The Brennan Loophole

When Kentucky Senator Rand Paul took to the floor last Wednesday to filibuster the nomination of John O. Brennan as Director of the CIA, he posed this question: “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?”

Thirteen hours and a couple of Jay-Z references later, Paul and his fellow Republicans finally got the answer they were looking for in the form of a memo by Attorney General Eric Holder. No, he wrote, the President does not have that authority. A simple answer to a simple question, and it only took half a day to get it. And they said Washington politicians weren’t efficient. 

Of course, many were more than a little skeptical at the response. Why didn’t the White House respond sooner? For some, Brennan’s swearing-in ceremony on March 8 helped to legitimize this skepticism. Instead of taking his oath of office on the Bible, as most elected officials do, Brennan was sworn in on an original copy of the United States Constitution.

Though the biblical oath is an important part of American politics, it is not a hard and fast rule. From the second inauguration of George Washington to that of John Quincy Adams, there is no record of a Bible being used. Theodore Roosevelt wasn’t sworn in on a Bible at his inauguration. Neither was Kennedy.

So, what’s the problem then? Well, it’s interesting to note that Brennan was sworn in on an original copy of the Constitution. That is, one without the Bill of Rights. You know, those 10 little amendments that give us the freedom of speech and the right to bear arms.

According to White House deputy press secretary Josh Earnest, “Director Brennan told the president that he made the request to the archives because he wanted to reaffirm his commitment to the rule of law as he took the oath of office as director of the CIA.”

My question is this: what rule of law was Brennan referring to? Certainly not the one that we abide by today. Brennan’s middle initial O must stand for outdated because the original Constitution has ceased to be the rule of law in the United States since the Bill of Rights was ratified in 1791. 

The irony of Brennan’s decision, which has been addressed by several members of the conservative blogosphere, is that the original Constitution also does not include the right to due process (5^th Amendment) and the right to trial by jury (6^th Amendment). These are both provisions of our Constitution that Brennan’s stance on drone strikes directly violates. 

By being sworn in on a Constitution without these precious amendments, Brennan essentially found a loophole in the system where he can claim to uphold American law while still supporting the use of drones on American soil. He has consistently made the claim that there is no geographical region, including the United States, that can be exempt from drone strikes. And, as far as I know, he is standing by that premise. 

While Brennan himself has not come out to defend his choice to be sworn in on the original Constitution, it is a decision that leaves many questioning whether the Obama administration is really committed to refraining from drone strikes on our soil. Holder can write his official memos until they run out of paper at the Department of Justice. But his simple answer to our simple question is simply not going to cut it.