White House to Release Barron Memo on Targeted Killings

President Obama really wants Law Professor David Barron on the First Circuit Court of Appeals. The problem is getting him confirmed, since he authored two of the Office of Legal Counsel memos authorizing targeted killings of American citizens. The memos are classified, and the NY Times and ACLU both filed FOIA lawsuits to obtain them. Last month, the Second Circuit Court of Appeals ordered that redacted versions be publicly disclosed (opinion here).

As a Justice Department lawyer, Mr. Barron wrote two memos concluding that it would be lawful to kill Anwar al-Awlaki, a United States citizen living in Yemen, based on intelligence agencies’ conclusion that he was a senior operational terrorist plotting attacks against the United States and that his capture was not feasible. The lawsuit focused on the second and longer of those memos. Mr. Awlaki was killed by an American drone strike in September 2011.

Solicitor General, Donald B. Verrilli Jr., has decided not to appeal the Second Circuit order and to release redacted copies of the memos. [More...]

The memos contain the Government’s reasoning as to the lawfulness of targeted killings of Americans abroad. A procedural vote on Barron's confirmation is set for today. Rand Paul has been the most outspoken in his opposition to Barron. He has this op-ed in today's Boston Globe saying Barron is not qualified to serve as a federal appeals judge. Sen. Ron Wyden, who along with Sen. Mark Udall, balked on voting for Barron without release of the memo, has now decided to vote for Barron.

Barron was nominated by Obama in September, 2013.

Sam Kleiner has an oped in The New Republic supporting Barron and warning liberals not to fall for Rand Paul's "farce." He quotes Georgetown Law Prof David Cole:

[Barron's] confirmation would put in place a judge who will be absolutely vigilant in his protection of civil liberties and his insistence that executive power be constrained by the rule of law.

Here is Cole's endorsement of Barron: Why Civil Libertarians and Drone Critics Should Support David Barron. He writes:

Indeed, as head of the Office of Legal Counsel in 2009, Barron himself withdrew five OLC memos written during the prior administration to authorize controversial interrogation techniques such as waterboarding.

....it is a huge mistake to let our legitimate concerns about transparency get in the way of the confirmation of a judge who will faithfully protect our liberties and hold government accountable – especially when the Senate already has been given access to all the information they need to exercise their “advise and consent” role. As a civil libertarian and drone critic, I have no hesitation in saying that David Barron should be confirmed.

Here's one of Barron's memos withdrawing some Bush torture memos.

One other point worth considering from Kleiner:

Paul’s filibuster is the latest in a series of Republican attempts to misconstrue the work of a lawyer to keep them off the bench. Whether it is abortion or Benghazi, Republicans will find some way to take the work of a nominee completely out of context and to try to go after them. Here, the stakes are high because Democrats may lose the Senate in November and if Barron isn’t confirmed, it is unlikely that Obama would be able to fill the seat.

The Senate has enough information to vote. Obama recently gave them Barron's unredacted memos on targeted killing. A long time ago, it publicly released a White Paper that is a summary of the memo. There should be an up or down vote, not a filibuster or a delay. Nor do I want Rand Paul calling the shots on judges.

Politico reports the votes are there to confirm Barron.

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    I (5.00 / 2) (#1)
    by lentinel on Wed May 21, 2014 at 04:10:42 PM EST
    don't want Raul Paul calling the shots on judges either.

    However, couldn't we have a nominee who didn't approve of the killing of an American citizen - without charge or trial?

    I know that David Cole said that:

    [Barron's] confirmation would put in place a judge who will be absolutely vigilant in his protection of civil liberties and his insistence that executive power be constrained by the rule of law.

    But wouldn't it possible to find a judge who was vigilant regarding the protection of civil liberties and constraining executive power who didn't violate the civil liberties of an accused and didn't act to constrain executive power to kill him, but instead acted to authorize it?

    Is this the best we can do?

    Rand Paul isn't calling the shots, although he'd like to be.

