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.