Due Process: It Was Nice While It Lasted

When did the Democratic Party stop supporting peace and civil liberties? Did the party's lofty ideals die with JFK? When I read Thomas Naylor's assertion in his book The Vermont Manifesto that "[t]he Democratic Party is effectively brain dead, having had no new ideas since the 1960s," I scoffed at the seeming hyperbole of the statement. But when you see an entire party vote in practical lockstep in favor of a man whose legal opinion undermined 800 years of due-process law, you can come to no other conclusion than that they've completely lost their way.

At issue is David Barron, who was the co-author of the Justice Department memos that provided the legal basis for the Obama administration to kill American citizens without due process. Barron's justification served as the basis of the administration's assassination-by-drone of Anwar al-Awlaki, an American citizen and Islamic militant living in Yemen. His 16-year-old son was killed in a drone strike shortly afterward.

In what was obviously a political favor for giving Obama the legal workaround, the president subsequently nominated Barron for a seat on the First U.S. Circuit Court of Appeals.

When the Senate wanted to see the memos, the administration said no, until their hand was finally forced in court. Even now the president forbids those who have seen the memos from saying what’s in them. But it doesn’t really matter, because killing American citizens with no legal representation or trial is blatantly unconstitutional. It doesn't matter whether al-Awlaki was a nice guy or not. As a citizen, he retained his right to due process.

Even more important, Barron's legal sleight of hand sets a terrifying precedent that undermines our entire rule of law. If the president can order an extrajudicial assassination of an American citizen in violation of that citizen's Constitutional rights, then due process is dead, and anyone can be killed in exactly the same manner.

That didn't seem to matter to the Democrats in the Senate, all but two of whom voted to confirm Barron for his judgeship.

I'll bet you think you can guess who the two holdouts were, but if you were thinking of "progressive" leaders Bernie Sanders and Elizabeth Warren, you'd be wrong. They voted for Barron, too. Joe Manchin of West Virginia and Mary Landrieu of Louisiana were the only Democratic defectors.

In fact, Rand Paul, from the Republican side, seemed to be the only person in the Senate with enough courage to actually call out Barron:

What we're talking about is the extraordinary concept of killing Americans who are overseas but not involved in combat. It doesn't mean that they're not potentially -- and probably are -- bad people. But we're talking about doing it with no accusation, no trial, no charge, no jury. ... Are we comfortable killing American citizens, no matter how awful or heinous the crime they're accused of; are we comfortable killing them based on accusations that no jury has reviewed?

... I rise to say that there is no legal precedent for killing citizens not involved in combat and that any nominee who rubber-stamps and grants such power to a president is not worthy of being one step away from the Supreme Court. ... [T]he Barron memos at their very core disrespect the Bill of Rights.

On the Democratic side, the comments were more along the lines of the spineless apologetics from Massachusetts' Ed Markey:

Let's be clear: Barron is ... certainly not responsible for the administration's drone policy or the decisions to authorize an attack. He is a lawyer who was asked to do legal analysis for his client: the president of the United States.

In other words, the Nuremberg defense: Barron was just following orders.

Of course, Barron was absolutely responsible for the administration's drone policy as it pertains to assassination of U.S. citizens. He was the one who twisted the law to give Obama cover for what he wanted to do.

It seems like a long time ago when candidate Obama was decrying the excesses of the Bush administration. Now he's one-upping Bush's appointment of torture-memo author Jay Bybee to the Ninth Circuit Court of Appeals.

In 1215, the Magna Carta gave voice to the concept of due process under law, and it did not discriminate between good guys and bad guys:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

The Framers of the U.S. Constitution embraced the same concept in the Fifth Amendment:

No person shall be ... deprived of life, liberty, or property, without due process of law.

This is what we're undermining. Cornerstones of Western legal tradition that have protected the rights of citizens for centuries. Little wonder that Edward Snowden, who saw these rights unraveling before his eyes, said of his heroic efforts:

I want to help my government. But the fact that they are willing to completely ignore due process, they're willing to declare guilt without ever seeing a trial, these are things that we need to work against as a society and say, "Hey, this is not appropriate."  

Someone needs to stand up. And it's apparently not going to be the Democrats, now that they've confirmed to a judgeship a man who should never even be allowed near a judge's bench. It's been clear for some time, to anyone who doesn't wear partisan political blinders, that the Democrats bow to the military-industrial-surveillance complex as deeply as the Republicans do, and that the parties' views on foreign policy and civil liberties are virtually indistinguishable. We already knew of the administration's hostility toward due process, with its repeated defense of the provision in the National Defense Authorization Act that allows for the indefinite detention of American citizens without charge or trial. But now we've gone one dangerous step further. Thanks to Obama and Senate Democrats, there will literally be a war criminal sitting on the First Circuit, one step below the Supreme Court -- which means Barron could one day end up sitting on the highest court in the nation.

Anybody who cherishes the rule of law should be outraged. And every person who was responsible for the nomination and confirmation of David Barron should be ashamed of themselves. They have betrayed the Bill of Rights.