[VengefulCynic]

If the filibuster prompts further public discourse and a closer look at the use of lethal force without due process of law, it's positive. The real question will be if all of the other Senators vote for cloture just to get the issue swept back under the carpet.

Impediments on the power of government aren't particularly popular to those who wield the power of government, regardless of the branch they occupy.

[stevesearer]

Yeah, I've been wondering if it will amount to anything as well. My gut tells me that it won't.

That said, I've had it running for around and hour and have found it interesting for no other reason than understanding how filibusters actually work. From what I can tell, he has just been spending time reading articles critical of drone strikes or reading other documents while providing commentary on them as he goes.

He's even been taking time to eat a snack which provides comedic pauses in the listening experiences.

Rand also gets small breaks from others who come forward to ask questions - most of which seem to be staged to help him cover additional points, reiterate his already made points, or just generally use up more clock.

Based on the view behind him, it appears that all other senators need not be present while he speaks. Is that true and has this always been the case? I'd imagine that the tactic might be more compelling and useful if everyone had to sit there and listen.

[lmkg]

The important thing to understanding filibusters is that they're a dirty, dirty hack. They were never really intended to be part of the legislative process, they're just some enterprising senators noticing and exploiting some loopholes in the senate's debate rules.

While the House puts some limits on debates, to move things along, the Senate is a more deliberative body (by design) and therefore doesn't vote on an issue until it has been completely debated. There is no strict definition of "completely debated" beyond "someone still has something to say." As any half-awake hacker no doubt will notice, this means that you can prevent a law from getting voted on, and therefore passing, by simply not ending the debate. This is what a filibuster is.

There are technically some restrictions around debate, and the band-aid fix that a supermajority vote can stop debate and bring a vote, but that's about the only thing stopping it in practice.

The main technical restriction is that, if the Senate doesn't have anything else to do, any one Senator only gets one monologue. They can't stop one day, and then filibuster again the next day. This rule can be stretched, but not broken. Hence, the content of most filibusters tend to be long space-fillers, which is what you're seeing. There's also a rule that the debate must be 'on topic,' but that's too vaguely defined to be worth anything. Famously, one Senator said something to the effect of "this law is not in the interests of my constituents, who are as follows:" and then proceed to literally read the phone book for a few hours.

[logn]

Filibuster the way it's used today is a dirty hack. But Sen. Paul is actually using it legitimately by standing and debating/speaking instead of just declaring 'I filibuster' and going home (implying that he would speak forever but doesn't need to since it's merely a formality). It's actually the most refreshing political action I've seen in a while. They're talking through the night, live now: http://www.c-span.org/Live-Video/C-SPAN2/

He vows to speak as long as he's physically able.

[stevesearer]

It's funny that you mention the space-fillers because Senator Ted Cruz is currently reading tweets that are supportive of Rand's filibuster.

[hkmurakami]

I seemed to recall someone reading a cookbook as part of his filibuster, but a phonebook seems 10x more likely. Thanks for the info!

[firefoxman1]

My favorite so far was Marco Rubio quoting a line in the godfather:

"... 'A lawyer with his briefcase can steal more than a hundred men with guns.' Now, I don't know how the hell that relates to this argument, but I thought it was a good quote."

[wam]

That was on The West Wing.

[anigbrowl]

Based on Sen. Al D'Amato's 1986 23.5 hour filibuster of a military bill. Another of his filibusters in 1992 involved him singing 'South of the Border.' EDIT: typos.

[wam]

That is fantastic.

[twoodfin]

I'm unfamiliar with the specific rules of Senate decorum, but no, I don't think any other Senators except whoever's presiding are required to be present.

Senators would get very little done if they had to sit in the Senate Chamber any time any one of them had something he or she wanted to say. They're all pretty garrulous.

[unclenoriega]

This is true. The Senate assumes a quorum is present unless someone suggests the absence of a quorum, so as long as there's a designated president, they're good to go. There are several YouTube videos of pro forma sessions where just the presiding senator and staff are present.

