John McCain Doesn't Understand Civil Liberties

By Jonathan Chait, New York Magazine

09 March 13

ohn McCain, understandably distraught to see most of his party suddenly embracing the libertarian view of drone warfare, took to the Senate floor to pour contempt on Rand Paul. What particularly raised McCain's ire was Paul's use of an extreme hypothetical case: the government murdering Jane Fonda during her visit to North Vietnam. Sneered McCain:

To allege that the United States of America, our government, would drop a drone hellfire missile on Jane Fonda - that brings the conversation from a serious discussion of policy to the realm of the ridiculous.

Of course it's ridiculous. This is one way of understanding the point of civil liberties. They're designed to prevent the government from doing ridiculous things. If your view is that we'd never do terrible things like that because we're the United States of America, then you don't need civil liberties. But the whole construction of the Constitution is premised on the possibility that elected officials might abuse their power.

The Wall Street Journal has an editorial today, which McCain quoted in his speech, attempting to allay Paul's fear but serving only to spread confusion:

Calm down, Senator. Mr. Holder is right, even if he doesn't explain the law very well. The U.S. government cannot randomly target American citizens on U.S. soil or anywhere else. What it can do under the laws of war is target an "enemy combatant" anywhere at anytime, including on U.S. soil. This includes a U.S. citizen who is also an enemy combatant. The President can designate such a combatant if he belongs to an entity-a government, say, or a terrorist network like al Qaeda-that has taken up arms against the United States as part of an internationally recognized armed conflict. That does not include Hanoi Jane.

Right. The government can't just go assassinating American citizens. There's an intermediate step of designating them an enemy combatant. The concern is that a president might be tempted to misuse the power of declaring somebody an enemy combatant.

I'm willing to be persuaded that a process like this could be designed. But the Journal seems to assume that the declaration of enemy-combatant status is tantamount to the real thing.

In 1972, Jane Fonda traveled to North Vietnam for a propaganda mission, and even posed on an anti-aircraft battery. You could at least argue that she "belonged to an entity" that was at war with the United States.

Now, Richard Nixon never tried to assassinate Jane Fonda, in part because she was a powerful propaganda weapon for his policies. He did order the firebombing of the Brookings Institution, though his henchmen didn't carry it out, probably in part because they knew it was illegal. Imagining a president who orders a bombing of the Brookings Institution is even more absurd than imagining a president who orders the murder of Jane Fonda. The absurdity of the case is precisely its value.