President Barack Obama's appellate court pick has written at least two memos that justify the execution of American citizens abroad without a trial, and Kentucky Republican Sen. Rand Paul says the Senate and Americans deserve to see those documents.
"I can't imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person's views concerning the extrajudicial killing of American citizens," Paul wrote in a Monday opinion piece for The New York Times
Obama has nominated Harvard law professor David J. Barron, a former acting assistant attorney general, to sit on the U.S. Court of Appeals for the First Circuit. While Barron was an official with the Justice Department's Office of Legal Counsel, Paul says, he wrote at least two legal memos that justify killing American terror suspects overseas without first trying them.
But Obama won't share Barron's legal argument, says Paul, who wrote a letter to Senate Majority Leader Harry Reid urging that the nomination be delayed pending a court-ordered disclosure of the first memo.
He noted that the American Civil Liberties Union
also sent a letter to all senators on May 6, saying in the view of Senate Intelligence Committee Chairwoman Dianne Feinstein, "there are at least 11 OLC opinions on the targeted killing or drone program."
And while it has not been yet established if Barron wrote the memos, "we do know that his controversial classified opinions provided the president with a legal argument and justification to target an American citizen for execution without a trial by jury or due process," Paul said.
Senators should have access to all of the opinions, and Americans deserve to see redacted versions of them "so that they can understand the Obama administration's legal justification for this extraordinary exercise of executive power," Paul wrote.
And even though the White House can claim the memos can't be released because of national security reasons, "legal arguments that affect the rights of every American should not have the privilege of secrecy," he wrote.
Further, he said that he agrees with the ACLU that senators can't carry out their obligations to approve Barron for a lifetime appointment as a federal judge without being able to read his "most important and consequential legal writing."
A presidential order to kill an American citizen away from a battlefield is unprecedented, Paul said in reference to the ACLU's letter, and said killing Americans without a trial is a violation of the Bill of Rights, along with the Fifth and Sixth Amendments of the Constitution.
"In battle, combatants engaged in war against America get no due process and may lawfully be killed," said Paul. "But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution."
He agreed that Americans who commit treason should be punished, even with a maximum penalty of death.
But the process necessary to convict someone like Anwar al-Awlaki,
who was killed in 2011 by a drone-fired missile, was not followed, Paul said.
"I don't doubt that Mr. Awlaki committed treason and deserved the most severe punishment," Paul wrote. "Under our Constitution, he should have been tried — in absentia, if necessary — and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue."
However, Paul said the legal standards don't only apply to such people, but the Obama administration has established its legal rights that apply to every American, no matter what country they are in.
"Defending the rights of all American citizens to a trial by jury is a core value of our Constitution," Paul said. "Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process."
Paul said the rule of law exists to protect those who are minorities, by virtue of skin color or beliefs, and that he will fight Barron's nomination until he "frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history."
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