Last week, Sen. Rand Paul has pledged to filibuster the nomination of David Barron to the First Circuit Court of Appeals because of Barron’s work in the Department of Justice, specifically a memorandum he wrote concerning the Constitutionality of using force against Anwar Al-Awlaki (will be kept updated on the subject)
Sen. Paul Issues Statement on Barron Nomination
“I’ve read David Barron’s memos concerning the legal justification for killing an American citizen overseas without a trial or legal representation, and I am not satisfied. While the President forbids me from discussing what is in the memos, I can tell you what is not in the memos.
There is no valid legal precedent to justify the killing of an American citizen not engaged in combat. In fact, one can surmise as much because the legal question at hand has never been adjudicated. Therefore, I shall not only oppose the nomination of David Barron, but will filibuster,” Sen. Paul said. May 15, 2014 Original
Please, Liberals: Don’t Fall for Rand Paul’s Latest Filibuster
By Sam Kleiner. Kleiner is a fellow at the Yale Law School Information Society Project.
This week, Rand Paul has pledged to filibuster the nomination of David Barron to the First Circuit Court of Appeals because of Barron’s work in the Department of Justice, specifically a memorandum he wrote concerning the Constitutionality of using force against Anwar Al-Awlaki.
While this is likely to make for a good political spectacle for Rand as he jockeys for more time in the limelight, it is a misguided assault on one of the most qualified jurists that Obama has nominated to the courts of appeal.
While Paul has made a name for himself with his attacks on the Obama administration’s use of drones, he remains confused about what exactly his critique is. In March of 2013, Paul delivered a 13-hour filibuster of John Brennan, the nominee to be Director of the CIA, over his opposition to the administration’s use of a drone against Al-Awlaki. Yet a month later on Fox News, Paul said “If there is a killer on the loose in a neighborhood, I am not against drones being used to search them out, heat-seeking devices being used” and that “if someone comes out of a liquor store with a weapon and $50 in cash, I don’t care if a drone kills him or a policeman kills him.”
In his latest crusade, Paul has decided to go after Barron, a law professor at Harvard, who has been nominated for the First Circuit Court of Appeals in Boston. Barron is an expert on separation of powers and federalism and has been mentioned by Jeffrey Toobin as a potential Supreme Court nominee, so it’s not surprising that Republicans would want to go after him. For two years at the beginning of the Obama administration, he directed the Office of Legal Counsel at the Department of Justice. Contrary to what Paul has said, that office is not in charge of making any kind of policy. The only thing the office does is respond to requests from members of the executive for opinions on whether certain actions would be constitutional. In his job at the Department of Justice, Barron answered all kinds of inquiries, including matters as mundane as whether Obama could accept the Nobel Peace Prize without violating the Emoluments Clause of the Constitution.
Paul has attacked the Department of Justice drone memorandum and has tried to conflate criticism of the drone program with opposition to Barron’s nomination. While Democratic Senators have also criticized the drone program, the Constitutionality of using force against Al-Awlaki has been widely accepted in Congress. Senators Wyden, Udall and Heinrich, who have also criticized the drone program, have argued that the killing of Al-Awlaki was “a legitimate use of the authority granted to the President.” Al-Awlaki played a direct operational role in encouraging Nidal Hassan to go on a shooting spree at Fort Hood that killed 13 people and in assisting the Al Qaeda “underwear bomber” in trying to blow up an airliner over Detroit in 2009. Paul has tried to claim that Al-Awlaki was “not engaged in combat,” but that dismisses how important Al-Awlaki was in terrorist attacks. The administration has made this case publicly. Attorney General Eric Holder openly said that it would prefer to capture a U.S. citizen engaged in this type of operation but that when they operate from a place like Yemen, that may not be possible and the president has the Constitutional power to utilize military force.
Even critics of the drone program and the secrecy surrounding it have supported Barron’s nomination. Professor David Cole of Georgetown University, one of the most fervent critics of the administration on civil liberties grounds, has said that Barron is “a highly qualified lawyer who I know personally to be thoughtful, considerate, open-minded, and brilliant. His confirmation would put in place a judge who will be absolutely vigilant in his protection of civil liberties and his insistence that executive power be constrained by the rule of law.” I am amongst those who has criticized the administration’s secrecy on the drone program but I understand that we should not try to hold Barron’s nomination hostage over the administration’s decision on whether to release this memorandum, a decision that he has no control over.
Paul’s filibuster is the latest in a series of Republican attempts to misconstrue the work of a lawyer to keep them off the bench. Whether it is abortion or Benghazi, Republicans will find some way to take the work of a nominee completely out of context and to try to go after them. Here, the stakes are high because Democrats may lose the Senate in November and if Barron isn’t confirmed, it is unlikely that Obama would be able to fill the seat.
Undoubtedly, Paul’s team will spend the week frantically trying to put together enough material to fill up his filibuster. They may find it helpful to turn to one of the most important articles written on presidential war powers in the 21st century, the “Commander in Chief at the Lowest Ebb,” in the Harvard Law Review in 2008. The authors? None other than David Barron and his coauthor Marty Lederman of Georgetown Law.
