In a bid to ease the confirmation of an appellate court judge, the White House on Tuesday said that it would release to senators the controversial memo that justified the 2011 targeted drone killing of U.S. citizen Anwar al-Awlaki. The move has been criticized as "falling short" and missing the big picture of why someone who authorized killing without due process should become a judge at all.
The move follows pressure from Tea Party favorite Sen. Rand Paul and the American Civil Liberties Union over President Obama's nominee for the U.S. Court of Appeals for the 1st Circuit, David Barron, who co-penned that memo during his tenure at the Office of Legal Counsel at the Justice Department.
Barron, now a Harvard Law professor, "co-authored the infamous Justice Department opinion authorizing Obama's murder of U.S. citizens," Francis Boyle, professor at the University of Illinois College of Law and author of Tackling America’s Toughest Questions, stated. "If approved, we will have a murderer and a war criminal sitting on the U.S. First Circuit," Boyle warned.
A federal appeals court sided with the ACLU and two New York Times reporters late last month, demanding that the Obama administration release of portions of that classified Justice Department memo, prompting Chris Anders of the ACLU to say, "The White House is essentially offering senators access to a memo that it has been ordered by a court to make public in a redacted form."
On Monday, the ACLU sent a letter (pdf) to all the senators urging them to delay the confirmation vote on Barron until they had seen the "legal opinions that authorized an unprecedented killing, as well as any other opinions written or signed by Mr. Barron on the killing program."
On Tuesday, following the White House's announcement that it would allow senators to see one of Barron's memos related to targeted assassination, the ACLU sent a second letter (pdf) to senators, again urging them to delay the confirmation vote for Barron until they had seen all the memos he'd signed or authored.
The ACLU's follow-up letter says that while the White House move "is a step forward, it falls short of what senators need to fulfill the constitutional obligation to provide 'advice and consent' on this nomination to a lifetime position as a federal appellate judge."
"The proffered memo is only one of at least two OLC legal opinions on this issue written or signed by Mr. Barron. Senators should be able to read all of his OLC opinions on targeted killing before voting on the nomination," the letter states.
Sen. Paul, who tried to hold up the confirmation of John Brennan as CIA head, has been leading opposition to Barron as well, also pushing for release of the infamous memo.
"The disclosure of this document will not only clarify [the debate over the constitutionality of the kill list program,] it will also allow the Senate to gain critical insight into David Barron’s judicial philosophy,” the Kentucky senator wrote in a letter to Senate Majority Leader Harry Reid (D-Nev.) obtained by The Hill.
Independent journalist Marcy Wheeler writes that Paul's stance on the Barron nomination is something we should pay attention to.
But beyond just the issue of just disclosing the memos, she writes, is this question: Why should someone who authorized due process-free executions be a judge anyway?
"Frankly, I don’t care how nice or how liberal Barron is," Wheeler writes. "I feel about him like I feel about Jay Bybee," who signed the torture memos under the George W. Bush administration and is now a U.S. 9th Circuit Court of Appeals judge. "Someone who gets nominated after having rubber stamped such awful executive authorities should not be rewarded with a lifetime seat interpreting the law, because he has already been compromised."
Professor Boyle's statement adds that Barron's potential judgeship on the First Circuit could "make him a prime candidate for a U.S. Supreme Court seat. This is exactly how Bush paid back Jay Bybee when he put him on the Ninth Circuit. Obama is worse than Bush in that Obama is a lawyer and knows better."