Well, we had discovered that metal was relatively impervious to … telepathic effect, and had prepared for ourselves a sort of tin pulpit, behind which we could stand while conducting experiments. This, combined with caps of metal foil, enormously reduced the effects on ourselves. 

Julian Huxley

[Our quote for today is from “The Tissue Culture King,” a short story by Julian Huxley. [1] Huxley was an interesting guy; a prodigy of sorts, a well-known proponent of natural selection, the brother of Aldous Huxley, the author of “Brave New World,” and the grandson of T. H. Huxley, an early supporter of Charles Darwin.[2] But Julian Huxley’s bit of fiction is more relevant to our immediate topic.

The story involves two English explorers, both scientists, who are captives of a lost tribe in Africa. Eventually they convince the local authorities that science has its uses. They put in place a research program to improve the race[3], and, in the final stages, conduct experiments on hypnotism, telepathy and thought projection. But they also plan to escape, so to avoid detection they develop metal foil hats to shield their minds and thoughts from others.

It’s only a story, of course, but over the years it has been quite a popular one.[4] And it spawned a modern phenomenon, i.e., the belief in certain quarters that tin foil hats can deflect government and other attempts to control our minds.[5] Wikipedia says that “the phrase [tin foil hat] serves as a byword for paranoia, persecutory delusions and belief in conspiracy theories.[6]” If you want to know more about tin (or aluminum) foil hat technology, take a look at http://www.youtube.com/watch?v=PS8dNzRhMgk

Why bring this up now? Well, you all know that last week Senator Ron Paul launched a filibuster against the appointment of John Brennan, the National Security Advisor, as Director of the CIA. Senator Paul was concerned that the Administration at some point might use drone strikes against enemies in the United States, and he used Brennan’s appointment as a vehicle for raising the issue. By many accounts it was a successful maneuver[7], but some unkind critics suggested that his fears were unfounded[8]; others went further, implying that Senator Paul is a conspiracy theorist[9], paranoid to the extreme, and probably wears a tin foil hat off camera. But if you look at the recent videos of Senator Paul, you won’t find any evidence of foil on his person. So perhaps there’s a different explanation for his actions.

Let’s review the events of the past few weeks.]

It all started, or seemed to start, with the leak of an internal memo authored by somebody in the DOJ. [10] The memo is unsigned, undated, and not on anybody’s letterhead, but it is styled a “DEPARTMENT OF JUSTICE WHITE PAPER” and stamped “NBC News” on every page, so what better provenance is there? It first popped up in the news on February 4 of this year.[11]

Anyway, the memo addresses the question of whether drone strikes can be used against American citizens overseas and if so, when. It says that if a U.S. citizen is (i) “in a foreign country outside the area of active hostilities,” and is (ii) “a senior operational leader of al-Qa’ida or an associated force…”, and more particularly is (iii) “actively engaged in planning operations to kill Americans,” then of course we can take him or her out with a drone strike.[12]

What about the third country? Suppose its people don’t want to be bombed by us? Well, the memo acknowledges that other countries are sovereigns, but says that a strike would be “consistent with international principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.”[13]

As you might guess, not everybody accepts this; but on the other hand, it is consistent with the plan of attack the U.S. has followed since September 11, 2001. What about the Constitutional protections that U.S. citizens are supposed to enjoy? You know: the right to due process, trial by jury and that sort of thing?[14] The White Paper said that the Constitution is no obstacle. “The Due Process Clause would not prohibit a lethal operation of the sort contemplated here.[15]

Then we get to the good part. The White Paper also implied that, in the proper circumstances, air strikes could be launched against U.S. citizens in the United States.[16] Why? Why not? The idea certainly is consistent with the general notion that Al-Qa’ida operatives are crafty, difficult to find, and should be eliminated when spotted.

The Senate had before it John Brennan’s nomination to head the CIA, and, Mr. Brennan was widely regarded as an expert on the use of drones. So Senator Paul wrote him some letters.

