, to the Congress. It doesn't mean we would not do it again, but we should have that debate and a vote again if we are going to have another war.

At this time I would be happy to entertain another question from the Senator from Wyoming.

Mr. President, we have sent three different letters over the last month and a half or so, and we really have not gotten a detailed response to any of the letters.

We finally had one question answered from John Brennan, and that question was answered by him by saying the CIA does not operate within the United States, which is a reassertion of the law, which we at least appreciated. But they have not responded by saying they will follow the law. We have not gotten an adequate answer yet, although we are getting closer to it.

Maybe the Senator from Texas can give us a little more insight into this in the sense that the question now really is not just Brennan. Brennan has answered that the CIA cannot operate in the United States. But there is a question: Can the military operate in the United States? And this question was asked, I think very poignantly, by the Senator from Texas today, trying to get an answer from the Attorney General on this question: Can you kill Americans on American soil who are not involved in combat? The answer has been evasive because he has brought up basically a red herring: Pearl Harbor or the Twin Towers, which none of us are disputing that the military can respond to a lethal attack with lethal force.

So what I would like to do without relinquishing the floor is see if the Senator from Texas would like to respond as to his interpretation of what he was hearing from Attorney General Holder and whether the comments he was hearing--if Attorney General Holder were willing to sort of try to complete that conversation in a letter to us--whether actually we might get close to actually being on the same page.

Mr. President, I thank the Senator from Texas for coming to the floor. I am overwhelmed with all the responses. What I would say is that I think there are things that are more important than personalities, more important than party, and they are the things our country was founded upon.

These are the things that bring people together who want us to stand and say these protections will exist. The interesting thing about our Constitution is it protects people who are--those who are defenseless often, those who can be falsely accused of crimes is what the Constitution is there for. I think there are people from all walks of life who say my brother was falsely accused or my brother was put in jail for 5 years or something, either they did not do it or it was an inappropriate sentence.

I think people understand the idea of wanting to be protected from false accusation, not only for something where you might be put in prison but for something, in this case, you might be killed for. We all understand. All you have to do is get online to read comments to any kind of story online to know people make all kinds of wild accusations and wild comments online. Do we want to have that be one of the indications for whether you might be targeted for surveillance or whether you might be targeted for a drone strike, that anything such as this could happen without you having your due process, that the fifth amendment somehow would be optional, that the executive branch would decide when they are going to apply the fifth amendment.

I am overwhelmed with the responses. I think it is something that unifies people. It has brought together both people from the Democratic side of the aisle as well as the Republican side of the aisle because, to me, this is not about whether the President is a Republican or Democrat. I have supported several of his nominees. I have supported people because I think he has the right to make political nominations, even though I do not agree with much of any of the nominees or the politics of the administration.

This is different. There is a constitutional principle. We are here today to filibuster against or for a constitutional principle not necessarily an individual. But it is something I think a lot of Americans believe strongly in. I thank Senator Cruz very much for the comments I have gotten from the Senator and I would entertain any other questions.

Mr. President, I thank the Senator from Texas for his remarks. I think he has hit it exactly on the head. The question is a very pertinent question. The question is really where do we go from here.

I see this as a struggle. I see that we are engaged in an epic struggle, but it is not a struggle between Republicans and Democrats; it is a struggle between the President and the Constitution.

The question is, Does the President have the power and the prerogative to have his way regardless of the Constitution?

The question is, Does the Attorney General get to say that he will adhere to the fifth amendment when he chooses to? Is there a choice for American citizens on American soil that they either get the fifth amendment protections or they don't get the fifth amendment protections? This really is a struggle not only between the President and the Constitution but between the Senate and the Congress and the President, to say whether the President gets to determine this policy or whether this is a policy that should come from Congress.

I think we should be asking not just for the President to give his memos on drones, we should be giving him our memos on drones. We need to be dictating the law to the President and not acquiescing and giving the President this authority. This should be a battle between the executive and the legislative. It should involve Republicans and Democrats trying to restrain the President from saying that he has the ability to decide when you get fifth amendment protections and when you do not.

At this time, I, without yielding the floor, would like to entertain a question from the Senator from Florida.

Mr. President, that is exactly the sequence of things. We have been in contact with the White House throughout the night. We have made several phone calls to the White House. We told them we are willing to allow a vote on the Brennan nomination. All we ask in return is that we get a clear implication of whether they believe they have the authority under the Constitution to target Americans on American soil. I think it is a question that is fair to ask, and we have been willing to let them have the vote at any time either earlier tonight, obviously, as well as in the morning. All we ask in return from the White House is a clarification.

The last report I got from the White House is that they were done talking tonight. I hope that doesn't mean they are done talking tomorrow. I think this struggle is an important struggle, and I think there needs to be clarification from the White House before this goes forward. This is a point in time when the question has been raised. I think it is important for them to answer the question, and the fifth amendment is not optional. They don't get to choose to adhere to the fifth amendment. This applies to U.S. citizens on U.S. soil, and there are no exceptions to that.

Without yielding time, I would like to entertain a question from the Senator from South Dakota.

