When Barack Obama ordered the secret assassination of an American citizen without due process, he relied on legal cover provided by a lawyer in the Justice Department's Office of Legal Counsel. Now that lawyer, David Barron, has been nominated to serve on the 1st U.S. Circuit Court of Appeals. The lifetime appointment would empower him to decide hugely important questions of constitutional law. The Senate must decide whether to confirm him.
"Certainly the opinion would not be something I would have written," says Senator Ron Wyden, a Democrat on the intelligence committee. "The question is: Is it disqualifying?”
It ought to be. Let's be clear about the question each senator confronts: Should the Constitution be entrusted to a man who thinks Americans can be killed without due process? Voters should oust any elected official who thinks so. Those senators' disregard for the Fifth Amendment should be broadcast in attack ads every campaign season.
We don't know Barron's exact legal reasoning. Like Bush Administration lawyers before him, much of the work he did is withheld from the public. But we do know the text of the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ... nor shall any person ... be deprived of life, liberty, or property, without due process of law ...
And we know that Barron helped give Obama legal cover for killing Anwar al-Awlaki far from any battlefield, a precedent that could allow Americans to be targeted in secret in the future. I don't want to live in a nation with a judge who so blatantly helped the federal government wriggle out of respecting the Bill of Rights, nor with any senator who would vote to confirm him.
Can you conceive of anything about his secret reasoning that would mitigate the precedent he helped to set? Unlikely as it seems, let's grant the possibility. Unlike the public, senators are able to see at least some of his OLC opinions. As the ACLU put it before Obama offered that limited access, "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 Barron’s most important and consequential legal writing."
If a senator finds exculpatory evidence, he or she can present it. Otherwise, this is the right time to draw a line. "Someone who gets nominated after having rubber stamped such awful executive authorities should not be rewarded with a lifetime seat interpreting the law, because he has already been compromised," Marcy Wheeler writes.
Barron has nevertheless been labeled "highly qualified" by many Democrats. One wonders what metric they are using. Perhaps they're impressed by his credentials. My standards are different. To me, a whip smart, experienced, Harvard-educated lawyer who enables extrajudicial killing is not "highly qualified" to interpret and safeguard the Constitution. He is demonstrably unqualified.