Rand Paul Stands Up for Civil Liberties Again. And Against David Barron


"I rise today to oppose the nomination of anyone who would argue that the President has the power to kill American citizens not involved in combat," Paul will say on the Senate floor Wednesday. "I rise today to say that there is no legal precedent for killing American citizens not directly involved in combat and that any nominee who rubber stamps and grants such power to a President is not worthy of being placed one step away from the Supreme Court."

Sen. Rand Paul (R-Ky.), whose filibuster last year against the nomination of Barack Obama's pick to head the CIA won plaudits from across the political spectrum, is pushing back against the nomination of David Barron to the U.S. Court of Appeals for the First Circuit.

Update: Here is video of Rand Paul.

As Paul explained in The New York Times, Barron authored at least two memos justifying the killing by the U.S. government of a U.S. ciitzen abroad. No trial necessary. Paul isn't alone in wanting more information about Barron's role in the Office of Legal Counsel (OLC).

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.

Sen. Ron Wyden (D-Oregon), the only Democrat to join Paul's filibuster last year, just finished up a speech on C-SPAN calling for full disclosure of the memos. A Boston Globe report says

Some Democrats, including Senator Ron Wyden of Oregon, have expressed public reservations about Barron, prompting the White House to allow all 100 senators to review at least some of the confidential documents Barron wrote. Wyden's spokeswoman said Tuesday that he had not yet taken a position on the nomination.

Barron's legal opinion was related to the potential use of deadly force against Americans in counterterrorism operations. It is believed to be the legal basis for the drone killing of Anwar al-Awlaki, an American who allegedly recruited for Al Qaeda in Yemen. Earlier this month, the American Civil Liberties Union called for a delay in the confirmation vote so senators could review related documents.

Update: Here's Wyden's talk on C-SPAN.

Somewhat inexplicably and despite reservations, Wyden is a yes vote on Barron.

Majority Leader Sen. Harry Reid (D-Nev.) is confident enough Dems will vote in favor of Barron. Boy, that's great.

Say what you will about most senators, who are really useless when it comes to principled action. Thank you, Sens. Wyden and Paul, for salvaging some shred of dignity for the Senate. And shame on all those who just can't be bothered to stand for something other than cheap partisan advantage. The inability of elected leaders to actually articulate and follow principles is the main reason why people hate politicians. Who can blame them? You don't need to agree with pols all the time, or even any of the time, to be able to respect them. But when they so transparently push partisan agendas that are at odds with their supposed beliefs, well, screw them all.

How is it that the White House, whether run by a Dem or a Rep, can get away with only giving senators just "some of the confidential documents" that a nominee has written? It's bad enough that the Obama admin calls itself the most-transparent regime EVAH even as it withholds all sort of info from us regular people. But to refuse senators full access? That's incredible. As is any senator's willingness to participate in a vote under such circumstances.

Breaking: Sen. Ted Cruz (R-Texas) is now talking about Barron on C-SPAN2, mostly attacking him as a judicial activist.

Also: Read Scott Shackford's take.