Madam President, I thank the Senator from South Dakota for his remarks and would make the comment that I, as has he, have seen what drones can do to protect our soldiers and no one is arguing against that. No one is arguing against drones or any other kinds of force to defend the country against any kind of an attack. What we are arguing for is that noncombatants--people not engaged in combat in our country--are due fifth amendment protections, and that the White House should acknowledge this. This is important because the drone strikes overseas, when looking at the category and looking at the way they are being done and under what standards, there are some of those standards that we don't think are appropriate for U.S. citizens on U.S. soil. So we are asking for a clarification. We think Attorney General Holder got close to that today, under the duress of cross-examination. We wish to see him do it voluntarily in a nice, concise statement and we would be happy to vote on the Brennan nomination as early as tomorrow morning.

I wish to yield time to the minority leader.

Yes.

Yes.

Madam President, I wish to thank the minority leader for his remarks and for his insightful questions. The question about whether the President has actually gotten involved with what the rules will be has actually been somewhat broached. He was asked at Google about whether this could occur and he said, Well, the rules would have to be different outside than inside. So it implies they have thought about what the rules should be outside, but to my knowledge no one in the Intelligence Committee has been informed what the rules are inside.

It troubles me that they think they have the authority to do targeted drone strikes inside, particularly when there are examples of the Twin Towers and 1941 Pearl Harbor. Those would be attacks we would repulse no matter who we knew was coming in. There wouldn't be a targeted strike on an individual at a designated time. We would repulse those attacks militarily and they wouldn't even fall into the category of what we are talking about here as targeted drone strikes. We might use drones, but they wouldn't be what we are talking about. These are questions we have been asking all day. So they have answered a question, just not the question we asked.

Madam President, I wish to yield for a question to the Senator from Pennsylvania.

Madam President, we have been asking the question of the White House all day, and we have said all along that we would allow the vote to proceed, but we have not gotten any response from the White House. The consideration of whether we will get a response tonight I think is unlikely. We will still keep pressing the issue in the morning as well.

But with regard to the Senator's remarks, I think one of the things I hope will come out of this debate will be that we will reassert our authority as a function of the separation of powers, where our body will say to the President: We not only would like your drone memos on how you think you can do this, but we should reassert our authority and tell the President, this is how we think you should do it, and this is the law that is going to dictate and circumscribe how you will do this.

That is an authority that I think has been long necessary and we have been letting go by the side and I think we should reassert.

At this time, Madam President, I wish to yield to----

Without relinquishing the floor, I will yield for a question.

Madam President, absolutely. My answer to the question the Senator raised is absolutely. We have the right to defend ourselves. It would have been a decision that has to be made imminently because a lethal threat needs to have a lethal response immediately.

My whole problem with this whole debate is, none of us disagrees with that, I do not think. We all agree that you can repel an imminent attack. We all agree if someone is outside the Capitol with a rocket launcher or grenade launcher, lethal force can be used

against them. None of us disagrees on that.

We are talking about a targeted drone program where we target individuals. Overseas, the standard seems to include people who are not actively engaged in combat who we think either might be in the future or have been in the past. I do not think that standard can be used in the United States. I think when you are in a battlefield, you do not get due process. If you are shooting at Americans, drones can hit you anytime, missiles can hit you. There is no due process in a battle.

This is a big debate because many have said the battlefield is here. But if the battlefield is here, that would imply the fifth amendment does not apply here. The President has said he will use the fifth amendment in the process of deciding drone attacks overseas, but he does not get the option to kind of use it privately. Using the fifth amendment privately to me is not using the fifth amendment.

I will say, I have a great deal of respect for the Senator from Illinois. We have often been on the same side on civil liberties issues. I do not question that he and I may well see eye to eye on this issue, that targeted killings of people in restaurants, in their house, in a hotel, are not something we can or will tolerate. It contravenes the Constitution. It is a simple question. The President should simply answer that question. I think Attorney General Holder was coming in the direction of that. But why is it so hard? Why is it like pulling teeth to get them to admit they do not have this power? Presidents need to more easily say: By golly, no, the Constitution says you cannot do that. The fifth amendment does apply. There are no exceptions to the fifth amendment for American citizens on American soil. That is all we are asking.

But I think the 9/11 comparison and Pearl Harbor is a red herring in the sense that none of us disagrees with repelling a lethal attack, an imminent lethal attack, an ongoing lethal attack with lethal force. No one disagrees with that.

Madam President, in very quick response to that, one of the few problems with that is they also go on to say that imminent does not need to be immediate. You are also implying that you can kill this American citizen in a noncombat situation, not an active battlefield. I do not accept that standard for the United States. It is another debate whether we accept the standard overseas. I think it is an important debate. But the debate about whether that is a sufficient standard for America, it is not. To kill someone not in combat--one, it is not wise. You are not going to get any information. When someone is eating dinner, why do you not send the police over and arrest them? To kill someone who is in a noncombat situation in America is unacceptable in America under any circumstances. I think we need to come to an agreement on that.

I wish to yield for a question to the Senator from Wisconsin.

Madam President, I thank the Senator from Wisconsin. Yes, we had two simple requests tonight. The first was for a vote on a nonbinding resolution to express our opinion that it is unconstitutional to kill Americans on American soil. That was denied by the majority party.

The second request we have had, in communication with the White House, is for the White House to say or clarify their opinion that they are not going to be doing targeted drone strikes on noncombatants in America. We have not had much success with either one. We will continue to ask that question.

