In all probability, Senator Rand Paul (R-KY) will be filibustering Obama’s nomination of David Barron to the U.S. First Circuit Court of Appeals today. His concerns lie with the legal memos Barron wrote justifying the killing of an American citizen overseas without due process.
The Fifth Amendment to the Constitution states that no person can be “deprived of life, liberty, or property, without due process of law.” Any legal reasoning that provides the executive branch the power to decide to execute a non-combatant citizen by itself is at odds with the plain text of the amendment.
Last week, Paul penned an op-ed in The New York Times urging that the memos be released before the nomination. He said that he could not “meaningfully carry out his…constitutional obligation to provide ‘advice and consent’ on this nomination” without reading “Barron’s most important and consequential legal writing.”
The memos were shown to Paul, but did little to assuage his concern. On May 15, Paul released an official statement vowing to filibuster:
“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.” [emphasis mine]
Now, a report by the Business Insider says that Paul will indeed be following through with his promise!
I wholeheartedly appreciate Paul’s stance, and support his efforts to secure the Constitutional rights of Americans. The Founding Fathers were aware of the danger imposed by broad executive powers and therefore acted to restrain them with the Bill of Rights. That such restraints are being whittled away by secret legal opinions ought to be a concern for everyone!
Even then, Paul is receiving flak from neoconservatives. Jennifer Rubin, a columnist for the Washington Post, attacked him for his “drone demagoguery.” Her piece is quite representative of the way hawks think: it insinuates that politicians not willing to do away with due process are weak and not serious about dealing with terrorism. Such arguments need not even be refuted.
Baseless accusations aside, today’s filibuster will be a sequel to his 13-hour filibuster of John Brennan’s nomination to the CIA. That time, Paul voiced concern over the fact that the President would not admit that he did not have the authority to kill a non-combatant American citizen with a drone. He received huge amount of support from across the party lines. Twitter users registered their support by tweeting with the hashtag #StandWithRand. Notably, Paul succeeded in his quest, as the Attorney General replied with this letter:
Support him by tweeting with #StandWithRand. If this helps him with his expected 2016 Presidential campaign, all the better!
Update: The New York Times reports that the Obama administration will be publicly releasing the memo. Although, also that, “A spokesman for Mr. Paul said the senator would still take the Senate floor.”
Update 2: It happened! In case you missed it, this is the video:
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