Barron has been a strong proponent of civil liberties and took action immediately when he got into office to reverse the Bush-era memoranda that authorized enhanced interrogation techniques such as waterboarding.
Whatever one thinks of the Obama administration’s drone policies, it is clear that Paul’s filibuster is a farce. It is designed to rev up support for his 2016 campaign and to keep an incredibly qualified progressive off of the federal bench. This is a political stunt that progressives shouldn’t fall for. Original
Like Rand Paul or not, he is the only member of Congress who is demanding a legal explanation for the killing of US citizens
Joseph Clifford of Salem News
(JAMESTOWN, RI) – Out of 565 members of Congress who have sworn an oath to defend the Constitution, only Rand Paul and Chuck Grassley are willing to challenge the President in his quest to kill US citizens without a trial, charges, or due process. Pretty scary, but then again perhaps the lack of courage or their unwillingness to defend the Constitution is one of the many reasons why the US Congress has an approval rating of 11%.
So far, President Obama has killed 4 US citizens that we know of, and he meets every Tuesday with a secret group to decide who should be on the kill list. How many are on the list, who they are, and what they did, is all considered a secret, so this small Tuesday group sits as judge, jury, and executioner for who knows how many US citizens. The legal explanation and justification for such killings is also held as a “secret”.
Mr. Paul is held in contempt by the left for many legitimate reasons, but the left cannot find it within themselves to rally behind Mr. Paul for trying to prevent more killings of US citizens. Not one member of the left, or Democratic Party is willing to stand with Mr. Paul in demanding a legal explanation for the killing of US citizens. Shame on them!
Mr. Paul is attempting to block the nomination of David Barron as a member of the US Court of Appeals because Paul says it was Barron who wrote the legal briefs justifying earlier assassinations, but Paul argues: “I’ve read David Barron’s memos concerning the legal justification for killing an American citizen overseas without a trial or legal representation, and I am not satisfied.
“While the president forbids me from discussing what is in the memos, I can tell you what is not in the memos. There is no valid legal precedent to justify the killing of an American citizen not engaged in combat.”
So if Mr. Paul is correct in his assessment of there being no “legal justification”, then it must be an illegal killing, or murder, yet Mr. Paul stands alone in the US Congress.
And where do Oregon’s Senators stand on the issue of assassinating US citizens without due process?
Both Senator Wyden and Senator Jeff Merkley, to their credit have spoken out on this issue numerous times and have written letters to Attorney General Holder, John Brennan, the Justice Department and others, trying to get a legal explanation for the killing of US citizens to no avail, but as of this writing neither has not signed on to Rand Paul’s challenge to the administration.
Mr. Paul is demanding the Obama administration release “secret legal briefs” defending assassinating US citizens. Why should such legal briefs be a “secret” in a democracy?
If neither Oregon Senator is willing to sign on to Mr. Paul’s demand to release the legal briefs, they can be rightly accused of “talking the talk” and political rhetoric, but not willing to “walk the walk”.
The time for letter writing and receiving no answers is long past; it is time for Mr. Wyden and Mr. Merkley to do more than write letters and be vocal critics; it is time to take definitive action.
Let’s have a legal explanation for the killing of US citizens without any due process. Failure to demand an explanation for killing US citizens constitutes flagrant abuse of the Constitution. .Original
Senate to vote on lawyer who authored drone strike memos
Senate Majority Leader Harry Reid (D-Nev.) on Thursday filed a motion to advance David Barron, President Obama’s nominee to the 1st Circuit Court of Appeals, setting up a fight over drone policy.
Reid scheduled a vote on Barron’s nomination hours after White House lawyers met with Democratic senators to address their concerns over his role in drafting legal memos justifying the 2011 killing of an American citizen in Yemen with a drone.
A Senate aide said the vote on Barron would likely take place on Wednesday. Reid’s decision to go ahead with the vote signals Barron has enough Democratic support to win confirmation but that not all of his critics in the Democratic Caucus are satisfied.Sen. Ron Wyden (D-Ore.), a critic of the administration’s drone policy, declined to say after the meeting whether he would vote for Barron. He reiterated his demand that the Obama administration should make public the memos authored by Barron justifying a lethal strike against an American citizen without a trial.
“This is one of the few windows when members of the Intelligence Committee really have the opportunity to get documents that are critical for us to do strong oversight, so that is really central to my making judgments,” he said.
Wyden said whether the administration agreed to make the controversial memos public would weigh heavily on his decision.
Democratic senators met Thursday afternoon with White House counsel Kathy Ruemmler and Neil Eggleston in the Sensitive Compartmented Information Facility located in the Capitol Visitor Center.
“There is no valid legal precedent to justify the killing of an American citizen not engaged in combat. In fact, one can surmise as much because the legal question at hand has never been adjudicated. Therefore, I shall not only oppose the nomination of David Barron, but will filibuster,” Paul said in a statement.
