Anneke E. Green

The Senate is expected to vote on Thursday, after a Wednesday procedural vote, on the nomination of David Barron to the First U.S. Circuit Court of Appeals in Boston. Barron is known infamously as the author of secret Department of Justice (DOJ) drone memos used by President Obama to justify the extrajudicial killing of American citizens overseas.

In fulfillment of Obama's frequently expressed wish for greater bipartisanship, a righteous coalition led by Sen. Rand Paul, R-Ken., and a few Senate democrats propped up by the American Civil Liberties Union (ACLU) are working to stop Barron's unmerited promotion.

"There is no legal precedent for killing American citizens not directly involved in combat," Paul told me. "I've seen the documents and Barron creates out of whole cloth a defense for executing American citizens without trial, citing unrelated cases as justification." The Bluegrass State's junior senator announced he would filibuster the nomination. Senate majority leader Harry Reid's rule change last year triggering the nuclear option for confirming judges means the procedural tactic is now largely ceremonial but the principal stands.

Under pressure from constituents, key Senate democrats have signaled their discomfort with the nominee. Alaska Sen. Mark Begich and Louisiana Sen. Mary Landrieu are facing tight reelection races at home. Oregon Sen. Jeff Merkley and Colorado Sen. Mark Udall have both called for the Barron memos to be released publicly, with fellow Beaver state Sen. Ron Wyden announcing he wouldn't decide until today whether to vote for the death-memo author.

The ACLU has asked all 100 senators not to support Barron's nomination until they are able to review his memos. Despite filing a Freedom of Information Act request for the documents, they still haven't received them. On Tuesday, the day before the first vote, the administration leaked its decision not to appeal a court order to release redacted versions of the documents. Though they won't be available publicly for a few weeks, Udall considered the gesture sufficient to secure his vote for Barron. Wyden called it "constructive."

Paul is undeterred. "Any nominee who rubber stamps and grants such power to a president is not worthy of being placed one step away from the Supreme Court," he told me. "These memos don't limit drone executions to one individual. They set historic precedent for killing citizens abroad." In a Wednesday speech on the Senate floor, Paul asked to delay the nomination until the memos are actually released and the public has the chance to read them and comment. Democrats objected, so the vote is on.

The fact remains that as the result of Barron's still-secret legal justification, the Obama administration admits to killing four Americans so far. One of those was Anwar Al-Awlaki; another was his 16-year-old son in a separate attack. Both of them were deprived of the right of due process guaranteed by the same Constitution that Obama has twice sworn publicly to "preserve, protect, and defend." We may deplore their treasonous activities but that's no excuse to set aside the very system designed to deal with criminal activity. Obama could have followed the legal process for revoking their citizenship before putting them on a CIA hit list.

Having green-lighted depriving Americans of their lives without judicial review, Barron is now a Senate vote away from a lifetime post on a judicial bench one level down from the Supreme Court. Having fundamentally denied justice to others, he doesn't deserve to become one himself. Hopefully key Senate Democrats will agree and his confirmation will fail.

Anneke E. Green is a senior director at the White House Writers Group. She served in the Administration for Children and Families under President George W. Bush and also for Republican Senate minority leader Mitch McConnell.

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