I have told them I will remove myself from the blockage of John Brennan's nomination as soon as we get some clarification from the White House. I am still hopeful in the morning that they will do that, and by doing that, we can move forward with it.

But I have been more than willing to compromise, because I do not think it is so much about John Brennan as it is about a constitutional principle, that I want the President to publicly acknowledge the fifth amendment does apply to Americans in our country, and that we are not going to cherry-pick when we apply the fifth amendment.

At this time, I wish to yield for a question from the Senator from South Carolina.

Madam President, I think it is an easy question to have answered, and it boggles my mind. I think the President in general, though, and other Presidents in general, hang on to their power with a tenacious grip, and they don't want to allow that there is any possibility that by saying they don't have this power, they have given up some power.

I think that is a mistake for Presidents. I think it goes against what the candidate, Barack Obama, was for and the Senator, Barack Obama. I hope in the morning when they wake up they will think about what Candidate Barack Obama said in 2007 and what Senator Barack Obama once stood for as a Senator; that is, the power of the Presidency is limited and checked by the Constitution.

Madam President, at this time I would like to yield for a question from the Senator from Arizona.

Madam President, that is correct. It is a simple question. I think we are not asking for any heavy lifting here. We are asking the President: Do you have the authority.

I think it is important that it is a legal question in the sense we want to ask and get a legal, constitutional response. We are not asking--we probably won't do it, we don't intend to do it, or it is not appropriate, or it is not, as a policy matter we don't like doing it. We want the constitutional answer: Do you really believe you have the constitutional authority to do this.

Madam President, at this point I would like to recognize for a question, without yielding the floor, the Senator from Utah.

Madam President, this is exactly what I understand. It is a significant problem. I will be happy to yield if there is a question from across the aisle or a question that is in the form of an explanation as well on his understanding, if we understand this incorrectly, this is a real problem. Because the idea of imminence that people think of is someone leveling a weapon at you, you are in a battlefield, and all of these things which none of us disagrees there should be a response.

The problem is it really is. I am not an attorney, so it is easy for me to disparage attorneys even though I am standing among two I admire--more, probably. The whole point is that sounds like a bunch of government attorneys got together and tried to write some gobbledygook no one could understand and doesn't make sense; that imminence now means something that is not immediate.

I would be happy to entertain a question without yielding the floor.

Madam President, I would say touche, a good response, I think well worth thinking about and difficult in the sense that I don't think there are any of us who really were opposed to getting bin Laden. There is a question, you are right, exactly whether there was imminence involved.

I think, though, when we start talking about standards, whether we have standards in battlefields, standards overseas, and standards at home, I think the standard at home has to be incredibly high. I don't believe we are involved in a battlefield here. I don't believe you have given up due process here. I don't know that bin Laden had any due process.

I yield for a question from the Senator from Texas.

Mr. President, I am hopeful that we have drawn attention to this issue; that this issue won't fade away; that the President will tomorrow come up with a response. I would like nothing more than to facilitate the voting and the continuation of the debate tomorrow. I hope the President will respond to us. We have tried repeatedly throughout the day, and we will see what the outcome of that is.

I would like to thank my staff for being here for a long day, for their help. I would like to thank fellow Senators for being supportive of this cause. I would like to thank the Members of Congress who came over to support this cause, as well as the clerks, the Capitol Police, the staff of the Senate, the doorkeepers--who, apparently, I may have gotten in trouble--and anybody else who came to support us, and even the senior Senator from Illinois, for better or worse, for being here to support the cause. The cause here is one that I think is important enough to have gone through this procedure.

I sit at Henry Clay's desk, and they call Henry Clay the ``Great Compromiser.'' When I came to Washington, one of my fellow Senators said to me: Oh, I guess you will be the great compromiser. I kind of smiled at him and laughed. I learned a little bit about Henry Clay and his career.

People think some of us won't compromise, but there are many compromises. There are many things on which I am willing to split the difference. If the Democrats will ever come to us and say: We will fix and we will save Social Security, what age we change it to, how fast we do it--there are a lot of things on which we can split the difference. But the issue we have had today is one on which we don't split the difference. I think you don't get half of the fifth amendment. I don't think you acknowledge that the President can obey the fifth amendment when he chooses. I don't think you acknowledge that the fifth amendment, due process, can somehow occur behind closed doors.

So while I am a fan of Henry Clay, I have often said I am a fan of Cassius Clay. Cassius Clay's weapons of choice were said to be his pen and his Bowie knife. He was said to be so good with the first, that he often had recourse to the latter. He was a fierce abolitionist. He didn't suffer fools, and he didn't compromise often.

But what I would say is that it is worth fighting for what you believe in. I think the American people can tolerate a debate and a discussion. There has been nothing mean-spirited about this debate for 12 hours. I think, in fact, more of it would be even better. I wish we had more open and enjoined debate. The senior Senator from Illinois has brought up good points, and I think there is much discussion. I just hope that this won't be swept under the rug and that this isn't the end of this but that it is the beginning of this.

I would go for another 12 hours to try to break Strom Thurmond's record, but I have discovered there are some limits to filibustering, and I am going to have to go take care of one of those in a few minutes here. But I do appreciate the Senate's forbearance in this, and I hope that if there are some on the other side of the aisle who have been listening and feel they may agree on some of these issues, they will use their ability to impact the President's decision and will, No. 1, say the Senate should be trying to restrain the executive branch, Republican or Democratic, and, No. 2, will use their influence to try to tell the President to do what I think really is in his heart, and that is to say: Absolutely, we are not going to be killing Americans not in a combat situation. We will obey the fifth amendment; that the constitution does apply to all Americans and there are no exceptions.

