UPDATE: Barron cleared a key procedural hurdle in the Senate 52-43 Wednesday afternoon. His nomination is likely to be approved by the full Senate.
The Obama administration will release materials related to its targeted killing program, as one of its authors – David Barron – is poised to become a federal judge. Although administration officials have publicly defended the policy, this is the first time the public will be able to judge the legal rationale for themselves.
Despite the administration’s decision to comply with the court order, Republican Senator Rand Paul took to the Senate floor Wednesday to oppose Barron’s nomination, saying he would “oppose the nomination of anyone who would argue that the president has the power to kill American citizens not involved in combat.”
“I believe the Barron memos, at their very core, disrespect the bill of rights,” Paul said Wednesday, referring to drone strikes as “drone executions.”
“Make no mistake, these memos don’t limit drone executions to one individual,” Paul said in his 31-minute speech. “These memos become historic precedent for killing citizens abroad.”
The decision from the Obama administration is the result of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union and the New York Times seeking disclosure of legal advice justifying the use of lethal force against terrorism suspects abroad. This included U.S. citizens such as Anwar al-Awlaki, the extremist preacher who was killed in a U.S. drone strike in Yemen in 2011. The legal justification for the strike on al-Awlaki was co-authored by Barron, a former Justice Department official and Harvard Law professor whom the Obama administration had nominated to the U.S. Court of Appeals for the First Circuit.
Last Month, a federal court sided with the ACLU and the Times, ordering the administration make information related to the program public, including some memos authored by Barron.
At the time, not even the full U.S. Senate had seen that material – it had only been shared with the intelligence and judiciary committees, which maintain jurisdiction over national security law matters. The ACLU had urged Senators not to vote on Barron’s nomination until the material had been seen by the full Senate. Democratic Colorado Senator Mark Udall had said he would oppose Barron’s nomination unless the administration complied with the court order to release the documents to the public, not just allow Senators to read them.
The ACLU however, still believes that the administration is witholding legal advice authored by Barron related to the targeted killing program and is urging Senators not to vote on his nomination until they are shown to the Senate. “As important as this step is, we continue to believe that all Senators should have access to all targeted killing memos authored or signed by Mr. Barron,” Chris Anders of the ACLU said in a statement. The White House has said that Senators have been given “all written legal advice issued by Mr. Barron regarding the potential use of lethal force against U.S. citizens in counterterrorism operations.”
The White House hadn’t agreed to share that much with the Senate however, until concerns raised by Democratic Senators Udall and Ron Wyden and Kentucky Republican Senator Rand Paul. Udall and Wyden have said they believe the killing of al-Awlaki was lawful, but that the public has a right to know the legal thinking behind the decision.
Paul’s office said that the Kentucky Senator still opposes Barron’s nomination and is expected to speak against it on the Senate floor Wednesday. An excerpt from that speech states that the Senator would “oppose the nomination of anyone who would argue that the president has the power to kill American citizens not involved in combat.”
Barron appears to have the votes for confirmation. When Senate Majority Leader Harry Reid was asked whether he thought Barron’s nomination would make it through the Senate, Reid said, “I think we’ll be ok.”