[Congressional Record Volume 160, Number 77 (Wednesday, May 21, 2014)]
[Senate]
[Pages S3198-S3201]
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.
____________________
[Congressional Record Volume 160, Number 77 (Wednesday, May 21, 2014)]
[Senate]
[Pages S3201-S3202]
BARRON NOMINATION
Mr. WYDEN. Madam President, it wasn't very long ago when the Senator
from Kentucky and I were on the floor talking about drones, and I want
to make sure it is understood that Senator Paul's passion, intellectual
rigor, and devotion to these issues of liberty and security--which he
and I have worked on together now for a number of years--is much
appreciated.
I come to the floor today to address the issue Senator Paul and I
have discussed in the past, and that is how vigorous oversight--and
particularly vigorous oversight over the intelligence field--needs more
attention. It is not something we can minimize. It goes right to the
heart of the values the Senator from Kentucky and I and others have
talked about, and that is liberty and security are not mutually
exclusive. We can have both.
The Senator from Kentucky and I often joke about how the Senate would
benefit from a Ben Franklin caucus. Ben Franklin famously said, in
effect, that anybody who gives up their liberty for security doesn't
deserve either.
The Senator from Kentucky and I have certainly had some disagreements
from time to time on a particular judicial nomination, but I thank him
for his time this morning, and I thank him for the opportunity we have
had over the years to make the case about how important these issues
are. The American people ought to insist that their elected officials
put in place policies which ensure we have both liberty and security. I
thank the Senator from Kentucky for that, and I have some brief remarks
this morning.
Of course, the Senate is going to vote on the nomination of David
Barron to serve as a judge for the First Judicial Circuit. His
nomination has been endorsed by a wide variety of Americans, including
respected jurists from across the political spectrum.
Mr. Barron has received particularly vocal endorsements from some of
our country's most prominent civil rights groups. Of course, the aspect
of his record that has perhaps received the closest scrutiny in recent
weeks is his authorship of a legal opinion regarding the President's
authority to use military force against an individual who is both a
U.S. citizen and senior leader of Al-Qaeda. I am quite familiar with
this particular memo.
The executive branch first acknowledged its existence 3 years ago in
response to a question I asked at an open hearing of the Senate Select
Committee on Intelligence. I followed up by working with my colleagues
and pressing the executive branch to provide this memo to the
intelligence committee.
This month, of course, the administration made this memo available to
all Members of the Senate. Executive branch officials have now said
they will provide this memo to the American people as well. This is
clearly, in my view, a very constructive step, and I am going to vote
yes on Mr. Barron's nomination.
I want to take a minute to outline that this whole matter is about
much
[[Page S3202]]
more than a single memo. It drives home how incredibly important
vigorous congressional oversight is, which is, of course, the mission
of the intelligence committee, and it is the mission of all of us.
In his classic work on democratic government, Woodrow Wilson wrote
that conducting oversight was one of the most important functions of
Congress. He suggested it might be more important than passing
legislation. Woodrow Wilson wrote:
It is the proper duty of a representative body to look
diligently into every affair of government and to talk much
about what it sees.
He added that Congress must examine ``the acts and disposition'' of
the executive branch and ``scrutinize and sift them by every form of
discussion.'' Woodrow Wilson said if the Congress failed in this duty,
then the American people would remain ignorant ``of the very affairs
which it is most important that [they] understand and direct.''
Woodrow Wilson might not have been able to anticipate the size and
scale of the modern national security apparatus, but I believe his
words are as true today as they were a century ago.
As the elected representative of nearly 4 million Americans, I have
spent years now working from the theory that all of us in the Senate
have an obligation to understand how the executive branch is
interpreting the President's authority to use military force against
Americans who have taken up arms against our Nation. I have long
believed it is my obligation to make sure that those I am honored to
represent in Redmond, Troutdale, and Dallas, and all across Oregon,
understand that as well. I believe every American has the right to know
when their government believes it is allowed to kill them.
In the case in question, as I have said before, I believe the
President's decision to authorize a military strike in those particular
circumstances was legitimate and lawful. I have detailed my views on
this case in a letter to the Attorney General that is posted on my Web
site.
I agree with the conclusion Mr. Barron reached in what has now
certainly become a famous memo. To be clear, while I agree with the
conclusion, this is not a memo I would have written. It contains, in
effect, some analytical leaps I would not endorse. It jumps to several
conclusions, and it certainly leaves a number of important questions
unanswered.
I am hopeful that making this memo public will help generate the
public pressure that is needed to get those additional questions
answered. I am talking here about fundamental questions, such as: How
much evidence does the President need to determine that a particular
American is a legitimate target for military action? Can the President
strike an American anywhere in the world? What does it mean to say that
capture must be ``infeasible''? And exactly what other limits and
boundaries apply to this authority?
