Last September, President Obama nominated the candidate in question, Harvard Professor David J. Barron, for Circuit Judge for the U.S. Court of Appeals for the First Circuit. Barron previously served as the acting assistant attorney general of the Office of Legal Counsel (OLC) at the Department of Justice, and Paul has serious concerns that, while serving in that capacity, he wrote “at least two legal memos justifying the execution without a trial of an American citizen abroad.”
In his editorial, Paul noted that on April 30, he wrote to Senate Majority Leader Harry Reid (D-Nev.), urging him to delay Barron’s nomination, pending a court-ordered disclosure of the first of the nominee’s memos that he knew about. Since writing that letter, said Paul, he has learned more.
Paul referred to a letter sent by the American Civil Liberties Union (ACLU) to every member of the Senate on May 6 citing the belief of Senate Intelligence Committee chairwoman, Dianne Feinstein, “There are at least eleven OLC opinions on the targeted killing or drone program.” (Emphasis in original.)
While it has not been determined whether Barron wrote all those memos, noted Paul, “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.”
The senator stated his belief that all senators should have access to all these opinions so that they may fulfill their constitutional obligation to provide “advice and consent” to the president on this nomination.
Paul pointed directly to the Constitution as the basis of his argument, noting that the Bill of Rights is clear:
The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.
The incident that lies at the root of Paul’s — and many others’ — vehement objection was the execution by drone strike in 2011 of Anwar al-Awlaki, an American citizen born in New Mexico to parents from Yemen.
Paul’s objection to al-Awlaki’s execution had nothing to do with the man’s guilt or innocence, and he wrote: “I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment.” Rather, the senator objected to the fact that the execution was carried out in complete disregard of the rights guaranteed to all Americans by our Bill of Rights. He 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.
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