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Sen. Paul Opposes the Nomination of Barron

May 21, 2014

WASHINGTON, D.C. -Sen. Rand Paul today took to the Senate floor to oppose the nomination of Professor David Barron to a seat on the U.S. Court of Appeals for the First Circuit. Sen. Paul's prepared floor remarks can be found below.

 

REMARKS PREPARED FOR DELIVERY:

I rise today in opposition to killing American citizens without trials.

I rise today to oppose the nomination of anyone who would argue that the President has the power to kill American citizens not involved in combat.

I rise today to say that there is no legal precedent for killing American citizens not directly 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 seeing the Barron memos. It is about what they say. I believe the Barron memos 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 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 and unpopular ideas and unpopular religions.

It is easy to argue for trials for Prom queens and American Idol winners. It is harder to argue for trials for traitors and those who wish harm on fellow Americans.

A mature freedom, though, defends the defenseless. Allows trials for the guilty. Protects even speech of the most despicable nature.

After 9/11, we all recoiled in horror at massacre of thousands of innocents.  We fought a war to tell our enemies that we would not allow anyone to attack us.

As our soldiers returned from Afghanistan, I often ask them to explain in their own words what they fought for and to a soldier they explain that they fought to defend the constitution and the Bill of Rights.

It is a disservice to their sacrifice not to openly debate whether the Bill of Rights applies to American citizens not directly involved in combat.

Let me be perfectly clear, I am not referring to anyone on the field of battle.  Anyone engaged in combat against the United States, citizen or not, has no guarantee of due process.

The nomination before us, though, is about killing American citizens NOT engaged in combat. The nominee, David Barron, has written a defense of drone executions of American citizens NOT directly involved in combat.

Make no mistake, these memos don't limit drone executions to one individual these memos become historic precedent for killing citizens abroad.

Some have argued that releasing the memos is sufficient to allow his nomination. This isn't 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 President Obama himself, argued against detention of American citizens without trial yet now, they advocate killing American citizens without 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 enemy combatants."

But now as President, Obama not only signed legislation allowing detention without trial but approved killing without trial. Where o where has candidate Obama gone?

President Obama now puts forward David Barron whose memos justify the killing of an American citizen without trial.

I can't tell you what Barron 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 precedent for killing an American citizen not involved in combat. Because no such precedent exists.

Barron creates out of whole cloth a defense for executing American citizens without trial.  The cases he cites (which I am forbidden from telling you) are unrelated to the issue of killing American citizens NOT engaged in combat.

This is not a secret.

No court has ever decided a case involving the extrajudicial killing of an American citizen not involved in combat.  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 the assassination of American citizens should be discussed in the light of day?  Am I the only one that thinks that a question of such magnitude should be decided in the open by the Supreme Court?

Barron's arguments for extrajudicial killing of American citizens challenges over a thousand years of jurisprudence.

Trials based on a presumption of innocence are an ancient right. The Romans wrote that the burden of proof is on he who declares, not on he who denies. We describe it as the principle that one is considered innocent until proven guilty.

In many nations, presumption of innocence is a legal right of the accused in a criminal trial.

In America we go even 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 convince the jury.

To protect the possibility of innocence, we also require that the accused is guilty beyond reasonable doubt. If reasonable doubt remains, the accused is to be acquitted.

Innocent until proven guilty is tested when the consensus is that the accused is very likely guilty, when the consensus is that 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 adhere to when we like the speech or sympathize with the defendant. Defending the right to trial for people we fear or dislike is more difficult.

It is easy for many to support a trial for someone who looks like them, for someone with the same color skin and for someone with the same religion.

Presumption of innocence is, however, much harder for some when the citizen is a minority, when the citizen practices a minority religion, when the citizen resides in a foreign land and sympathizes with the enemy.

Our history is replete with examples of heroes who defended the defenseless, who defended the unpopular:

1.  John Adams defended the unpopular when he represented British troops for their role in the famous Boston Massacre.

2.  His son, John Quincy Adams defended the slaves who took over the slave ship Amistad that had kidnapped them.

3. Henry R. Selden defended the unpopular when he represented Susan B. Anthony when she was tried for unlawfully voting as a woman.

4. Eugene Debs defended himself from charges that he opposed the draft and WWI.  He was convicted to ten years in prison.

6. Clarence Darrow defended the unpopular in the Scopes Monkey trial.

7.  Thurgood Marshall defended the unpopular when he convinced the Supreme Court to strike down school segregation.

Where would we be without champions to defend the unpopular?

One can almost argue that the right to trial is more precious the more unpopular the defendant.

 We cannot.  We should not abandon our most cherished principles.

Critics will argue but these are evil people who plot and plan to kill Americans.

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 for the enemy.  I want to punish Americans who are traitors to their country.  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 the right to a jury trial?

The maxim that we are innocent until proven guilty is in some ways like our first amendment that presumes that speech is ok. 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, Fifth, and 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 burka-wearing Muslims, it has at times been yarmulke-wearing Jews.  It has at times been African Americans.  It has at times been Japanese Americans.  And it is not beyond belief that someday, Evangelical Christians could become a persecuted minority.

The process of determining guilt or innocence is an incredibly important one. Even with a jury, justice is not 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 is unfairly accused in To Kill a Mockingbird.  Because the reader knows Robinson is innocent and because the reader knows his accusation was based on race, it is actually a slam-dunk to believe that he should get a trial by a jury.

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 a traitor?

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 the advice of one lawyer or ten thousand lawyers, if they all work for one man - the President - how can that 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 just 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 who are overseas?

The Constitution holds the answer. They should be tried for treason. If they refuse to return home, they should be tried in abstentia 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.

Even if the administration releases a dozen Barron memos, I cannot support Barron.

The debate is not about partisan politics as 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 a lifetime appointment of someone who believes it is ok to kill an American citizen not involved in combat without a trial.

 

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