By Medea Benjamin | Op-Ed News | May 15, 2014
If you think that as a United States citizen you’re entitled to a trial by jury before the government can decide to kill you–– you’re wrong. During his stint as a lawyer at the Department of Justice, David Barron was able to manipulate constitutional law so as to legally justify killing American citizens with drone strikes. If you’re wondering what the justification for that is, that’s just too bad – the legal memos are classified. Sounds a little suspicious, doesn’t it? What’s even more suspicious is that now the Obama Administration wants to appoint the lawyer who wrote that legal memos to become a high-ranking judge for life. During his stint as a lawyer at the Department of Justice, David Barron was able to manipulate constitutional law so as to legally justify killing American citizens with drone strikes.
Disturbingly, this is not the first time that the president has rewarded a high-level lawyer for paving the legal way for drone strike assassinations. Jeh Johnson, former lawyer at the Department of Defense, penned the memos that give the “okay” to target non-US citizen foreign combatants with drones. His reward? He’s now the Secretary of the Department of Homeland Security. These Obama nominations are eerily reminiscent of the Bush-era appointment of torture memo author Jay Bybee to a lifetime position of a federal judge.
Barron, a Harvard law professor and former legal counsel at the Department of Justice, was recently nominated by President Obama to the lifetime position of a judge on the First Circuit Court of Appeals—just one step below the Supreme Court. While at the Department of Justice, Barron wrote at least 2 secret legal memos justifying the use of lethal drones to kill Americans suspected of involvement in terrorist activities.
Should someone who has done such immense damage to the rule of law and our moral sensibilities be awarded with a judgeship on the First Circuit Court?
The Attorney General has conceded that four Americans located outside the United States have been killed by drone strikes since 2011. One of those killed was Anwar Al-Awlaki, who was attacked while in a tribal region of Yemen in September 2011. Then Al-Awlaki’s 16-year-old son Abdulrahman, also an American citizen, was shamefully killed in a drone strike in rural Yemen two weeks later.
Call me old-fashioned, but I believe that Americans suspected of committing crimes deserve to have charges brought against them, to have a chance to surrender or be captured, and to be given a fair trial. If they cannot be captured and refuse to surrender, they could be tried in absentia. But Barron helped set a terrible precedent that American citizens have no right to a judicial process—something that human rights advocates around the world have been fighting for since the signing of the Magna Carta 800 years ago.
How can Barron be a judge if he does not understand the deeply valued laws of our land, laws that include habeas corpus and the right to a fair trial? As stated in the Bill of Rights: the Fourth Amendment guarantees that a person cannot be seized by the government unreasonably, and the Fifth Amendment guarantees that the government may not deprive a person of life without due process of law. A judge is supposed to uphold the Constitution, yet Barron has already torn it down.
In an op-ed supporting Barron’s nomination, law professors Charles Fried and Laurence Tribe argue that Barron didn’t order the strikes or design the legal framework for their authorization. Certainly he didn’t order the strikes, but his job as acting head of the Office of Legal Counsel was precisely to provide legal opinions to the President, opinions that became the legal foundation on which the strikes were based.
Some Senators said they would not proceed with Barron’s nomination until they got access to the memos he has written about drone strikes. “This nomination cannot go forward unless this body — every member of this body — is given access to any and all secret legal opinions this nominee wrote on this critical issue,” Grassley said. The White House responded by allowing all interested Senators to go to a secret chamber to read “all written legal advice issued by Mr. Barron regarding the potential use of lethal force against US citizens in counterterrorism operations.” This pretense of transparency is meaningless, though, because Senators won’t be able to publicly question and challenge Barron about the memos unless they are declassified.
That’s why some senators, including Democrat Mark Udall and Republican Rand Paul, are insisting that the memos be made public. That’s all well and good, since we—the public–certainly should have the right to read them. It makes no sense for legal memos to be considered secret national security documents. Even the courts have said as much, when a federal judge in April 2014 ordered the administration to release the legal analysis to the public (an order the administration has so far ignored).
But the Senators should go further and state that David Barron is simply not fit to sit on the bench to interpret our Constitution.
In the hopes of moving our nation back to one that respects, honors and upholds the rule of law, we are pushing the Senate—particularly Majority Leader Harry Reid—to kill Barron’s nomination. Senator Rand Paul is one of the few Senators challenging Barron’s nomination. “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,” he wrote.
Unfortunately, now that the administration has placated Senators by giving them access to Barron’s memos, he will most likely be be confirmed. There is one good thing that could come out of this, though – the sparking of a much-needed national conversation about drone warfare and U.S. policy on the use of killer drones. Does the use of drone strikes that often hit innocent people and incite hatred towards Americans actually ensure our safety, or trigger greater danger? In the meantime, we should urge our Senators to push for the public release of these classified drone memos and should oppose the appointment of David Barron. We don’t need a judge on the bench who has already shown his disregard for the Constitution and for the rights of American citizens. Tell your Senator to vote “no” for drone lawyer David Barron.