Senator Rand Paul Wants To See The Drone Memos

by William Teach | May 12, 2014 8:55 am

No matter what your opinion of Senator Paul, you do have to admire that when he goes after an issue, he doesn’t just trump it then forget it. Ever since his filibuster on drones, of which he wrote that it was just the beginning[1], he’s continued with the subject. He cares heavily on the subject of the Constitution and Bill of Rights. Privacy and 4th amendment rights are important to him. He’s sued Obama[2] over NSA spying on Americans. And here is on drones again

(NY Times[3]) I BELIEVE that killing an American citizen without a trial is an extraordinary concept and deserves serious debate. 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.

But President Obama is seeking to do just that. He has nominated David J. Barron, a Harvard law professor and a former acting assistant attorney general, to a seat on the United States Court of Appeals for the First Circuit.

While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people. (snip)

I believe that all senators should have access to all of these opinions. Furthermore, the American people deserve to see redacted versions of these memos so that they can understand the Obama administration’s legal justification for this extraordinary exercise of executive power. The White House may invoke national security against disclosure, but legal arguments that affect the rights of every American should not have the privilege of secrecy.

I have to agree with him on that point, and it is something that even honest Leftists have noted: what are the legal justifications for drone striking an American citizen in another country over their links to terrorism? Some have gone further, wondering whether those same legal justifications can be applied here in the United States.

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.

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.

True. But

Anwar al-Awlaki was an American citizen who was subject to a kill order from Mr. Obama, and was killed in 2011 in Yemen by a missile fired from a drone. I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. 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.

That’s where it breaks down a bit. Anwar al-Awlaki was fighting on the modern battlefield of Islamic jihad. Does he deserve a trial? What about his right to confront his accusers? Rather hard to do that when tried in absentia. One can’t argue with Senator Paul’s passion, though.

But 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.

And that is the scary part. And the reason we need to see the memos regarding drone strikes on American citizens. We need to see the legal justification. This need not be a hardcore political dogfight. I’m on the fence when it comes to “droning” Americans who have joined terrorist groups overseas, essentially taking up arms against the United States. According to the Geneva Convention, people who fight in no uniforms can be whacked without any thought. However, there are still the protections of the Constitution, which do not stop for Americans not in domestic territory.

Crossed at Pirate’s Cove[4]. Follow me on Twitter @WilliamTeach[5].