    Isn't it the President who is calling the shots?

    Really? (none / 0) (#2)
    by squeaky on Wed May 21, 2014 at 04:54:51 PM EST
    Sounds to me that he will be a really good judge and contender for Supreme Court. He has the support of some good people, including Jeralyn, and writing this about executive power is a big plus in my book:

    This historical review shows that the view embraced by most contemporary war powers scholars -- namely, that our constitutional tradition has long established that the Commander in Chief enjoys some substantive powers that are preclusive of congressional control with respect to the command of forces and the conduct of campaigns -- is unwarranted...

    ..Although history is not dispositive of the constitutional question, legislators and executive branch actors should not abandon two hundred years of historical practice too hastily, and should resist the new and troubling claim that the Executive is entitled to unfettered discretion in the conduct of war.



    Interesting to note that when that (5.00 / 1) (#10)
    by Anne on Thu May 22, 2014 at 07:53:45 AM EST
    article was published, in February, 2008, candidate Obama was making similar noises and arguments about the executive powers being wielded by then-president Bush.

    Times sure have changed, haven't they?  

    And, golly, isn't it kind of funny - in a not-so-humorous way - how both Lederman and Barron, who had been so vocal about the dangers of unfettered power when Bush was president, somehow started singing a different tune once they became members of Obama's administration?

    That you can not only reconcile that, but do so in a way that makes it seem like a good thing, is disturbing.  

    Do you realize that things have gotten to the point where the administration is sending lawyers to the Senate to argue the administration's position that it really doesn't need the AUMF or Congress' approval/authorization to wage war wherever the president wants to?  



    BushCo v ObamaCo (none / 0) (#12)
    by squeaky on Thu May 22, 2014 at 09:02:16 AM EST
    "Despite the hue and cry, Mr. Obama hasn't issued American 007s a license to kill. The real story revealed by the memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism.

    Those of us in the Bush administration who worked on the response to 9/11 understood that the country was involved in a new kind of war, one that demanded the covert use of force abroad, detention of terrorists at Guantanamo Bay without criminal trials, tough interrogations, and broad electronic surveillance. But Mr. Obama and many of those who would become his advisers never fully accepted--or credited--the Bush administration's difficult decision to consider 9/11 an act of war.

    Once elected, Mr. Obama declared in a 2009 speech: "The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable." The Bush policies failed, he said, "to rely on our legal traditions and our time-tested institutions" and also failed "to use our values as a compass",

    John Yoo argues that the memo and Obama's approach is in keeping with Barron's writing of 2008, in that it narrows the Executive's authority during war.

    He argues that Bush would not need a memo and would just kill anyone he thinks is a threat to the US, citizen or not.

    And if Obama has run Amok, and can do whatever he wants in his exploitation of unfettered executive power, why is he bothering to send Lawyers to congress? According to your POV, Obama would be exercising his bloody killing fantasies without ever informing congress.

    Do you think that is happening now?


    This is the second time (none / 0) (#21)
    by sj on Thu May 22, 2014 at 02:48:47 PM EST
    I've referenced a Radiolab podcast recently. The broadcast "60 words" analyzes, in a meaningful and accessible way, the AUMF and it's implications. the 60 words being:
    IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
    Thankfully, none of the attorneys used for the 'cast were the loathsome John Yoo.

    I really enjoy their programs. The author Oliver Sacks, author of "The Man Who Mistook His Wife For a Hat" is a fairly regular contributor to their shows. Which has nothing to do with this topic at all except that his specialty is neurological disorders, and I think reflexive and agressive partisan fervor is somewhere on the disorder spectrum (okay maybe there is a little bit of hyperbole there... but not that much).


    You do understand that (none / 0) (#9)
    by jbindc on Thu May 22, 2014 at 07:28:50 AM EST
    However, couldn't we have a nominee who didn't approve of the killing of an American citizen - without charge or trial?

    you have no idea whether he "approves" of this at all.  He's a lawyer and he argued a position - probably at the request of someone higher up on the food chain than him.