[hkmurakami]

Lawrence Lessig provides a great description of how our representatives "rush in" in time to vote and then rush out immediately to make more phone calls to solicit contributions.

http://www.amazon.com/Republic-Lost-Money-Corrupts-Congress/...

[anigbrowl]

the use of lethal force without due process of law

This canard has been debunked so many times on HN that I've lost count, but carry on as if the constitutional, legislative, ethical and historical justification for drone strikes had not been repeatedly explained in copious detail. It's much easier to pretend there's a conspiracy of silence and that nobody has ever stepped up to present an argument for the administration's position.

[InclinedPlane]

The administration's position is, frankly, bullshit. It amounts to little more than the executive branch reserving for itself the ability to call any location outside of US territory a battlefield and to designate anyone they wish a threat worthy of summary execution.

Now, all of this is couched in the most justifiable of terminology and is crafted to follow the broad outlines of judicial procedure but the fact remains that the administration has given themselves this authority and retain whatever oversight, if any, is involved with it.

This is utterly antithetical to the principles set forth in our constitution and if any of the founding fathers were alive today I'm quite certain they would vomit at the idea.

[anigbrowl]

the administration has given themselves this authority

Congress gave the administration the authority. You may dispute the wisdom of this, you may think it should rescind that authority, you may think the scope of that authority should be more narrowly defined - all entirely reasonable points of view. But when you claim the administration is being autocratic, you are simply, factually wrong.

http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ...

This law has been in place for almost 12 years, and you are surely aware the US is still at war and that this war is not expected to conclude until next year. We have discussed this issue before and you know perfectly well that the US has been at war for over a decade. It's disingenuous of you to argue as if you weren't aware of this.

[InclinedPlane]

Indeed, the administration has given themselves the authority in context of congress declaring war against al qaeda. Which means that congress could end the declaration of war and end the administration's new power. So perhaps I should have said that congress has in effect given the executive branch enough leeway to create this power, but in the end the power is still there.

[anigbrowl]

Congress hasn't done it 'in effect', it did so very explicitly:

Now, therefore, be it resolved by [Congress]:

[Section 1 is the title of the act]

Section 2 - Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It's not the case that Congress declared war and the executive branch granted itself authority by extension. The phrase 'be it resolved ... [t]hat the President is authorized...' is the grant of authority.

A lot of people think this is so broad as to amount to a blank check, and I agree. But neither the Bush nor Obama administrations have have had to perform any legal conjuring tricks to derive this authority. Congress gave the President the authority in very clear terms. The President's authority to determine who is or is not a target under this legislation is absolute; it's not subject to qualifications or review by other branches. The language of the legislation is about as plain as it gets.

[mpyne]

To piggyback on, the AUMF also explicitly mentions that it is the Act required in accordance with the earlier War Powers Act. They really leave it crystal-clear that the AUMF is very much intended to give the President the "Commander-in-Chief for a declared war" powers that Congress is able to grant.

It's horribly over-broad and open-ended, but Congress has only themselves to blame (and they can rein in the Act if they wish as well, or at least make the President try to veto it).

[tptacek]

"Anybody"?

The 2001 AUMF is specific: force is authorized against nations, persons, and organizations involved in 9/11, so long as that force is used to prevent future attacks.

The administration cannot use this construction to declare Wikileaks a terrorist organization and drone strike them.

I am interested in which principle of the Constitution you find this situation antithetical to.

[InclinedPlane]

The only oversight in the use of lethal force in furtherance of either identifying or killing senior al qaeda leaders lies with the administration itself.

What is the legal process for being declared an al qaeda leader? What is the legal process for anywhere outside of the US being declared a battlefield? What is the legal process for summary execution of someone who the administration has decided is an al qaeda leader? In each case the answer is: it is entirely up to the administration.

Yes, as a matter of constitutional law it is certainly possible for congress to declare war on a transnational entity and effectively designate the entire world outside the borders of the US as a potential war zone, under the discretion of the president, but I would say that rather twists the spirit of the constitution rather too far.

