Rand Paul Makes The Case For Liberals And Libertarians Opposing Extra-Judicial Killings Of Americans

As James Franco said, "It's what the people want."

On Saturday Jodie Evans, a cofounder of CodePink: Women for Peace, went to David Barron’s house and gave him this letter. She asked if he really believed it was ok to order the death of a US citizen without due process. He slammed the door on her. Does that mean he does believe it so didn’t want to answer her question? Jodie didn't figure in Tim Phelps' L.A. Times story this morning, Liberal Groups Urge Senate To Block Obama Judicial Nominees or Rand Paul's NY Times OpEd that supports the same position.

Phelps wrote that "prominent senators from both parties, backed by the American Civil Liberties Union, are trying to block, or at least delay, a planned vote on Harvard law professor David Barron, whom Obama has nominated to be a judge on the 1st Circuit Court of Appeals, which hears cases from New England." Why?

As a Justice Department lawyer, Barron wrote at least one memo that provided the legal justification for the targeted killing of Anwar Awlaki, a U.S. citizen who was slain by a drone strike in Yemen in 2011.

The fight over Barron has made complicated alliances. Sen. Rand Paul (R-Ky.) and Democratic Sens. Mark Udall of Colorado and Ron Wyden of Oregon have joined the ACLU in saying all of Barron's memos on drones must be made public or at least made available to senators before any vote.

The White House offered last week to make one memo available to senators to read, a move that did not satisfy critics.

"They've played one big game of 'hide the ball,'" said Christopher Anders, senior legislative counsel at the ACLU. "We want to see all the memos he's involved in writing."

Rand Paul's OpEd yesterday was far more inflammatory and goes right to the heart of basic tenets of his core libertarian/Constitutional beliefs. He starts right off declaring he believes "that killing an American citizen without a trial is an extraordinary concept and deserves serious debate. I can’t imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person’s views concerning the extrajudicial killing of American citizens… While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people." I wonder what other Republican senators thought when they contemplated these words from Paul-- coupled with his desire to lead their 2016 ticket.

I agree with the A.C.L.U. that “no senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.” The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.

The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.

In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.

…Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process. During World War I, our nation convicted and imprisoned Americans who voiced opposition to the war. During World War II, the government interned Japanese-Americans.

The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs. That is why I am fighting this nomination. And I will do so until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history.

What are the limits if we allow a president, yes, even a Democratic president, to ignore the Constitution and order non-judicial executions of American citizens? None. On the other hand, is someone getting Lindsey Graham his smelling salts?