President Obama's choice to be Director of Central Intelligence (DCI) was approved by the Senate on a vote of 63-34, with thirteen Republicans voting to confirm him. Sen. Rand Paul (R-Ky.) created quite a stir with his 13-hour filibuster against the Brennan nomination. Not until he received written assurances from Attorney General Eric Holder that U.S. citizens would not be targeted for killing by drones on U.S. soil would the doughty Kentuckian stand down.
Good for him.
John Brennan then proceeded to take the Oath of Office, as administered by Vice President Joe Biden. Director Brennan then did something no other officer has done, something that occasioned its own measure of controversy. Brennan was sworn in on an original copy of the Constitution. It was a very august occasion, to be sure, but it was also a mysterious one.
For the man who will be America's spymaster, it was an odd move for him to stir up trouble. Our top spy's action was, well, "spooky."
Civil libertarians left and right were quick to point out that the 1787 Constitution did not include a Bill of Rights. Critics were right to be vigilant, especially when our spymaster has been so intimately associated with choosing targets for drone attacks. The Fifth Amendment says "no person shall be deprived of life, liberty, or property without due process of law." That guarantee should certainly apply to Americans here at home. Similarly, the Fourth Amendment's safeguards against unreasonable searches and seizures need to be underscored.
But there was little notice of the fact that the First Amendment provides for No Establishment of Religion. This was conspicuously not a part of the Constitution that Brennan chose to swear to uphold.
The Constitution of 1787 did not afford that guarantee, but it did give all Americans protection from religious tests for office. Thus, even without a Bill of Rights, Article VI, Sec. 3 provides that: "...no religious test shall ever be required as a qualification to any office or public trust under the United States."
As a result, Brennan's opponents on Capitol Hill scrupulously avoided questioning him about his religion. That was as it should be. We have consistently opposed such religious tests when applied to men and women of our faith.
Here's something else very spooky about the Brennan Oath: How can you take an oath on the Constitution to defend the Constitution? Normally, one takes an oath with his hand on a Bible, or a Koran, on some other Scripture one holds sacred. Taking an oath to defend the Constitution by putting your hand on the Constitution is a skyhook. It is supported by nothing else. It neatly avoids the central question: Is this a valid oath? Can we rely on a person who creates such a stir by the simple act of taking an oath of office?
John Brennan speaks eloquently of "the Majesty of the Hajj." This is the pilgrimage taken by devout Muslims to Mecca. It is a pilgrimage in which no non-Muslim is allowed to take part.
Paging Sen. Chuck Schumer (D-N.Y.) During a series of judicial confirmation hearings nearly a decade ago, Schumer pursued Catholic and Evangelical nominees of President Bush. He wasn't subjecting them to a religious test forbidden by the Constitution, he averred. He was simply probing the nominees' "deeply held personal convictions" which he said might disqualify them from sitting as federal judges.
Where was this constitutional watchdog during the Brennan hearings? The watchdog didn't bark. If any Catholic nominee had spoken of the Majesty of a pilgrimage to Medjugorje, where millions of Catholics believe the Blessed Virgin Mary has appeared, if any Evangelical nominee had spoken of his feeling of spiritual renewal from attending the Washington, D.C. "Stand in the Gap" revival of Promise Keepers in 1997, we might have expected Sen. Schumer to be grilling those candidates under oath about "deeply held personal convictions."
Not this time. Schumer joined other normally alert liberals in confirming Brennan. No wonder Andrew McCarthy, a former federal prosecutor of terrorists, took alarm at the Brennan choice:
Making John Brennan the director of the Central Intelligence Agency is the most monumental mismatch of man and mission that I can imagine. The point of having our intelligence agencies is to make sure that we have a coherent, accurate idea of the threats that confront the United States. Unfortunately, Mr. Brennan's career, and certainly the signature that he has put on the national security component of the Obama administration has been to blind the United States to the threats against us.
What binding force can this Brennan oath have, anyway? Although millions of us would agree with James Madison and George Washington that Providence guided our drafting and peaceful adoption of the Constitution, few of us would contend that the document itself--whether the 1787 original version, or the 1791 version with the Bill of Rights included--is Holy Writ.
George Washington warned us about the loss of faith that can undermine a republic: "Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths?"
George Washington knew something about oaths. He took the first presidential oath to "preserve, protect, and defend the Constitution of the United States" with his hand firmly placed on the Bible. In front of a cloud of witnesses in New York City, he kissed the Bible.
This strange episode gives us no sense of security. Can we trust our property, our reputation, our lives to such a man and such a spooky oath?
Editor's Note: This column was co-authored by Bob Morrison.