Mr. Barron was not asked to answer these questions, but it is my view
it is vitally important that the American people get answers to those
questions. In my view, those questions are essential to understanding
how Americans' constitutional rights will be protected in the age of
21st century warfare, and I am going to stay at it until the American
people get answers to those questions.
In addition to getting detailed public answers to these matters,
another important step will be for the Congress to review the other
Justice Department memos regarding the President's authority to use
military force outside of an active war zone. Clearly, the most
important memos on this topic are the ones the Congress has now seen
regarding the use of lethal force against Americans, but it is also
going to be important for the Senate to review the memos on other
aspects of this authority as well.
The past few years have shown when the public is allowed to see and
debate how our government interprets the law, it has led to meaningful
changes in terms of ensuring that there are additional protections for
privacy and civil liberties without sacrificing our country's security
at a dangerous time.
It is unfortunate that it took Mr. Barron's nomination for the
Justice Department to make these memos public. I will say it has been
frustrating over the past few years to see the Justice Department's
resistance to providing Congress with memos that outline the executive
branch's official understanding of the law. When Mr. Barron was the
head of the Justice Department's Office of Legal Counsel, I believe
congressional requests to see particular classified memos and legal
opinions were appropriately granted. However, in the years since Mr.
Barron moved on from that position, congressional requests to see memos
and opinions have frequently been stonewalled--and I use those words
specifically--frequently stonewalled.
The executive branch often makes the argument that these memos
constitute confidential, predecisional legal advice to the President.
Here is the problem with that argument: The President has to be able to
get confidential legal advice before he makes a decision, but once a
decision has been made and the legal memo from the Justice Department
has been sent to the agencies that will carry out the President's
decision, that memo is no longer predecisional advice; it is the
government's official legal basis for actual acts of war, and as such,
in my view, it is entirely unacceptable to withhold it from the
Congress.
Congress has the power to declare war, and Congress votes on whether
to continue funding wars, so it is vital for the Congress to understand
what the executive branch believes the President's war powers actually
are. In that classic work I have discussed from Woodrow Wilson, he
said:
It is even more important to know how the house is being
built than to know how the plans of the architect were
conceived.
As a former basketball player, I often say that sections of the
playbook for combating terrorism will often need to be secret, but the
rule book the United States follows should always be available to the
American people--all of the American people. Our military intelligence
agencies often need to conduct secret operations, but they should never
be placed in the position of relying on secret law.
I am very pleased this morning that we know the executive branch is
going to provide this memo to the American people, and I believe this
constructive step must lead to additional steps that are equally
important. This episode is an object lesson in how the U.S. Congress
can use the levers it has to fulfill one of the most important
functions of government. As my colleagues and I engage in our personal
discussions about how to make Congress more functional, I hope this is
an experience we will remember.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
____________________
[Congressional Record Volume 160, Number 77 (Wednesday, May 21, 2014)]
[Senate]
[Pages S3204-S3205]
BARRON NOMINATION
Mr. CRUZ. Madam President, I rise to discuss the nomination of David
Barron to be a Federal court of appeals judge. I commend my friend
Senator Rand Paul for his excellent remarks earlier today and his
leadership against Mr. Barron's nomination.
I have known Mr. Barron for a long time. He and I were classmates in
law school. He is a smart man. He is a talented man. He is a professor
at Harvard Law School and he is a well-respected professor. However,
Mr. Barron is an unabashed judicial activist. He is an unapologetic and
vocal advocate for judges applying liberal policy from the bench and
disregarding the terms of the Constitution and the laws of the land. If
the Members of this body vote to confirm him, we will bear
responsibility for undermining liberty and undermining the rule of law
in this country.
It is well known that Mr. Barron, as a senior official in the Obama
Justice Department, authored memos allowing the U.S. Government to use
drones to kill American citizens abroad who were known and suspected to
be terrorists, without any trial, without any due process. To date, we
still don't have the details of all of those memos. A number of us,
including myself, have called for releasing the memos that would allow
the U.S. Government to use lethal force against U.S. citizens. I am
pleased to say the administration has, in part, complied, but we don't
have all of those memos. Yet this body is being asked to proceed with
giving Mr. Barron a lifetime appointment without knowing the full
context of the advice he gave.
I would note that Mr. Barron previously, in 2006, joined a group of
legal scholars calling for more transparency in the OLC opinions that
he subsequently wrote and that the administration is now keeping
secret.
But beyond that, beyond Mr. Barron providing the legal basis for the
targeted killings of American citizens abroad without judicial process,
Mr. Barron, both in law school and in his writings as a law professor,
has been an enthusiastic advocate of judicial activism. It has become
de rigueur for judicial nominees to forswear activism, to say--even if
their record is to the contrary--no, no, no, Senator, I will comply
with the law. To Mr. Barron's credit, his writings have a degree of
candor that are unusual.