  • On January 25, he asked a bunch of questions about the Administration’s drone program, the legal basis for it, and why, for example, the Administration needed a warrant to wire-tap U.S. citizens abroad, but no similar authorization to kill them by drone strike.[17]
  • On February 12 he followed that up with questions about the DOJ White Paper, asking specifically about whether the CIA had authority to target (and destroy) U.S. citizens on American soil.[18]
  • And finally, on February 20, he responded to Mr. Brennan, who had testified at one point that the CIA had “not conducted” such operations in the United States, and had “no intention of doing so.”  Senator Paul said Mr. Brennan’s answer was “not responsive,” and asked his question again. “Do you believe that the President has the power to authorize legal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?”[19]

Well, apparently Mr. Brennan didn’t want to answer that, and it’s understandable if he felt that way. After all, he’s not a lawyer for the United States Government. But the Attorney General is, and sent a letter.

On Monday, March 4, AG Holder said, in essence, that the Administration had never done such a thing; the question was hypothetical; but, in extraordinary circumstances, such as the attack on Pearl Harbor, on December 7, 1941, or the World Trade Center, on September 11, 2001, it might be “necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.”[20]

That answer, of course, raised a host of additional questions; precipitated Senator Paul’s filibuster; and ultimately led to a second letter from DOJ. On March 7 the Attorney General said: “It has come to my attention that you have now asked an additional question. ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.”[21]

So there you have it. Senator Paul says that he’s satisfied with the answer. [22] But should he be? When are American citizens, or anybody for that matter, actually “engaged in combat” against the United States? When they’re firing weapons? When they form up with troops on the border? When they’re planning hypothetical operations? When they’re advocating an insurgency? When they’re writing a book about insurgency? When they’re reading such a book? When they’re protesting a perceived injustice? It’s not really clear that the Attorney General answered anything. We could write a whole blog on the issues.

But why would the United States need to have the CIA or the military intervene on American soil? We have state and local police forces all over the place, plus FBI and other federal law enforcement agencies and, of course, the ever-present Department of Homeland Security.[23] Surely if we can spot somebody, or target a person for a drone strike, we can also arrest him (or her). The bad guy (or girl) would be in our country, not in the mountains of Pakistan or Yemen.

And finally, let’s get back to the tin foil hats. Today people who wear them are supposed to be obsessed with conspiracies, paranoid, and so forth. Senator Paul didn’t wear one in public last week, and his reaction to the answers the Administration gave seems entirely appropriate. Nobody would answer his main question, so he kept asking it. When he finally did get an answer, it wasn’t all that clear, but it was short and he accepted it. So while others may wear strange, crinkly metal hats in their public or private lives, this time around Senator Paul was not one of them.

What about the Administration? Are there some people in DOJ, or other places, who are obsessed with the possibility of domestic terrorists? Do they want to patrol our skies with drones, and strike terrorists down with Hellfire Missiles on a moment’s notice? Who knows? But the Attorney General, among others, might want to check the closets in Main Justice to see if there is a lot of tin foil stashed there. Perhaps the new CIA Director should do the same in his own building. It’s better to be safe than sorry.

Yes, but tin foil hats are defensive weapons. Terrorist-hunters are on the offense. Why, you might ask,  would they need such a technology? The answer is obvious: To defend their minds. They don’t want any stray ideas seeping in, especially doubts. Think how embarrassing it would be if they decided they’ve been over-hyping the domestic terror threat! The media would be livid!

Quis custodiet ipsos custodes?[24]

 


[1] If you want to read the story, you can find it online at http://www.revolutionsf.com/fiction/tissue/07.html.