I thank you very much for your forbearance, and I yield the floor.

Mr. President, as some of you may have heard, we are a bit short of money. We are borrowing $50,000 every second. We borrow over $4 billion every day. In a year's time we borrow over $1 trillion. There are ramifications to that. Some economists now say that the burden of our debt is costing us 1 million jobs a year. What I am asking is, in the midst of this sequester when people say we have no money to cut, to take this small item.

Why would I want to cut this small group? There are a couple of reasons. It is called the National Security Working Group--about $2.8 million, which is not much money in terms of Washington. But why would I want to cut it?

The first reason would be that there are no records of them meeting. We heard about the START treaty. It was in 2009 when they were last meeting. There are no public records that this group, which spends $700,000 a year, has met in the last 3 years. There are no public records of who works for the committee. There are no public records of their salaries. Every one of my staff's name and salary is printed in the public record--not for this group.

Now, they say we need this group to negotiate treaties. Well, we have a group; it is called the Foreign Relations Committee. I am on the Foreign Relations Committee, and that is where we discuss treaties--or at least we are supposed to. The Foreign Relations Committee has dozens of employees, and millions of dollars are spent on our committee. It goes through the regular process. Our staff's salaries are approved, the names are in the public record, and if you object, you know where to look for the information. To fund a group that has no records and no records of them meeting and doesn't tell you where they are paying the salaries I don't think makes any sense.

Our job is to look at the money as if it were ours, as if it were yours, and pay attention to detail.

Will this balance the budget? No. Is it a place we should start? Yes. Absolutely. What I would call for is looking and saving where we can. In my office, I have a $3.5 million budget. I saved $600,000 last year, and I turned it back in to the Treasury. That doesn't balance the budget, but we have to start somewhere. This is another $700,000. If I win this one vote, I could save $700,000--or at least save us from borrowing another $700,000. If all of your elected officials were up here doing the same, we would be much closer to a resolution. I turned in $600,000 to the Treasury--18 percent of my budget--and I didn't lay off anybody because we are careful about the way we spend. We spend as if it were our own money. If all of our public officials were doing that, imagine what we could do.

I have another bill that will never see the light of day up here because they don't want to fix anything. This bill would give bonuses to civil servants--Federal employees--who find savings. Right now we do the opposite. If your budget is $12 million and you work somewhere in the bureaucracy of government, you want to spend it at the

end of the year so you can get it next year.

I would change that incentive. I would give that civil servant a significant bonus if they will keep money at the end of the year and turn it back in to the Treasury. Can you imagine the savings from top to bottom throughout government if we did that? But if we were to do that, to ask civil servants to do that and look for these savings--and right now, with the sequester, people throughout government are looking for savings--why shouldn't we start with the Senate?

Why would we continue to fund a group where the work they supposedly do is also done officially by another group which has many employees, a large staff, and it is the constitutional mandate of the Foreign Relations Committee to discuss treaties.

So while this is a small bit of money, it is symbolic of what needs to go on in this country in order to rectify a problem that is truly bankrupting the American people.

Amendment No. 25

Mr. President, I ask unanimous consent to call up amendment No. 25.

Mr. President, I ask unanimous consent that the reading of the amendment be waived.

Mr. President, I ask for the yeas and nays when appropriate.

Mr. President, I suggest the absence of a quorum.

Mr. President, as a cosponsor of this important legislation, I am pleased the Senate will pass this bill and once again provide for stronger security at our diplomatic facilities.

Numerous reports have documented the security failures that resulted in the tragic deaths of four Americans at the consulate in Benghazi. Both the Administrative Review Board and the report of the Senate Homeland Security Committee found that inexcusable failures of judgment led State Department decisionmakers to ignore the rising threat levels in Benghazi and the repeated requests for enhanced security at the site. Marine Security Guards were not on site to protect our consulate in one of the most dangerous and unstable regions in the world. The failures of management that led to these decisions are reprehensible; the lapses in judgment indefensible. It is beyond my comprehension why the individuals whose poor decisionmaking directly resulted in the deaths of four Americans remain employed by the State Department, and compensated by the U.S. taxpayers.

One of the most troubling aspects of the Benghazi attack is the complete disregard that State Department leadership gave to the repeated requests for enhanced security from Ambassador Christopher Stevens. Should funding have been an issue, the State Department always has the option available to come to Congress for approval to transfer funds within accounts. In fact, this is what S. 227 accomplishes--it provides the State Department transfer authority to prioritize diplomatic security in our embassies around the world. It is a sad, but necessary postscript to this tragic event--and a step that, if taken earlier by the State Department, may have saved the lives lost in Benghazi.

