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Why Civil Libertarians and Drone Critics Should Support David Barron

Sen. Rand Paul has an op-ed in the New York Times today opposing the nomination of David J. Barron to the U.S. Court of Appeals for the First Circuit until the memos Barron wrote concerning the legality of the targeted killing of US citizen Anwar Al-Awlaki are publically released.  The ACLU has also urged that Barron’s nomination be delayed until Senators are allowed to read all targeted killing memos written by Barron.  I have been as much a critic of the drones program as Sen. Paul, and have written often about my critiques of both the apparent scope of the program and the lack of transparency surrounding it (see herehere & here).  I continue to support transparency.  But it would be a terrible mistake to hold up David Barron’s nomination over this issue.

First, and most importantly, it is a mistake to conflate the issues of the appointment of David Barron and disclosure of the memos. Barron is a highly qualified lawyer who I know personally to be thoughtful, considerate, open-minded, and brilliant.   His confirmation would put in place a judge who will be absolutely vigilant in his protection of civil liberties and his insistence that executive power be constrained by the rule of law.  That long-term value should not be sacrificed because of a short-term battle over memos that every Senator already has the opportunity to review.

There can be no doubt that Barron would be an excellent independent judge, and would faithfully exercise his authority to protect Americans’ rights and to keep government honest and constrained.  As former judge and now Stanford Law Professor Michael McConnell has noted, Barron “has supported efforts to adopt laws to enable judicial review of executive actions that might otherwise escape judicial review because of lack of standing, and has written powerfully about the need for constitutional limits on executive excesses.”  Indeed, as head of the Office of Legal Counsel in 2009, Barron himself withdrew five OLC memos written during the prior administration to authorize controversial interrogation techniques such as waterboarding.  And fellow Harvard Law Professor John F. Manning, a conservative who clerked for Judge Robert Bork and Justice Antonin Scalia, has accurately described Barron as “undeniably brilliant” and “an unusually talented and careful lawyer” who will “understand and faithfully carry out the duties of a circuit judge.”

Second, the administration has in fact made available to all Senators any and all memos Barron wrote concerning the targeting of al-Awlaki – the core of the issue Sen. Paul is concerned about.  So if Sen. Paul and any other Senator want to review Barron’s reasoning in full, they are free to do so.  Moreover, the administration also made available to the Senate, and ultimately to the public, a “White Paper” said to be drawn from the Barron memo (though written long after he left office).  Thus, no Senator need be in the dark about the Administration’s reasoning, and the public also has a pretty good idea as well.

Indeed, the U.S. Court of Appeals for the Second Circuit recently ruled that a redacted version of the al-Awlaki memo can and should be disclosed, largely because much of its reasoning had already been made public in the White Paper.  Thus, while I fully support the public disclosure of the memo, redacted to protect sources and methods, every Senator already has full access to the memo, and therefore can make an informed judgment on advice and consent.  And the public also has a good sense of what it says.

Notably, Senators Ron Wyden, Mark Udall, and Martin Heinrich, all members of the Intelligence Committee, wrote a letter to Attorney General Eric Holder in November 2013, after reviewing the memo on the killing of al-Awlaki, and stating their view the killing was “a legitimate use of the authority granted to the President.”  They went on to urge the administration to be more forthcoming about the legal limits on the use of force against U.S. persons in other cases, beyond what the memo apparently had sanctioned, but did not question the legality of the action authorized.

Sen. Paul’s op-ed notes that the Office of Legal Counsel may have written more than one memo on targeted killing, which is quite possible.  But the administration has disclosed to the Senators the full, unredacted versions of any memo authorizing the killing of Americans, the issue Sen. Paul raises in his op-ed.

Finally, holding up Barron’s nomination is unlikely to expedite disclosure of the memos.  It will only undermine the confirmation of someone who would make an excellent judge.  The Administration has been ordered (unanimously) to release the memo, and will in short order either comply with that order or seek further review.  Barron has no control over that decision, and should not be held hostage to it.

I am second to none in my support for transparency.  And I will continue to fight for that value on its own terms. But it is a huge mistake to let our legitimate concerns about transparency get in the way of the confirmation of a judge who will faithfully protect our liberties and hold government accountable – especially when the Senate already has been given access to all the information they need to exercise their “advise and consent” role.  As a civil libertarian and drone critic, I have no hesitation in saying that David Barron should be confirmed.

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About the Author

is a professor at Georgetown University Law Center. Follow him on twitter @DavidColeGtown