So, for example, he has argued that courts should override elected
State legislatures and enforce leftwing policies. Mr. Barron, in one
particular law review, wrote:
State supreme Courts, not state legislatures, have also led
the revolution in school financing equality, though judicial
actions have catalyzed political responses.
He went on to say that liberals should not object to conservative
court decisions because ``progressive constitutionalists enamored of
the Anti-Court rhetoric rarely take account of its potential downstream
effects on state-court interpretation and legitimacy.''
In other words, he is worried that people on the left might be
arguing that courts should follow the law because that would constrain
the ability of courts to instead impose a far-left political policy
agenda.
Likewise, in a different article, he argues:
It is precisely because the Anti-Court strain singles out
conservative judicial activism as the problem that it
threatens to work progressive constitutional theory into a
corner: it needlessly rejects the progressive potential of a
significant wielder of power--the courts. . . .
Let me underscore that. Every Member of this body who votes to
confirm Mr. Barron is voting for a candidate who has stated he intends
to use the courts as a ``significant wielder of power.'' Indeed, what
is the agenda that he would embrace? He has elsewhere written:
We contend that the constitutional argument favoring
preclusive executive power necessarily rests on a strong form
of living constitutionalism.
There are Members of this body--Democratic Members of this body--who
are campaigning right now in their home State saying they do not
support judicial activism, they do not support a so-called living
constitution, judges imposing far-left policies and disregarding the
law. Well, let me say, any Democratic Member of this body who votes for
Mr. Barron is on record in support of judicial activism and living
constitutionalism.
Beyond that, Mr. Barron has explicitly written his opposition to
federalism. Indeed, he says, ``There is precious little in the
Constitution's text or the history of its adoption that compels the
particular conservative allocation of national local powers favored by
the Rehnquist Court.''
He has made clear his agenda to overturn or ignore Supreme Court
precedents. When he says there is ``little in the . . . text or the
history,'' it seems somehow that he has not read or focused on the
Tenth Amendment or the Federalist Papers or the debates on
ratification.
Beyond that, he is an emphatic advocate of the takings clause, of
government power taking private property, such as the Kelo decision--
big money interests going to government and using government power to
condemn your private land. He is an emphatic advocate of that and of
courts facilitating and expanding that.
He has written that the executive branch should be able to waive laws
with which it disagrees--a lawlessness that, sadly, has run rampant in
this administration.
Anyone who cares about property rights should be dismayed by this
nomination and should vote against it if you do not want to see overly
aggressive takings jurisprudence that allows the government to take
your private property.
Anyone concerned about free speech should be concerned about this
nomination if you do not want to see expansive government power taking
away the rights of citizenry to free speech.
Anyone who cares about local control and federalism and the ability
of local school boards and legislatures to make policy decisions should
be concerned.
[[Page S3205]]
Anyone concerned about our right to life should be concerned about
drones having the power to take our life without judicial process.
Anyone concerned about liberty and the rule of law should be deeply
concerned about a judicial nominee who embraces courts as a tool of
power and the President disregarding the law.
I urge my colleagues to oppose this nomination.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Madam President, what is the order?
The PRESIDING OFFICER. The Senate is in morning business until 12:15
p.m.
Mrs. BOXER. Madam President, I ask unanimous consent that I be able
to speak for as much time as I may consume until that time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Madam President, Senator Cruz makes an impassioned plea
against a nominee who is considered by some to be exemplary. It is his
right to do that, but let me say before my friend leaves the floor, as
impassioned as he is, calling Mr. Barron a liberal, I have heard many
call Mr. Barron a conservative. So he must be doing something right. I
think it is interesting. So let's keep politics out of this and look at
someone's record.
____________________
[Congressional Record Volume 160, Number 77 (Wednesday, May 21, 2014)]
[Senate]
[Pages S3210-S3211]
EXECUTIVE SESSION
______
CLOTURE MOTION
The PRESIDING OFFICER. Under the previous order, there will be 10
minutes of debate equally divided in the usual form prior to a vote on
the motion to invoke cloture on the Barron nomination.
The Senator from Louisiana.
[...]
Mr. GRASSLEY. Madam President, before we vote on the Barron
nomination, I want my colleagues to know the White House continues to
keep the Senate in the dark. Yesterday I called upon the White House to
state once and for all whether it has provided to the Senate any and
all materials written by this nominee on the drone program. The White
House refuses to answer that simple question.
One hour after I spoke, the White House Press Secretary refused for a
third time to confirm that the Senate has been provided all of this
nominee's writings on the drone program. Why is that? Why will this
White House not give us a simple, straightforward answer? We still
don't know how much more is out there on this subject that this nominee
has been involved with.