It is my hope that the Senate takes into consideration my repeated calls for increased Marine security at our embassies in high threat areas of the world. In the two budgets I have authored during my Senate tenure, I not only called for increased funding for military protection, but also for reducing the presence of embassies in the most dangerous areas of the globe. The safety of our men and women in diplomatic service must be prioritized. This means placing more emphasis on involvement in security by the Defense Department, but it also means assessing whether our diplomacy in the most dangerous areas of the world is better done from afar.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent to call up amendment No. 9.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, I rise today to present an amendment that would stop the transfer of F-16s and Abrams tanks to Egypt. I think it particularly unwise to send tanks and our most sophisticated fighter planes to Egypt at a time in which many are saying the country may be unraveling.

Ironically, a year ago, the Arab spring occurred. Hundreds of thousands of people gathered in Tahir Square to protest against the government that was instituting martial law. Ironically, the current President now has instituted martial law. Once again, the dread ``indefinite detention'' is threatened to citizens in Egypt.

As the rioting expands, many see Egyptian descending into chaos. What is President Obama's response to this? To send them some of the most sophisticated weapons we have, F-16 fighters and Abrams tanks. I think this is particularly unwise. This amendment will stop it. I think this is particularly unwise since Egypt is currently governed by a religious zealot, a religious zealot who said recently that Jews were ``bloodsuckers'' and ``descendents of apes and pigs.''

This does not sound like the kind of stable personality to whom we should be sending our most sophisticated weapons. I think it is a grave mistake to send F-16s and Abrams tanks to a country that last year detained American citizens on trumped-up political charges, to a country that currently is still detaining Egyptian citizens on trumped- up political charges.

I think it is a blunder of the first proportion to send sophisticated weapons to a country that allowed a mob to attack our embassy and to burn our flag. I find it objectionable to send weapons, F-16s and tanks, to a country that allowed a mob chanting ``death to America'' to threaten our American diplomats.

I am concerned that these weapons, some of the most sophisticated weapons in the world, someday may be used against Israel. I am concerned these weapons threaten Israel's security. I am concerned that we are sending weapons to a country with a President who recently was seen to be chanting ``Amen'' to a cleric who was saying, ``death to Israel'' and ``death to those who support Israel.''

I think it is foolhardy to support and send arms to both sides of an arms race. We send 20 F-16s to Egypt, which already has 240 F-16s. We send 20 in addition. What does Israel feel? They have to have two for every one Egypt has. It escalates an arms race and makes it more difficult for Israel to defend herself.

Today we have a chance to stop this folly. I urge my colleagues to instruct the President that we will not send any more F-16s and any more Abrams tanks to the current Government of Egypt.

I yield the floor.

I ask unanimous consent to speak for 5 minutes.

I find the argument spurious and, frankly, absurd that not giving F-16s to Egypt is somehow against the interests of Israel. Imagine this. The President of Egypt has called Jews bloodsuckers and descendents of apes and pigs. The President of Egypt has also said that when we look at the relationship of Israel and her supporters--he stood next to a cleric, chanted ``Amen'' and said ``Amen,'' that we should go after and destroy Israel and the supporters of Israel.

Somehow it is a good idea to ship weapons to this country and to this religious zealot? I find it absurd that that would be in Israel's best interests. Somehow, the argument is made that, oh, this will lead to stability in Egypt. Well, giving F-16s is somehow going to stabilize unrest in Egypt? It makes no sense whatsoever.

I would say that when we look at this and we hear arguments such as this will cost money, do you know whose money it was that bought these F-16? It was our money to begin with. We send the money to Egypt and then they buy the weapons from us.

If we are worried about a place to store the F-16s, why don't we give them to our military? Everybody seems to be saying it is a problem, this sequester, and there is not enough money for our military. Why don't we give the 20 F-16s to our military? Why don't we give the tanks to our military? Apparently, these are more tanks that are being given to Egypt than often different contingents of our Marines have at any one given point in time.

I would say keep the money and keep the weapons in our country. Mark my words, it is a mistake to send these weapons to Egypt. It is not in Israel's best interest.

For people to come down and argue it is in Israel's best interest to send weapons to a country that professes hate, professes a disbelief in the Holocaust, that professes they are in favor of destroying Israel-- that is whom we are supposed to send these weapons to? It makes no sense at all.

Our foreign policy often makes no sense at all. I do think we need to reassess. We made this deal with Mubarak. We didn't make this deal with Mursi. Currently, Egypt is unraveling. I think it is a terrible mistake to send these weapons to Egypt, and I hope my colleagues will consider that.

I yield back the remainder of my time, and I suggest the absence of a quorum.

This amendment would stop the transfer of F-16s and Abrams tanks to Egypt. Egypt is in danger of unraveling. Egypt is currently ruled by martial law. I think it is unwise to give our most sophisticated weaponry to a country in such disarray. I think it is unwise to give our most sophisticated weaponry to a country ruled by a President who recently said that Jews are bloodsuckers and descendents of apes and pigs.

I hope my colleagues will consider the ramifications of continuing to arm such an unstable regime, and I urge a vote in support of ending arms sales at this point to Egypt.

Mr. President, some of you may have heard that there is something called the fiscal cliff approaching and that we must do something about it or we will go over that cliff. But if you want to fix and do something about going over a cliff, you have to know what is the fiscal cliff. Well, the fiscal cliff, apparently, is taxes going up. So it must be a bad thing if your taxes go up.

