Federal Courts and Nominations

Left at odds over nomination of kill memo author David Barron

05/13/14 09:26 AM—UPDATED 05/13/14 08:06 PM

By Adam Serwer


Left-leaning groups accustomed to being on the same side when it comes to the law are now at odds over the nomination of David Barron, a former Justice Department official who helped craft the legal justification for the killing of American extremist Anwar al-Awlaki.


Groups devoted to the federal judiciary are working hard to press for Barron’s confirmation to the U.S. Court of Appeals for the First Circuit, while the American Civil Liberties Union is pushing senators to hold off voting for Barron until the Obama administration releases more details about the targeted killing of suspected terrorists.


Eight years of the Bush administration, and six with Republicans deploying unprecedented use of the filibuster, have left the federal judiciary skewed to the right. Barron, a Harvard law professor, Bush critic and former clerk for Supreme Court Justice John Paul Stevens with high profile endorsements from Republicans like former Reagan Solicitor General Charles Fried and Jack Goldsmith, a key internal critic of the Bush administration’s war on terror excesses, is the kind of nominee liberal legal groups have tremendous hopes for. Conservative media have attacked Barron as a ”judicial supremacist.” 


Last Monday, the ACLU sent a letter to senators urging them not to vote on Barron’s nomination until the administration makes available to the Senate any and all legal memos Barron worked on related to the targeted killing program. The ACLU, along with The New York Times, is suing the Obama administration for public disclosure of material related to the targeted killing program. Kentucky Republican Senator Rand Paul and Colorado Democratic Senator Mark Udall have opposed Barron’s nomination, insisting the Obama administration comply with a federal court order to make materials related to the program public. 


“The ACLU does not endorse or oppose any nominee,” the letter states, “but strongly urges the Senate to delay any vote on confirmation of Mr. Barron until all senators have an opportunity to read, with advice of cleared staff, these legal opinions that authorized an unprecedented killing, as well as any other opinions written or signed by Mr. Barron on the killing program.” Other legal memos related to the program exist, and it is unknown how many Barron may have had a hand in. Confirming Barron without knowing if they’ve seen some of his most important legal work, the ACLU believes, would be irresponsible.


Late last week, the Constitutional Accountability Center, a left-leaning group with a focus on law and the federal courts, began circulating its own letter urging Barron’s confirmation, signed by groups like the Alliance for Justice, the NAACP and People for the American Way. The group also sent an email to supporters saying that the Barron nomination was being “held hostage” to the dispute over transparency related to the targeted killing program. 


“These documents, however, have been made available by the Administration to every member of the Senate, allowing all Senators to fulfill their advice and consent role on judicial nominations by reviewing the contents of the documents, and to give them whatever significance they deem fit in terms of whether to vote to confirm Professor Barron,” the email reads. “The issue of public disclosure of the documents is entirely separate from the Senate’s advice and consent role and whether Professor Barron is or is not qualified to be a federal judge.” 


It is difficult to know what material has been made available to the Senate, because the documents remain classified and few people have access to the secure facility where they are stored. White House spokesperson Eric Schultz and Jillian Lane, a spokesperson for Senator Paul, told msnbc Monday that only one of the memos known to be co-authored by Barron had been made available. Tuesday afternoon, Senate Majority Leader Harry Reid told Roll Call that senators were given access to two memos. Schultz told msnbc Tuesday that the White House had “made available unredacted copies of all written legal advice issued by Mr. Barron regarding the potential use of lethal force against U.S. citizens in counterterrorism operations.”


Until senators began raising concerns about the Barron nomination, only those on the judiciary and intelligence committees had seen any of the material in question. 


A New York Times story detailing the legal debate behind the scenes states that one “short memo” was completed justifying the targeting of al-Awlaki, followed by a second, more detailed one that the federal court has ordered made public in redacted form. The second memo is the one that has been made available to the U.S. Senate. 


Several senators who have read the memo, including critics like Udall and Oregon Democratic Senator Ron Wyden, have said they agree with its conclusion that al-Awlaki was a member of Al Qaeda and could be targeted with lethal force. 


Georgetown Law Professor David Cole, a prominent civil libertarian attorney who last year was given an award by the ACLU for his “lifetime contribution to civil liberties,” wrote Monday that the Senate should confirm Barron. 


“[H]olding up Barron’s nomination is unlikely to expedite disclosure of the memos. It will only undermine the confirmation of someone who would make an excellent judge,” Cole wrote. “The Administration has been ordered (unanimously) to release the memo, and will in short order either comply with that order or seek further review.  Barron has no control over that decision, and should not be held hostage to it.”


This post has been updated to reflect Sen. Reid’s remarks and further comment from the White House.

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