    By your rationale, every defense attorney who writes motions and briefs "approves" of their clients' behavior, which of course, is not true.


    Normally, I would agree with that perspective (5.00 / 4) (#17)
    by Peter G on Thu May 22, 2014 at 01:09:21 PM EST
    but in the case of the Office of Legal Counsel in the Department of Justice, that is not actually correct, jb.  The OLC is supposedly separate from the advocacy function, and is supposed to give independent, well-informed, confidential advice as to what the law is that governs executive branch officials and agencies, and let the chips fall where they may.  The Bush Administration (Bybee, Yoo, et al.) did tend to undermine the office and use its prestige to cover up and justify the indefensible.  But that is not the traditional, expected, or usual way of the OLC.

    Sure - but (none / 0) (#18)
    by jbindc on Thu May 22, 2014 at 02:07:58 PM EST
    Barron didn't just one day wake up and say, "Hey, I'm going to write a memo defending targeted killings because I personally think they are a good idea and I approve of them."

    Someone directed him to do this.  I'm certainly not knocking it - it would be remiss (and malpractice, IMO) if the OLC didn't write such memos on a regular basis, whether I agree with them or not.  They have to explore every legal facet of an issue and make an argument.

    But, correct me if I am wrong, has there ever been a situation where the OLC came out with an opinion (especially with this kind of controverisal issue) that was widely different than the official administration position, or rather, what the administration wanted their position to be?


    Yes (5.00 / 2) (#19)
    by squeaky on Thu May 22, 2014 at 02:33:02 PM EST
    Jack L. Goldsmith
    Chief of the Justice Department's Office of Legal Counsel, ruled that the surveillance program was illegal and set the stage for a showdown with Bush.



    From the DOJ website: (5.00 / 2) (#20)
    by Anne on Thu May 22, 2014 at 02:41:54 PM EST
    By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies.  The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department.  Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement.  The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.


    What Peter is saying is that it isn't the purpose or mission of the OLC to be a rubber stamp for the executive branch.  Now, has it become that over time?  I can only go by what we are allowed to see, which isn't much.  Are there memos that do not favor the administration's positions decisions?  Who knows?

    Barron apparently rescinded or withdrew some of the Bush OLC opinions having to do with torture, so clearly, opinions are not set in stone from one administration to another.

    But I think Peter's point is that the OLC is not supposed to be staffed with yes-people, even if it stands to reason that a president is going to appoint people with whom he shares some philosophy or general approach to the issues.

    The opinions aren't worth much, are they, if the general feeling is that the OLC will say whatever the president wants it to say?


    Thanks (none / 0) (#22)
    by jbindc on Thu May 22, 2014 at 03:53:35 PM EST
    I get what Peter is saying - OLC assists the Attorney General, who is the legal adviser to the President and all the executive branch agencies, so the OLC is not necessarily completely  "neutral" in the same way say, an arbitrator, would be. The thing to remember is that Barron isn't at all responsible for the administration's drone policy.  That responsibility falls completely on Mr. Obama. -  Barron was simply writing a memo as to what the law said based on a request from the administration.

    But it still doesn't mean he approved of the policy.


    Arbitrator Is a Poor Analogy, IMO (none / 0) (#23)
    by squeaky on Thu May 22, 2014 at 04:14:02 PM EST
    I think that the distinction Peter is making is one of advisor v employee or officer.  

    When I ask my lawyer for advice on a subject I certainly do not want him to tell me what I want to hear. That is similar to a lawyer advising the POTUS on the legality of an action.

    When I hire someone to do a job for me as an assistant, sure I am open to suggestions but what I am looking for is someone who will do what I want them to do. That is not what OLC is set up for, imo.

    An arbitrator is neutral in a different sense, imo. That is a role of someone working to resolve conflict between two parties.


