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Two Additional Thoughts on Senator Paul’s Filibuster

Jack Goldsmith
Friday, March 8, 2013, 10:52 AM
First, I objected to the large mischaracterizations in Senator Paul’s remarks, and think the ones about our targeting practices abroad were especially damaging.  But there is no doubt that Senator Paul succeeded wildly in focusing public (and congressional) attention on the issues of drone policy, excessive administration secrecy, the scope of the conflict, and the legality on the use of force in the home

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First, I objected to the large mischaracterizations in Senator Paul’s remarks, and think the ones about our targeting practices abroad were especially damaging.  But there is no doubt that Senator Paul succeeded wildly in focusing public (and congressional) attention on the issues of drone policy, excessive administration secrecy, the scope of the conflict, and the legality on the use of force in the homeland.  I think these are admirable accomplishments even though I objected to the means he deployed.  Perhaps Senator Paul would say that the means deployed were necessary to achieve the ends. Second, this whole episode reveals the importance of presidential trust to presidential power.  At the outset of his first term, Barack Obama the Bush critic and civil libertarian has massive stores of trust that he would use force wisely, prudently, and in accordance with the law.  This trust is one of the things that enabled him to continue the Bush policies with so little criticism, and one of the things that allowed him to ramp up the drone program and other stealth tactics with so much public support.  Through a variety of missteps – I would put at the top of the list a Bush-ian tendency to forge ahead with new counterterrorism tactics over the medium term without congressional debate and approval, combined with excessive secrecy, especially in demonstrating the limits on the use of force against American citizens – the Obama administration has been losing this trust, most obviously among war skeptics on the left and the libertarian right, but also and increasingly among those who are more hawkish on national security issues (e.g. Senators Feinstein and McCain).  Senator Paul’s filibuster galvanized this growing distrust of president Obama on national security issues.  As I have said many times, the only real way to re-establish trust in this context is to get the other institutions of government fully on board.  Only the President can make that happen.  Attorney General Holder said on Wednesday that President Obama would address drone and related issues “very soon.”  We will see how seriously he addresses the trust issues.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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