People have said: Well, it is kind of like having people drowning. And people are drowning. What does that mean? That is a bad thing. Taxes going up is a bad thing. So what are they telling us? Let's save 98 out of 100 of them. Well, that sounds pretty good. I am for saving as many as we can. But that sort of implies that our policy is that drowning is a good thing; that we are going to let 2 percent drown; that raising taxes is bad if it happens to everyone--it is a cliff--but it is OK if it only happens to one or two people, and maybe you do not know them, and maybe they are rich people and we don't care.

Does anybody work for rich people? Does anybody know somebody who works at a car lot selling expensive cars but that person only makes $40,000 a year but he sells cars that are purchased by rich people? Does anybody remember the yacht tax? We were going to go get those rich people--had a special tax on yachts. Guess who lost their jobs. The working guy making $50,000 and $60,000 a year, because the rich people went to the Bahamas to buy their yachts. This is not about getting rich people. This is about what it will do to the economy, what it is going to do to the average middle-class person who works for a rich person.

But you have to understand what the fiscal cliff is. You have to understand that the President is telling you that it is a cliff and it is bad, and everybody on television thinks it is terrible to go over the cliff. What is the cliff? Taxes going up. But if it is bad for taxes to go up for a bunch of people, why it is good for taxes to go up on a small portion of people?

You say: Well they are rich. They can afford it.

Here is the problem. The rich pay most of the taxes in our country. The top 2 percent pay half of the taxes. What you are saying is that they are rich and they can afford it. But that is half of the Nation's income that will have increased taxes. You will take money from the productive sector, which is the private sector, and you will put it into the nonproductive sector, which is Washington.

So if you want ditches to be dug and then to be filled again, send more money to Washington. But if you want jobs to be created, if you want the economy to thrive, you should want to leave that money in your community. It should not matter to you whose money it is or who has it, you want that money--in my case, we want that money in Kentucky. We do not want to send it to Washington because there is no objective evidence that the money is well spent up here. There is no objective evidence that we are good with money up here. We should not send more money up here. We should leave more money in the private sector.

Now, Milton Friedman recognized this when he said: Nobody spends someone else's money as wisely as you spend your own. That in a nutshell, that in one sentence explains to you why the private sector is more efficient than the public sector. The public sector--it is not our money. So those of us up here who will spend it--that is why they spend $1 trillion more than they have each year. That is why they break their own budgetary rules. That is why there is no budget. That is why we live in an era of runaway spending. That is why your government is insolvent, your government is bankrupt.

Guess what. When you raise taxes on 2 percent of the people, there is a chance you will not get any more tax revenue because when you raise tax rates, you sometimes get less revenue. And the converse is true-- sometimes you lower rates and you actually get more revenue. In the 1920s we lowered tax rates, and we got more revenue. Guess what. The rich paid a higher percentage of the revenue when we lowered rates.

We did it again in the 1960s under Kennedy. We did it again under Reagan. We grew at 7 percent one year under Reagan because we lowered rates and we unleashed an economic boom. That is what we want.

Do we want a government that is just envious, jealous, and wants to punish people or do we want a government that has sane and rational policies that will allow the economy to grow? That is what happened in the 1980s. We had 7 percent growth one year. We had millions of jobs created.

Mark my words. You will raise tax rates, and you will feel good because you went after and got those rich people because you said you were. You campaigned against rich people, you have enough envy whipped up in the country, you are going to get them, and you are going to stick it to those rich people. But guess what. You may not get any more revenue, you may not get any more economic growth, but you can say: I stuck it to the rich people.

That is what we are talking about. Some of you may say, well, we are going to do this, but maybe we will do something about spending at the same time. The one thing they are taking off the table is spending restraint. There will be no spending restraint. In fact, whatever deal comes out of here will increase spending. That is part of the deal. We are going to raise taxes, and we are going to raise spending. Tell me what is good about that.

There is a cliff approaching. It is not the cliff we hear about on TV. The cliff is a debt cliff. There is a debt crisis in our country. We now have a debt that equals our GDP. Our debt equals our economy. We are borrowing--while we are today dithering over a deal that will do nothing--we will borrow $4 billion today. We are borrowing $50,000 every second. Each man, woman, and child in this country owes more per capita in debt than they do in Greece.

So, by all means, let's complete a deal today so we can go home. Let's complete a deal. Let's raise taxes. Let's stick it to those rich people. Let's not touch spending, and let's pretend as if we have done something. The deal will do absolutely nothing to save this country.

Two-thirds of our spending is entitlements. The President has taken entitlements off the table. We will not reform the entitlement programs. Why are the entitlement programs broken? Is it Republicans' fault or Democrats' fault? No, it is your great-grandparents' fault. They had too many kids. It has nothing to do with partisan politics. There were a whole bunch of babies born after the war, and then there have been less babies born with each generation. It is nobody's fault, but it is not working. We spend more on Social Security than comes in in taxes. That is a problem.

On Medicare, it is even worse. We spend $3 for every dollar we collect in Medicare. Does anybody think that is going to work? It has been going on for a long time now and it is getting worse. We owe $35 to $40 trillion on Medicare, and it is not getting any better.

So what do the retirement groups say? AARP says: Absolutely, don't touch it. Oh, that is great. That is part of the solution. Don't touch it.

What does the President say? Entitlements are off the table.

What does the majority leader say? We will not do anything about entitlements. Oh, well, great. This is going to be a real great solution. We are really going to do a lot--but we are going to stick it to rich people.