After this vote, my colleagues still will not be able to tell their
constituents that the White House has provided all of this nominee's
materials on the drone program because we simply don't know that is
true.
Finally, I wish to emphasize one more point about that court order
requiring the administration to make a redacted copy of one memo
public. Senators should know the court also ordered the trial court to
take a second look at the other additional secret documents to see
whether any of those additional documents should be made public in
redacted form.
If some of those documents were written by this nominee, and if the
court orders them to be made public, Senators' constituents are going
to ask why they didn't stand today to get that information. Their
constituents are going to ask why they didn't stand up to this White
House and demand to see any and all memos this nominee wrote on this
subject before this vote.
I yield the floor.
The PRESIDING OFFICER. All time has expired.
Mr. PAUL. Madam President, I ask unanimous consent for 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Kentucky.
Mr. PAUL. Madam President, I rise to oppose the nomination of anyone
who advocates for the executive branch killing American citizens not
involved in combat without trial. I strongly believe any nominee who
rubberstamps and grants such power to a President is not worthy of
being placed one step away from the Supreme Court. It isn't about
seeing the memos, it is about what they say and how they disrespect the
Bill of Rights.
Due process can't exist in secret. Checks and balances can't exist in
one branch of government. Whether it be upon the advice of one lawyer
or 10,000 lawyers, if they all work for one man, the President, how can
there 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?
The nomination before us is about a nominee who supports killing
American citizens not engaged in combat without a trial. These memos
don't limit drone executions to one individual, they become historic
precedent for killing citizens abroad.
Barron's arguments for extrajudicial killing of American citizens
challenges over 1,000 years of jurisprudence. It is quite simple; an
accusation is different from a conviction, and due process is different
from internal deliberations. The executive can accuse, but it cannot
try and it cannot convict someone.
Critics will argue, but these are evil people who plot against and
plan to kill Americans. I understand that. My first instinct is--
similar to most Americans--to immediately want to punish these
traitors. The question is, How do we decide guilt? Aren't we, in a way,
betraying our country's principles when we relinquish the right to
trial by jury?
Due process can't exist in secret. Checks and balances can't exist
within one branch of government. If we can't defend the right to a
trial for the most heinous crimes, then where will the slippery slope
lead us?
Critics ask how we will try these people overseas. The Constitution
holds the answer. They should be tried for treason. If they refuse to
return home, they should be tried in absentia and provided a legal
defense. 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
no matter how heinous the crime.
For these reasons I cannot support the nomination of David Barron. I
cannot and will not support a lifetime appointment for someone who
believes it is OK to kill American citizens not involved in combat
without a trial.
I yield back my time.
____________________
[Congressional Record Volume 160, Number 77 (Wednesday, May 21, 2014)]
[Senate]
[Pages S3211-S3212]
CLOTURE MOTION
The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion which
the clerk will state.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the nomination of
David Jeremiah Barron, of Massachusetts, to be United States
Circuit Judge for the First Circuit.
Harry Reid, Patrick J. Leahy, Mazie Hirono, Dianne
Feinstein, Al Franken, Amy Klobuchar, Sheldon
Whitehouse, Tom Harkin, Barbara Boxer, Richard
Blumenthal, Elizabeth Warren, Debbie Stabenow, Edward
J. Markey, Richard J. Durbin, Carl Levin, Charles E.
Schumer, Patty Murray.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of David Jeremiah Barron, of Massachusetts, to be United
States Circuit Court Judge for the First Circuit, shall be brought to a
close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Hampshire (Mrs.
Shaheen) is necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from New Hampshire (Ms. Ayotte), the Senator from Arkansas (Mr.
Boozman), the Senator from Indiana (Mr. Coats), and the Senator from
Florida (Mr. Rubio).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 52, nays 43, as follows:
[Rollcall Vote No. 161 Ex.]
YEAS--52
Baldwin
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heinrich
Heitkamp
Hirono
Johnson (SD)
Kaine
King
Klobuchar
Leahy
Levin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murphy
Murray
Nelson
Pryor
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Stabenow
Tester
Udall (CO)
Udall (NM)
Walsh
Warner
Warren
Whitehouse
Wyden
NAYS--43
Alexander
Barrasso
Blunt
Burr
Chambliss
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
Cruz
Enzi
Fischer
Flake
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Landrieu
Lee
Manchin
McCain
McConnell
Moran
Murkowski
Paul
Portman
Risch
Roberts
Scott
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
NOT VOTING--5
Ayotte
Boozman
Coats
Rubio
Shaheen
The PRESIDING OFFICER. On this vote the yeas are 52, the nays are 43.
The motion to invoke cloture is agreed to.
[[Page S3212]]
____________________