[2] If you want to know more Julian Huxley, Wikipedia has a good biography of him. Just go to the Wikipedia website and search “Julian Huxley,” or simply click here: http://en.wikipedia.org/wiki/Julian_Huxley

[3] What kind of improvements? Well, Huxley thought the human raced was improvable in many ways. See Huxley, What Dare I Think (Chatto & Windus, London, 1931) available at http://www.pdftitles.com/author/Julian.+Huxley

[4] For its publication history, take a look at http://www.isfdb.org/cgi-bin/title.cgi?57847 According to that data base, the story was first published in the Yale Review in 1926, and has been republished frequently in magazines and anthologies of science fiction.

[5] You can find an explanation of today’s usage by searching “Tin foil Hat” at the Wikipedia website, or by clicking here: http://en.wikipedia.org/wiki/Tin_foil_hat If that’s too tame for you, take a look at ZPI/blog, Zapato, Aluminum Foil Deflector Beanie (no date),  http://zapatopi.net/afdb/

[6] See the Wikipedia entry at note 5.

[7] See National Journal, Goldmacher & Reinhard, Inside the Rand Paul Filibuster (March 7, 2013), at http://www.nationaljournal.com/daily/inside-the-rand-paul-filibuster-20130307

[8] See Huff Post Politics, McAuliff, Rand Paul’s Filibuster Belittled by John McCain As ‘Simply False’, at http://www.huffingtonpost.com/2013/03/07/rand-paul-john-mccain-filibuster_n_2829358.html

[9] See Dailey Caller, Poor, Carville likens Rand Paul’s drone concerns to birthers, evolution and global warming deniers (03/08/2013) at http://dailycaller.com/2013/03/08/carville-blasts-rand-pauls-cockamamie-conspiracy-theories-video/

[10] See DOJ, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force (no date, no author), at http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf This memo will be cited as White Paper at __.

[11] See Open Channel on NBC News, Isikoff, Justice Department memo reveals legal case for drone strikes on Americans (4 Feb. 2013) at http://openchannel.nbcnews.com/_news/2013/02/04/16843014-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans?lite

[12] See, e.g., White Paper at §1, p.1; §§1 & 2, p. 5; §5, p.16.

[13] See White Paper at § 1, p. 5.

[14] Take a look at the 5th Amendment to the United States Constitution. It says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” You can find a correct version of the  5th Amendment at the National Archives: go to http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

[15] See White Paper at §2, p. 5.

[16] See White Paper at §3, p. 15, citing Ex Parte Quirin, 317 U.S. 1, 37, 38: “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter [the United States] bent on hostile acts,” may be treated as “enemy belligerents” under the law of war.” So, force can be used against them, even in the U.S.

[17] See Letter from Senator Rand Paul to John O. Brennan, Presidential Assistant for Homeland Security and Counterterrorism, dated January 25, 2013, at http://www.paul.senate.gov/files/documents/Brennan1.pdf

[18] See Letter from Senator Rand Paul to John O. Brennan, Presidential Assistant for Homeland Security and Counterterrorism, dated February 12, 2013, at http://www.paul.senate.gov/files/documents/Brennan2.pdf

[19] See Letter from Senator Rand Paul to John O. Brennan, Presidential Assistant for Homeland Security and Counterterrorism, dated February 20, 2013, at http://www.paul.senate.gov/files/documents/Brennan3.pdf

[20] See DOJ Letter from Eric Holder to Senator Rand Paul, dated, March 4, 2013, at (http://www.paul.senate.gov/files/documents/BrennanHolderResponse.pdf

[21] See DOJ Letter from Eric Holder to Senator Rand Paul, dated March 7, 2013, at http://www.washingtonpost.com/blogs/post-politics/files/2013/03/Senator-Rand-Paul-Letter.pdf

[22] See Washington Post, Post Politics, Weiner, Eric Holder responds to Rand Paul with ‘no,’ Paul satisfied (March 7, 2013), at http://www.washingtonpost.com/blogs/post-politics/wp/2013/03/07/white-house-obama-would-not-use-drones-against-u-s-citizens-on-american-soil/

[23] You can find them at http://www.dhs.gov/

[24] More Latin. Check it out on Wikipedia.