I hope nobody works for any of these rich people. I hope nobody sells any of this stuff to rich people.

So the thing is, look at what is going on up here, and when you ask for action, don't ask for any action. We have

to figure out what the problem is before we can get to what we need to do.

People say, well, we have raised taxes; we just need more revenue. Spending, as measured as a percentage of the economy, 4 years ago we were spending 20 percent of our GDP. We are now spending 25 percent of our GDP. When we say on our side that it is a spending problem, it absolutely is, it absolutely is, and it is out of control.

Guess what. Most of it is called mandatory spending. That means entitlements. We can't do anything about it. They are now taken off the table.

Now, about a year ago, you may remember there was this big debate, the Budget Control Act. There was a big debate over raising the debt ceiling, and they attached to it some slowdown in spending. Now, these were not cuts; the sequester is not a cut in spending. It is repeated all the time on TV that the sequester is a cut, but it is not a cut; it is a slowdown in the rate of growth. But it is at least going in the right direction.

So what is the one thing we hear now that is going to be part of this deal? We are going to get rid of the sequester. So the one even pretend, make-believe attempt to try to slow down spending, they are going to jettison it. They are going to kick the can down the road--but we are going to get those rich people. We are going to attack those rich people.

We have to wake up soon as a country. We are literally insolvent. Some say, well, we are a great and powerful country. Bad things could never happen to us. It can, and it has happened to great civilized countries. Do you know what they do. Great and civilized countries can destroy their currency. We have printed trillions upon trillions of dollars, and we are in danger of destroying the very value of our currency.

So instead of having a President who runs around saying he is going to stick it to rich people, what we really need are honest people to go around the country and say to people: If you are working class or you are retired, the government is stealing from you. The government is stealing your savings through big government. On the one hand, they offer you something. They offer you baubles. They offer you something for free: Here is a cell phone. Just take the cell phone and vote for me. It will be OK.

The problem is, it is not free. On the one hand, you get the free cell phone. On the other hand, you get $4 gas. On the other hand, you get food costs rising.

Why do prices go up? Because we run a deficit giving you free stuff, and then we print money to pay for it, and that steals value from what you have. It is not that gas is more precious; gas is rising because the value of the dollar is shrinking. Food is rising because the value of the dollar is shrinking.

So big government isn't your friend, and deficits are not your friend. We hang in the balance up here and nobody is serious about it.

What is the one thing that has been taken off the table? Spending. We will not cut any spending. So we are looking for a deal that will raise taxes, which everybody seems to equate with drowning--except we are only going to make a few people drown, and they are rich anyway. But I think drowning is a policy. Drowning, even if it is selective drowning, being in favor of selective drowning is not a good policy.

What I have said and what I tell people is let your representatives know. Let your Senators know that you would rather have some kind of serious fix to the problem rather than kicking the can down the road; that you would rather have them actually do something that would allow the economy to grow, would allow jobs to be created, and, as a consequence, government would bring in more revenue.

The only thing proven to ever bring in more revenue is economic growth. What is going on right now? We are growing at a little under 2 percent. When the President, 2 years ago, extended all the tax rates and chose not to raise tax rates, we were growing faster. He said we don't want to rock the economy, and he agreed to extend all tax breaks. But now I think he is hell bent on raising taxes.

Realize that what you are going to get is raising taxes, more money taken out of the private sector and given to the government, the inefficient sector. Don't count on that new money coming in going to make the debt smaller; count on it funding more programs.

You will notice, if you look carefully at whatever this fiscal cliff deal is, there will not be spending cuts, but there will be spending proposals. So we are going to try to tax rich people more and get more money. It may not work because often you raise rates and get less revenue. We are going to try that, but we take the money that we get from rich people, and we are going to immediately spend it on more foolhardy programs, which is what we have been doing up here. We are not going to fix the problem, we are going to perpetuate the problem.

What I would argue for is we should be doing the opposite. We, the Republican Party, the party of limited government and low taxation, should have no part in this. We should have no fingerprints on this, and we should in no way support anything that raises taxes because it is bad economic policy.

So I, for one, will not support any proposal that comes out that does not cut spending and raises taxes.

Mr. President, I yield the remainder of my time, and I suggest the absence of a quorum.

Mr. President, I ask unanimous consent to call up amendments Nos. 3376 and 3410 en bloc.

Mr. President, when Hurricane Sandy struck the Northeast, hundreds of thousands, if not millions, of people were without power. We all saw the video footage. We saw the terrible trauma, and people are still trying to dig out from underneath the debris of Hurricane Sandy.

During that period of time, hundreds of workers drove up from the South wanting to help. These workers were nonunionized, and they were turned away. This was a sad day for our country that nonunion workers were not allowed to participate in the cleanup and were asked to join a union before they would be accepted as workers.

I think it is a mistake to politicize things such as this, particularly in a time of an emergency. So what I have asked for and what my amendment would do is allow an exemption to Davis-Bacon.

Davis-Bacon is a Federal law that requires that we not have competitive bidding on Federal projects. What happens is on Federal projects the wages are fixed at a union scale wage and there is not a competitive bidding for wages.

So what I have asked is that we suspend that and say, in order to get better use of the money, in order to advance the money by billions of dollars and do more with the money--and this is an enormous amount of money, running into the billions of dollars--in order to get better use of our money, to suspend Davis-Bacon, and we would basically be allowing competitive bidding on wages.

