David Barron now sits on the bench of the First Circuit Court of Appeals despite having given President Barack Obama the legal justification for killing an American citizen overseas without a trial.

While serving in the Office of Legal Counsel, Barron and another lawyer, Marty Lederman, wrote the first of two memorandums that sought to rationalize how the administration could target and kill an American Islamic cleric, Anwar al-Aulaqi, in Yemen for his suspected ties to al-Qaeda.

Their first attempt to explain how the Central Intelligence Agency could legally assassinate al-Aulaqi was only seven pages long. “As that length suggests, the memo, which could have resulted in a human’s death at any moment, was woefully incomplete as a legal analysis,” Conor Friedersdorf wrote at The Atlantic.

It would seem that both Barron and Lederman felt the same way, according to The New York Times which reported both men “grew uneasy” over the product of their first memo and its lack of judicial reasoning. So they drafted a second, longer document that went into more legal detail and also utilized intelligence sources to conclude that al-Aulaqi was truly guilty and needed to die.

“Barron and Lederman,” Friedersdorf wrote, “signed off on an American’s death before delving into intelligence reports and doing other due diligence they completed for the later memo, which would be more than four times as long as their earlier effort.”

In the second memo, Barron and Lederman wrote: “High-level government officials have concluded, on the basis of al-Aulaqi’s activities in Yemen, that al-Aulaqi is a leader of [al-Qaeda in the Arabian Peninsula] whose activities in Yemen pose a ‘continued and imminent threat’ of violence to United States persons and interests. . . . The contemplated DoD operation, therefore, would be carried out against someone who is in the core of individuals against whom Congress has authorized the use of necessary and appropriate force.”

Later in the memo, al-Aulaqi’s U.S. citizenship was addressed. “Accordingly, we do not believe al-Aulaqi’s citizenship provides a basis for concluding he is immune from a use of force abroad that [Authorization for Use of Military Force against terrorists] otherwise authorizes.”

Despite authorizing the killing of an American, Barron wound up with a lifetime job on the federal bench, receiving his confirmation before either memo was publicly released…after being heavily redacted by the administration.

Some senators, such as Republican Rand Paul of Kentucky, refused to support Barron’s nomination, declaring on the Senate floor before the confirmation vote: “I rise today to oppose the nomination of anyone who would argue that the president has the power to kill an American citizen not involved in combat and without a trial. I rise to say that there is no legal precedent for killing citizens not involved in combat and that any nominee who rubber stamps and grants such power to a president is not worthy of being one step away from the Supreme Court.”

-Noel Brinkerhoff

To Learn More:

7 Pages That Gave President Obama Cover to Kill Americans (by Conor Friedersdorf, The Atlantic)

Memo for the Attorney General (Department of Justice) (pdf)

Court Finally Releases Portions of Obama Administration Memo Justifying Assassination of Americans in Yemen (by Noel Brinkerhoff, AllGov)

Obama Administration Desperate to Censor Assassination Memo (by Noel Brinkerhoff, AllGov)

How a U.S. Citizen Came to Be in America’s Cross Hairs (by Mark Mazzetti, Charlie Savage and Scott Shane, New York Times)