"I believe that killing an American citizen without a trial is an extraordinary concept and deserves serious debate," writes Sen. Rand Paul in an oped in the New York Times this morning. "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." That's why Sen. Paul proudly declares he is holding up David Barron's nomination to the First Circuit Court of Appeals---a subject I wrote about the other day.
As I noted then, using nominations to gouge concessions on things like document production from administrations is just part of a separation of powers push-and-pull system. It's not pretty, but it's nothing new either. But Paul's oped at several points, including his opening sentence, conflates the asserted need to see the memos with both the substance of the issues in question and with Barron's fitness to be a judge. It's worth keeping these separate.
Paul's starting point is that the Obama administration trampled on the Constitution when it killed Anwar Al-Awlaki:
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.
He concedes that "In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution." The right way to handle Al-Awlaki, in other words, was that "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."
This idea of a trial in absentia followed by drone strike as a means of effectuating a death sentence is novel---and very eccentric. Paul never seeks to explain why wartime authorities are inappropriate for dealing with a senior operational leader of an enemy force who is actively plotting attacks on the United States. Nor does he ever explain how years of a full criminal trial, attendant appeals, and habeas review before neutralizing a suspect who poses a significant threat to the country serves the compelling need to protect Americans from the attacks he is planning. I'll leave to others to address the faintly comical idea of a judge sentencing a criminal defendant to a drone strike, except to note that I have grave civil liberties problems with the idea of any execution of a criminal sentence imposing collateral damage on civilians. The admixture here of criminal process and wartime powers ultimately serves neither system nor the interests these systems are designed to protect.
Paul goes on to assert that "this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada."
On this point, he is factually wrong. The legal standard for targeting a U.S. citizen the administration has embraced is limited to U.S. citizens (1) who are operational leaders of AUMF-covered groups, (2) who pose an imminent threat, (3) whose capture is not feasible, and (4) whose targeting is consistent with the law of armed conflict. Suspects in Germany or Canada or any other governed space would almost surely be feasible to capture and if not, because in a hostage-like situation, would be dealt with by law enforcement, including using law enforcement's powers at times to use lethal force. The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person---Al Awlaki---whom the administration has claimed the authority to target.
"The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs," Paul declares. Yes, but it does not exist to create impunity for people of whatever skin color to kill Americans on the basis of any beliefs. Nor is the rule of law limited to the criminal law. An American who takes up arms against his country may reasonably be fought under that portion of the rule of law that governs the use of military force overseas. Part of the rule of law is the AUMF. Another part of the rule of law is the laws of war.
Paul concludes that the defense of the rule of law "is why I am fighting this nomination. And I will do so until Mr. Barron 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." Note the subtle turn at the end. Now Paul is demanding not merely that he get access to Barron's memos but that Barron himself "frankly discuss" his views. This he certainly should not do. Barron has maintained a dignified silence about the legal advice he gave to his clients. Senators can pressure the administration to release that advice, but it's very wrong to expect the lawyer to disclose or expound upon it. And it would be even more wrong for the lawyer to indulge such expectations.
As I said earlier, the problem here is not the demand to see the memos. That will get worked out in the power politics of Senate-executive relations.
The problem, rather, is the combination of the imputation of presidential policy to Justice Department lawyers asked to evaluate legal questions and the willful misrepresentation of the legal views those lawyers generate to make what is actually cautious and restrained seem lawless and enabling of unbridled presidential power.