Republican senator demands release of legal memos written by David Barron that signed off on killing of US citizens

Senator Rand Paul and the American Civil Liberties Union are threatening to derail the confirmation of one of President Barack Obama’s nominees to the federal judiciary until the Obama administration releases secret legal opinions the nominee wrote blessing the killing of US citizens without trial in extreme circumstances.

David Barron, formerly of the Justice Department’s office of legal counsel, is set to receive a Senate floor vote as early as this week to sit on the United States court of appeals for the first circuit.

But Paul, the Kentucky Republican who led a marathon 13-hour filibuster in 2013 during which he challenged Obama’s authority to kill American citizens without due process, has threatened to put a procedural block on the nomination until the administration releases legal memos, some written and signed by Barron, that signed off on killing Americans like al-Qaida propagandist Anwar al-Awlaki, who was killed in a drone strike in Yemen in 2011.

“The constitutionality of this policy has been the subject of intense debate in our country since its implementation,” Paul wrote to Senate majority leader Harry Reid, a Nevada Democrat, in a letter obtained by The Hill newspaper.

Any attempts to use procedural checks on Barron’s nomination may not succeed. Senate Democrats in November restricted the use of the filibuster, a move intended to allow for approval of nominees by a simple Senate majority.

But both Paul and the ACLU, which on Monday sent a letter to senators about Barron’s nomination, are using what leverage they possess to highlight a lack of disclosure around the drone strike memos Barron penned.

“There is no other president in modern American history who has ordered the killing of an American citizen away from a battlefield without a judicial order, and by extension, there is no other federal government lawyer in modern American history who authorized the killing of an American citizen away from a battlefield,” said Christopher Anders, an ACLU attorney and co-author of the organization’s letter to the Senate.



One of Barron’s successors atop the office of legal counsel, Caroline Krass, resisted the entreaties of the Senate intelligence committee for those memos, arguing that their disclosure would jeopardize the administration’s ability to solicit and receive candid legal advice. While some senators were angry with Krass’ response, she was eventually confirmed as the CIA’s top lawyer in the course of a different document fight between the agency and the committee.



A version of one of the memoranda Barron played a role in writing was partially released to Congress in early 2013, shortly before the vote to confirm John Brennan as CIA director, which Paul famously filibustered. In that memo, the Justice Department argued that a “broader concept of imminence” of a pending attack than was militarily traditional permitted the US to kill a citizen believed to be involved in such an attack without trial if capture was considered unfeasible.



In 2013, Obama acknowledged that drone strikes have killed four US citizens, one of whom was a 16-year old boy. In February, the New York Times reported that the administration is considering killing another, who is believed to be in tribal Pakistan.



Anders said there were at least seven office of legal counsel memos on what the administration calls its “targeted killing” program that remain entirely unreleased to the Senate.



The ACLU’s letter compared Barron’s nomination to that of Jay Bybee, a federal judge whose confirmation in 2003 came before Congress knew about torture techniques Bybee approved during his earlier stint at the office of legal counsel.



“One difference between now and then is no senator this week can claim he or she didn’t know this nominee has written significant opinions they haven’t read,” Anders said.