[Congressional Record Volume 160, Number 77 (Wednesday, May 21, 2014)]
[Senate]
[Pages S3198-S3201]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           BARRON NOMINATION

  Mr. PAUL. I rise today in opposition to the killing of American 
citizens without trials. I rise today to oppose the nomination of 
anyone who would argue that the President has the power to kill an 
American citizen not involved in combat and without a trial.
  I rise today to say that there is no legal precedent for killing 
American citizens not involved in combat, and that any nominee who 
rubber stamps and grants such power to a President is not worthy of 
being placed one step away from the Supreme Court.
  It isn't about just seeing the Barron memos. Some seem to be placated 
by the fact that: Oh, they can read these memos.
  I believe it is about what the memos themselves say. I believe the 
Barron memos, at their very core, disrespect the Bill of Rights.
  The Bill of Rights isn't so much for the American Idol winner, the 
Bill of Rights isn't so much for the prom queen or the high school 
football quarterback. The Bill of Rights is especially for the least 
popular among us. The Bill of Rights is especially for minorities, 
whether you are a minority by virtue of the color of your skin or the 
shade of your ideology. The Bill of Rights is especially for unpopular 
people, unpopular ideas, and unpopular religions.
  It is easy to argue for trials for prom queens. It is easy to argue 
for trials for the high school quarterback or the American Idol winner. 
It is hard to argue for trials for traitors and for people who would 
wish to harm our fellow Americans. But a mature freedom defends the 
defenseless, allows trials for the guilty, and protects even speech of 
the most despicable nature.
  After 9/11, we all recoiled in horror at the massacre of thousands of 
innocent Americans. We fought a war to tell other countries we would 
not put up with this and we would not allow this to happen again.
  As our soldiers began to return from Afghanistan, I asked them to 
explain in their own words what they had fought for. To a soldier, they 
would tell me they fought for the American way. They fought to defend 
the Constitution, and they fought for our Bill of Rights.
  It is a disservice to their sacrifice not to have an open and full-
throated public debate about whether an American citizen should get a 
trial before they are killed.
  Let me be perfectly clear. I am not referring to anybody involved in 
a battlefield, anybody shooting against our soldiers. Anybody involved 
in combat gets no due process.
  What we are talking about is the extraordinary concept of killing 
American citizens who are overseas but not involved in combat. It 
doesn't mean that they are not potentially--and probably are--bad 
people, but we are talking about doing it with no accusation, no trial, 
no charge, and no jury. The nomination before us is about killing 
Americans not involved in combat.
  The nominee, David Barron, has written a defense of executions of 
American citizens not involved in combat. Make no mistake, these memos 
do not limit drone executions to one man. These memos become historic 
precedent for killing Americans abroad.
  Some have argued that releasing these memos is sufficient for his 
nomination. This is not a debate about transparency. This is a debate 
about whether or not American citizens not involved in combat are 
guaranteed due process.
  Realize that during the Bush years, most of President Obama's party--
including the President himself--argued against the detention--not the 
killing--of American citizens without a trial. Yet now the President 
and the vast majority of his party will vote for a nominee who 
advocates the killing of American citizens without trial. How far have 
we come? How far have we gone? We were once talking about detaining 
American citizens and objecting that they would get no accusation and 
no trial. Now we are condoning killing American citizens without a 
trial.
  During President Obama's first election, he told the Boston Globe:

       No. I reject the Bush administration's claim that the 
     President has plenary authority under the Constitution to 
     detain U.S. citizens without charges as unlawful combatants.

  As President, not only has he signed legislation to detain American 
citizens without trial, but he has now approved of killing American 
citizens without a trial. Where has candidate Obama gone?
  President Obama now puts forward David Barron, whose memos justify 
killing Americans without a trial. I can't tell you what he wrote in 
the memos; the President forbids it. I can tell you what Barron did not 
write. He did not write or cite any legal case to justify killing an 
American without a trial because no such legal precedent exists. It has 
never been adjudicated. No court has ever looked at this. There has 
been no public debate because it has been held secret from the American 
people.
  Barron creates out of whole cloth a defense for executing American 
citizens without trial. The cases he cites--which I am forbidden from 
talking about, which I am forbidden from citing today--are unrelated to 
the issues of killing American citizens because no such cases have ever 
occurred. We have never debated this in public. We are going to allow 
this to be decided by one branch of government in secret.
  Yet the argument against the Barron memo, the argument against what 
Barron proposes should be no secret and should be obvious to anyone who 
looks at this issue. No court has ever decided such a case. So Barron's 
secret defense of drone executions relies on cases which, upon critical 
analysis, have no pertinence to the case at hand.
  Am I the only one who thinks that something so unprecedented as an 
assassination of an American citizen should not be discussed, that we 
should discuss this in the light of day. Am I the only one who thinks 
that a question of such magnitude should be decided in the open by the 
Supreme Court?
  Barron's arguments for the extrajudicial killing of American citizens 
challenges over 1,000 years of jurisprudence. Trials based on the 
presumption of innocence are an ancient