    I've held off commenting because I (5.00 / 3) (#8)
    by Anne on Thu May 22, 2014 at 06:50:55 AM EST
    was having trouble reconciling the comments of people like Cole, who keep insisting and assuring us that Barron will be "absolutely vigilant in his protection of civil liberties and his insistence that executive power be constrained by the rule of law" and "faithfully protect(s) our liberties," with the stark truth that Barron gave the president what he needed to justify targeted killing of Americans.

    That makes no sense to me, sorry.  

    If there's one thing of which I am more convinced with than ever, it's this: presidents surround themselves with yes-men, with people who will do their bidding, who will help them accrue power and hold onto it.  I wish I could get over the feeling that this nomination is Barron's reward for being a good soldier, so to speak, and I wish I could trust all this high-flying praise for Barron's devotion to the protection of civil liberties, but I'm having trouble with it.  

    And we're supposed to believe there's a devotion to civil liberties so strong in this administration that the guy who wrote the memo essentially authorizing the rights of American citizens could be ignored should be elevated to the federal bench?  Our judicial system needs more people like that?

    I call BS, and so does Marcy Wheeler:

    Frankly, it is not hard to make the argument that what Barron has done is actually worse than the travesties of John Yoo and Jay Bybee. As unthinkable, heinous and immoral as torture is, and it is certainly all that, it is a discrete violation of domestic and international law. It is definable crime.

    But what David Barron did in, at a minimum, the Awlaki Targeted Kill Memo (there are at least six other memos impinging on and controlling this issue, at a minimum of which at least one more is known to be authored by Barron, and we don't even deign to discuss those apparently), was to attack and debase the the very foundational concept of Due Process as portrayed in the Bill of Rights. Along with Habeas Corpus, Due Process is literally the foundation of American criminal justice fairness and freedom under our Constitution.

    David Barron attacked that core foundation. Sure, it is in the so called name of terrorism today, tomorrow it will justify something less in grade. And something less the day after. Such is how Constitutional degradation happens. And there is absolutely nothing so far known in Mr. Barron's handiwork to indicate it could not be adapted for use domestically if the President deems it so needed. Once untethered from the forbidden, once unthinkable Executive Branch powers always find new and easier uses. What were once vices all too easily become habits. This is exactly how the once proud Fourth Amendment has disappeared into a rabbit hole of "exceptions".

    This damage to Due Process occasioned by David Barron can be quite easily argued to be more fundamental and critical to the Constitution, the Constitution every political and military officer in the United States is sworn to protect, than a temporally limited violation of criminal statutes and international norms on torture as sanctioned by Yoo and Bybee. But it is not treated that way by cheering Dems and liberals eager to confirm one of their own, a nice clean-cut Harvard man like the President, to a lifetime post to decide Constitutional law. What was detested for Jay Bybee, and would certainly be were John Yoo ever nominated for a federal judgeship, is now no big deal when it comes to David Barron. Constitutional bygones baybee; hey Barron is cool on same sex marriage, what a guy! Screw Due Process, it is just a quaint and archaic concept in a piece of parchment paper, right?


    If Goodwin Liu and Dawn Johnsen, two individuals who had proven their desire to protect the Constitution, had received this kind of support, this country, and the world, would be a better place. Instead, Mr. Obama has reserved his all out push for a man who, instead, opted to apply situational ethics to gut the most basic Constitutional concept of Due Process. That's unacceptable, but at a minimum we should have the benefit of proper analysis of Barron's work before it happens.

    And people wonder why things seem to be going to hell in a handbasket.

    "if there is one thing (5.00 / 1) (#15)
    by KeysDan on Thu May 22, 2014 at 11:05:27 AM EST
    of which I am more convinced with than ever, it's that presidents surround themselves with yes-men...."   While not entirely convinced, I increasingly wonder if a more correct assessment is "that men surround themselves with a yes-president."  With reflection upon, for example, the re-assuring statements on civil liberties by Senator Obama and then the steps taken when becoming president, it does make me think that the unspoken role of a president is to be custodian of the national security state in place.  It would not be unusual for any executive, let alone, the president to surround himself with yes-men--so it seems that there is less here than meets the eye.