The White House has allowed senators to view some of the memos in private, but lawmakers say they should be made more widely available. Democratic and Republican critics of the administration’s drone policy also question how many secret memos exist.
Senate Intelligence Committee Chairwoman Dianne Feinstein’s (D-Calif.) staff estimates there may be as many as nine documents.
The American Civil Liberties Union said the Senate should not vote on Barron until lawmakers have the opportunity to read all of the memos he wrote justifying drone strikes on American citizens.
“No senator can meaningfully carry out his or her constitutional obligation of providing ‘advice and consent’ on the nomination without reading all of Mr. Barron’s opinions on the drone program,” Laura Murphy, director of the ACLU’s Washington legislative office, said in a statement.
“The White House has continued to play hide the ball by not providing all of the opinions written or signed by Mr. Barron on targeted killing, regardless of citizenship,” she said. “The memos raise fundamental due process and rule of law issues, and no senator should agree to vote on the nomination without first getting each and every one of his memos on targeted killing.”
Barron’s nomination was approved by the Judiciary Committee in January on a partisan 10-8 vote.
Sen. Chris Murphy (D-Conn.) said after Thursday’s meeting with White House lawyers that he and other Democrats felt reassured on Barron’s nomination because the Senate Foreign Relations Committee plans to review the Authorization for Use of Military Force (AUMF) against terrorists.
The authorization of force may have been used to justify the killing of Anwar al-Awlaki, the American citizen targeted in Yemen who was allegedly linked to terrorist plots.
“I think it’s incredibly timely that the Foreign Relations Committee is moving forward with the hearing next week on AUMF authorization,” he said. “For a lot of us, our concerns about the opinion can be taken care of if we make a commitment to debate and reauthorize AUMF.
Murphy is a member of the Foreign Relations panel.
—This story was updated May 16 at 9:38 a.m. Original
Judicial Nominee On Hold Over Drone Strike Justification. Transcript of Interview by RAC
RENEE MONTAGNE, HOST:
One of President Obama’s top judicial nominees is on the ropes. In his bid to become a federal appeals court judge, Harvard Law Professor David Barron has cleared nearly every hurdle in the legal establishment. But final approval is on hold as senators demand more information about the advice he gave to the White House on the use of drones to kill Americans overseas. NPR’s Carrie Johnson reports.
CARRIE JOHNSON, BYLINE: Retired Supreme Court Justice John Paul Stevens thinks so highly of his former law clerk, David Barron, that the 94-year-old attended his Senate confirmation hearing. But it’s Barron’s work running the Justice Department Office of Legal Counsel for President Obama that’s now coming in for close inspection.
CHRIS ANDERS: What the legal position of the United States is on who can be killed, and who can’t be killed, ought to be public information.
JOHNSON: That’s Chris Anders, of the ACLU. He’s one of many advocates pushing the White House to release legal analysis by David Barron that governs how the U.S. might deploy drones to kill American terrorism suspects overseas.
ANDERS: One of the problems that we’ve had over the past 12 years, as a country, has been that the system of checks and balances – that system that you learned about in junior high school civics class – has been broken down, so that we have not had a Congress that has exercised healthy, strong oversight over the Executive Branch on key national security questions.
JOHNSON: Kentucky Republican Sen. Rand Paul, a critic of the Obama drone policy, is trying to change that dynamic.
SEN. RAND PAUL: You know, I guess I’d like somebody to be appointed to the court who has a greater respect for the Constitution and for what due process means.
JOHNSON: Paul says he’s read the secret memos, and he’s worried about the executive branch making life-or-death decisions with no input from judges or defense lawyers.
PAUL: It’s a mistake to think whether you have five lawyers look at it, or 1,000 lawyers look at it. If they’re all on one side of the equation – basically, they work for the government – that isn’t an adversarial process, and it isn’t due process.
JOHNSON: Paul says he hopes President Obama withdraws the Barron nomination and moves to make the drone legal analysis public. White House spokesman Eric Schultz tells NPR in a written statement the administration has met lawmakers’ demands, and offered senators private access to all of Barron’s writings about the use of lethal force against U.S. citizens. The White House says Barron’s exceptionally well-qualified to become a judge. Earlier this year, Democrats on the Judiciary Committee unanimously voted to send his nomination to the full Senate.
But as the drone controversy simmers and the midterm elections approach, it’s not clear when they will find 51 votes to overcome a filibuster. Walter Dellinger, who ran the Office of Legal Counsel for President Bill Clinton, says the debate over Barron’s legal work is misguided.
WALTER DELLINGER: His role is not to make a policy judgment about what limits there ought to ever be on targeting an American citizen. His only role is to decide whether it’s lawful, whether there’s lawful authority.
JOHNSON: For 200 years, Dellinger says, American citizens have been viewed as appropriate targets if they’re engaged in active combat against their own country. The question is what constitutes active combat, and whether places like Yemen are part of the battlefield. Dellinger says if Congress is upset about the administration’s use of drones, lawmakers can rein it in by passing a law.
Carrie Johnson, NPR News, Washington. Original