[[Page S3199]]

rite. The Romans wrote that the burden of proof is on he who declares, 
he who asserts that you are guilty, not on he who denies. The burden is 
on the government.
  We describe this principle as the principle of being considered 
innocent until guilty. This is a profound concept. This is not 
something we should quietly acquiesce to having it run roughshod on or 
diluted and eventually destroyed.
  In many nations the presumption of innocence is a legal right to the 
accused, even in the trial. In America we go one step further to 
protect the accused. We place the burden of proof on the prosecution. 
We require the government to collect and present enough compelling 
evidence to a jury--not to one person who works for the President, not 
to a bunch of people in secret, but to a public jury. The evidence must 
be presented.
  But then we go even further to protect the possibility of innocence. 
We require that the accused be guilty beyond reasonable doubt. If 
reasonable doubt remains, the accused is to be acquitted.
  We set a very high bar for conviction and an extremely high bar for 
execution, and even doing all of the most appropriate things, we still 
sometimes have done it wrong and have executed people after jury trials 
mistakenly, erroneously. But now we are talking about not even having 
the protection of a trial. We are talking about only accusations.
  Are we comfortable killing American citizens no matter how awful or 
heinous the crime they are accused of? Are we comfortable killing them 
based on accusations that no jury has reviewed?
  Innocent until proven guilty--the concept--is tested. We are being 
tested. It is being tested when the consensus is that the accused is 
very likely guilty in this case. The traitor who was killed, in all 
likelihood, was guilty. The evidence appears to be overwhelming. Yet 
why can't we do the American thing--have a public trial, accuse them, 
and convict them in a court?
  It is more difficult to believe in the concept of innocent until 
proven guilty when the accused is unpopular or hated. The principle of 
innocent until proven guilty is more difficult when the accused is 
charged with treason. The Bill of Rights is easy to defend when we like 
the speech or sympathize with the defendant. Defending the right of 
trial for people we fear or dislike is more difficult. It is extremely 
hard. But we have to defend the Bill of Rights or it will slip away 
from us.
  It is easy to support a trial for someone who looks like you, for 
someone who has the same color skin, or for someone who has the same 
religion. It is easy. Presumption of innocence is, however, much harder 
when the citizen practices a minority religion, when the citizen 
resides in a foreign land or sympathizes with the enemy. Yet our 
history is replete with examples of heroes who defended the 
defenseless, who defended the unpopular, who sometimes defended the 
guilty.
  We remember John Adams, when he defended the British soldiers--the 
ones who were guilty of the Boston massacre. We remember fondly people 
who defend the unpopular, even when they end up being declared guilty, 
because that is something we take pride in--our system. We remember his 
son John Quincy Adams when he defended the slaves who took over the 
Amistad. We remember fondly Henry Selden who defended the unpopular 
when he represented Susan B. Anthony, who voted illegally as a woman. 
We remember fondly Eugene Debs who defended himself when he was accused 
of being against the draft and against World War I and was given 10 
years in prison.
  We defend the unpopular. That is what the Bill of Rights is 
especially important for. We remember fondly Clarence Darrow who 
defended the unpopular in the Scopes monkey trial. We remember fondly 
Thurgood Marshall who defended the unpopular when he convinced the 
Supreme Court to strike down segregation.
  Where would we be without these champions? Where would we be without 
applying the Bill of Rights to those we don't like, to those we don't 
associate with, to those who we actually think are guilty?
  Where would the unpopular be without the protection of the Bill of 
Rights?
