Facing the potential defeat of an appeals court nominee, the Obama administration decided Tuesday to publicly release much of a classified memo written by the nominee that signed off on the targeted killing an American accused of being a terrorist. The solicitor general, Donald B. Verrilli Jr., made the call to release the secret memo -- and not appeal a court order requiring its disclosure under the Freedom of Information Act -- and informed Attorney General Eric H. Holder Jr. of his decision this week, according to two administration officials.
On paper, David Barron seems like the ideal judicial nominee for the Obama White House. Barron is a Harvard Law professor, the former head of the Justice Department's Office of Legal Counsel, and a former Supreme Court clerk, who also enjoys support from Republicans like former Reagan Solicitor General Charles Fried and Jack Goldsmith.
Barron also is a notable critic of Bush/Cheney-era policies, voicing pointing critiques of the former administration's excesses in matters related to national security.
So when President Obama nominated Barron to serve on the 1st Circuit Court of Appeals, it hardly came as a surprise. But there's a catch: as msnbc's Adam Serwer has reported, Barron also helped write the legal justification for the killing of suspected terrorist Anwar al-Awlaki, an American citizen who left the United States to join al Qaeda.
This, in turn, has created an interesting fight that has threatened to derail the nomination, not because of Republican obstructionism, but because of concerns from the left. It's led administration officials to do what they should have done a long time ago.
This will be no small revelation.
Let's recap for those who may need a refresher. In 2011, a U.S. drone strike targeted and killed al-Awlaki, who was living in Yemen. While drone strikes against suspected al Qaeda figures are not uncommon, what made this unique was al-Awlaki's American citizenship. (He left the United States to voluntarily join the terrorist network.)
Almost immediately, a straightforward question arose: does the U.S. government have the legal authority to kill an American citizen without due process, even if that American has left the country to align himself with terrorists?
The Obama administration responded that it absolutely has the legal authority to use force under conditions like these. The tricky part came after -- when the administration's attorneys didn't want to tell anyone how or why it had the authority. In effect, the argument was, "What we did was legal. Honest. Take our word for it. We can't elaborate, but we looked into it and we're sure."
And the Justice Department official who reportedly helped draft the legal rationale -- the one the administration didn't want to share -- was Barron.
A month ago, the 2nd Circuit Court of Appeals, responding to a lawsuit filed by journalists and civil libertarians, said the administration's argument -- what we did is legal, but we can't tell you why -- wasn't good enough. It was widely assumed that the Justice Department would appeal.
But the Senate fight over Barron's pending confirmation seems to have changed the calculus. A handful of senators, enough to derail the nomination, saw Barron's legal memorandum on targeted killings as an important part of his background. No memo, the senators effectively argued, meant no confirmation.
All of which apparently led administration officials to agree not to appeal the 2nd Circuit's ruling and instead disclose the document -- or at least most of it.
As the New York Times reported, "[T]he memo will not be released right away because officials said they needed time to redact it and to prepare an appeal asking the court not to reveal classified sections of a federal appeals court ruling last month requiring that most of the memo be made public."
Still, the fact that the legal rationale will be disclosed is a step towards some much-needed transparency, and in the process, the White House's shift in posture appears to have helped secure some necessary votes for Barron's nomination.