The White House’s decision to release a secret memo describing its legal justification for killing U.S. citizens abroad has paved the way for the confirmation of David Barron, the author of the memo, to the 1st U.S. Circuit Court of Appeals. But not without a loud public fight.
On Wednesday, Kentucky Senator Rand Paul blasted Barron, a former top Justice Department official, for authoring a memo that justifies the targeting of Americans overseas who are suspected of involvement in terrorist activities. Although pleased that the White House agreed to release Barron’s memo in the coming days, the Republican lawmaker vocally opposed Barron’s confirmation.
"I rise today to oppose the nomination of anyone who would argue that the president has the power to kill an American citizen not involved in combat and without a trial," said Paul. "Any nominee who rubber stamps and grants such power to a president is not worthy of being placed one step away from the Supreme Court."
The libertarian’s critique of Obama’s drone program was followed by similar criticisms by Sen. Ron Wyden (D-Or.) and Sen. Ted Cruz (R-Tx.) on the Senate floor on Wednesday. However, even Republicans concede they won’t be able to stop Barron’s confirmation following Senate Majority Leader Harry Reid’s easing of filibuster rules in November.
"Because of Reid’s rules changes he will get confirmed, but support among Republicans will be limited," said a Republican Senate aide. "There is the drone stuff, but also concerns from conservative social groups that are voting against him as well."
Barron’s controversial drone memo was written in advance of the killing of Anwar al-Awlaki, an American with ties to al Qaeda who was killed in a drone strike in Yemen in 2011. A later U.S. strike killed Awlaki’s teenage son. In a letter to Congress last May, Attorney General Eric Holder said U.S. drones had killed a total of four Americans in Yemen and Pakistan.
Barron’s almost certain ascension to one of the nation’s most powerful courts didn’t stop Paul from lashing out at liberal critics of Obama’s drone war, such as Sen. Mark Udall (D-Colo.), who have announced their support for Barron following the decision to make the memos public. "Some seem to be placated by the fact that, oh, they can read these memos," he said. "The Barron memos, at their very core, disrespect the Bill of Rights."
Paul challenged Democrats to consider whether they would support a Barron nomination if he wasn’t being pushed by a Democratic president. "I would oppose this nomination were it coming from a Republican president," he said.
Barron, currently a Harvard law professor, served as the acting head of the Justice Department’s Office of Legal Counsel in 2009 and 2010. Many Republicans, such as Sen. Charles Grassley of Iowa, the ranking member of the Senate Judiciary Committee, oppose him for his liberal orthodoxy, saying he’s "even outside the mainstream of typically left-wing legal thought that we see in so many of our law schools."
Last week, 47 conservative groups, including the Committee for Justice, asked the Senate to oppose his nomination, calling him "arguably the most unabashed proponent of judicial activism ever nominated by President Obama." GOP critics also cited his purported lack of experience.
The liberal American Civil Liberties Union urged Reid to delay the vote until Barron’s legal opinions were made public.
However, Barron enjoys broad support among Democrats, who control the Senate, and even liberal critics of Obama’s drone war, such as Wyden, pledged support for his nomination.