  One can almost argue that the right to trial is more precious the 
more unpopular the defendant. We cannot and we should not abandon this 
cherished principle.
  Critics will argue these are evil people who plot to kill Americans. 
I don't dispute that. My first instinct is, like most Americans, to 
recoil in horror and want immediate punishment for traitors. I can't 
stand the thought of Americans who consort with and advocate violence 
against Americans. I want to punish those Americans who are traitors. 
But I am also conscious of what these traitors have betrayed. These 
traitors are betraying a country that holds dear the precept that we 
are innocent until proven guilty. Aren't we, in a way, betraying our 
country's principles when we relinquish this right to a trial by jury?
  The maxim that we are innocent until proven guilty is in some ways 
like our First Amendment which presumes that speech is okay. It is easy 
to protect complimentary speech. It is easy to protect speech you agree 
with. It is harder to protect speech you abhor. The First Amendment is 
not so much about protecting speech that is easily agreed to; it is 
about tolerating speech that is an abomination. Likewise, the Fourth, 
the Fifth, and the Sixth Amendments are not so much about protecting 
majorities of thought, religion or ethnicity. Due process is about 
protecting everyone, especially minorities.
  Unpopular opinions change from generation to generation. While today 
it may be burqa-wearing Muslims, it has, at times, been yarmulke-
wearing Jews. It has, at times, been African Americans. It has, at 
times, been Japanese Americans. It is not beyond belief that someday 
evangelical Christians could be a persecuted minority in our own 
country.
  The process of determining guilt or innocence is an incredibly 
important one and a difficult one. Even with a jury, justice is not 
always easily discovered. One has only to watch the jurors deliberate 
in ``Twelve Angry Men'' to understand that finding justice, even with a 
jury, is not always straightforward. Today, virtually everyone 
sympathizes with Tom Robinson who was unfairly accused in ``To Kill a 
Mockingbird'' because the reader knows that Robinson is innocent, 
because the reader knows his accusation was based on race. It is a slam 
dunk. It is easy for all of us to believe that he should get a trial.
  It is easy to object to vigilante justice when you know the accused 
is innocent. When the mob attempts an extrajudicial execution, we stand 
with Atticus Finch. We stand for the rule of law. But what of an 
American citizen who, by all appearances, is guilty; what of an 
American citizen who, by all appearances, is a traitor, who we all 
agree deserves punishment? Are we strong enough as a country to believe 
still that this person should get a trial?
  Do we have the courage to denounce drone executions as nothing more 
than sophisticated vigilantism? How can it be anything but vigilantism? 
Due process can't exist in secret. Checks and balances can't exist in 
one branch of government. Whether it be upon advice of 1 lawyer or 
10,000 lawyers, if they all work for one man--the President--how can it 
be anything but a verdict outside the law--a verdict that could 
conceivably be subject to the emotions of prejudice and fear; a verdict 
that could be wrong? This President, above all other Presidents, should 
fear allowing so much power to gravitate to one man.
  It is admittedly hard to defend the right to a trial for an American 
citizen who becomes a traitor and appears to aid and abet the enemy, 
but we must. If we cannot defend the right to trial for the most 
heinous crimes, then where will the slippery slope lead us? The 
greatness of American jurisprudence is that everyone gets his or her 
day in court, no matter how despicable the crime they are accused of.
  Critics say: How would we try these Americans? They are overseas. 
They won't come home. The Constitution holds the answer. They should be 
tried for treason. If they refuse to come home, they should be tried in 
absentia. They should be given the right to a legal defense. It should 
be provided. There should be an independent legal

