Drones in Wonderland

Not only in an epic thirteen-hour filibuster but also in his 2013 CPAC speech, Senator Rand Paul referred to Wonderland's White Queen from Lewis Carroll's Through the Looking Glass. Paul, warning against drone assassination policies that deprive citizens of the right to due process, repeated the nonsensical phrase: "Sentence first; verdict afterwards." Sen. Paul was likely recalling an exchange between Alice and the White Queen regarding the fate of a King's messenger, for it was actually later in the story that the Queen of Hearts, at the tart-stealing knave's trial, uttered Paul's famous quotation. The White Queen's explanation, however, emphasizes Paul's point even better:

"[The King's messenger is] in prison now, being punished: and the trial doesn't even begin till next Wednesday: and of course the crime comes last of all."

"Suppose he never commits the crime?" said Alice. Near the end of his speech, Sen. Paul's own voice was also beginning to sound a bit raspy. Yet for many hours, capturing the attention of the nation, Paul voiced the concern of many Americans: the power of drone technology is unprecedented, and the Obama administration wields it without legislative or judicial oversight.

Using the analogy of the Queen's perverse logic was a good one. Obama's overseas drone strikes, sometimes even aimed at American citizens, have typically been conducted when the suspect was not actively engaged in combat. Yet we are assured that the assassinated individuals were targeted as "imminent" threats, and that, as in Wonderland, our world is better for it. But what, Paul fretted, prevents Obama from directing that same technology and sort of logic against U.S. citizens here at home? Are they sentenced (to death!) first, like in Wonderland, to receive a verdict after, only if and when someone raises a formal challenge? The familiar screeching command of the Queen of Hearts may have been the Wonderland line others were reminded of after reading a May 2012 column in the New York Times. The lengthy piece provided a candid behind-the-scenes look at drone strike decision-making. Based on that story, we could imagine Obama sitting at a desk during Tuesday's counterterrorism meetings, shuffling through a stack of suspect files like a deck of cards, choosing the target for the next assassination as if to order, like the Queen: Off with his head! (But at least, as Obama assured Sen. Rockefeller, he's no Dick Cheney.) But an even better analogy from Carroll's pages that addressed Paul's concern is the oft-quoted exchange between Alice and another Wonderland character -- Humpty Dumpty: "When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master -- that's all." As noted by Dr. Jacco Bomhoff in the Comparative Law Blog, those lines have been cited in several important court decisions discussing the interpretation, construction, and retrospective application of law. Bomhoff concluded: [T]he real problem with Humpty's view is related to authority; the fact that the speaker gets to unilaterally determine the meaning of his words precludes all form of communication when applied to ordinary life, but leads to absolute power when applied to legal commands. It is not mere retroactivity, therefore, that is objectionable; it is the absolute power that comes with being both legislator and judge. In the case of drone strikes, the "legal command" is a death sentence, wielded by the executive branch with a power that overrides both the legislature and judiciary. And that mastery all revolves around the unilateral determination, without oversight, of the definition of key words and phrases, such as "imminent," "threat," "combatant," and "infeasibility of capture." The smallest difference in degree of meaning of any of those terms is monumental, not only for the potential targets and the determination of their fate as a captured prisoner or corpse, but for those who happen to be sitting within the strike zone at the wrong time. For those unfortunates, varying definitions of "near-certainty" in assessing potential collateral damage mean the difference between life and death. But quite conveniently, as also acknowledged by the NYT, "all military-age males in a strike zone [are defined] as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent." Sentence first, verdict afterwards. Although Sen. Paul's filibuster focused on drones, he earlier had voiced similar concerns regarding the 2012 National Defense Authorization Act ("NDAA"), calling it an "abomination" for its vague provisions that would allow the US government to indefinitely detain citizens suspected of aiding terrorist activities. Paul had backed an amendment to the bill that limited the authority to override due process, but then a committee led by Sen. John McCain revised the language in the amendment -- a wording that Paul found "insufficient." Citizens, like the King's messenger in Wonderland, before (and if ever) they stand before a judge, may find themselves imprisoned, or worse, for a split and final second, staring at the nose of a Hellfire missile. Their fate rests on the decision of an unchecked "master" of words, in a wonderland-world where "opening a gate" may make one a "facilitator," or "three guys doing jumping jacks" might indicate a "terrorist training camp," or "men loading a truck with fertilizer" might be considered potential "bombmakers." With his filibuster, Sen. Paul courageously led a challenge to a policy that could seriously undermine our constitutional rights. But Sen. McCain dismissed Paul as a "wacko bird," bringing a picture to mind of the absurd game of Wonderland croquet with a nasty Queen of Hearts swinging live flamingos as mallets. And so, for now, we're supposed to trust an administration that holds, potentially unrestrained by the right to due process, all the keys -- to detention facilities and the drones. The White Queen recommended to Alice that she learn to "believe in impossible things," at least "six before breakfast." The Obama administration, with its drone policy, has given us a thing to believe -- one that's supposed to make us feel safer, "and better, and better, and better" still. Paul has clearly exposed the impossibility.