Once again, lawmakers from both sides of the aisle are challenging the Obama administration over its national security policies. At issue now are secret legal opinions sanctioning the government’s targeted killing program, some of which were written by a Harvard law professor named David Barron, who is President Obama’s nominee for a prominent judicial position. At least two of the memos written by Barron when he worked in the Justice Department’s Office of Legal Council concern the extrajudicial killing of American citizens abroad.
Republican opposition to Barron is hardly surprising; much of it is simply the usual hysteria about his “progressive view of the constitution” that might lead him to wield his gavel “as a weapon to advance his hard-left political vision.” One exception is longtime drone critic Rand Paul, who has been threatening to hold up Barron’s confirmation due to his connection to the killing program. Paul penned a Sunday op-ed in The New York Times calling on the Obama administration to release the opinions drafted or signed by Barron before the Senate votes on his nomination.
A handful of Democrats, too, have expressed reservations about voting for Barron until they have a clearer view of his legal judgments on targeted strikes. The White House has given senators access to one of the Barron memos, which concerns the killing of US citizens overseas. In April, a federal judge ordered the administration to release that particular legal analysis not only to lawmakers but also to the public. It has not done so. Colorado Democrat Mark Udall told The New York Times that he would not support Barron’s nomination until the administration complies with the court order. Ron Wyden of Oregon said that the vote should not be held until more of Barron’s legal analyses are available.
Just how many memos related to drones Barron produced during his time at the Justice Department is unclear. (He worked at the OLC from 2009 to 2010.) Most of the controversy around Barron has focused on two memos, the one at the heart of the court case mentioned above, and a shorter one also reportedly related to targeting Americans. Those two documents were particularly pertinent in the decision to target an American named Anwar al-Awlaki, who died in a 2011 drone strike in Yemen. Interestingly, majority leader Harry Reid indicated on Tuesday that the White House has provided senators with a second memo, presumably the other one of the two. “As far as I know, they’re down there,” Reid said when asked if the proper documents were available in the secure area. “I’ve looked, there’s two of them.”
The killing of American citizens abroad without due process is a critical issue, but so is the policy of assassinating non-Americans away from the battlefield. Many other memos have been written about the drone program beyond its application to US citizens; it’s unclear whether Barron contributed to any of them. With the White House claiming it has given senators access to the information they’ve requested regarding the targeting of American citizens, the question of whether Barron analyzed any other aspects of the drone program may now become the focus of the debate.
“There’s been this game of ‘hide the ball’ that’s been going on for the last two weeks about what the White House is going to provide to the senators,” Christopher Anders, senior legislative counsel for the American Civil Liberties Union, said. “If they really have turned over everything he’s written regarding targeting killing, the White House should say that. Given the amount of games they’ve played, it certainly raises a lot of concerns that they’re sending up something less than all of the memos Barron has been involved in.”