[[Page S3200]]

defense that does not work for the government. If they are found 
guilty, the method of punishment is not the issue. The issue is, and 
always has been, the right to a trial, the presumption of innocence, 
and the guarantee of due process to everyone.
  For these reasons I cannot support the nomination of David Barron. 
Even if the administration releases a dozen Barron memos, I cannot 
support Barron. The debate is not about partisan politics. I have 
supported many of the President's nominees. The debate is not about 
transparency. It is about the substance of the memos. I cannot and will 
not support the lifetime appointment of someone who believes it is OK 
to kill an American citizen not involved in combat without a trial.

  Some will argue and say: The President, yesterday, has now changed 
his mind. He is going to release these memos to the public. Well, if 
that is true, why don't we wait on the vote and let the public read the 
memos? Why don't we have a full-throated debate over this? Why don't we 
actually see what the public thinks about the right to trial by jury? 
One would think that something we have had for over a thousand years 
deserves a bit of debate. Wouldn't you think we would at least take the 
time? Realize, this is not the position of the administration, this is 
the position of the administration now that it is relenting to the 
verdict of the Second Circuit Court. They are releasing this memo under 
duress. My guess is they are releasing this memo because they need a 
few more votes, and they will get a few more votes by releasing these 
memos to the public--or promising to release these memos. They will not 
be released--the memos justifying the killing of an American without a 
trial--will not be released before the vote takes place.
  So the question is, Is this transparency good enough for you to cast 
aside the whole concept of presumption of innocence, the whole concept 
that an accusation is different than a conviction?
  There has been much discussion of what due process is, and as we have 
looked at this debate there are some valid questions and some good 
writings on this. Conor Friedersdorf has written extensively on this, 
and he writes about the lawyer who enabled the extrajudicial killing of 
an American. He asks the question, Should the Constitution be entrusted 
to a man--and this is essentially what happens; the Constitution will 
be entrusted to an appellate court judge--should the Constitution be 
entrusted to a man who thinks Americans can be killed without due 
process?
  The Fifth Amendment, Conor Friedersdorf says, is very clear. No 
person shall be held to answer for a capital or otherwise infamous 
crime unless upon the presentment or indictment of a grand jury. It 
doesn't say except or on presentment of an accusation by the executive 
branch without a trial. The Fifth Amendment actually says, ``Nor shall 
any person be deprived of life, liberty or property without due 
process.''
  The question is, What is due process? One would think this would be 
pretty clear and there wouldn't be much dispute over due process. But 
listen to some of these descriptions. This is the description Glenn 
Greenwald writes about in describing both the Bush and the Obama 
administrations. He says:

       The core of the distortion on the war on terror under both 
     Bush and Obama is the Orwellian practice of equating 
     government accusation of terrorism with proof of guilt.

  Realize what we are talking about. There is a big difference between 
an accusation and a conviction. If we want to realize how important 
this is, there are Senators on the other side of the aisle who have 
called Senators on this side of the aisle terrorists on multiple 
occasions. Who are we potentially going after with these directives 
toward killing? People who are either senior operatives of Al-Qaeda--of 
which there are no membership cards, so that is somewhat open to 
debate--but we are also going after people who are associated with 
terrorism.
  The definition of terrorism--since on some occasions we have been 
accused of terrorism by the other side--can be somewhat loose. The 
Bureau of Justice put out a memo describing some of the characteristics 
of people who might be terrorists--which might alarm you, if you are 
traveling overseas: people who are missing fingers, people who have 
stains on their clothing, people who have changed the color of their 
hair, people who have multiple weapons in their house, people who have 
more than 7 days worth of food in their house.
  These are people you should be suspicious of, according to the 
government; these are people who might be terrorists; and these are 
people you should talk to and inform the government about these people.
  If these are the definitions of someone who might be a terrorist, 
wouldn't we kind of want to have a lawyer before the accusation becomes 
a conviction?
  When we talk about conviction, we talk about the conviction or the 
bar for conviction being beyond a reasonable doubt. One can pretty much 
think--you can be in a jury pool and pretty much think someone killed 
someone--you have a suspicion, you have an inclination they are 
probably guilty, but you are supposed to be so convinced that it is 
beyond a reasonable doubt. In these memos there is a different 
standard.
  Realize what the standard is of the person whom we will now be 
appointing to a lifetime appointment--one step away from the Supreme 
Court. That standard is an assassination is justified when an informed 
high-level official of the U.S. Government has determined that the 
targeted individual poses an imminent threat of violent attack against 
the United States.
  We are not talking here about beyond a reasonable doubt anymore. That 
standard is gone. We are talking about an informed, unnamed high-level 
official in secret deciding an imminent attack is going to occur.
  The interesting thing about an imminent attack is we don't go much by 
the plain wording of what one would think would be imminent anymore. 
The memo expressly states it is inventing--this is also from Glenn 
Greenwald--the memo expressly states it is inventing a broader concept 
of innocence that is typically not used.
  Specifically, the President's assassination power does not require 
that the United States have clear evidence that a specific attack will 
take place in the immediate future. So you wonder about a definition of 
``imminence'' that no longer includes the word ``immediate.''
  The ACLU's Jameel Jaffer, as quoted by Glenn Greenwald, explains that 
the memo redefines the word ``imminence'' in a way that deprives the 
word of its ordinary meaning.
  When we talk about due process, it is important to understand where 
due process can occur. Due process has to occur in the open. It has to 
occur in an adversarial process. If you don't have a lawyer on your 
side who is your advocate, you can't have due process. Due process 
cannot occur in secret, but it also can't occur in one branch of 
government. This is a fundamental misconception of the President.
  The President, with regard to either privacy in the fourth amendment 
or killing American citizens with regard to the fifth amendment, 
believes that if he has some lawyers review this process, that is due 
process. This is appalling because this has nothing to do with due 
process and can in no way be seen as due process.
  Some have said: Well, this is a judicial opinion. Barron has written 
an opinion; he has justified the President's actions. People have also 
said with regard to the NSA spying case that 15 judges have approved 
it. Well, the majority of the judges were in secret in the FISA Court, 
and that is not due process.
  But the memo written by David Barron as recounted by Glenn Greenwald 
is not a judicial opinion. It was not written by anyone independent of 
the President. On multiple occasions they have justified and the memo 
argues that due process can be decided by internal deliberations of the 
executive branch.
  The comedian Stephen Colbert mocked this and presented:

