Before he authored legal memos related to the Obama administration's targeted killing program, David Barron joined a group of left-leaning legal scholars and endorsed a statement of principles urging more transparency from the very office now withholding his work from the public.
"OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority," reads the document, titled Guidelines for the President’s Legal Advisors, published by the liberal American Constitution Society and the Indiana Law Journal in 2006. "Transparency also promotes confidence in the lawfulness of governmental action."
Now retired from government and teaching at Harvard, Barron's nomination for a federal judgeship may hinge on those very principles. Two senators -- Kentucky Republican Rand Paul and Mark Udall, the Colorado Democrat -- have said they will not support Barron's nomination until the memos are made public. The American Civil Liberties Union has urged all members of the Senate Judiciary Committee to review the memos before considering Barron for a seat on the U.S. Court of Appeals for the First Circuit.
The 2006 document was written just as Bush administration national security excesses were coming to light. It was "prepared and endorsed" by a number of liberal legal luminaries, including Barron and Marty Lederman, both former office of legal counsel officials identified by the New York Times as the primary authors of the legal memo justifying the use of force against an American extremist living in Yemen who the U.S. government believed to be a terrorist. Anwar Al-Awlaki was killed in a drone strike in Yemen in 2011. Critics have charged that the use of lethal force against terror suspects who are American citizens is an unlawful abuse of executive power. Others who support the policy have also called on the administration to release more information about the program.
The 2006 document does not demand transparency in all circumstances. "There nonetheless will exist some legal advice that properly should remain confidential, most notably, some advice regarding classified and some other national security matters," the document notes. "In all events, OLC should in each administration consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration."
At the time, the document was more than just advice -- it was a rebuke to the widespread sentiment on the left that the Bush-era office of legal counsel had acted as a rubber stamp sanctioning unlawful behavior by the Bush administration, such as torture. The office of legal counsel memos related to the torture program were not released until Obama took office, and Republicans accused him of endangering the country by doing so.
Now it's Barron who has controversial legal memos to answer for. The White House has resisted public disclosure of legal materials related to the targeted killing program, but last month a federal appeals court sided with the ACLU and the New York Times in a Freedom of Information Act lawsuit and ordered the administration to disclose certain documents related to targeted killing. Senators from both parties are demanding the White House comply with that order before Barron's nomination is brought before the Senate.
"David Barron is highly qualified, but as one of the authors of the Anwar al-Awlaki opinion, Barron's nomination understandably raises key questions about the administration's legal justification for the targeted killing of Americans and about its year-old pledge of greater transparency," Colorado Democratic Senator Mark Udall said in a statement to msnbc Monday evening. "As such, the White House should comply with the 2nd Circuit Court of Appeal's order to release its redacted legal justification for killing a U.S. citizen. Unless the White House complies, I cannot support David Barron's nomination."
Last week Kentucky Republican Senator Rand Paul sent Senate Majority Leader Harry Reid a letter saying he would attempt to block Barron's nomination from coming to a vote until the administration complied with that order. Monday, the ACLU sent a letter to all Senators in the chamber urging them not to vote on the Barron nomination until they see more information about the targeted killing program.
Senate Democrats abolished the filibuster late last year and they retain a five-seat majority in the chamber. Even a small number of Democratic defections could tip the balance. In a statement to msnbc Monday, Democratic Oregon Senator Ron Wyden -- who has been a frequent critic of Obama national security policies -- did not commit to opposing Barron’s nomination but said that “These memos need to be shared with the public, and the important questions that they failed to address must be answered.”
Senators themselves did not get to see the controversial legal memos until 2013, after several Senators threatened to block the nomination of John Brennan to be director of the CIA. Only members of the Senate intelligence and judiciary committees were given access to the memos, most of the Senators who would vote on Barron's nomination have not seen what is arguably his most consequential legal work.
The introduction to the 2006 document was written by Dawn Johnsen, a prominent critic of the Bush administration's war on terror whose nomination to head the Justice Department's office of legal counsel was derailed by Senate Republicans over her opposition to torture.
"The 'war on terror,' that followed the September 11, 2001 terrorist attacks in particular has brought assertions of new and expansive presidential authority regarding enemy combatants, military tribunals, preemptive self-defense and warrantless domestic wiretaps, torture and other extreme interrogation techniques," Johnsen wrote. "Unchanging, however, and essential to understanding presidential power, is the president’s overriding obligation to exercise executive authority in conformity with the law."
Correction: An earlier version of this piece stated that Sen. Ron Wyden had committed to opposing Barron’s nomination. It was Senator Mark Udall, not Wyden.