This has been done before. President Nixon and both President Bushes did this. During Katrina, we suspended Davis-Bacon because it was an emergency. We wanted to make the best use of our Nation's dollars.

This amendment would suspend Davis-Bacon for this emergency. It is estimated it might save as much as 22 percent of the cost.

We are talking about billions of dollars. Mr. President, $60 billion is being requested for this cleanup. Where is the money going to come from? You have heard we have an enormous debt--$16 trillion--in our country. We have over $1 trillion in debt this year. We print up the money, but that simply steals from your savings and steals from your current currency. We can tax you or borrow more. But we owe $16 trillion already.

What I am asking is why don't we try to make good use of the money that is going toward this disaster, allow money to go further? That is simply by allowing competitive bidding on wages.

Currently, there is no competitive bidding on wages. My amendment would allow for this. I urge my colleagues to stand with taxpayers--to stand with taxpayers against special interests, against political and partisan purposes--and for the sake of an emergency to say: We are going to be frugal with the dollars spent. We are not going to be extravagant. We are not going to reward certain special interests that are very involved in the political process.

We are going to say we are going to use the money wisely, we are going to allow competitive bidding on wages. So I urge my colleagues to support this temporary and specific suspension of Davis-Bacon for emergency funds.

I yield the floor.

Mr. President, I rise in support of amendment No. 3410, which would take the spending for Sandy relief and spend only 1 year at a time and would offset that spending with spending cuts. Now, you ask, why would we want to do that? Well, if you have been watching Congress in recent years, you might understand that we are not very good with money up here. Each year we are spending $1 trillion that we do not have. To me, there is absolutely no objective evidence that we are very good with money up here, so you do not want to give Congress 3 years' worth of spending authority on Hurricane Sandy. Why don't we do it 1 year at a time and make sure there is correct oversight and make sure the money is not being wasted, make sure the money is not being abused.

I will give a couple of examples of what is in the current bill. We have money for Alaskan fisheries in the Hurricane Sandy bill. They tried earlier today to stuff money in here for a country by the name of Palau in the western part of the Pacific. Now, I thought this was about emergency relief for Hurricane Sandy, which hit the northeast coast. What does that have to do with sending money to the far reaches of the Earth, including sending money to work on Alaskan fisheries? If you want to give money to Alaskan fisheries, have a bill on the floor about Alaskan fisheries, but do not pretend that we are going to stuff it in some emergency bill for the Northeast.

So what I have asked is, let's just spend what you are going to spend next year. CBO says there is going to be $9 billion spent next year. That is what I allocate. I take the $9 billion from places where we are wasting it. I think we are wasting it by sending it overseas. I am not particularly happy about sending money to countries that are burning our flag and chanting ``death to America.'' I think it is an outrage.

The President has said: Well, we need to quit doing nation building overseas and start doing it at home. But where are the actions that support his words? I agree completely--we need to quit doing nation building overseas when we are running a trillion-dollar deficit here, but we can't just say we are going to continue to print the money or borrow the money or simply raise taxes. There is not enough for all of this spending. What you need to do so is say: Some of the spending is wasteful, and we should not do it.

I personally think we should not be sending billions of dollars to dictators who oppress their people, who burn our flag, who will not protect our embassies. I think it is an absolute mistake. You can go through a list of 30 or 40 years of foreign aid and see dictators who have personally profited and stolen our money. We have bridges and roads crumbling in our country. We have infrastructure that was damaged by Hurricane Sandy. They simply want to print more money and borrow it.

People will stand and say: Oh, we have never offset emergency funding. Well, maybe that is why we have a $16 trillion deficit-- because no one wants

to cut any spending around here. If you want to help those affected by Hurricane Sandy, do it, but do it by taking the money from someplace where we are wasting it.

What my bill says is that we will spend next year's $9 billion, which is what they have asked for for the next year, and we will offset it by taking $9 billion out of the foreign aid fund.

Now, usually when we bring this up here, someone will trod on down and say: Oh, but this will affect Israel. This has nothing to do with Israel, will not affect any money given to Israel. There will be money left in the foreign aid fund. It has always been my purpose that we start by taking the money from countries that hate us, countries that are burning our flag. I have not seen anyone in Israel burning the American flag, but I have seen it happening in about 10 other countries that receive money, that actually receive more than Israel. So what I would say is let's not trot out canards about Israel; let's make it about what it is. The Mubarak family in Egypt got $60 billion. The country got $60 billion while the Mubarak family themselves stole probably half of it. They are one of the richest families in the world. The kids are some of the richest people in the world because they stole your money. This has happened repeatedly. It has happened throughout the African Continent. It has happened around the world, that your money is sent overseas. Just in Iraq and Afghanistan during the wars, we built $6 billion worth of roads. Meanwhile, we have problems here. I have two bridges in my State that I do not have the money to repair because we are too busy repairing some other country's roads.

There are people in this body--the majority of them here--who think: Oh, let's keep spending this money. And the majority of the American people do not think it is a good idea. I hope they will wake up and call their Senators and their Congressmen and say: This is absurd. It must end.

So this is a very simple amendment. Spend 1 year on the emergency fund, $9 billion, and offset it by cutting foreign aid overseas. I urge my colleagues to support this amendment.