       Trial by jury, trial by fire, rock, paper scissors, who 
     cares? Due process just means that there is a process that 
     you do.
       The current process is apparently, first the president 
     meets with his advisers and decides who he can kill. Then he 
     kills them.
       It is actually called ``Terror Tuesday'' with flashcards 
     and powerpoint presentation.

  Noah Feldman, a colleague of David Barron, writes:


[[Page S3201]]


       . . . no precedent for the idea that due process could be 
     satisfied by some secret, internal process within the 
     executive branch.

  So to those of my colleagues who will come on down here today and 
just stamp ``approval'' on someone who I believe disrespects the Bill 
of Rights, realize that other esteemed professors, other esteemed 
colleagues at Harvard disagree and that you cannot have due process by 
a secret internal process within the executive branch.
  To those who say, oh, the memos are now not secret, are we going to 
be promised that from now on this is going to be a public debate and 
that there will be some form of due process? No. I suspect it will be 
done in secret by the executive branch because that is the new norm. 
You are voting for someone who has made this the historic precedent for 
how we will kill Americans overseas--in secret, by one branch of the 
administration, without representation based upon an accusation. We 
have gone from having to be proven guilty beyond a reasonable doubt to 
an accusation being enough for an execution. I am horrified that this 
is where we are.
  To my colleagues, I would say that to make an honest judgment, you 
should look at this nomination as if it came from the opposite party. I 
can promise--and this would absolutely be my opinion, and this isn't 
the most popular opinion to take in the country--that I would oppose 
this nomination were it coming from a Republican President.
  But what I would ask of my Democratic colleagues is to look deeply 
within their soul, to look deeply within their psyche and say: How 
would I vote if this were a Bush nominee? If this were a Bush nominee 
who had written legal opinions justifying torture in 2007, 2006, 2005, 
how would I have voted?
  I think 90 percent would have voted against and would now vote 
against a Bush nominee.
  This has become partisan and this body has become too partisan. There 
was a time when there were great believers in the Constitution in this 
body, and we have degenerated into a body of partisanship. There was a 
time when the filibuster actually could have stopped this nomination. 
There was a time when there would have been compromise. There was a 
time in this body when we would get people more toward the mainstream 
of legal thought because those on each extreme would be excluded from 
holding office.
  The people who have argued so forcefully for majority vote, for not 
having the filibuster, are the ones who are responsible now for 
allowing this nomination to go forward. This nomination would not go 
forward were it not for the elimination of the filibuster.
  Some say about the filibuster: Oh, that was obstructionism.
  The filibuster was also in many cases about trying to prevent 
extremists from getting on the bench. We will now allow someone who has 
an extreme point of view, someone who has questioned whether guilt must 
be determined beyond a reasonable doubt, someone who now says that an 
accusation is enough for the death penalty. Now, that person may say: 
Only if you are overseas. Well, some consolation if you are a traveler.
  What I would say is we need to think long and hard and examine this 
nomination objectively as if this were a nomination from a President of 
the opposite party. We need to ask ourselves: How precious is the 
concept of presumption of innocence? How precious are our Bill of 
Rights?
  We need to examine--and it is hard when you know someone is guilty, 
when you have seen the evidence and you feel that this person deserves 
punishment. I sympathize with that and think that this person did 
deserve punishment. But I also sympathize so greatly with the concept 
of having a jury trial, so greatly that an accusation is different from 
a conviction, that I can't allow this to go forward without some 
objection. I hope this body will consider this and will reconsider this 
nomination.
  At the appropriate time I will offer a unanimous consent request to 
delay the David Barron nomination until the public has had a chance to 
read his memo. I will return at an appropriate time, and we will offer 
that as a unanimous consent.
  Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. PAUL. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Heitkamp). Without objection, it is so 
ordered.

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