More important, as I’ve pointed out in connection with our debates over surveillance authority, the Constitution is just the beginning of any analysis of our rights, not the end. Nothing prevents Congress from legislating additional protections against government action for Americans situated outside our borders — and Congress has done exactly that in several contexts. To conclude that the Constitution does not forbid everything Senator Paul opposes is not to say that his opposition is unworthy of our consideration and, perhaps, of some precautionary lawmaking.
Yet, as problematic as it may be to claim that the Constitution is completely unavailing outside our borders, even worse is Paul’s populist claim that the Constitution fully applies against our government outside our borders. Does anyone really believe an American in Yemen has the same due-process rights as an American in Peoria?
Moreover, there is a gaping hole in Paul’s contention that American citizens are deprived of due process if lethal force is used against them based on the commander-in-chief’s determination that they have joined enemy forces — a flaw I have pointed out before but for which Paul evidently has no answer.