Harkening back to the days of appointing torture memo author Jay Bybee to a lifetime position as a federal judge, the Obama administration has nominated David Barron, author of at least two Office of Legal Counsel (OLC) Justice Department memos authorizing the killing of American citizens without due process, to serve on the First Circuit Court of Appeals. WaPo reports:
Senate Democrats — and Rand Paul — are pressuring the administration to release at least two memos authored by Barron that justified the killing of Anwar al-Awlaki, an American citizen and senior al-Qaeda operative. The administration has granted Senators access to the memos, which probably ensures that Barron will be confirmed.In a climate where secret legal interpretations that depart significantly from the text of existing laws are far too commonplace, we are so desperate for a shred of transparency that the White House agreeing to show Senators the secret memos is enough to grease the wheels for Barron's confirmation.
The memos are indefensible. If the logic is anything like the New York Times described, they raise serious questions Barron should have to answer at a public confirmation hearing. Including, first and foremost, how can the Executive branch play judge, jury and executioner for American citizens far from any battlefield? But, even Senators who have seen the memo will be unable to publicly question Barron about the memos because they are classified, likely intentionally kept secret to avoid precisely the questions Senators (and the public) should be asking Barron.
I've written extensively on the incredibly disturbing rationalizations Barron's memos use to "authorize" assassination of American citizens, and the shaky supposed "criteria" that gets an innocent person condemned to death when the President and his drone counsel (headed by now CIA Director John O. Brennan) reach into their assassination playbook and add someone to the "kill list." Even if the supposed "criteria" were legitimate, in the most publicized drone assassination of an American citizen, that of Anwar Al-Awlaki, the Administration ignored its criteria.
Barron is responsible for writing the legal justification for the White House to target and kill an American citizen not convicted of any crime Al-Awlaki. It is a sad irony that the White House's meager "transparency" offering of allowing Senators to see the secret law that the government relies on when deciding which citizens to wipe off the planet is enough to to all but guarantee Barron's confirmation.
The Obama administration has abandoned torture (a rare positive step on national security issues) but has replaced it with the equally legally-dubious targeted killing program. Anyone outraged at torture memo author Jay Bybee's lifetime appointment should equally challenge installing Barron on the federal bench without Barron having to fully account for his providing the legal justification for drone strikes targeting American citizens. But we are so starving for transparency, that Barron seems poised to get a pass on the substance of his flawed arguments.