[tptacek]

What does "oversight" mean? We killed 25,000 innocent people in Dresden in WW2. Predator drones will never kill as many civilians as we did in Tokyo. What judicial opinion can I go look up to justify that?

If you want to come back and tell me that the problem is that we declared war on an ideology or a label, I will ABSOLUTELY sign that petition. Just be aware that a majority of Americans probably won't be signing it with us.

[InclinedPlane]

The 25,000 people in Dresden knew they were in a war, they were citizens of a country the US had declared war against. And calling them innocent is a stretch. They were complicit in the actions of their country (just as we are in the actions of our own). They made the ammunition and grew the food that fed the German war machine. Whether they did so of their own volition or were substantially coerced into doing so is somewhat academic when it comes to war. The folks building V2s were slaves, but was it unjustified to bomb those facilities and kill them to stop the V2s from being built?

Anyway, that's neither here nor there. Today we have a situation where the entire world could be a battlefield and we haven't the slightest clue how to deal with the troubling problems that entails. So far our best efforts have been for the administration to draw up a secret internal white paper on how to make sure they only execute the right people and for everyone else to rely mostly on hope. This is not a situation our existing laws are remotely up to tackling, and yet it will surely become more and more the norm over the next few decades. We need something more than "well, the administration thinks they killed the right guy".

[pdonis]

The only oversight in the use of lethal force in furtherance of either identifying or killing senior al qaeda leaders lies with the administration itself.

This is not true. Both the Senate and House Intelligence committees have the right to see everything the President and the intelligence community see. If they aren't happy with how the decisions are being made on drone strikes, they can change the law that ultimately dictates how those decisions are made.

And that is the real problem with what Rand Paul is doing. If he has a problem with how drone strikes are being conducted, then he should be pushing to change the law that governs drone strikes. He should not be holding up a Presidential nomination.

[AnthonyMouse]

Hypothetical: Congress declares war on drugs. Force is authorized against nations, persons and organizations involved in drug trafficking, so long as that force is used to prevent future drug-related fatalities.

[anigbrowl]

The late Christopher Stuntz made an argument in The Collapse of American Criminal Justice that one of the overlooked good things about alcohol prohibition is that it was instituted and later repealed by amendment of the Constitution, removing major legal ambiguities and allowing the polity to function as a Constitutional Republic.

For some reason or other we have become averse to amending the constitution since the 26th amendment took place in 1971. (There's a 27th amendment that occurred in 1992, but that's kind of an aberration because it was submitted to the States in 1789 and then almost forgotten about for 200 years; there was no deadline on the original submission.)

[AnthonyMouse]

>For some reason or other we have become averse to amending the constitution since the 26th amendment took place in 1971.

The "for some reason" is obvious. Look at the amendments passed since prohibition was repealed in 1933.

22nd: Presidential term limits

23rd: D.C. gets to be part of the Electoral College

24th: Prohibits poll taxes

25th: Relating to Presidential succession

26th: Prohibits age discrimination in voting

Notice the trend? They're all related to elections. Because that's practically the only thing left that expansive readings of the commerce clause and other constitutional provisions and outright power grabs haven't given Congress and the Executive the power to do through normal legislation and executive action.

Why go through the trouble of amending the constitution when the courts allow you to just pass a law or issue an executive order?

[tptacek]

VERY BAD.

[nazgulnarsil]

the ratchet clicks.

[InclinedPlane]

I'll just leave this here: http://www.wired.com/dangerroom/2013/03/friends-of-friends-q...

It's a shame that this was totally and completely unpredictable.

[camperman]

Constitutional justification for drone strikes? Interesting claim. Any links?

[anigbrowl]

http://news.ycombinator.com/item?id=5168711 and about 500 other threads.

http://lmgtfy.com/?q=site%3Anews.ycombinator.com+constitutio...

[camperman]

All I see here is the President granting himself and his administration powers to assassinate US citizens. This is NOT Constitutional in any shape or form. Never has been, no matter how many lists of exceptions there are. I can't find anything in the Constitution that allows him to do so, hence my question.