Rand Paul's Case Against Judicial Nominee David Barron

The federal-court nominee who signed off on executing an American without due process is a vote away from confirmation to a lifetime seat.
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A judge who enabled the Obama administration's extrajudicial killing of American citizens is one vote away from a lifetime job interpreting the Constitution. "Senators voted 52 to 43 to advance the nomination of David J. Barron to serve on the U.S. Court of Appeals for the 1st Circuit," The Washington Post's Ed O'Keefe reports. "A final confirmation vote is expected on Thursday."

Senator Rand Paul spoke against his nomination on the Senate floor, offering arguments that every legislator should consider before casting their final vote. (I should note that he cited one of my articles while making his case against Barron.) Here are a few key excerpts:

  • "I rise today to oppose the nomination of anyone who would argue that the president has the power to kill an American citizen not involved in combat and without a trial. I rise to say that there is no legal precedent for killing citizens not involved in combat and that any nominee who rubber stamps and grants such power to a president is not worthy of being one step away from the Supreme Court .... the Barron memos at their very core disrespect the Bill of Rights."
  • "It is hard to argue for trials for traitors and people who would wish to harm our fellow Americans. But a mature freedom defends the defenseless, allows trials for the guilty, protects even speech of the most despicable nature."
  • "I'm not referring to anyone on a battlefield, anyone shooting at our soldiers. Anybody involved in combat gets no due process. What we're talking about is the extraordinary concept of killing Americans who are overseas but not involved in combat. It doesn't mean that they're not potentially—and probably are—bad people. But we're talking about doing it with no accusation, no trial, no charge, no jury .... These memos do not limit drone executions to one man. These memos become historic precedents ..." 
  • "During the Bush years, most of President Obama's party, including the president himself, argued against the detention—not the killing—they argued against the detention of American citizens without a trial. Yet now, the president and the vast majority of his party will vote for a nominee that advocates the killing of American citizens without trial. How far have we come?"
  • "Do we have the courage to denounce drone executions as nothing more than sophisticated vigilantism? How can it be anything but vigilantism? Due process cannot exist in secret."

Paul went on to discuss the Barron memos themselves, which the public has not yet seen. Barron "did not cite any legal case to justify killing an American without a trial because no such legal precedent exists," he said. "It has never been adjudicated .... Barron creates out of whole cloth a defense for executing American citizens .... The cases he cites, which I'm forbidden from talking about, are unrelated to the issue of killing American citizens because no such cases have ever occurred." 

Americans who are traitors deserve punishment, he said. "But I am also conscious of what these traitors have betrayed. These traitors have betrayed a country that holds dear the precept that we are innocent until proven guilty. Aren't we in a way betraying our country's principles when we relinquish this right to a trial?"

Paul best conveyed the radical implications of the Obama administration's position here (my emphasis):

In many nations the presumption of evidence is a legal right to the accused in the trial. In America we go one step further to protect the accused: we place the burden of proof on the prosecution. We require the government to collect and present enough compelling evidence to a jury, not to one person who works for the president, not to a bunch of people who work in secret, but to a public jury, the evidence must be presented. But then we go even further to protect the possibility of innocence. We require that the accused is guilty beyond reasonable doubt. If reasonable doubt remains the accused is to be acquitted. We set a very high bar for conviction and an extremely high bar for execution.

And even after doing all of the right things, we still sometimes have got it wrong and executed people after jury trials mistakenly, erroneously. But now we're talking about not even having the protection of a trial. We're talking about only accusations. Are we comfortable killing American citizens, no matter how awful or heinous the crime their accused of, are we comfortable killing them based on accusations that no jury has reviewed?

Barron is comfortable with that, which is why every senator should vote against confirming him, and why every senator who supports Barron should themselves suffer politically.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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