The White House will allow the full Senate access to one of the legal memos related to its targeted killing program that was co-authored by an Obama nominee to the federal bench, but will not make the memos public as critics have demanded.
David Barron, a former official in the Justice Department's office of legal counsel and one of the authors of legal memos justifying the use of lethal force against Anwar al-Awlaki, an American citizen and terrorist suspect, has been nominated for a seat on the U.S. Court of Appeals for the First Circuit.
"I can confirm that the administration is working to ensure that any remaining questions members of the Senate have about Barron's legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the al-Awalki opinion to any Senator who wishes to review it prior to Barron's confirmation vote," White House spokesperson Eric Schultz said in an email. "He will bring outstanding credentials, legal expertise, and dedication to the rule of law to the federal bench."
Allowing the full Senate to access the memos falls well short of what White House critics have been asking for. In April a federal court sided with the ACLU and the New York Times in a Freedom of Information Act lawsuit seeking further disclosure of materials related to the targeted killing program.
Last week, Kentucky Republican Senator Rand Paul sent a letter to Senate Majority Leader Harry Reid saying he would seek to block Barron's nomination unless the administration complied with the court order to make the materials public. On Monday, the ACLU mailed letters to every U.S. Senator urging them not to confirm Barron unless the Obama administration allowed them to view legal documents he was involved in crafting. Monday evening, Colorado Democratic Senator Mark Udall said he would oppose Barron's nomination until the administration made the memos public. Oregon Democratic Senator Ron Wyden did not take a position on Barron's nomination, but he has also urged the White House to make the memos public.
In response to inquiries from msnbc, spokespersons for Udall and Wyden pointed to the senators' prior statements saying the administration should release the memos publicly.
"The White House is essentially offering senators access to a memo that it has been ordered by a court to make public in a redacted form," said Chris Anders of the ACLU, who pointed out that there is at least one other Barron-authored memo related to the targeted killing program beyond the one the White House is offering. "We urge that all senators demand access to all Barron-signed OLC opinions on targeted killing."
The White House offer did receive a key gesture of support Tuesday. Vermont Democratic Senator Patrick Leahy, who chairs the Senate Judiciary Committeee characterized opposition to Barron's nomination as just the latest example of Republicans obstructing one of Obama's nominees to the bench, and praised the White House for making one of the memos available to the full Senate.
“Senate Republicans have consistently blocked most of President Obama’s judicial nominees so it comes as no surprise that they continue to do so with this nominee," Leahy said in a statement. "David Barron is a brilliant lawyer who is committed to public service. Based on his entire career as a lawyer, I am confident he will be an excellent judge on the First Circuit."