This week Senator Rand Paul has threatened to filibuster President Barack Obama’s nominee to the 1st Circuit Court of Appeals in Boston. The nomination of David Barron, who was a Justice Department lawyer at the start of the administration and is now a Harvard Law School professor was the author of the contentious memo that authorized the assassination of an American citizen in Yemen, Anwar al-Awlaki.
(M)embers of both parties say they are disturbed by Mr. Barron’s authorship of legal memos that justified the United States’ killing of an American citizen overseas with a drone.
The American Civil Liberties Union wrote to all 100 senators on Monday urging them to put off a vote on Mr. Barron’s confirmation until the White House allowed them to read all of his writings on the drone program. [..]
The A.C.L.U.’s objections, along with the announcement by Senator Rand Paul, Republican of Kentucky, that he would use his power to slow down the confirmation unless the administration released one of the legal memos written by Mr. Barron, raised fresh questions on Capitol Hill on Monday about whether the nomination would survive. [..]
Two Democrats who are up for re-election in states where Republicans have a political edge – Mark Begich of Alaska and Mary L. Landrieu of Louisiana – are said to be unsure if they will vote yes on Mr. Barron.
A court has ordered the administration to release some of Mr. Barron’s legal work as part of a Freedom of Information Act lawsuit. But White House lawyers have not done so while they weigh whether to appeal. Senator Mark Udall, a Colorado Democrat who is in a tight race, said Monday that he would vote no unless the White House released what the court ordered.
Republicans are not alone in their objections of this nominee. Democrats, who are up for reelection and those who have questioned the administration’s legal right to assassinated American citizens without due process and the drone program, have expressed doubts about voting to confirm Mr. Barron
But with so many Democrats concerned about the administration’s drone policy, sufficient support for Barron is uncertain. Senate leaders have yet to set a vote on his nomination to join the appeals court with jurisdiction over federal cases in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. He faces opposition from a mix of liberal Democrats and conservative Republicans concerned with his involvement in establishing the administration’s drone policy.
Sen. Ron Wyden (D-Ore.), a member of the Intelligence Committee and a frequent critic of Obama’s counterterrorism policies, said Thursday that “the public has a right to know” the administration’s justification for drone strikes on American citizens.
“To me, the central question has always been on intelligence matters,” Wyden told reporters. “There is a difference between secret operations. They have to be kept secret, because otherwise Americans can die and be hurt. But the rules and the underlying policies — those ought to be public.”
Other Democrats, including Sens. Jeff Merkley (Ore.) and Mark Udall (Colo.), have also expressed concern about Barron’s work and this week called for the public release of Barron’s memos.
Marcy Wheeler of emptywheel, writing for The Week, weighs in on why Sen. Paul’s threat of filibuster should be taken seriously
Eleven years ago, the Senate confirmed Jay Bybee to a lifetime appointment on the 9th Circuit Court of Appeals in San Francisco. At the time, almost no senators knew about – much less had reviewed the contents of – a set of memos authorizing torture that Bybee had signed when he was head of the OLC in 2002. Paul is trying to prevent similarly rewarding Barron before senators can review the legal arguments he made authorizing another troubling executive branch action: killing an American citizen with no due process.
Barron, who is currently a Harvard Law School professor, served as the acting head of the OLC from 2009 until 2010. The office provides legal advice to executive branch agencies that can provide (usually secret) legal sanction for controversial positions.
A July 16, 2010, memo written by Barron authorizing the drone killing of Anwar al-Awlaki, the extremist Yemeni-American cleric, is one such opinion. Awlaki died in a CIA drone strike (along with Samir Khan, another American citizen who had become an extremist propagandist) on Sept. 30, 2011. [..]
Eventually, at least 31 members of Congress made at least 23 attempts to obtain the memo permitting the executive branch to kill an American citizen with no due process. Most of Congress still hasn’t seen it. [..]
Paul may have the courts on his side. He invoked an April 21 decision by New York’s 2nd Circuit Court of Appeals that the government must release a redacted version of the memo to the ACLU and two New York Times reporters who had sued in 2011 to enforce a Freedom of Information Act request for the memo. The court order makes it easier to for Paul to call for a public release, rather than just a release to Congress. [..]
Four years ago, David Barron opened a Pandora’s box, giving presidents an inadequately limited authority to kill Americans outside all normal judicial process. As Paul notes in his letter, it would simply be “irresponsible” for the Senate to confirm his nomination without discovering what the memo could reveal about his views on due process, civil liberties, and international law. In a letter to all 100 senators, the ACLU echoed this language, recalling the precedent of Jay Bybee. “No senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.”
The Senate took such an irresponsible step in 2003 with Jay Bybee. It can avoid that mistake here.
Instead of appointing those who justify torture, rendition and assassinations to hight courts, we should be looking into their criminal culpability in the crimes that they are justifying in their legal briefs. Yet those briefs and memos remain classified as our representatives are asked to appoint these people to high positions for life.