    IANAL (none / 0) (#13)
    by squeaky on Thu May 22, 2014 at 09:10:42 AM EST
    and I do not know what other's would have written (Goodwin Liu and Dawn Johnsen) regarding the legality of killing Anwar al-Awlaki.

    One thing that has gone over my head in the whole extrajudicial killing of al-Awlaki, an American citizen, is that it is implied that it is OK to kill a non-American, but when it comes to Americans, due process is key.

    Isn't this an example of American Exceptionalism?

    Do you think, were al-Awlaki, a yemeni citizen, that it would have been ok to kill him because he was alleged to be an enemy of the US and involved in killing or plotting to Americans as an act of war against the US?


    Virginia A. Seitz (none / 0) (#16)
    by squeaky on Thu May 22, 2014 at 11:12:24 AM EST
    Was Obama's nomination of Virginia A. Seitz, to replace the blocked nomination of Dawn Johnsen, a nod and wink to unfettered Executive privilege?

    Or is it that because Seitz is less famous than Johnsen that she is deemed an inferior choice? It seems to me that Obama could have ordered targeted kills on the GOPers who were blocking Johnsen's nomination and she still would have been blocked by GOPers..

    But somehow it is seen as Obama being weak, and now his push for Barron is somehow showing muscle that he could have used for Johnsen?  Really I do not see it that way, and for all I have read about Seitz she is at least as good from a position of the left as Johnsen was.


    Official Secrets Act (5.00 / 4) (#14)
    by gaf on Thu May 22, 2014 at 09:55:59 AM EST
    The Official Secrets Act is not to protect secrets, it is to protect officials.

                                                - Sir Humphrey Appleby

    National Review and John Yoo Chime in (none / 0) (#3)
    by squeaky on Wed May 21, 2014 at 05:21:10 PM EST
    But there's much more worrying information about Mr. Barron than his mere partisan inconsistency. In short, Barron is a judicial supremacist who wants to use the federal judiciary as a weapon to advance his hard-left political vision. Stay tuned.

    John Yoo:

    The real story revealed by the [Barron] memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism. . . .

    One For the "Far Left" (none / 0) (#4)
    by squeaky on Wed May 21, 2014 at 05:34:07 PM EST
    WASHINGTON--David Barron, a Harvard professor and husband of gubernatorial candidate Juliette Kayyem, cleared a key hurdle to winning confirmation to a powerful position as a federal appellate judge in Boston on Wednesday.

    The Senate voted 52 to 43, mostly along party lines, to move Barron's confirmation forward. A final vote is expected Thursday, and he is expected to be confirmed.


    White House releasing the redacted memo's (none / 0) (#5)
    by republicratitarian on Wed May 21, 2014 at 08:54:06 PM EST
    after the vote. Seems legit to me. Makes me miss the open days of George W. Bush and John Yoo.

    I know, I know, trollish comments. But if Bush was in office and this guy was nominated, the Left would be up in arms.

    How do you justify killing an American citizen who was never even charged with a crime?

    And now we are supposed to believe he is going to uphold and defend the Constitution?

    So the PROMISED release of a redacted memo after the vote is enough for SEN Udall to say "This is a welcome development for government transparency"; I'm glad we've set the bar so high.


    The Party that gave us Dick Cheney (none / 0) (#11)
    by MKS on Thu May 22, 2014 at 08:41:40 AM EST
    is not worth listening to...

    The interesting debate is on the Democratic side.  We know where the Republicans are.


    A surprising post (none / 0) (#6)
    by Militarytracy on Wed May 21, 2014 at 09:28:37 PM EST
    I agree

    Great post (none / 0) (#7)
    by CaptHowdy on Wed May 21, 2014 at 09:34:33 PM EST